{"id":40104,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/management-continuity-agreement-kathy-levinson-and-e-trade.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"management-continuity-agreement-kathy-levinson-and-e-trade","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/management-continuity-agreement-kathy-levinson-and-e-trade.html","title":{"rendered":"Management Continuity Agreement &#8211; Kathy Levinson and E*Trade Group Inc."},"content":{"rendered":"<pre>                              E*TRADE GROUP, INC.\n\n                        MANAGEMENT CONTINUITY AGREEMENT\n\n\n          This Management Continuity Agreement (the 'Agreement') is made and\nentered into effective as of January 1, 1997, by and between Kathy Levinson (the\n'Employee') and E*TRADE GROUP, INC., a California corporation (the 'Company').\n\n                                    RECITALS\n\n     A.   The Board believes that it is in the best interests of the Company and\nits shareholders to provide the Employee with an incentive to continue her\nemployment and to motivate the Employee to maximize the value of the Company.\n\n     B.   It is expected that the Company from time to time will consider the\npossibility of an acquisition by another company or other change of control.\nThe Board of Directors of the Company (the 'Board') recognizes that such\nconsideration can be a distraction to the Employee and can cause the Employee to\nconsider alternative employment opportunities.  The Board has determined that it\nis in the best interests of the Company and its shareholders to assure that the\nCompany will have the continued dedication and objectivity of the Employee,\nnotwithstanding the possibility, threat or occurrence of a Change of Control (as\ndefined below) of the Company.\n\n     C.   The Board believes that it is imperative to provide the Employee with\ncertain benefits upon termination of employment or upon a Change of Control,\nwhich benefits are intended to provide the Employee with financial security and\nprovide sufficient incentive and encouragement to the Employee to remain with\nthe Company notwithstanding the possibility of a Change of Control.\n\n     D.   To accomplish the foregoing objectives, the Board of Directors has\ndirected the Company, upon execution of this Agreement by the Employee, to agree\nto the terms provided herein.\n\n     NOW THEREFORE, in consideration of the mutual covenants herein contained,\nand in consideration of the continuing employment of Employee by the Company,\nthe parties agree as follows:\n\n          1.   Definition of Terms.  The following terms referred to in this\nAgreement shall have the following meanings:\n\n          (a)  Base Salary.  'Base Salary' shall have the meaning assigned to it\nin Section 3 of this Agreement.\n\n \n          (b)  Cause.  'Cause' shall mean (i) any act of personal dishonesty\ntaken by the Employee in connection with her responsibilities as an employee and\nintended to result in personal enrichment of the Employee or her associates at\nthe expense of the Company or its shareholders; (ii) committing a felony or an\nact of fraud against the Company or its affiliates; (iii) continued violations\nby the Employee of the Employee's obligations under this Agreement which are\ndemonstrably willful and deliberate on the Employee's part after there has been\ndelivered to the Employee a written demand from the Company to cease such\nactivities; and (iv) willful refusal by the Employee to carry out legally\npermissible instructions from the Company after the Employee has been given\nwritten notice by the Company of a failure to carry out such instructions and a\nreasonable opportunity to correct the situation.\n\n          (c)  Change of Control.  'Change of Control' shall mean the occurrence\nof any of the following events:\n\n             (i)   Any 'person' (as such term is used in Sections 13(d) and \n14(d) of the Securities Exchange Act of 1934, as amended) becomes the\n'beneficial owner' (as defined in Rule 13d-3 under said Act), directly or\nindirectly, of securities of the Company representing fifty percent (50%) or\nmore of the total voting power represented by the Company's then outstanding\nvoting securities; or\n\n             (ii)  A merger or consolidation of the Company with any other\ncorporation or business entity, other than a merger or consolidation which would\nresult in the voting securities of the Company outstanding immediately prior\nthereto continuing to represent (either by remaining outstanding or by being\nconverted into voting securities of the surviving entity) at least fifty percent\n(50%) of the total voting power represented by the voting securities of the\nCompany or such surviving entity outstanding immediately after such merger or\nconsolidation; or\n\n             (iii) Effectiveness of an agreement for the sale, lease or\ndisposition by the Company of all or substantially all of the Company's assets.\n\n          (d)  Involuntary Termination.  'Involuntary Termination' shall mean \nthe Employee's voluntary resignation within 12 months of the occurrence of any\none of the following events: (i) without the Employee's express written consent,\nthe assignment to the Employee of any duties or the significant reduction of the\nEmployee's duties, either of which is inconsistent with the Employee's position\nor responsibilities with the Company as set forth in this Agreement, or the\nremoval of the Employee from such position and responsibilities; (ii) without\nthe Employee's express written consent, a substantial reduction of the\nfacilities and perquisites (including office space, support staff and location)\navailable to the Employee, unless substantially all of the Company's other\nemployees of rank and responsibilities substantially similar to those of the\nEmployee undergo substantially similar reductions; (iii) a substantial reduction\nby the Company in the Base Salary of the Employee as in effect immediately prior\nto such reduction; (iv) a\n\n                                       2.\n\n \nmaterial reduction by the Company in the kind or level of employee benefits to\nwhich the Employee is entitled under this Agreement with the result that the\nEmployee's overall benefits package is significantly reduced; or (v) the refusal\nby the Employee to relocate her principal place of employment to a facility or a\nlocation more than 50 miles from the Employee's then present location following\na written demand from the Company to undertake such relocation.  An Involuntary\nTermination will also include (i) any purported termination of the Employee by\nthe Company which is not effected for Disability or for Cause, or any purported\ntermination for which the grounds relied upon are not valid, or (ii) the failure\nof the Company to obtain the assumption of this agreement by any successors\ncontemplated in Section 8 below.\n\n          (e)  Disability.  'Disability' shall mean that the Employee has been\nunable to perform her duties under this Agreement as the result of her\nincapacity due to physical or mental illness, and such inability, at least 26\nweeks after its commencement, is determined to be total and permanent by a\nphysician selected by the Company or its insurers and acceptable to the Employee\nor the Employee's legal representative (such agreement as to acceptability not\nto be unreasonably withheld).  Termination resulting from Disability may only be\neffected after at least 30 days' written notice by the Company of its intention\nto terminate the Employee's employment.  In the event that the Employee resumes\nthe performance of substantially all of her duties hereunder before the\ntermination of her employment becomes effective, the notice of intent to\nterminate shall automatically be deemed to have been revoked.\n\n          2.   Duties and Scope of Employment.  The Company shall employ the\nEmployee in the position of Executive Vice President of Operations as such\nposition was defined in terms of responsibilities and compensation as of the\neffective date of this Agreement.  The Employee shall continue to devote her\nfull business efforts and time to the Company and its subsidiaries.  The\nEmployee shall comply with and be bound by the Company's operating policies,\nprocedures and practices from time to time in effect during her employment.\nDuring the term of the Employee's employment with the Company, the Employee\nshall devote her full time, skill and attention to her duties and\nresponsibilities, and shall perform them faithfully, diligently and competently,\nand the Employee shall use her best efforts to further the business of the\nCompany and its affiliated entities.\n\n          3.   Base Salary.  The Company shall pay the Employee as compensation \nfor her services a base salary at the annualized rate of $193,600. This annual\nsalary may be raised from time to time by the Board of Directors. Such salary\nshall be paid periodically in accordance with normal Company payroll.\n\n          4.   Employee Benefits.  The Employee shall be eligible to\nparticipate in the employee benefit plans and executive compensation programs\nmaintained by the Company and applicable to other key executives of the Company,\nincluding (without limitation) retirement plans, savings or profit-sharing\nplans, stock option, incentive or\n\n                                       3.\n\n \nother bonus plans, life, disability, health, accident and other insurance\nprograms, paid vacations and similar plans or programs, subject in each case to\nthe generally applicable terms and conditions of the applicable plan or program\nin question and to the determination of any committee administering such plan or\nprogram.\n\n          5.   At-Will Employment.   Except as set forth in Section 6(f) below, \nthe Company and the Employee acknowledge that the Employee's employment is and\nshall continue to be at-will, as defined under applicable law. If the Employee's\nemployment terminates for any reason, including (without limitation) any\ntermination prior to a Change of Control, the Employee shall not be entitled to\nany payments, benefits, damages, awards or compensation other than as provided\nby this Agreement, and as may otherwise be available in accordance with the\nCompany's established employee plans and policies at the time of termination.\n\n          6.   Severance Benefits.\n\n          (a)  Termination Following A Change of Control.  Subject to the\nlimitation on payments set forth in Section 7 below, if the Company terminates\nthe Employee's employment at any time 60 days or less before, or within 18\nmonths after, a Change of Control, and the Employee's employment terminates\nunder circumstances that constitute an Involuntary Termination, then the\nEmployee shall be entitled to receive severance pay in an amount equal to\neighteen (18) months of the Employee's Base Salary for the year of termination.\nAny severance payments to which the Employee is entitled pursuant to this\nparagraph shall be paid in a lump sum within thirty (30) days of the Employee's\ntermination.\n\n          (b)  Termination For Cause.  Notwithstanding anything else contained \nin this Agreement, if the Company terminates the Employee's employment for\nCause, then the Employee shall not be entitled to receive severance or other\nbenefits pursuant to this Agreement, except for those benefits (if any) as then\nestablished under the Company's then existing severance and benefits plans and\npolicies at the time of such termination.\n\n          (c)  Termination Apart from Change of Control.  In the event the\nEmployee's employment terminates in circumstances that constitute an Involuntary\nTermination more than 60 days prior to the occurrence of a Change of Control or\nafter the 18-month period following a Change of Control (the 'No-Change\nPeriod'), then the Employee shall not be entitled to any severance payment\nunless in accordance with the Company's existing severance and benefit plans and\npolicies for employees generally at the time of such termination.  In the event\nthe Employee resigns under circumstances that do not constitute an Involuntary\nTermination during the No-Change Period, then no severance payment shall be due\nunless in accordance with the Company's existing severance and benefit plans and\npolicies for employees generally at the time of such termination.\n\n                                       4.\n\n \n          (d)  Medical Benefits.  In the event the Employee is entitled to\nseverance benefits pursuant to this Agreement, then in addition to such\nseverance benefits, the Employee shall receive Company-paid health insurance\ncoverage to the extent provided to such Employee immediately prior to the\nEmployee's termination (the 'Company-Paid Coverage') for the period set forth in\nthis paragraph.  If the Employee's health insurance coverage included the\nEmployee's dependents immediately prior to the Employee's termination, such\ndependent shall also be covered at Company expense.  Company-Paid Coverage shall\ncontinue for twelve (12) months following the effective date of termination of\nEmployee's employment or until the Employee becomes covered under another\nemployer's group health insurance plan, whichever occurs first.  For purposes of\nthe continuation health coverage required under COBRA, the date of the\n'qualifying event' giving rise to the Employee's COBRA election period (and that\nof her 'qualifying beneficiaries') shall be the last date on which the Employee\nreceives Company-Paid Coverage under this Agreement.\n\n          (e)  Disability; Death.  If the Company terminates the Employee's\nemployment as a result of the Employee's Disability, or such Employee's\nemployment is terminated due to the death of the Employee, then the Employee\nshall not be entitled to receive severance or other benefits pursuant to this\nAgreement except for those benefits (if any) as then established under the\nCompany's then existing severance and benefits plans and policies at the time of\nsuch Disability or death.\n\n          (f)  Initial Term.  Notwithstanding anything else contained in this\nAgreement, during the first eighteen (18) months of the term of this Agreement\n(the 'Initial Term'), Employee's employment with the Company may not be\nterminated by the Company except for Cause or by a resolution of the Board of\nDirectors certifying that, in its reasonable judgment, Employee is being\nterminated for Good Business Reasons.  'Good Business Reasons' shall not include\na termination merely for the convenience of the Company or in order to replace\nthe Employee with another individual, but shall include (i) failure of the\nEmployee to follow written instructions of the Chief Executive Officer,\nPresident or Board of Directors of the Company after written notice of any such\nfailure and an opportunity for Employee for thirty days to cure any such\nfailure, (ii) gross negligence in the performance of the Employee's duties to\nthe Company, (iii) repeated errors in judgment or poor performance that has a\ndirect and significant negative impact on the Company, its financial status or\nbusiness prospects, or (iv) Employee purposely makes negative and inaccurate\ncomments about the Company in circumstances where such information becomes\navailable to the public.  If, during the Initial Term, the Employee's employment\nis terminated by the Company for Good Business Reasons that do not constitute\nCause, Employee will not receive any severance payment.  If, during the Initial\nTerm, the Employee's employment is terminated by the Company without Cause or\nGood Business Reasons, then (i) Employee shall be entitled to receive severance\npay equal to eighteen (18) months' Base Salary, to be paid in a lump-sum within\nthirty (30) days of the Employee's termination, and any other benefits that may\nthen be established under the Company's existing severance and benefit plans and\n\n                                       5.\n\n \npolicies for employees generally at the time of such termination.\n\n          7.   Limitation on Payments.  To the extent that any of the payments \nand benefits provided for in this Agreement or otherwise payable to the Employee\nconstitute 'parachute payments' within the meaning of Section 280G of the Code,\nas amended and, but for this Section 7, would be subject to the excise tax\nimposed by Section 4999 of the Code, then the Employee's benefits under Sections\n6(b) and (c) above, as applicable, shall be payable either\n\n          (a)  in full, or\n\n          (b)  as to such lesser amount as would result in no portion of such\nseverance benefits being subject to excise tax under Section 4999 of the Code,\n\nwhichever of the foregoing amounts, taking into account the applicable federal,\nstate and local income taxes and the excise tax imposed by Section 4999, results\nin the receipt by the Employee on an after-tax basis of the greatest amount of\nseverance benefits under Sections 6(b) and (c) above, notwithstanding that all\nor some portion of such severance benefits may be taxable under Section 4999 of\nthe Code.  Unless the Company and the Employee otherwise agree in writing, any\ndetermination required under this Section 7 shall be made in writing by an\nindependent public accounting firm reasonably acceptable to the Company other\nthan that used by the Company (the 'Accountants'), whose determination shall be\nconclusive and binding upon the Employee and the Company for all purposes.  For\npurposes of making the calculations required by this Section 7, the Accountants\nmay make reasonable assumptions and approximations concerning applicable taxes\nand may rely on reasonable, good faith interpretations concerning the\napplication of Sections 280G and 4999 of the Code.  The Company and the Employee\nshall furnish to the Accountants such information and documents as the\nAccountants may reasonably request in order to make a determination under this\nSection.  The Company shall bear all costs the Accountants they reasonably incur\nin connection with any calculations contemplated by this Section 7.\n\n          8.   Successors.\n\n          (a)  Company's Successors.  Any successor to the Company (whether\ndirect or indirect and whether by purchase of stock, purchase of assets, lease,\nmerger, consolidation, liquidation or otherwise) to all or substantially all of\nthe Company's business and assets shall assume the obligations under this\nAgreement and agree expressly to perform the obligations under this Agreement in\nthe same manner and to the same extent as the Company would be required to\nperform such obligations in the absence of a succession.  For all purposes under\nthis Agreement, the term 'Company' shall include any successor to the Company's\nbusiness and assets which executes and delivers the assumption agreement\ndescribed in this paragraph or which becomes bound by the terms of this\nAgreement by operation of law.\n\n                                       6.\n\n \n          (b)  Employee's Successors.  The terms of this Agreement and all \nrights of the Employee hereunder shall inure to the benefit of, and be\nenforceable by, the Employee's personal or legal representatives, executors,\nadministrators, successors, heirs, devisees and legatees.\n\n          9.   Notice.\n\n          (a)  General.  Notices and all other communications contemplated by\nthis Agreement shall be in writing and shall be deemed to have been duly given\nwhen personally delivered or three (3) days after being mailed by U.S.\nregistered or certified mail, return receipt requested and postage prepaid.  In\nthe case of the Employee, mailed notices shall be addressed to her at the home\naddress which she most recently communicated to the Company in writing.  In the\ncase of the Company, mailed notices shall be addressed to its corporate\nheadquarters, and all notices shall be directed to the attention of its\nSecretary.\n\n          (b)  Notice of Termination.  Any termination by the Company for Cause\nshall be communicated by a written notice of termination to the Employee hereto\ngiven in accordance with the notice provisions of this Agreement.  Such notice\nshall indicate the specific termination provision in this Agreement relied upon,\nshall set forth in reasonable detail the facts and circumstances claimed to\nprovide a basis for termination under the provisions so indicated, and shall\nspecify the termination date (which shall be not more than 15 days after the\ngiving of such notice).\n\n          10.  Miscellaneous Provisions.\n\n          (a)  No Duty to Mitigate.  The Employee shall not be required to\nmitigate the amount of any payment contemplated by this Agreement (whether by\nseeking new employment or in any other manner), nor shall any such payment be\nreduced by any earnings that the Employee may receive from any other source.\n\n          (b)  Waiver.  No provision of this Agreement shall be modified, waived\nor discharged unless the modification, waiver or discharge is agreed to in\nwriting and signed by the Employee and by an authorized officer of the Company\n(other than the Employee).  No waiver by either party of any breach of, or of\ncompliance with, any condition or provision of this Agreement by the other party\nshall be considered a waiver of any other condition or provision or of the same\ncondition or provision at another time.\n\n          (c)  Whole Agreement.  No agreements, representations or \nunderstandings (whether oral or written and whether express or implied) which\nare not expressly set forth in this Agreement have been made or entered into by\neither party with respect to the subject matter hereof.\n\n                                       7.\n\n \n          (d)  Choice of Law.  The validity, interpretation, construction and\nperformance of this Agreement shall be governed by the laws of the State of\nCalifornia.\n\n          (e)  Severability.  The invalidity or unenforceability of any \nprovision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force\nand effect.\n\n          (f)  Arbitration.   Any and all disputes that Employee has with the\nCompany, or the Company has with Employee, which arise out of Employee's\nemployment or under the terms of this Agreement shall be resolved through final\nand binding arbitration, in Santa Clara County, California, in accordance with\nthe terms of the then current California Employment Dispute Resolution Rules of\nthe American Arbitration Association.  This shall include, without limitation,\nany controversy, claim or dispute of any kind, including disputes relating to\nEmployee's employment with Company or the termination thereof, claims for breach\nof contract or breach of the covenant of good faith and fair dealing, and any\nclaims of discrimination or other claims under Title VII of the Civil Rights Act\nof 1964, the Age Discrimination in Employment Act, the Americans With\nDisabilities Act, the Employee Retirement Income Securities Act, or any other\nfederal, state or local law or regulation now in existence or hereinafter\nenacted and as amended from time to time concerning in any way the subject of\nEmployee's employment with Company or its termination.  The only claims not\n                                                                        ---\ncovered by this Agreement are claims for benefits under the workers'\ncompensation laws  which will be resolved pursuant to those laws.  Each party\nwill split the cost of the arbitration filing and hearing fees, and the cost of\nthe arbitrator; each side will bear its own attorneys' fees, that is, the\narbitrator will not have authority to award attorneys' fees unless a statutory\n                                                            ------            \nsection at issue in the dispute authorizes the award of attorneys' fees to the\nprevailing party, in which case the arbitrator has authority to make such award\nas permitted by the statute in question.  The arbitration shall be instead of\nany civil litigation; this means Employee is waiving any right to a jury trial,\n                                             --------------------------------- \nand that the arbitrator's decision shall be final and binding to the fullest\nextent permitted by law and enforceable by any court having jurisdiction\nthereof.  Punitive damages shall not be awarded by the arbitrator.\n\n          (g)  No Assignment of Benefits.  The rights of any person to payments\nor benefits under this Agreement shall not be made subject to option or\nassignment, either by voluntary or involuntary assignment or by operation of\nlaw, including (without limitation) bankruptcy, garnishment, attachment or other\ncreditor's process, and any action in violation of this paragraph shall be void.\n\n          (h)  Employment Taxes.  All payments made pursuant to this Agreement\nwill be subject to withholding of applicable income and employment taxes.\n\n          (i)  Assignment by Company.  The Company may assign its rights under\nthis Agreement to an affiliate, and an affiliate may assign its rights under\nthis Agreement\n\n                                       8.\n\n \nto another affiliate of the Company or to the Company; provided, however, that\nno assignment shall be made if the net worth of the assignee is less than the\nnet worth of the Company at the time of assignment.\n\n          (j)  Counterparts.  This Agreement may be executed in counterparts,\neach of which shall be deemed an original, but all of which together will\nconstitute one and the same instrument.\n\n          (k)  Section Headings. The headings of the several sections of this\nAgreement are included solely for the convenience of the parties and are not\npart of and are not intended to govern, limit, or aid in the construction of any\nterm or provision hereof.\n\n          IN WITNESS WHEREOF, each of the parties has executed this Agreement,\nin the case of the Company by its duly authorized officer, as of the day and\nyear first above written.\n\n\n                                        E*TRADE GROUP, INC.\n\n\n                                        By:    \/s\/ KATHY LEVINSON\n                                               -----------------------------\n\n                                        Title:  President\/CEO\n                                               -----------------------------\n\n \n                                        ------------------------------------\n                                        Kathy Levinson, an individual\n                                        Address:\n\n                                       9.\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7386],"corporate_contracts_industries":[],"corporate_contracts_types":[9539],"class_list":["post-40104","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-e-trade-group-inc","corporate_contracts_types-compensation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40104","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40104"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40104"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40104"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40104"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}