exv10w3






TD AMERITRADE HOLDING CORPORATION




MANAGEMENT INCENTIVE PLAN



(Amended effective as of February 24, 2010)



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TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	SECTION 1 BACKGROUND, PURPOSE AND DURATION
	 	 	1	 
	 
	 	 	 	 
	1.1 Effective Date
	 	 	1	 
	1.2 Purpose of the Plan
	 	 	1	 
	 
	 	 	 	 
	SECTION 2 DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	2.1 “Actual Award”
	 	 	1	 
	2.2 “Affiliate”
	 	 	1	 
	2.3 “Base Salary”
	 	 	1	 
	2.4 “Board”
	 	 	1	 
	2.5 “Code”
	 	 	1	 
	2.6 “Committee”
	 	 	2	 
	2.7 “Company”
	 	 	2	 
	2.8 “Determination Date”
	 	 	2	 
	2.9 “Disability”
	 	 	2	 
	2.10 “Employee”
	 	 	2	 
	2.11 “Fiscal Year”
	 	 	2	 
	2.12 “Individual Objectives”
	 	 	2	 
	2.13 “Maximum Award”
	 	 	2	 
	2.14 “Participant”
	 	 	2	 
	2.15 “Payout Formula”
	 	 	2	 
	2.16 “Performance Period”
	 	 	2	 
	2.17 “Performance Goals”
	 	 	3	 
	2.18 “Plan”
	 	 	3	 
	2.19 “Retirement”
	 	 	3	 
	2.20 “Shares”
	 	 	3	 
	2.21 “Target Award”
	 	 	3	 
	2.22 “Termination of Employment”
	 	 	3	 
	 
	 	 	 	 
	SECTION 3 SELECTION OF PARTICIPANTS AND DETERMINATION OF AWARDS
	 	 	4	 
	 
	 	 	 	 
	3.1 Selection of Participants
	 	 	4	 
	3.2 Determination of Performance Goals
	 	 	4	 
	3.3 Determination of Target Awards
	 	 	4	 
	3.4 Determination of Payout Formula or Formulae
	 	 	4	 
	3.5 Date for Determinations
	 	 	4	 
	3.6 Determination of Actual Awards
	 	 	4	 
	 
	 	 	 	 
	SECTION 4 PAYMENT OF AWARDS
	 	 	5	 
	 
	 	 	 	 
	4.1 Right to Receive Payment
	 	 	5	 
	4.2 Timing of Payment
	 	 	5	 
	4.3 Form of Payment
	 	 	5	 
	4.4 Payment in the Event of Death or Disability
	 	 	5	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	4.5 Forfeiture or Repayment in Connection with Certain Events.
	 	 	6	 
	 
	 	 	 	 
	SECTION 5 ADMINISTRATION
	 	 	8	 
	 
	 	 	 	 
	5.1 Committee is the Administrator
	 	 	8	 
	5.2 Committee Authority
	 	 	8	 
	5.3 Decisions Binding
	 	 	9	 
	5.4 Delegation by the Committee
	 	 	9	 
	 
	 	 	 	 
	SECTION 6 GENERAL PROVISIONS
	 	 	9	 
	 
	 	 	 	 
	6.1 Tax Withholding
	 	 	9	 
	6.2 No Effect on Employment
	 	 	9	 
	6.3 Participation
	 	 	9	 
	6.4 Indemnification
	 	 	9	 
	6.5 Successors
	 	 	10	 
	6.6 Beneficiary Designations
	 	 	10	 
	6.7 Nontransferability of Awards
	 	 	10	 
	6.8 Deferrals
	 	 	10	 
	 
	 	 	 	 
	SECTION 7 AMENDMENT, TERMINATION AND DURATION
	 	 	10	 
	 
	 	 	 	 
	7.1 Amendment, Suspension or Termination
	 	 	10	 
	7.2 Duration of the Plan
	 	 	10	 
	 
	 	 	 	 
	SECTION 8 LEGAL CONSTRUCTION
	 	 	11	 
	 
	 	 	 	 
	8.1 Section 162(m) Conditions; Bifurcation of Plan
	 	 	11	 
	8.2 Gender and Number
	 	 	11	 
	8.3 Severability
	 	 	11	 
	8.4 Requirements of Law
	 	 	11	 
	8.5 Governing Law
	 	 	11	 
	8.6 Section 409A of the Code
	 	 	11	 
	8.7 Bonus Plan
	 	 	11	 
	8.8 Captions
	 	 	11	 






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TD AMERITRADE HOLDING CORPORATION




MANAGEMENT INCENTIVE PLAN



SECTION 1

BACKGROUND, PURPOSE AND DURATION




     1.1 Effective Date. The Plan was approved by the shareholders of the Company at the
2007 Annual Meeting of the Stockholders of the Company. The Plan is hereby amended, effective as
of February 24, 2010 (the “Amended Effective Date”).



     1.2 Purpose of the Plan. The Plan is intended to increase shareholder value and the
success of the Company by motivating key executives (1) to perform to the best of their abilities,
and (2) to achieve the Company’s objectives. The Plan’s goals are to be achieved by providing such
executives with incentive awards based on the achievement of goals relating to the performance of
the Company. The Plan is intended to permit the payment of bonuses that qualify as
performance-based compensation under section 162(m) of the Code.



SECTION 2

DEFINITIONS




     The following words and phrases shall have the following meanings unless a different meaning
is plainly required by the context:



     2.1 “Actual Award” means as to any Performance Period, the actual award (if any)
payable to a Participant for the Performance Period. Each Actual Award is determined by the Payout
Formula for the Performance Period, subject to the Committee’s authority under Section 3.6 to
eliminate or reduce the award otherwise determined by the Payout Formula.



     2.2 “Affiliate” means any corporation or other entity (including, but not limited to,
partnerships and joint ventures) controlled by the Company.



     2.3 “Base Salary” means as to any Performance Period, the Participant’s annualized
salary rate on the last day of the Performance Period. Such Base Salary shall be before both (a)
deductions for taxes or benefits, and (b) deferrals of compensation pursuant to any Company or
Affiliate sponsored deferred compensation plan.



     2.4 “Board” means the Board of Directors of the Company.



     2.5 “Code” means the Internal Revenue Code of 1986, as amended. Reference to a
specific section of the Code or regulation thereunder shall include such section or regulation, any
valid regulation promulgated thereunder, and any comparable provision of any future legislation or
regulation amending, supplementing or superseding such section or regulation.



 









 





     2.6 “Committee” means the HR and Compensation Committee of the Board, or any other
committee appointed by the Board (pursuant to Section 5.1) to administer the Plan.



     2.7 “Company” means TD Ameritrade Holding Corporation, a Delaware corporation, or any
successor thereto.



     2.8 “Determination Date” means the latest possible date that will not jeopardize a
Target Award or Actual Award’s qualification as performance-based compensation under section 162(m)
of the Code.



     2.9 “Disability” means, by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last for a continuous
period of not less than twelve (12) months, receipt by a Participant of income replacement benefits
for a period of not less than three (3) months under an applicable disability benefit plan of the
Company or an Affiliate.



     2.10 “Employee” means any employee of the Company or of an Affiliate, whether such
employee is so employed at the time the Plan is adopted or becomes so employed subsequent to the
adoption of the Plan.



     2.11 “Fiscal Year” means the fiscal year of the Company.



     2.12 “Individual Objectives” means quantifiable objectives determined by the Committee
that will measure the individual’s performance of his or her overall duties to the Company which
may include, without limitation, any enumerated Performance Goal, measures related to long-term
strategic plans, and measures related to succession plans.



     2.13 “Maximum Award” means as to any Participant for any Performance Period, $20
million.



     2.14 “Participant” means as to any Performance Period, an Employee who has been
selected by the Committee for participation in the Plan for that Performance Period.



     2.15 “Payout Formula” means as to any Performance Period, the formula or payout matrix
established by the Committee pursuant to Section 3.4 in order to determine the Actual Awards (if
any) to be paid to Participants. The formula or matrix may differ from Participant to Participant.



     2.16 “Performance Period” means any period of time which does not exceed three Fiscal
Years, as determined by the Committee in its sole discretion. With respect to any Participant,
there shall exist no more than three Performance Periods at any one time.



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     2.17 “Performance Goals” means the goal(s) (or combined goal(s)) determined by the
Committee (in its discretion) to be applicable to a Participant for a Target Award for a
Performance Period. As determined by the Committee, the Performance Goals for any Target Award
applicable to a Participant may provide for a targeted level or levels of achievement using one or
more of the following measures: (i) revenue, (ii) gross margin, (iii) operating margin, (iv)
operating income, (v) pre-tax profit, (vi) pre-tax margin, (vii) earnings before interest, taxes,
depreciation and amortization, (viii) net income, (ix) cash flow, (x) operating expenses, (xi) the
market price of the Share, (xii) earnings per share, (xiii) earnings yield, (xiv) earnings yield
spread, (xv) gross and net client asset growth, (xvi) gross and net account growth, (xvii) total
stockholder return, (xviii) return on capital, (xix) return on assets, (xx) product quality, (xxi)
economic value added, (xxii) number of customers, (xxiii) market share, (xxiv) return on
investments, (xxv) profit after taxes, (xxvi) customer satisfaction, (xxvii) business
divestitures and acquisitions, (xxviii) supplier awards from significant customers, (xxix) new
product development, (xxx) working capital, (xxxi) Individual Objectives, (xxxii) time to market,
(xxxiii) return on net assets, and (xxxiv) sales. The Performance Goals may differ from
Participant to Participant and from Award to Award. Any criteria used may be measured, as
applicable, (i) in absolute terms, (ii) in relative terms (including, but not limited to, passage
of time and/or against another company or companies), (iii) on a per-share basis, (iv) against the
performance of the Company as a whole or a segment of the Company, and (v) on a pre-tax or
after-tax basis. The Performance Goals may differ from Participant to Participant and from award
to award. Prior to the Determination Date, the Committee shall determine whether any significant
element(s) shall be included in or excluded from the calculation of any Performance Goal with
respect to any Participants.



     2.18 “Plan” means the TD Ameritrade Holding Corporation Management Incentive Plan, as
set forth in this instrument and as hereafter amended from time to time.



     2.19 “Retirement” means, with respect to any Participant, a Termination of Employment
after attaining at least age 55 and after having at least ten (10) years of continuous service with
the Company or any Affiliate.



     2.20 “Shares” means shares of the Company’s common stock.



     2.21 “Target Award” means the target award payable under the Plan to a Participant for
the Performance Period, expressed as a percentage of his or her Base Salary or a specific dollar
amount, as determined by the Committee in accordance with Section 3.3.



     2.22 “Termination of Employment” means a cessation of the employee-employer
relationship between an Employee and the Company or an Affiliate for any reason, including, but not
by way of limitation, a termination by resignation, discharge, death, Disability, Retirement, or
the disaffiliation of an Affiliate, but excluding any such termination where there is a
simultaneous reemployment by the Company or an Affiliate.



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SECTION 3

SELECTION OF PARTICIPANTS AND DETERMINATION OF AWARDS




     3.1 Selection of Participants. The Committee, in its sole discretion, shall select
the Employees who shall be Participants for any Performance Period. Participation in the Plan is
in the sole discretion of the Committee, and on a Performance Period by Performance Period basis.
Accordingly, an Employee who is a Participant for a given Performance Period in no way is
guaranteed or assured of being selected for participation in any subsequent Performance Period.



     3.2 Determination of Performance Goals. The Committee, in its sole discretion, shall
establish the Performance Goals for each Participant for the Performance Period. Such Performance
Goals shall be set forth in writing.



     3.3 Determination of Target Awards. The Committee, in its sole discretion, shall
establish a Target Award for each Participant. Each Participant’s Target Award shall be determined
by the Committee in its sole discretion, and each Target Award shall be set forth in writing.



     3.4 Determination of Payout Formula or Formulae. On or prior to the Determination
Date, the Committee, in its sole discretion, shall establish a Payout Formula or Formulae for
purposes of determining the Actual Award (if any) payable to each Participant. Each Payout Formula
shall (a) be in writing, (b) be based on a comparison of actual performance to the Performance
Goals, (c) provide for the payment of a Participant’s Target Award if the Performance Goals for the
Performance Period are achieved, and (d) provide for an Actual Award greater than or less than the
Participant’s Target Award, depending upon the extent to which actual performance exceeds or falls
below the Performance Goals. Notwithstanding the preceding, in no event shall a Participant’s
Actual Award for any Performance Period exceed his or her Maximum Award.



     3.5 Date for Determinations. The Committee shall make all determinations under
Section 3.1 through 3.4 on or before the Determination Date.



     3.6 Determination of Actual Awards. After the end of each Performance Period, the Committee shall certify in writing the extent
to which the Performance Goals applicable to each Participant for the Performance Period were
achieved or exceeded. The Actual Award for each Participant shall be determined by applying the
Payout Formula to the level of actual performance that has been certified by the Committee.
Notwithstanding any contrary provision of the Plan, the Committee, in its sole discretion, may (a)
eliminate or reduce the Actual Award payable to any Participant below that which otherwise would be
payable under the Payout Formula, and (b) determine whether or not a Participant will receive an
Actual Award in the event the Participant incurs a Termination of Employment prior to the date the
Actual Award is to be paid pursuant Section 4.2 below.



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SECTION 4

PAYMENT OF AWARDS




     4.1 Right to Receive Payment. Each Actual Award that may become payable under the
Plan shall be paid solely from the general assets of the Company or the Affiliate that employs the
Participant (as the case may be), as determined by the Committee. Nothing in this Plan shall be
construed to create a trust or to establish or evidence any Participant’s claim of any right to
payment of an Actual Award other than as an unsecured general creditor with respect to any payment
to which he or she may be entitled.



     4.2 Timing of Payment. Subject to Section 3.6, payment of each Actual Award shall be
made as soon as administratively practicable, but in no event later than (a) the 15th
day of the third month following the end of the Company’s taxable year in which the Performance
Period has ended, or (b) March 15th of the calendar year following the calendar year in which the
applicable Performance Period has ended.



     4.3 Form of Payment. Each Actual Award normally shall be paid in cash (or its
equivalent) in a single lump sum. However, the Committee, in its sole discretion, may declare any
Actual Award, in whole or in part, payable in Shares of restricted stock, restricted stock units
and/or options granted under one of the Company’s stock plans. The number of Shares of restricted
stock and/or restricted stock units granted shall be determined in the sole and absolute discretion
of the Committee and generally shall be determined by dividing the cash amount foregone by either
(i) an average of the fair market value of a Share over a period of time prior to the date of grant
of the restricted stock, restricted stock units and/or options, or (ii) the fair market value of a
Share on the date that the cash payment otherwise would have been made, rounded up to the nearest
whole number of shares. For this purpose, “fair market value” shall have the same meaning as
provided by the applicable Company stock plan under
which the award shall be granted. The number of options granted shall generally be determined
by dividing the cash amount foregone by an option pricing model determined by the Committee (e.g.,
Black-Scholes), rounded up to the nearest whole number of shares. Any restricted stock, restricted
stock units or options so awarded may be subject to such additional vesting over a period of not
more than four years, and/or be subject to additional vesting conditions, including specifically
additional Performance Goals, as determined by the Committee. The number of Shares of restricted
stock and/or restricted stock units granted pursuant to this Section 4.3 may be increased or
decreased if such new award is granted by the Committee subject to Performance Goals and such
increase or decrease otherwise meets all the performance-based compensation requirements of section
162(m) of the Code.



     4.4 Payment in the Event of Death or Disability. If a Participant dies, or is
determined to have a Disability, prior to the payment of an Actual Award that was scheduled to be
paid to him or her prior to death, or the determination of a Disability, for a prior Performance
Period, the Award



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shall be paid, in the case of death, to his or her estate, and in the case of
Disability, to the Participant or any other person authorized under applicable law.




     4.5 Forfeiture or Repayment in Connection with Certain Events.



          (a) Forfeiture or Repayment. Notwithstanding any contrary provision of the Plan or
the terms of any written agreement between the Company and the Participant (including specifically
any written employment, severance or change in control agreement), if the Committee determines (in
its sole discretion, but acting in good faith) that a Clawback Event has occurred at any time while
an individual who participated in the Plan was an Employee and, with respect to each Target Award
and Actual Award, such determination is made no later than three (3) years following the later of
(i) the end of the applicable Performance Period or, (ii) the date of grant of the Shares of
restricted stock, restricted stock units and/or options issued to the Affected Participant in
payment of the Actual Award for such Performance Period, then: (i) with respect to the Performance
Period then in effect, if the Affected Participant is currently participating in the Plan,
participation in the Plan may, in the sole discretion of the Committee, immediately cease, in which
case the Affected Participant will have no further rights or interest in his or her Target Award;
(ii) with respect to any Performance Period that has ended, but for which any Actual Award has not
yet been paid in full to the Affected Participant, the Committee may, in its discretion, reduce or
eliminate the unpaid portion of the Actual Award; and (iii) each Actual Award to which this Section
4.5 applies that has previously been paid to the Affected Participant must, if required by the
Committee, in its sole discretion, be repaid to the Company. The portion of the Actual Award paid
to the Affected Participant in cash must be repaid to the Company in cash. The manner in which the
portion, if any, of the Actual Award paid to the Affected Participant in Shares of restricted
stock, restricted stock
units and/or options granted under one of the Company’s stock plans must be repaid to the
Company will be governed by the terms and conditions of the applicable award agreement for such
Shares of restricted stock, restricted stock units and/or options. For the portion of the Actual
Award that must be repaid in cash, if the Affected Participant refuses to make such payment, the
Company will, if directed by the Committee, in its sole discretion, and subject to applicable law
(including any Code Section 409A considerations), recover such payment and, if applicable, the
amount of its court costs, attorneys’ fees and other costs and expenses incurred in connection with
enforcing this Section 4.5 by (w) reducing the amount that would otherwise be payable to the
Affected Participant under any compensatory plan, program or arrangement maintained by the Company
or any Affiliate, (x) withholding payment of future increases in compensation (including the
payment of any discretionary bonus amount) or grants of compensatory awards that would otherwise
have been made in accordance with the Company’s (or its Affiliate’s) otherwise applicable
compensation practices, (y) reducing any severance benefits that would otherwise be payable or
provided to the Affected Participant under any plan, program or arrangement maintained or entered
into by the Company or any Affiliate (including specifically under any employment or severance
agreement) or (z) by any combination of the foregoing.





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          (b) Discretion to Reduce Amount Subject to Forfeiture or Repayment. In the event of a
Clawback Event described in subsection (c)(iii)(A) of this Section 4.5, the Committee may, in its
sole discretion, limit the amount to be recovered from the Affected Participant to the amount by
which the Actual Award exceeded the amount that would have been payable to the Affected Participant
had the financial statements been initially filed as restated, as determined by the Committee in
accordance with the terms and conditions of the Plan. In the event the Committee exercises such
discretion, the Committee will have the discretion to determine how the amount to be recovered will
be allocated among the portion, if any, of the Actual Award paid in cash and the portion, if any,
of the Actual Award paid in Shares of restricted stock, restricted stock units and/or options
granted under one of the Company’s stock plans.




          (c) Definitions.




               (i) For purposes of this Section 4.5, “Affected Participant” shall mean an individual
who is or was a Participant with respect to whom the Committee has determined that a Clawback Event
has occurred, regardless of whether the individual is a Participant or Employee at the time of such
determination.



               (ii) For purposes of this Section 4.5, “Change of Control” shall have the same meaning
as that term is defined in the Company’s Long-Term Incentive Plan.



               (iii) For purposes of this Section 4.5, “Clawback Event” shall mean one or more of the
following: (A) any of the Company’s financial statements are required to be restated resulting from
fraud or willful misconduct by the Affected Participant or any other person, provided
that the Affected Participant knew or should have known of such fraud or willful misconduct;
or (B) any act of fraud, negligence or breach of fiduciary duty by the Affected Participant or any
other person, provided that the Affected Participant knew or should have known of such fraud,
negligence or breach of fiduciary, resulting in material loss, damage or injury to the Company.



          (d) Restrictions on Sale of Stock Pending Determination of Clawback Event. If the
Company reasonably believes that a Clawback Event has occurred, the Company may, in its sole
discretion, restrict the Affected Participant’s ability to directly or indirectly sell, offer,
contract or grant any option to sell (including without limitation any short sale), pledge, swap,
hedge, transfer, or otherwise dispose of any shares of Company common stock held by the Affected
Participant in his or her Company brokerage account (whether issued in connection with an Actual
Award or otherwise) pending a final determination by the Committee that a Clawback Event has or has
not occurred. Such determination shall be made as soon as administratively practicable but in no
event will the Affected Participant be restricted in accordance with the preceding sentence for
more than that period of time reasonably necessary for the Committee to determine the existence of
a Clawback Event. The Company shall have no responsibility or liability for any fluctuations that
occur in the price of the Company’s common stock or for any potential loss or gain the Affected
Participant



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could have realized from the sale of his or her shares of Company common stock during
the period of time in which the Affected Participant is restricted in accordance with this Section
4.5(d).




          (e) Applicability and Expiration. This Section 4.5 shall not apply to Actual Awards
paid prior to the Amended Effective Date. Further, this Section 4.5 shall expire and have no
further force or effect upon a Change of Control. Solely with respect to this Section 4.5, a
“Change of Control” shall not be deemed to have occurred if the Company’s outstanding Shares or
substantially all of the Company’s assets are purchased by TD Bank Financial Group.




          (f) No Waiver. Any failure by the Company to assert the forfeiture and repayment
rights under this Section 4.5 with respect to specific claims against the Affected Participant
shall not waive, or operate to waive, the Company’s right to later assert its rights hereunder with
respect to other or subsequent claims against the Affected Participant.




          (g) No Limitation on Remedies. The Company’s forfeiture and repayment rights under
this Section 4.5 shall be in addition to, and not in lieu of, actions the Company may take to
remedy or discipline any misconduct by the Affected Participant including, but not limited to,
termination of employment or initiation of appropriate legal action.




SECTION 5

ADMINISTRATION




     5.1 Committee is the Administrator. The Plan shall be administered by the Committee. The Committee shall consist of not less
than two (2) members of the Board. The members of the Committee shall be appointed from time to
time by, and serve at the pleasure of, the Board. Each member of the Committee shall qualify as an
“outside director” under section 162(m) of the Code. If it is later determined that one or more
members of the Committee do not so qualify, actions taken by the Committee prior to such
determination shall be valid despite such failure to qualify.



     5.2 Committee Authority. It shall be the duty of the Committee to administer the Plan
in accordance with the Plan’s provisions. The Committee shall have all powers and discretion
necessary or appropriate to administer the Plan and to control its operation, including, but not
limited to, the power to (a) determine which Employees shall be granted awards, (b) prescribe the
terms and conditions of awards, (c) interpret the Plan and the awards, (d) adopt such procedures
and subplans as are necessary or appropriate to permit participation in the Plan by Employees who
are foreign nationals or employed outside of the United States, (e) bifurcate the Plan and treat
Participants differently as provided by Section 8.1, (f) adopt rules for the administration,
interpretation and application of the Plan as are consistent therewith, and (g) interpret, amend or
revoke any such rules.



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     5.3 Decisions Binding. All determinations and decisions made by the Committee, the
Board, and any delegate of the Committee pursuant to the provisions of the Plan shall be final,
conclusive, and binding on all persons, and shall be given the maximum deference permitted by law.



     5.4 Delegation by the Committee. The Committee, in its sole discretion and on such
terms and conditions as it may provide, may delegate all or part of its authority and powers under
the Plan to one or more directors and/or officers of the Company; provided, however, that the
Committee may delegate its authority and powers only with respect to awards that are not intended
to qualify as performance-based compensation under section 162(m) of the Code.



SECTION 6

GENERAL PROVISIONS




     6.1 Tax Withholding. The Company or an Affiliate, as determined by the Committee,
shall withhold all applicable taxes from any Actual Award, including any federal, state and local
taxes.



     6.2 No Effect on Employment. Nothing in the Plan shall interfere with or limit in any
way the right of the Company or an Affiliate, as applicable, to terminate any Participant’s
employment or service at any time, with or without cause. For purposes of the Plan, transfer of
employment of a Participant between the Company and any one of its Affiliates (or between
Affiliates) shall not be deemed a Termination of Employment. Employment with the Company and its
Affiliates is on an at-will basis only. The Company expressly reserves the right, which may be
exercised at any time and without regard to when during or after a Performance Period such exercise
occurs, to terminate any individual’s employment with or without cause, and to treat him or her
without regard to the effect which such treatment might have upon him or her as a Participant.



     6.3 Participation. No Employee shall have the right to be selected to receive an
award under this Plan, or, having been so selected, to be selected to receive a future award.
Participation in this Plan shall not give any Employee the right to participate in any other
benefit, stock or deferred compensation plan of the Company or any Affiliate.



     6.4 Indemnification. Each person who is or shall have been a member of the Committee,
or of the Board, shall be indemnified and held harmless by the Company against and from (a) any
loss, cost, liability, or expense that may be imposed upon or reasonably incurred by him or her in
connection with or resulting from any claim, action, suit, or proceeding to which he or she may be
a party or in which he or she may be involved by reason of any action taken or failure to act under
the Plan or any award, and (b) from any and all amounts paid by him or her in settlement thereof,
with the Company’s approval, or paid by him or her in satisfaction of any judgment in any such
claim, action, suit, or proceeding against him or her, provided he or she shall give the Company an
opportunity, at its own expense, to handle and defend the same before he or she undertakes to
handle



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and defend it on his or her own behalf. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such persons may be entitled under the
Company’s Certificate of Incorporation or Bylaws, by contract, as a matter of law, or otherwise, or
under any power that the Company may have to indemnify them or hold them harmless.




     6.5 Successors. All obligations of the Company under the Plan, with respect to awards
granted hereunder, shall be binding on any successor to the Company, whether the existence of such
successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of
all or substantially all of the business or assets of the Company.



     6.6 Beneficiary Designations. If permitted by the Committee, a Participant under the
Plan may name a beneficiary or beneficiaries to whom any vested but unpaid award shall be paid in
the event of the Participant’s death. Each such designation shall revoke all prior designations by
the Participant and shall be effective only if given in a form and manner acceptable to the
Committee. In the absence of any such designation, any vested benefits remaining unpaid at the
Participant’s death shall be paid to the Participant’s estate.



     6.7 Nontransferability of Awards. No award granted under the Plan may be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will, by the
laws of descent and distribution, or to the limited extent provided in Section 6.6. All rights
with respect to an award granted to a Participant shall be available during his or her lifetime
only to the Participant.



     6.8 Deferrals. The Committee, in its sole discretion, may permit a Participant to
defer receipt of the payment of cash that would otherwise be delivered to a Participant under the
Plan. Any such deferral elections shall be subject to such rules and procedures as shall be
determined by the Committee in its sole discretion.



SECTION 7

AMENDMENT, TERMINATION AND DURATION




     7.1 Amendment, Suspension or Termination. The Board, in its sole discretion, may
amend or terminate the Plan, or any part thereof, at any time and for any reason. The amendment,
suspension or termination of the Plan shall not, without the consent of the Participant, alter or
impair any rights or obligations under any Target Award theretofore granted to such Participant.
No award may be granted during any period of suspension or after termination of the Plan.



     7.2 Duration of the Plan. The Plan shall commence on the date specified herein, and
subject to Section 7.1 (regarding the Board’s right to amend or terminate the Plan), shall remain
in effect thereafter.



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SECTION 8

LEGAL CONSTRUCTION




     8.1 Section 162(m) Conditions; Bifurcation of Plan. It is the intent of the Company
that the Plan and the awards paid under the Plan to Participants who are or may become persons
whose compensation is subject to section 162(m) of the Code, satisfy any applicable requirements of
section 162(m) of the Code. Any provision, application or interpretation of the Plan inconsistent
with this intent shall be disregarded. The provisions of the Plan may be bifurcated by the Board
or the Committee at any time so that certain provisions of the Plan, or any award, required in
order to satisfy the requirements of section 162(m) of the Code are only applicable to Participants
whose compensation is subject to section 162(m) of the Code.



     8.2 Gender and Number. Except where otherwise indicated by the context, any masculine
term used herein also shall include the feminine; the plural shall include the singular and the
singular shall include the plural.



     8.3 Severability. In the event any provision of the Plan shall be held illegal or
invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the
Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not
been included.



     8.4 Requirements of Law. The granting of awards under the Plan shall be subject to
all applicable laws, rules and regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required.



     8.5 Governing Law. The Plan and all awards shall be construed in accordance with and
governed by the laws of the State of Nebraska, but without regard to its conflict of law
provisions.



     8.6 Section 409A of the Code. It is intended that the Plan shall be exempt from
Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), pursuant to the
requirement that all payments hereunder shall be paid within the applicable short-term deferral
period as set forth in Section 1.409A-1(b)(4) of the final regulations issued under Section 409A.
The Committee shall administer
and interpret the Plan in a manner consistent with this short-term deferral exception and any
other regulations or other Internal Revenue Service guidance issued with respect to Section 409A.



     8.7 Bonus Plan. The Plan is intended to be a “bonus program” as defined under U.S.
Department of Labor regulation section 2510.3-2(c) and shall be construed and administered by the
Company in accordance with such intention.



     8.8 Captions. Captions are provided herein for convenience only, and shall not serve
as a basis for interpretation or construction of the Plan.




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