exv10w1



 






Exhibit 10.1




As Amended and Restated as of December 28, 2005




AMERITRADE HOLDING CORPORATION

EXECUTIVE DEFERRED COMPENSATION PROGRAM




     1. Eligibility. Each full-time executive employee of Ameritrade Holding Corporation
(“Ameritrade”) or any of its subsidiaries (collectively, the “Company”) who participates in the
Company’s Incentive Compensation Plan or such other incentive compensation plans, as may be
designated by the Compensation Committee of Ameritrade’s Board of Directors (the “Compensation
Committee”), (each, a “Designated Plan”) and who has also been selected for participation by the
Compensation Committee shall be eligible to participate in the Ameritrade Holding Corporation
Executive Deferred Compensation Program (the “Program”). Each eligible employee who files a
Deferral Election (as defined in Section 3) and who has a Stock Unit Credit (as defined in Section
6) made to his Deferred Stock Account (as defined in Section 5) shall be deemed to have been
awarded a Performance Unit under and in accordance with the terms of the Ameritrade Holding
Corporation 1996 Long-term Incentive Plan (the “Incentive Plan”) as of the last day of the
Performance Period (as defined in Section 3). Such Performance Unit shall be considered fully
vested from and after the date of grant and shall be governed by the terms and conditions of the
Program and the specific provisions of the Designated Plan to the extent not inconsistent with the
terms of the Incentive Plan. Notwithstanding any other provision of the Program to the contrary, if
the Compensation Committee determines that participation by one or more Participants shall cause
the Program as applied to the Company to be subject to Part 2, 3 or 4 of Title I of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), the entire interest of such
Participant under the Program shall be, in the discretion of the Compensation Committee,
immediately paid to such Participant or shall otherwise be segregated from the Program, and such
Participant(s) shall cease to have any interest under the Program. In the event the Participant has
died, the preceding sentence of this Section shall apply to the Participant’s interest which is
payable to the Participant’s beneficiary pursuant to the terms hereof.



     2. Defined Terms. To the extent not otherwise specified in the Program, capitalized terms
used in the Program shall have the meaning specified in the Plan.



     3. Deferral of Incentive Compensation. An eligible employee may, by filing a “Deferral
Election” in accordance with rules established by the Plan Administrator (as defined in Section
13), irrevocably elect to defer all or a portion of any incentive compensation, expressed in whole
percentages, that he or she may earn under a Designated Plan (an “Incentive Award”) during the
Performance Period which shall be the fiscal year in which the irrevocable Deferral Election is
made (the “Deferral Year”) or such other period permitted under Section 4 or as otherwise provided
by the Compensation Committee. Such Deferral Election shall be made pursuant to Section 4.



     4. Participation. An eligible employee shall become a “Participant” in the Program by filing
a Deferral Election with the Plan Administrator on a form prescribed for that



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purpose. A Deferral
Election shall be filed in accordance with rules prescribed by the Plan Administrator; provided,
however, that no Deferral Election for any Deferral Year shall be given effect unless it is filed
six months and one day prior to the last day of the Deferral Year to which it relates or such
earlier time prescribed by the Compensation Committee. A Deferral Election shall specify both the
amount to be deferred, expressed as a percentage of the Incentive Award otherwise payable in cash
to the Participant under the terms of a Designated Plan, the year in which the amounts deferred
shall be paid and the form of distribution (either lump sum or annual installments not exceeding 10
years). A Deferral Election shall be effective only for the Deferral Year to which it relates. A
new Deferral Election must be filed for each Deferral Year. Notwithstanding any other provision of
the Program other than Sections 17 or 19, once a Deferral Election is filed with the Plan
Administrator in accordance with rules established by the Plan Administrator, such Deferral
Election shall be irrevocable and no changes to such Deferral Election shall be permitted.



     5. Share Valuation. For purposes of the Program, the term “Share Value” shall mean the
average of the closing market composite price for one share of Stock as reported on the NASDAQ of
all trading days three calendar months prior to the Credit Date (as defined in Section 6) of the
Deferral Year. The “Share Value” is used to determine the number of Share Units to be credited to
a Participant’s Account under Section 6.



     6. Deferred Stock Account. On the date a Participant would normally receive payments of the
Incentive Award if payment had not been deferred (the “Credit Date”), a Participant shall receive a
credit (“Stock Unit Credit”) to his or her bookkeeping account under the Program (the “Deferred
Stock Account”). The credit shall be made in stock units with each unit corresponding to one share
of Stock. The amount of the Stock Unit Credit shall be equal to that number of stock units
(rounded to the nearest whole share) determined by dividing the amount of the Participant’s
Incentive Award, specified for deferral pursuant to the Participant’s Deferral Election by the
Share Valuation.



     7. Dividend Credit. Each time a dividend is paid on the Stock, a Participant shall receive a
credit (“Dividend Credit”) to his or her Deferred Stock Account. The amount of the Dividend Credit
shall be the number of stock units (rounded to the nearest whole share) determined by multiplying
the dividend amount per share by the number of stock units credited to the Participant’s Deferred
Stock Account as of the record date for the dividend and dividing the product by the closing price
of one share of common stock on NASDAQ on the dividend payment date or, if the Stock is not traded
on the dividend payment date, the next preceding date on which it was traded.



     8. Adjustments for Certain Changes in Capitalization. In the event of any merger,
consolidation, reorganization, recapitalization, spinoff, stock dividend, stock split, reverse
stock split, exchange, or other distribution with respect to shares of Stock or other change in the
corporate structure or capitalization affecting the Stock, then the numbers, rights, and privileges
of the stock units credited to Participants’ Deferred Stock Accounts under the Program shall be
increased, decreased, or changed in like manner as if shares corresponding to such stock units had
been issued and outstanding, fully paid, and nonassessable at the time of such occurrence.



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     9. Payment of Deferred Stock Accounts. As soon as practicable after the date elected by the
Participant pursuant to his Deferral Election (as determined in accordance with uniform rules
established by the Plan Administrator), that number of shares of Stock equal to the total whole
number of Stock Unit Credits and Dividend Credits to be distributed to the Participant as of such
date shall be distributed to the Participant (or in the event of his death, his beneficiary);
provided, however, that if the Participant has elected installment payments, the number of shares
of Stock to be distributed as of the first distribution date and each subsequent installment shall
be equal to that number of Stock Unit Credits and Dividend Credits then credited to the
Participant’s Deferred Stock Account divided by the number of installment payments remaining
(rounded down to whole shares); and provided further that, distributions following the death or
disability of the Participant shall be as specified in Section 17. Such shares of Stock shall be
distributed from shares reserved for issuance under the Incentive Plan. If a Participant dies
before receiving all distributions to which he is entitled under the Program, the Plan
Administrator must be notified in writing. To be effective, any beneficiary designation by a
Participant must be in writing, delivered and accepted by the Plan Administrator prior to the
Participant’s death. In default of an effective beneficiary designation, the Participant’s estate
shall be treated as his beneficiary for purposes of the Program.



     10. Withholding. The payment or distribution of all Incentive Awards are subject to
withholding of all applicable taxes, which withholding obligations may: (1) with respect to amounts
deferred prior to December 14, 2005, be satisfied, at the Participant’s (or in the event of his
death, his beneficiary’s) election, and (2) with respect to amounts deferred on or after December
14, 2005, must be satisfied; through the surrender of shares of Stock to be received pursuant to
his Deferral Election at the time of such distribution. The number of shares of Stock withheld to
satisfy the applicable tax withholding obligations (“Withholding Stock”) shall not exceed the
amount necessary to meet the required Federal, state and local withholding tax rates then in effect
that are applicable to the Participant and to the particular distribution. The value of
Withholding Stock shall be determined based upon the value of the closing market composite price
for one share of Company Stock as reported on the Nasdaq National Market. Withholding Stock shall
be surrendered to the Company up to the nearest share value to satisfy the withholding obligation.
Any partial share value will be remitted in cash on the Participant’s behalf to the applicable
taxing authorities. If the Company establishes a trust pursuant to Section 12, the Trustee shall
transfer the applicable Withholding Stock to the Company as soon as practicable following
distribution.



     11. Nonassignability. No right to receive distributions under the Program shall be assignable
or transferable by a Participant other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined by the Internal Revenue Code of 1986 as
amended, Title I ERISA, or rules thereunder. The designation of a beneficiary by a Participant in
accordance with the terms of the Program does not constitute a transfer.



     12. Funding. The Program constitutes only an unfunded, unsecured promise of the Company to
make payments and distributions in the future in accordance with the terms of the Program. No
Participant or party claiming an interest under the Program shall have



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any interest whatsoever in
any specific asset of the Company. To the extent that any party acquires a right to receive
distribution or payment under the Program, such right shall be equivalent to that of an unsecured
general creditor of Ameritrade. Notwithstanding the foregoing, Ameritrade may establish one or more
trusts, with such trustee as the Compensation Committee may approve, for the purpose of providing
for the payment of deferred amounts under the Program. Such trust or trusts may be irrevocable, but
the assets thereof shall be subject to the claims of the general creditors of Ameritrade. Nothing
in the Program shall require Ameritrade to establish any trust to provide benefits under the
Program. To the extent benefits under the Program are actually paid from any such trust,
Ameritrade shall have no further obligation with respect to such benefits.



     13. Administration. The Program shall be administered by the Compensation Committee (the
“Plan Administrator”), which shall have the authority to interpret the Program and to adopt
procedures for implementing the Program. The Plan Administrator may delegate any of its duties
hereunder to the extent not inconsistent in the Incentive Plan.



     14. Amendment and Termination. The Compensation Committee may at any time terminate, suspend,
or amend this Program. No such action shall deprive any Participant of any benefits to which he or
she would have been entitled under the Program if termination of the Participant’s employment had
occurred on the day prior to the date such action was taken, unless agreed to by the Participant.



     15. Effective Date. The effective date of the Program shall be determined upon approval of
the Compensation Committee.



     16. Employment and Stockholder Status. Nothing in the Program shall interfere with nor limit
in any way the right of the Company to terminate any Participant’s employment at any time, nor
confer upon any Participant any right to continue in the employ of the Company. The Program will
not give any person any right or claim to any benefits under the Program unless such right or claim
has specifically accrued under the terms of the Program. Participation in the Program shall not
create any rights in a Participant (or any other person) as a stockholder of Ameritrade until
shares of Stock are registered in the name of the Participant (or such other person).



     17. Distributions To Persons Under Disability or Death. In the event a Participant or his
beneficiary is declared incompetent and a conservator or other person legally charged with the care
of his person or of his estate is appointed, any benefit to which such Participant or beneficiary
is entitled under the Program shall be paid to such conservator or other person legally charged
with the care of his person or of his estate. In the event a Participant or his beneficiary is
disabled on a long term basis, as determined by the Compensation Committee, or dies prior to
receiving all distributions to which he is entitled under the Program, the Participant’s
beneficiary or estate shall receive the distribution of the Participant’s entire remaining Program
benefit in a lump sum as soon as practicable following the Participant’s disability or death.



     18. Successors. The obligations of Ameritrade under the Program shall be binding on any
assignee or successor in interest thereto.



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     19. Unforeseeable Emergency. Prior to the date otherwise scheduled for distribution of his
Deferred Stock Account under the Program, upon a showing of an unforeseeable emergency, the
Compensation Committee may approve a Participant’s request to accelerate payment of an amount not
exceeding the lesser of (a) the amount necessary to meet the emergency or (b) the balance in his
Deferred Stock Account under the Program. For purposes of the Program, the term “unforeseeable
emergency” shall mean an unanticipated emergency that is caused by an event beyond the control of
the Participant (or the control of the beneficiary, if the amount is payable to a beneficiary) and
that would result in severe financial hardship to the individual if early payment were not
permitted. The determination of “unforeseeable emergency” shall be made by the Compensation
Committee, based on such information as the Compensation Committee shall deem to be necessary.




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