exv10w2








 




    Exhibit
10.2



 




    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.





    

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    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.



 



    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.



 




    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






    

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    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 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.



 



    (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






    

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    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 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.





    

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    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.



 



    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






    

6








 







    expense, to handle and defend the same before he or she
    undertakes to handle 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.



 




    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.





    

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    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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