exv10w1








 




    Exhibit
10.1



 




    TD
    AMERITRADE HOLDING CORPORATION

    LONG-TERM INCENTIVE PLAN




 



    1. History, Purpose and Term of Plan.



 



    1.1.  History.  The Plan was
    originally adopted by the Ameritrade Holding Corporation
    (“Old Ameritrade”) effective as of October 1,
    1996 (the “Original Effective Date”). Pursuant to an
    agreement and plan of merger, Old Ameritrade became a subsidiary
    of the Company, a newly formed corporation, effective as of
    September 9, 2002, and thereafter the Company assumed the
    Plan, and all outstanding obligations under the Plan. The Board
    approved an amendment and restatement of the Plan on
    September 7, 2005, and Company stockholders approved such
    amendment and restatement on January 4, 2006. The Board
    subsequently approved this amendment and restatement of the Plan
    on January 19, 2006 (the “2006 Restatement
    Date”), and Company stockholders approved this amendment
    and restatement of the Plan on March 9, 2006. The Board
    approved an additional amendment and restatement of the Plan,
    subject to Company stockholder approval, on November 9,
    2009, and stockholders approved the Plan on February 25,
    2010. The HR & Compensation Committee approved additional
    amendments on February 24, 2010.



 



    1.2.  Purpose.  The purposes
    of this Plan are to attract, retain and reward Service Providers
    and to promote the success of the Company’s business. The
    Plan seeks to achieve this purpose by providing for Awards in
    the form of Options, Stock Appreciation Rights, Restricted
    Stock, Restricted Stock Units, Performance Shares and
    Performance Units.



 



    1.3.  Term.  The Plan shall
    continue in effect until the earlier of its termination by the
    Board or the date on which all of the shares of Stock available
    for issuance under the Plan have been issued and all
    restrictions on such shares under the terms of the Plan and the
    agreements evidencing Awards granted under the Plan have lapsed.
    However, all Incentive Stock Options shall be granted, if at
    all, within ten (10) years from the 2006 Restatement Date.



 



    2. Definitions and Construction.



 



    2.1.  Definitions.  Whenever
    used herein, the following terms shall their respective meanings
    set forth below:



 



    (a) “Administrator” means the Board or any
    of its Committees as will be administering the Plan, in
    accordance with Section 3 of the Plan.



 



    (b) “Applicable Laws” means the
    requirements relating to the administration of stock-based
    awards or equity compensation programs under U.S. state
    corporate laws, U.S. federal and state securities laws, the
    Code, any stock exchange or quotation system on which the Stock
    is listed or quoted and the applicable laws of any foreign
    country or jurisdiction where Awards are, or will be, granted
    under the Plan.



 



    (c) “Award” means, individually or
    collectively, a grant under the Plan of Options, SARs,
    Restricted Stock, Restricted Stock Units, Performance Shares or
    Performance Units.



 



    (d) “Award Agreement” means the written or
    electronic agreement setting forth the terms and provisions
    applicable to each Award granted under the Plan. The Award
    Agreement is subject to the terms and conditions of the Plan.



 



    (e) “Board” means the Board of Directors
    of the Company.



 



    (f) “Change in Control” means the
    occurrence of any of the following events after the 2006
    Restatement Date:



 



    (i) A change in the ownership of the Company. A change in
    the ownership of the Company will occur on the date that any one
    person, or more than one person acting as a group, acquires
    ownership of the Stock of the Company that, together with the
    Stock held by such person or group, constitutes more






    

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    than fifty percent (50%) of the total fair market value or total
    voting power of the Stock of the Company; provided, however,
    that for purposes of this subsection (i), the acquisition of
    additional Stock by any one person, or more than one person
    acting as a group, who is considered to own more than fifty
    percent (50%) of the total fair market value or total voting
    power of the Stock of the Company shall not be considered a
    Change of Control; or



 



    (ii) A change in the effective control of the Company. A
    change in the effective control of the Company shall occur on
    the date that: (1) the Board determines, in its sole and
    absolute discretion, that any one person, or more than one
    person acting as a group, acquires (or has acquired during the
    12-month
    period ending on the date of the most recent acquisition by such
    person or persons) ownership of the Stock of the Company
    possessing up to fifty percent (50%) or more of the total voting
    power of the Stock of the Company, in each case whether such
    acquisition is by means of a tender offer, exchange offer,
    merger, business combination or otherwise; or (2) a
    majority of members of the Board of Directors is replaced during
    any 12-month
    period by directors whose appointment or election is not
    endorsed by a majority of the members of the Board of Directors
    prior to the date of the appointment or election. For purposes
    of this subsection (ii), if any one person, or more than one
    person acting as a group, is considered to effectively control
    the Company, the acquisition of additional control of the
    Company by the same person or persons shall not be considered a
    Change of Control; or



 



    (iii) A change in the ownership of a substantial portion of
    the Company’s assets. A change in the ownership of a
    substantial portion of the Company’s assets shall occur on
    the date that any one person, or more than one person acting as
    a group, acquires (or has acquired during the
    12-month
    period ending on the date of the most recent acquisition by such
    person or persons) assets from the Company that have a total
    gross fair market value equal to or more than fifty percent
    (50%) of the total fair market value of all of the assets of the
    Company immediately prior to such acquisition or acquisitions;
    provided, however, that for purposes of this subsection (iii),
    the following shall not constitute a change in the ownership of
    a substantial portion of the Company’s assets: (1) a
    transfer to an entity that is controlled by the Company’s
    stockholders immediately after the transfer; or (2) a
    transfer of assets by the Company to: (A) a stockholder of
    the Company (immediately before the asset transfer) in exchange
    for or with respect to the Company’s Stock; (B) an
    entity, fifty percent (50%) or more of the total value or voting
    power of which is owned, directly or indirectly, by the Company;
    (C) a person, or more than one person acting as a group,
    that owns, directly or indirectly, fifty percent (50%) or more
    of the total value or voting power of all the outstanding Stock
    of the Company; or (D) an entity, at least fifty percent
    (50%) of the total value or voting power of which is owned,
    directly or indirectly, by a person described in this subsection
    2.1(f)(iii)(2)(C). For purposes of this subsection (iii), gross
    fair market value means the value of the assets of the Company,
    or the value of the assets being disposed of, determined without
    regard to any liabilities associated with such assets.



 



    For purposes of this Section 2.1(f), persons will be
    considered to be acting as a group if they are owners of a
    corporation that enters into a merger, consolidation, purchase
    or acquisition of stock, or similar business transaction with
    the Company.



 



    Additionally, for purposes of this Section 2.1(f),
    notwithstanding any public disclosure to the contrary, TD and
    the R Parties (as such terms are defined in the Stockholders
    Agreement) together will not be considered to have formed a
    group solely as a result of being parties or bound by the
    Stockholders Agreement and any future actions, agreements or
    arrangements between TD and the R Parties outside of the rights
    and obligations set forth in the Stockholders Agreement shall be
    taken into account when considering whether TD and the R Parties
    shall have formed a group in the future.



 



    (g) “Consultant” means any person,
    including an advisor, engaged by the Company or a Related Entity
    to render services to such entity.



 



    (h) “Code” means the Internal Revenue Code
    of 1986, as amended. Any reference to a section of the Code
    herein will be a reference to any successor or amended section
    of the Code.





    

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    (i) “Committee” means a committee of
    Directors or other individuals satisfying Applicable Laws
    appointed by the Board in accordance with Section 3 of the
    Plan.



 



    (j) “Committee Designate” means any
    committee comprised of (1) one or more individual (or
    individuals) who are then serving as a member(s) of the Board or
    (2) one or more Officer (or Officers).



 



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



 



    (l) “Covered Employee” means an Employee
    who is, or could be, a “covered employee” within the
    meaning of Section 162(m) of the Code.



 



    (m) “Director” means a member of the Board.



 



    (n) “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 the Employee of income replacement benefits for a
    period of not less than three (3) months under an
    applicable disability benefit plan of the Company.



 



    (o) “Dividend Right” means a credit, made
    at the discretion of the Committee, to the account of a
    Participant in an amount equal to the cash dividends paid on one
    Share for each Share represented by an Award held by such
    Participant.



 



    (p) “Employee” means any person, including
    Officers and Directors, who are employed by the Company or a
    Related Entity. Neither service as a Director nor payment of a
    director’s fee by the Company or Related Entity will be
    sufficient to constitute “employment” by the Company
    or Related Entity.



 



    (q) “Exchange Act” means the Securities
    Exchange Act of 1934, as amended.



 



    (r) “Fair Market Value” means, as of any
    date and unless the Committee determines otherwise, the value of
    Stock determined as follows:



 



    (i) If the Stock is listed on any established stock
    exchange or a national market system, including without
    limitation the Nasdaq Global Select Market, the Nasdaq Global
    Market or the Nasdaq Capital Market of The Nasdaq Stock Market,
    its Fair Market Value will be the closing market composite price
    for such Stock as quoted on such exchange or system for the day
    of determination, as reported in The Wall Street Journal
    or such other source as the Committee deems reliable;



 



    (ii) If the Stock is regularly quoted by a recognized
    securities dealer but selling prices are not reported, the Fair
    Market Value of a Share of Stock will be the mean between the
    high bid and low asked prices for the Stock for the day of
    determination, as reported in The Wall Street Journal or
    such other source as the Committee deems reliable; or



 



    (iii) In the absence of an established market for the
    Stock, the Fair Market Value will be determined in good faith by
    the Committee.



 



    (iv) Notwithstanding the preceding, for federal, state, and
    local income tax reporting purposes and for such other purposes
    as the Committee deems appropriate, the Fair Market Value shall
    be determined by the Committee in accordance with uniform and
    nondiscriminatory standards adopted by it from time to time.



 



    (s) “Incentive Stock Option” means an
    Option intended to qualify as an incentive stock option within
    the meaning of Section 422 of the Code and the regulations
    promulgated thereunder.



 



    (t) “Non-Qualified Stock Option” means an
    Option that by its terms does not qualify or is not intended to
    qualify as an Incentive Stock Option.



 



    (u) “Officer” means a person who is an
    officer of the Company within the meaning of Section 16 of
    the Exchange Act and the rules and regulations promulgated
    thereunder.





    

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    (v) “Option” means an Incentive Stock
    Option or a Non-Qualified Stock Option granted pursuant to
    Section 6 of the Plan.



 



    (w) “Option Price” means the price at
    which Shares may be purchased upon the exercise of an Option
    pursuant to Section 6.3.



 



    (x) “Parent” means a “parent
    corporation,” whether now or hereafter existing, as defined
    in Section 424(e) of the Code.



 



    (y) “Participant” means the holder of an
    outstanding Award.



 



    (z) “Performance-Based Award” means any
    Award granted to selected Service Providers pursuant to this
    Plan, but which are subject to the terms and conditions set
    forth in Section 12. All Performance-Based Awards granted
    to Covered Employees are, unless specifically noted to the
    contrary by the Committee, intended to qualify as
    performance-based compensation under Section 162(m) of the
    Code.



 



    (aa) “Performance Goals” means the goal(s)
    determined by the Committee (in its discretion) to be applicable
    to a Participant with respect to an Award. As determined by the
    Committee, the Performance Goals applicable to an Award 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) client 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.



 



    (bb) “Performance Period” means a period
    established by the Committee pursuant to Section 12 of the
    Plan at the end of which one or more Performance Goals are to be
    measured.



 



    (cc) “Performance Share” means an Award
    granted to a Service Provider pursuant to Section 10 of the
    Plan.



 



    (dd) “Performance Unit” means an Award
    granted to a Service Provider pursuant to Section 10 of the
    Plan.



 



    (ee) “Period of Restriction” means the
    period during which the transfer of Restricted Stock or
    Restricted Stock Units are subject to restrictions and
    therefore, the Shares are subject to a substantial risk of
    forfeiture. Such restrictions may be based on the passage of
    time, continued service, the achievement of Performance Goals,
    and/or the
    occurrence of other events as determined by the Committee.



 



    (ff) “Plan” means this TD Ameritrade
    Holding Corporation Long-Term Incentive Plan.



 



    (gg) “Related Entity” means any Parent,
    Subsidiary and any business, corporation, partnership, limited
    liability company or other entity in which the Company, a Parent
    or a Subsidiary holds a substantial ownership interest, directly
    or indirectly.



 



    (hh) “Restricted Stock” means an Award
    granted to a Service Provider pursuant Section 8 of the
    Plan.



 



    (ii) “Restricted Stock Unit” means a
    bookkeeping entry representing a right granted to a Participant
    pursuant to Section 9 of the Plan to receive the value
    associated with a share of Stock on a date determined in
    accordance with the provisions of the Plan and the
    Participant’s Award Agreement.





    

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    (jj) “Rule 16b-3”
    means
    Rule 16b-3
    of the Exchange Act or any successor to
    Rule 16b-3,
    as in effect when discretion is being exercised with respect to
    the Plan.



 



    (kk) “Section 16(b)” means
    Section 16(b) of the Exchange Act.



 



    (ll) “Service Provider” means an Employee,
    Director or Consultant.



 



    (mm) “Share” means a share of Stock, as
    adjusted in accordance with Section 5.3 of the Plan.



 



    (nn) “Stock” means the common stock of the
    Company, or in the case of certain Stock Appreciation Rights or
    Performance Units, the cash equivalent thereof.



 



    (oo) “Stock Appreciation Right” or
    “SAR” means an Award, granted alone or in
    connection with an Option, that pursuant to Section 7 of
    the Plan is designated as SAR.



 



    (pp) “Stockholders Agreement” means that
    certain Stockholders Agreement among TD Ameritrade Holding
    Corporation, the stockholders listed on Exhibit A thereto
    and The Toronto-Dominion Bank dated as of June 22, 2005,
    and as most recently amended as of August 3, 2009.



 



    (qq) “Subsidiary” means a “subsidiary
    corporation”, whether now or hereafter existing, as defined
    in Section 424(f) of the Code.



 



    3. Administration.



 



    3.1.  Administration.  The
    Plan shall be administered by the Administrator. Notwithstanding
    the foregoing, the Administrator, subject to the terms and
    conditions of the Plan, may delegate to any Committee Designate
    the authority to act as a subcommittee of the Board or
    Committee, as applicable, for purposes of making grants or
    awards under the Plan to Service Providers of the Company who
    are not subject to Section 16(a) of the Exchange Act as the
    Committee Designate shall determine in his or her sole
    discretion and the Committee Designate shall have the authority
    and duties of the Administrator with respect to such grants or
    awards, provided, however, that (a) such Awards shall not
    be granted for shares in excess of the maximum aggregate number
    of shares of Stock authorized for issuance pursuant to
    Section 5, (b) the exercise price per share of each
    Option shall be not less than the Fair Market Value per share of
    the Stock on the effective date of grant, and (c) each such
    Award shall be subject to the terms and conditions of the
    appropriate standard form of Award Agreement approved by the
    Administrator and shall conform to the provisions of the Plan
    and such other guidelines as shall be established from time to
    time by the Administrator.



 



    3.2.  Authority of the
    Administrator.  In addition to any other
    powers set forth in the Plan and subject to the provisions of
    the Plan, the Administrator shall have the full and final power
    and authority, in its discretion:



 



    (a) to determine the Fair Market Value;



 



    (b) to select the Service Providers to whom Awards may be
    granted hereunder;



 



    (c) to determine the number of shares of Stock to be
    covered by each Award granted hereunder;



 



    (d) to approve forms of Award Agreements for use under the
    Plan;



 



    (e) to determine the terms and conditions, not inconsistent
    with the terms of the Plan, of any Award granted hereunder. Such
    terms and conditions include, but are not limited to, the Option
    Price, the time or times when Awards may be exercised (which may
    be based on performance criteria), any vesting acceleration or
    waiver of forfeiture or repurchase restrictions, and any
    restriction or limitation regarding any Award or the Shares
    relating thereto, based in each case on such factors as the
    Committee, in its sole discretion, will determine;



 



    (f) to construe and interpret the terms of the Plan and
    Awards granted pursuant to the Plan;



 



    (g) to prescribe, amend and rescind rules and regulations
    relating to the Plan, including rules and regulations relating
    to sub-plans
    established for the purpose of satisfying applicable foreign
    laws including qualifying for preferred tax treatment under such
    applicable foreign tax laws;





    

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    (h) to modify or amend each Award, including the
    discretionary acceleration of vesting and the authority to
    extend the post-termination exercisability period of Awards
    longer than is otherwise provided for in an applicable Award
    Agreement;



 



    (i) to allow Participants to satisfy withholding tax
    obligations by electing to have the Company withhold from the
    Shares or cash to be issued upon exercise, settlement or vesting
    of an Award that number of Shares or cash having a Fair Market
    Value equal to the minimum amount required to be withheld. The
    Fair Market Value of any Shares to be withheld will be
    determined on the date that the amount of tax to be withheld is
    to be determined by the applicable closing price of the Shares
    as reported on the applicable stock exchange or a national
    market system, including without limitation the Nasdaq Global
    Select Market, the Nasdaq Global Market or the Nasdaq Capital
    Market of The Nasdaq Stock Market, which the Stock is listed and
    as reported in The Wall Street Journal or such other
    source as the Committee deems reliable. All elections by a
    Participant to have Shares or cash withheld for this purpose
    will be made in such form and under such conditions as the
    Committee may deem necessary or advisable;



 



    (j) to authorize any person to execute on behalf of the
    Company any instrument required to effect the grant of an Award
    previously granted by the Committee;



 



    (k) to allow a Participant, subject to compliance with all
    Applicable Laws, to defer the receipt of the payment of cash or
    the delivery of Shares that would otherwise be due to such
    Participant under an Award;



 



    (l) to determine whether Awards will be settled in Shares,
    cash or in any combination thereof;



 



    (m) to determine whether Awards will be adjusted for
    Dividend Rights;



 



    (n) to establish a program whereby Service Providers
    designated by the Committee can, subject to compliance with all
    Applicable Laws, reduce compensation otherwise payable in cash
    in exchange for Awards under the Plan;



 



    (o) to issue Awards in satisfaction of obligations owed to
    any Participant under any other Company incentive or deferred
    compensation plan;



 



    (p) to impose such restrictions, conditions or limitations
    as it determines appropriate as to the timing and manner of any
    resales by a Participant or other subsequent transfers by the
    Participant of any Shares issued as a result of or under an
    Award, including without limitation, (A) restrictions under
    an insider trading policy, and (B) restrictions as to the
    use of a specified brokerage firm for such resales or other
    transfers;



 



    (q) in accordance with Section 14 of the Plan, to
    specify in an Award Agreement at the time of the Award, or later
    pursuant to an amendment of an outstanding Award, that the
    Participant’s rights, payments and benefits with respect to
    an Award (including amounts received upon the settlement or
    exercise of an Award) shall be subject to reduction,
    cancellation, forfeiture or recoupment upon the occurrence of
    certain specified events, in addition to any otherwise
    applicable vesting or performance conditions of an
    Award; and



 



    (r) to make all other determinations deemed necessary or
    advisable for administering the Plan.



 



    3.3.  Effect of Decisions and Determinations
    under Plan.  The decisions, determinations and
    interpretations of the Administrator will be final and binding
    on all Participants and any other holders of Awards.



 



    3.4.  Administration with Respect to
    Officers.  With respect to participation by
    Officers in the Plan, at any time that any class of equity
    security of the Company is registered pursuant to
    Section 12 of the Exchange Act, the Plan shall be
    administered in compliance with the requirements, if any, of
    Rule 16b-3.



 



    3.5.  No
    Repricing.  Notwithstanding anything in the
    Plan to the contrary, without the affirmative vote of holders of
    a majority of the shares of Stock cast in person or by proxy at
    a meeting of the stockholders of the Company at which a quorom
    representing a majority of all outstanding shares of Stock is
    present or represented by proxy, the Administrator shall not
    approve a program providing for either (a) the cancellation
    of outstanding Options
    and/or SARs
    and the grant in substitution therefore of any new Awards,
    including specifically, without limitation, any new Options
    and/or SARS
    having a lower exercise price or (b) the amendment of
    outstanding Options
    and/or SARs
    to reduce the exercise price thereof. This Section 3.5
    shall not be construed to apply to






    

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    “issuing or assuming a stock option in a transaction to
    which Section 424(a) applies” within the meaning of
    Section 424 of the Code.



 



    3.6.  Indemnification.  In
    addition to such other rights of indemnification as they may
    have as members of the Board, Officers or Employees of the
    Company, members of the Board and any Officers or Employees of
    the Company to whom authority to act for the Board or the
    Company is delegated shall be indemnified by the Company against
    all reasonable expenses, including attorneys’ fees,
    actually and necessarily incurred in connection with the defense
    of any action, suit or proceeding, or in connection with any
    appeal therein, to which they or any of them may be a party by
    reason of any action taken or failure to act under or in
    connection with the Plan, or any right granted hereunder, and
    against all amounts paid by them in settlement thereof (provided
    such settlement is approved by independent legal counsel
    selected by the Company) or paid by them in satisfaction of a
    judgment in any such action, suit or proceeding, except in
    relation to matters as to which it shall be adjudged in such
    action, suit or proceeding that such person is liable for gross
    negligence, bad faith or intentional misconduct in duties;
    provided, however, that within sixty (60) days after the
    institution of such action, suit or proceeding, such person
    shall offer to the Company, in writing, the opportunity at its
    own expense to handle and defend the same.



 



    4. Participation.  Subject to the terms
    and conditions of the Plan, the Administrator shall determine
    and designate, from time to time, from among the Service
    Providers those who will be granted one or more Awards under the
    Plan. In the discretion of the Administrator, and subject to the
    terms of the Plan, a Service Provider may be granted any Award
    permitted under the provisions of the Plan, and more than one
    Award may be granted to a Service Provider. Except as otherwise
    agreed by the Administrator and the Participant, or except as
    otherwise provided in the Plan, an Award under the Plan shall
    not affect any previous Award under the Plan or an award under
    any other plan maintained by the Company.



 



    5. Shares Subject to the Plan.



 



    5.1.  Number of
    Shares Reserved.  The shares of Stock
    with respect to which Awards may be made under the Plan shall be
    shares currently authorized but unissued or currently held or
    subsequently acquired by the Company as treasury shares,
    including shares purchased in the open market or in private
    transactions. Subject to the provisions of subsection 5.4, the
    number of shares of Stock which may be issued with respect to
    Awards under the Plan shall not exceed 42,104,174 shares in
    the aggregate.



 



    5.2.  Reusage of Shares.



 



    (a) In the event of the exercise or termination (by reason
    of forfeiture, expiration, cancellation, surrender or otherwise)
    of any Award under the Plan, that number of shares of Stock that
    was subject to the Award but not delivered shall again be
    available for Awards under the Plan.



 



    (b) In the event that shares of Stock are delivered under
    the Plan as Restricted Stock or Restricted Stock Units and are
    thereafter forfeited or reacquired by the Company pursuant to
    rights reserved in the Award Agreement, such forfeited or
    reacquired shares of Stock shall again be available for Awards
    under the Plan.



 



    (c) Notwithstanding the provisions of Sections 5.2(a)
    or (b), the following shares of Stock shall not be available for
    reissuance under the Plan: (i) shares of Stock with respect
    to which the Participant has received the benefits of ownership
    (other than voting rights), either in the form of dividends or
    otherwise; (ii) shares of Stock which are withheld from any
    Award or payment under the Plan to satisfy tax withholding
    obligations; (iii) shares of Stock which are surrendered to
    fulfill tax obligations; (iv) shares of Stock which are
    surrendered in payment of the Option Price upon the exercise of
    an Option; and (v) shares of Stock subject to the grant of
    SAR which are not issued upon settlement of the SAR.



 



    5.3.  Adjustments to
    Shares Reserved.  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, the type and number of shares of stock
    which are or may be subject to awards under the Plan and the
    terms of any Awards (including the price at which shares of
    stock may be issued pursuant to an Award) shall be equitably
    adjusted by the Administrator, in its sole discretion, to
    preserve the value of benefits awarded or to be awarded to
    Participants under the Plan.





    

7








 







    5.4.  Individual Limits on
    Awards.  Notwithstanding any other provision
    of the Plan to the contrary, the following limitations shall
    apply to Awards under the Plan:



 



    (a) No Service Provider shall be granted, in any fiscal
    year of the Company (1) an Option or SAR to purchase more
    than 4,000,000 Shares, (2) Restricted Stock or
    Restricted Stock Units covering more than 2,000,000 Shares,
    (3) Performance Shares covering more than
    2,000,000 Shares or (4) Performance Units which could
    result in such Service Provider receiving more than $6,000,000.



 



    (b) In connection with her or her initial employment
    and/or
    service with the Company, a Service Provider may be granted
    Options or SARs to purchase up to an additional
    2,000,000 Shares, which shall not count against the limit
    set forth in subsection (a) above.



 



    (c) The foregoing limitations shall be adjusted
    proportionately in connection with any change in the
    Company’s capitalization as described in Section 5.3.



 



    (d) If an Award is cancelled in the same fiscal year of the
    Company in which it was granted (other than in connection with a
    Change in Control), the cancelled Award will also be counted
    against the limits set forth in subsections (a) and
    (b) above.



 



    (e) The determination made under this Section 5.4
    shall be based on the shares subject to the Awards at the time
    of grant, regardless of when the Awards become exercisable
    and/or are
    settled.



 



    6. Options.



 



    6.1.  Term of Option.  The
    term of each Option will be stated in the Award Agreement. In
    the case of an Incentive Stock Option, the term will be ten
    (10) years from the date of grant or such shorter term as
    may be provided in the Award Agreement. Moreover, in the case of
    an Incentive Stock Option granted to a Participant who, at the
    time of the Incentive Stock Option is granted, owns stock
    representing more than ten percent (10%) of the total combined
    voting power of all classes of stock of the Company or a Related
    Entity, the term of the Incentive Stock Option will be five
    (5) years from the date of grant or such shorter term as
    may be provided in the Award Agreement.



 



    6.2.  Restrictions Relating to Incentive Stock
    Options.  To the extent that the aggregate
    fair market value of Stock with respect to which Incentive Stock
    Options are exercisable for the first time by any individual
    during any calendar year (under all plans of the Company)
    exceeds $100,000, such options shall be treated as Non-Qualified
    Stock Options, to the extent required by Section 422 of the
    Code.



 



    6.3.  Option Price.  The
    Option Price shall be established by the Administrator or shall
    be determined by a method established by the Administrator at
    the time the Option is granted; provided, however, that in no
    event shall such price be less than 100% of the Fair Market
    Value of a share of Stock as of the date on which the Option is
    granted. Notwithstanding the foregoing, any Incentive Stock
    Option granted to an Employee who, at the time of grant, owns
    Stock representing more than ten percent (10%) of the voting
    power of all classes of stock of the Company or a Related
    Entity, the Option Price will be no less than 110% of the Fair
    Market Value on the date of grant.



 



    6.4.  Waiting Period and Exercise
    Dates.  At the time an Option is granted, the
    Committee will fix the period within which the Option may be
    exercised and will determine any conditions that must be
    satisfied before the Option may be exercised. The Administrator,
    in its discretion, may impose such restrictions on shares of
    Stock acquired pursuant to the exercise of an Option (including
    stock acquired pursuant to the exercise of a tandem Stock
    Appreciation Right) as it determines to be desirable, including,
    without limitation, restrictions relating to disposition of the
    shares and forfeiture restrictions based on service,
    performance, Stock ownership by the Participant, and such other
    factors as the Administrator determines to be appropriate.



 



    6.5.  Form of
    Consideration.  The Committee will determine
    the acceptable form of consideration for exercising an Option,
    including the method of payment. In the case of an Incentive
    Stock Option, the Committee will determine the acceptable form
    of consideration at the time of grant. Such consideration to the
    extent permitted by Applicable Laws may consist entirely of:
    (a) cash; (b) check; (c) other shares of Stock
    which meet the conditions established by the Committee to avoid
    any adverse financial accounting consequences (as determined
    solely by the






    

8








 







    Committee); (d) consideration received by the Company under
    a cashless exercise program implemented by the Company in
    connection with the Plan; (e) consideration received by the
    Company under a net exercise program implemented by the Company
    in connection with the Plan, (f) any combination of the
    foregoing methods of payment; or (g) such other
    consideration and method of payment for the issuance of shares
    of Stock to the extent permitted by Applicable Laws.



 



    6.6.  Exercise of Option.



 



    (a) Procedure for Exercise; Rights as a
    Stockholder.  Any Option granted hereunder will be
    exercisable according to the terms of the Plan and at such times
    and under such conditions as determined by the Committee and set
    forth in the Award Agreement. An Option may not be exercised for
    a fraction of a Share.



 



    An Option will be deemed exercised when the Company receives:
    (x) written or electronic notice of exercise (in accordance
    with the Award Agreement) from the person entitled to exercise
    the Option, and (y) full payment for the Shares with
    respect to which the Option is exercised (together with any
    applicable withholding taxes). Full payment may consist of any
    consideration and method of payment authorized by the Committee
    and permitted by the Award Agreement and the Plan. Shares issued
    upon exercise of an Option will be issued in the name of the
    Participant or, if requested by the Participant, in the name of
    the Participant and his or her spouse. Until the Shares are
    issued (as evidenced by the appropriate entry on the books of
    the Company or of a duly authorized transfer agent of the
    Company), no right to vote or receive dividends or any other
    rights as a stockholder will exist with respect to the shares of
    Stock underlying such Option, notwithstanding the exercise of
    the Option. The Company will issue (or cause to be issued) such
    Shares promptly after the Option is exercised. No adjustment
    will be made for a dividend or other right for which the record
    date is prior to the date the Shares are issued, except as
    provided in the applicable Award Agreement.



 



    Exercising an Option in any manner will decrease the number of
    Shares thereafter available for sale under the Option, by the
    number of Shares as to which the Option is exercised. In
    addition, the exercise of an Option will result in the surrender
    of the corresponding rights under a tandem Stock Appreciation
    Right, if any.



 



    (b) Termination of Service Provider
    Relationship.  If a Participant ceases to be an
    Service Provider, other than upon the Participant’s death
    or Disability, the Participant may exercise his or her Option
    within such period of time as is specified in the Award
    Agreement to the extent that the Option is vested on the date of
    termination (but in no event later than the expiration of the
    term of such Option as set forth in the Award Agreement). In the
    absence of a specified time in the Award Agreement, and except
    to the extent terminated earlier pursuant to the Award
    Agreement, the Option will remain exercisable for three
    (3) months following the Participant’s termination.
    Unless otherwise provided by the Committee, if on the date of
    termination the Participant is not vested as to his or her
    entire Option, the Shares covered by the unvested portion of the
    Option will revert to the Plan. If after termination the
    Participant does not exercise his or her Option within the time
    specified by the Committee, the Option will terminate, and the
    Shares covered by such Option will revert to the Plan.



 



    (c) Disability of Participant.  If a
    Participant ceases to be a Service Provider as a result of the
    Participant’s Disability, the Participant may exercise his
    or her Option within such period of time as is specified in the
    Award Agreement to the extent the Option is vested on the date
    of termination (but in no event later than the expiration of the
    term of such Option as set forth in the Award Agreement). In the
    absence of a specified time in the Award Agreement, the Option
    will remain exercisable for twelve (12) months following
    the Participant’s termination as a result of Disability.
    Unless otherwise provided by the Committee, if on the date of
    termination the Participant is not vested as to his or her
    entire Option, the Shares covered by the unvested portion of the
    Option will revert to the Plan. If after termination the
    Participant does not exercise his or her Option within the time
    specified herein, the Option will terminate, and the Shares
    covered by such Option will revert to the Plan.



 



    (d) Death of Participant.  If a
    Participant dies while a Service Provider, the Option may be
    exercised following the Participant’s death within such
    period of time as is specified in the Award Agreement to the
    extent that the Option is vested on the date of death (but in no
    event may the option be exercised later than the expiration of
    the term of such Option as set forth in the Award Agreement), by
    the Participant’s designated beneficiary, provided such
    beneficiary has been designated prior to Participant’s
    death in a form acceptable to the Committee. If no such
    beneficiary has been designated by the Participant, then such
    Option may be exercised by the personal






    

9








 







    representative of the Participant’s estate or by the
    person(s) to whom the Option is transferred pursuant to the
    Participant’s will or in accordance with the laws of
    descent and distribution. In the absence of a specified time in
    the Award Agreement, the Option will remain exercisable for
    twelve (12) months following Participant’s death.
    Unless otherwise provided by the Committee, if at the time of
    death Participant is not vested as to his or her entire Option,
    the Shares covered by the unvested portion of the Option will
    immediately revert to the Plan. If the Option is not so
    exercised within the time specified herein, the Option will
    terminate, and the Shares covered by such Option will revert to
    the Plan.



 



    6.7.  Reload Provision.  In
    the event the Participant exercises an Option that was granted
    on or prior to the 2006 Restatement Date and pays all or a
    portion of the Option Price in Stock, such Participant (either
    pursuant to the terms of the Option Award, or pursuant to the
    exercise of Committee discretion at the time the Option is
    exercised) may be issued a new Option to purchase additional
    shares of Stock equal to the number of shares of Stock
    surrendered to the Company in such payment. Such new Option
    shall have an exercise price equal to the Fair Market Value per
    share on the date such new Option is granted, shall first be
    exercisable six months from the date of grant of the new Option
    and shall expire on the same date as the expiration date of the
    original Option so exercised by payment of the Option Price in
    shares of Stock. Options granted after the 2006 Restatement Date
    will not be subject to this reload provision in this
    Section 6.7.



 



    7. Stock Appreciation Rights.



 



    7.1.  Types of SARs
    Authorized.  SARs may be granted in tandem
    with all or any portion of a related Option or may be granted
    independently of any Option.



 



    7.2.  Exercise Price and Other
    Terms.  The Administrator, subject to the
    provisions of the plan, will have complete discretion to
    determine the terms and conditions of each SAR granted under the
    Plan; provided, however, that (a) the exercise price per
    share subject to a tandem SAR shall be the exercise price per
    share under the related Option and (b) the exercise price
    per share subject to an independently granted SAR shall not be
    less than the Fair Market Value of a share of Stock on the
    effective date of grant of the SAR.



 



    7.3.  Exercise.  If a SAR is
    not in tandem with an Option, then the SAR shall be exercisable
    in accordance with the terms established by the Administrator at
    the time of grant and set forth in the Award Agreement. If a SAR
    is granted in tandem with an Option, then the SAR shall be
    exercisable at the time the tandem Option is exercisable. The
    exercise of a tandem SAR will result in the surrender of the
    corresponding rights under the related Option.



 



    7.4.  Settlement of
    Award.  Upon the exercise of a SAR, a
    Participant will be entitled to receive payment from the Company
    in an amount determined by multiplying: (a) the difference
    between the Fair Market Value of a Share on the date of exercise
    over the exercise price; times (b) the number of shares of
    Stock with respect to which the SAR is exercised. At the
    discretion of the Administrator, the payment upon SAR exercise
    may be in cash, in shares of Stock of equivalent value, or in
    some combination thereof.



 



    7.5.  Terms and Expiration of
    SARs.  The Administrator, in its discretion,
    may impose such restrictions on shares of Stock acquired
    pursuant to the exercise of a SAR as it determines to be
    desirable, including, without limitation, restrictions relating
    to disposition of the shares and forfeiture restrictions based
    on service, performance, ownership of Stock by the Participant,
    and such other factors as the Administrator determines to be
    appropriate. Each SAR grant under the Plan will expire upon the
    date determined by the Administrator, in its sole discretion,
    and set forth in the Award Agreement. Notwithstanding the
    foregoing, the requirements of Section 6.6 also will apply
    to SARs.



 



    8. Restricted Stock.



 



    8.1.  Grant of Restricted
    Stock.  Subject to the terms and provisions of
    the Plan, the Committee, at any time and from time to time, may
    grant Restricted Stock to Service Providers in such amounts as
    the Committee, in its sole discretion, will determine.



 



    8.2.  Restricted Stock
    Agreement.  Each Award of Restricted Stock
    will be evidenced by an Award Agreement that will specify the
    Period of Restriction, the number of Shares granted, and such
    other terms and conditions as the Committee, in its sole
    discretion, will determine. Unless the Committee determines
    otherwise, Restricted Stock will be held by the Company as
    escrow agent until the restrictions on such Shares have lapsed.





    

10








 







    8.3.  Other Restrictions.  The
    Committee, in its sole discretion, may impose such other
    restrictions on Restricted Stock as it may deem advisable or
    appropriate, including granting such an Award of Restricted
    Stock subject to Performance Goals or to the requirements of
    Section 12.



 



    8.4.  Removal of
    Restrictions.  Except as otherwise provided in
    the Plan or the applicable Award Agreement, Shares of Restricted
    Stock covered by each Restricted Stock grant made under the Plan
    will be released from escrow as soon as practicable after the
    last day of the Period of Restriction. The Committee, in its
    discretion, may accelerate the time at which any restrictions
    will lapse or be removed.



 



    8.5.  Voting Rights.  During
    the Period of Restriction, Service Providers holding Shares of
    Restricted Stock granted hereunder may exercise full voting
    rights with respect to those Shares, unless the Committee
    determines otherwise and as set forth in the Award Agreement.



 



    8.6.  Dividend Rights.  During
    the Period of Restriction, Service Providers holding Shares of
    Restricted Stock may be entitled to Dividend Rights with respect
    to such Shares to the extent provided in the Award Agreement. If
    any such Dividend Rights are paid in shares of Stock, the shares
    of Stock will be subject to the same restrictions on
    transferability and forfeitability as the Restricted Stock with
    respect to which they were paid. Dividend Rights shall be
    settled in cash or in shares of Stock, as determined by the
    Administrator, shall be payable at the time and in the form
    determined by the Administrator, and shall be subject to such
    other terms and conditions as the Administrator may determine.



 



    8.7.  Return of Restricted Stock to
    Company.  On the date set forth in the Award
    Agreement, the Restricted Stock for which restrictions have not
    lapsed will revert to the Company and again will become
    available for grant under the Plan.



 



    9. Restricted Stock Units.



 



    9.1.  Grant of Restricted Stock
    Units.  Subject to the terms and provisions of
    the Plan, the Committee, at any time and from time to time, may
    grant Restricted Stock Units to Service Providers in such
    amounts as the Committee, in its sole discretion, will determine.



 



    9.2.  Restricted Stock Unit
    Agreement.  Each Award of Restricted Stock
    Units will be evidenced by an Award Agreement that will specify
    the Period of Restriction, the number of Shares to be issued in
    settlement of the Award, and such other terms and conditions as
    the Committee, in its sole discretion, will determine.



 



    9.3.  Other Restrictions.  The
    Committee, in its sole discretion, may impose such other
    restrictions on Restricted Stock Units as it may deem advisable
    or appropriate, including granting such an Award of Restricted
    Stock Units subject to Performance Goals or to the requirements
    of Section 12.



 



    9.4.  Settlement of Restricted Stock
    Units.  At the time of grant of any Restricted
    Stock Unit, the Committee will specify the settlement date
    applicable to each grant of Restricted Stock Units which will be
    no earlier than the vesting date or dates of the Award and may
    be determined at the election of the Participant. On the
    settlement date, the Company will transfer to the Participant
    either (a) one share of Stock or (ii) cash equal to
    the value of one such share of Stock for each Restricted Stock
    Unit scheduled to be paid out on such date and which was not
    previously forfeited.



 



    9.5.  Voting Rights.  Service
    Providers holding Restricted Stock Units will not have any right
    to exercise voting rights with respect to the shares of Stock
    underlying such Restricted Stock Unit.



 



    9.6.  Dividend Rights.  During
    the Period of Restriction, Service Providers holding Shares of
    Restricted Stock Units may be entitled to Dividend Rights with
    respect to such Shares to the extent and in the manner provided
    in the Award Agreement. Dividend Rights shall be settled in cash
    or in shares of Stock, as determined by the Administrator, shall
    be payable at the time and in the form determined by the
    Administrator, and shall be subject to such other terms and
    conditions as the Administrator may determine.



 



    9.7.  Return of Restricted Stock Units to
    Company.  On the date set forth in the Award
    Agreement, the Restricted Stock Units for which restrictions
    have not lapsed, and for which shares of Stock have not been
    issued in settlement of the Award, will revert to the Company
    and again will become available for grant under the Plan.





    

11








 







    10. Performance Units and Performance Shares.



 



    10.1.  Grant of Performance
    Units/Shares.  Subject to the terms and
    conditions of the Plan, Performance Units and Performance Shares
    may be granted to Service Providers at any time and from time to
    time, as will be determined by the Administrator, in its sole
    discretion. The Administrator will have complete discretion in
    determining the number of Performance Units and Performance
    Shares granted to each Participant.



 



    10.2.  Value of Performance
    Units/Shares.  Each Performance Unit will have
    an initial value that is established by the Administrator on or
    before the date of grant. Each Performance Share will have an
    initial value equal to the Fair Market Value of a Share on the
    date of grant.



 



    10.3.  Performance Objectives and Other
    Terms.  The Administrator will set performance
    objectives or other vesting provisions (including, without
    limitation, continued status as a Participant) in its discretion
    which, depending on the extent to which they are met, will
    determine the number or value of Performance Units/Shares that
    will be paid out to the Participants. The time period during
    which the performance objectives must be met will be called the
    “Performance Period.” Each Award of Performance
    Units/Shares will be evidenced by an Award Agreement that will
    specify the Performance Period, and such other terms and
    conditions as the Administrator, in its sole discretion, will
    determine. The Administrator may set Performance Goals based
    upon the achievement of Company-wide, divisional, or individual
    goals, applicable federal or state securities laws, or any other
    basis determined by the Administrator in its discretion.



 



    10.4.  Earning of Performance
    Units/Shares.  After the applicable
    Performance Period has ended, the holder of Performance
    Units/Shares will be entitled to receive a payout of the number
    of Performance Units/Shares earned by the Participant over the
    Performance Period, to be determined as a function of the extent
    to which the corresponding performance objectives have been
    achieved. After the grant of a Performance Unit/Share, the
    Administrator, in its sole discretion, may reduce or waive any
    performance objectives for such Performance Unit/Share.



 



    10.5.  Form and Timing of Payment of Performance
    Units/Shares.  Payment of earned Performance
    Units/Shares will be made as soon after the expiration of the
    applicable Performance Period at the time determined by the
    Administrator. The Administrator, in its sole discretion, may
    pay earned Performance Units/Shares in the form of cash, in
    Shares (which have an aggregate Fair Market Value equal to the
    value of the earned Performance Units/Shares at the close of the
    applicable Performance Period) or in a combination thereof.



 



    10.6.  Cancellation of Performance
    Units/Shares.  On the date set forth in the
    Award Agreement, all unearned or unvested Performance
    Units/Shares will be forfeited to the Company, and again will be
    available for grant under the Plan.



 



    11. Replacement Awards.  Each holder of an
    Award related to the common stock of Old Ameritrade which was
    granted pursuant to the Plan prior to the Assumption Date and
    which was outstanding as of the Assumption Date after giving
    effect to the transactions contemplated by the Merger Agreement
    (the “Existing Awards”), will, as of the Assumption
    Date, be automatically granted a “Replacement Award”
    under the Plan and the Existing Awards shall be cancelled in
    exchange for the Replacement Awards. The number of shares of
    Stock and, if applicable, the Option Price per share of Stock,
    subject to a Replacement Award shall be equal to the same number
    of shares of common stock of Old Ameritrade and, if applicable,
    the same Option Price per share, subject to corresponding
    Existing Award. Except as provided in the preceding sentence,
    the Replacement Awards granted pursuant to this Section 11
    shall be subject to the same terms and conditions as the
    corresponding Existing Awards.



 



    12. Terms and Conditions of Any Performance-Based
    Award.



 



    12.1.  Purpose.  The purpose
    of this Section 12 is to provide the Committee the ability
    to qualify Awards (other than Options and SARs) that are granted
    pursuant to the Plan as qualified performance-based compensation
    under Section 162(m) of the Code. If the Committee, in its
    discretion, decides to grant a Performance-Based Award subject
    to Performance Goals to a Covered Employee, the provisions of
    this Section 12 will control over any contrary provision in
    the Plan; provided, however, that the Committee may in its
    discretion grant Awards to such Covered Employees that are based
    on Performance Goals or other specific criteria or goals but
    that do not satisfy the requirements of this Section 12.





    

12








 







    12.2.  Applicability.  This
    Section 12 will apply to those Covered Employees which are
    selected by the Committee to receive any Award subject to
    Performance Goals. The designation of a Covered Employee as
    being subject to Section 162(m) of the Code will not in any
    manner entitle the Covered Employee to receive an Award under
    the Plan. Moreover, designation of a Covered Employee subject to
    Section 162(m) of the Code for a particular Performance
    Period will not require designation of such Covered Employee in
    any subsequent Performance Period and designation of one Covered
    Employee will not require designation of any other Covered
    Employee in such period or in any other period.



 



    12.3.  Procedures with Respect to Performance
    Based Awards.  To the extent necessary to
    comply with the performance-based compensation of
    Section 162(m) of the Code, with respect to any Award
    granted subject to Performance Goals, no later than ninety
    (90) days following the commencement of any fiscal year in
    question or any other designated period of time or period of
    service (or such other time as may be required or permitted by
    Section 162(m)), the Committee will, in writing,
    (a) designate one or more Participants who are Covered
    Employees, (b) select the Performance Goals applicable to
    the Performance Period, (c) establish the Performance
    Goals, and amounts of such Awards, as applicable, which may be
    earned for such Performance Period, and (d) specify the
    relationship between Performance Goals and the amounts of such
    Awards, as applicable, to be earned by each Covered Employee for
    such Performance Period. Following the completion of each
    Performance Period, the Committee will certify in writing
    whether the applicable Performance Goals have been achieved for
    such Performance Period. In determining the amounts earned by a
    Covered Employee, the Committee will have the right to reduce or
    eliminate (but not to increase) the amount payable at a given
    level of performance to take into account additional factors
    that the Committee may deem relevant to the assessment of
    individual or corporate performance for the Performance Period.
    Unless specifically provided otherwise by the Committee when
    establishing any Performance Goal, and only to the extent
    applicable to each particular Performance Goal, such Performance
    Goals shall be automatically adjusted to (a) the reflect
    the impact of any change in accounting standards that may be
    required by the Financial Accounting Standards Board after the
    adoption of the Performance Goal and (b) reflect the impact
    of any restatement of the Company’s financial statements as
    result of such a change in the accounting standards.



 



    12.4.  Payment of Performance Based
    Awards.  Unless otherwise provided in the
    applicable Award Agreement, a Covered Employee must be employed
    by the Company or a Related Entity on the day a
    Performance-Based Award for such Performance Period is paid to
    the Covered Employee. Furthermore, a Covered Employee will be
    eligible to receive payment pursuant to a Performance-Based
    Award for a Performance Period only if the Performance Goals for
    such period are achieved.



 



    12.5.  Additional
    Limitations.  Notwithstanding any other
    provision of the Plan, any Award which is granted to a Covered
    Employee and is intended to constitute qualified performance
    based compensation under Section 162(m) of the Code will be
    subject to any additional limitations set forth in the Code
    (including any amendment to Section 162(m)) or any
    regulations and ruling issued thereunder that are requirements
    for qualification as qualified performance-based compensation as
    described in Section 162(m) of the Code, and the Plan will
    be deemed amended to the extent necessary to conform to such
    requirements.



 



    13. Change in Control.



 



    13.1.  Options and SARs.  In
    the event of a Change in Control, an outstanding Option or SAR
    that was granted on or after the 2006 Restatement Date may be
    (i) assumed or substituted with an equivalent option or SAR
    of the successor corporation or a Parent or Subsidiary of the
    successor corporation, (ii) replaced with a cash incentive
    program of the successor corporation or a Parent or Subsidiary
    of the successor corporation, or (iii) terminated. Unless
    determined otherwise by the Committee, in the event that the
    successor corporation does not assume, substitute or replace a
    Participant’s Option or SAR that was granted on or after
    the 2006 Restatement Date, the Participant shall, immediately
    prior to the Change in Control, fully vest in and have the right
    to exercise such Option or SAR that was granted on or after the
    2006 Restatement Date and which is not assumed, substituted or
    replaced as to all of the Stock underlying the Award, including
    Shares as to which it would not otherwise be vested or
    exercisable. If an Option or SAR that was granted on or after
    the 2006 Restatement Date is not assumed, substituted or
    replaced in the event of a Change in Control, the Committee
    shall notify the Participant in writing or electronically that
    the Option or SAR that was granted on or after the 2006
    Restatement Date shall be exercisable, to






    

13








 







    the extent vested, for a period of up to fifteen (15) days
    from the date of such notice, and the Option or SAR that was
    granted on or after the 2006 Restatement Date shall terminate
    upon the expiration of such period. For the purposes of this
    paragraph, the Option or SAR that was granted on or after the
    2006 Restatement Date shall be considered assumed if, following
    the Change in Control, the option or stock appreciation right
    confers the right to purchase or receive, for each Share of
    Stock subject to such Option or SAR immediately prior to the
    Change in Control, the consideration (whether stock, cash, or
    other securities or property) received in the Change in Control
    by holders of Stock for each Share held on the effective date of
    the transaction (and if holders were offered a choice of
    consideration, the type of consideration chosen by the holders
    of a majority of the outstanding Shares); provided, however,
    that if such consideration received in the Change in Control is
    not solely common stock of the successor corporation or its
    Parent, the Committee may, with the consent of the successor
    corporation, provide for the consideration to be received upon
    the exercise of the Option or SAR that was granted on or after
    the 2006 Restatement Date, for each Share of Stock subject to
    the Option or SAR that was granted on or after the 2006
    Restatement Date, to be solely common stock of the successor
    corporation or its Parent equal in fair market value to the per
    share consideration received by holders of Stock in the Change
    in Control. Notwithstanding anything herein to the contrary, an
    Award that vests, is earned or paid-out upon the satisfaction of
    one or more Performance Goals will not be considered assumed if
    the Company or its successor modifies any of such Performance
    Goals without the Participant’s consent; provided, however,
    a modification to such Performance Goals only to reflect the
    successor corporation’s post-merger or post-Change in
    Control corporate structure will not be deemed to invalidate an
    otherwise valid Award assumption.



 



    13.2.  Restricted Stock, Restricted Stock Units,
    Performance Shares and Performance Units.  In
    the event of a Change in Control, an outstanding Award of
    Restricted Stock, Restricted Stock Unit, Performance Share or
    Performance Unit that was granted on or after the 2006
    Restatement Date may be (i) assumed or substituted with an
    equivalent restricted stock, restricted stock unit, performance
    share or performance unit award of the successor corporation or
    a Parent or Subsidiary of the successor corporation,
    (ii) replaced with a cash incentive program of the
    successor corporation or a Parent or Subsidiary of the successor
    corporation, or (iii) terminated. Unless determined
    otherwise by the Committee, in the event that the successor
    corporation refuses to assume, substitute or replace a
    Participant’s Restricted Stock, Restricted Stock Unit,
    Performance Share or Performance Unit that was granted on or
    after the 2006 Restatement Date, the Participant shall,
    immediately prior to the Change in Control, fully vest in such
    Restricted Stock, Restricted Stock Unit, Performance Share or
    Performance Unit that was granted on or after the 2006
    Restatement Date including as to Shares which would not
    otherwise be vested. For the purposes of this paragraph, a
    Restricted Stock, Restricted Stock Unit, Performance Share or
    Performance Unit award that was granted on or after the 2006
    Restatement Date shall be considered assumed if, following the
    Change in Control, the award confers the right to purchase or
    receive, for each Share subject to the Award immediately prior
    to the Change in Control, the consideration (whether stock,
    cash, or other securities or property) received in the Change in
    Control by holders of Stock for each Share held on the effective
    date of the transaction (and if holders were offered a choice of
    consideration, the type of consideration chosen by the holders
    of a majority of the outstanding Shares); provided, however,
    that if such consideration received in the Change in Control is
    not solely common stock of the successor corporation or its
    Parent, the Committee may, with the consent of the successor
    corporation, provide for the consideration to be received, for
    each Share and each unit/right to acquire a Share subject to the
    Award, to be solely common stock of the successor corporation or
    its Parent equal in fair market value to the per share
    consideration received by holders of Stock in the Change in
    Control. Notwithstanding anything herein to the contrary, an
    Award that vests, is earned or paid-out upon the satisfaction of
    one or more Performance Goals will not be considered assumed if
    the Company or its successor modifies any of such Performance
    Goals without the Participant’s consent; provided, however,
    a modification to such Performance Goals only to reflect the
    successor corporation’s post-merger or post-Change in
    Control corporate structure will not be deemed to invalidate an
    otherwise valid Award assumption.



 



    14. Forfeiture Events.  The Administrator
    may specify in an Award Agreement that the Participant’s
    rights, payments, and benefits with respect to an Award shall be
    subject to reduction, cancellation, forfeiture, or recoupment
    upon the occurrence of certain specified events, in addition to
    any otherwise applicable vesting or performance conditions of an
    Award. Such events may include, but shall not be limited to,
    fraud, breach of a fiduciary duty, restatement of financial
    statements as a result of fraud or willful errors or omissions,
    termination of employment for cause, violation of material
    Company
    and/or
    Subsidiary policies, breach of non-competition,






    

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    confidentiality, or other restrictive covenants that may apply
    to the Participant, or other conduct by the Participant that is
    detrimental to the business or reputation of the Company
    and/or its
    Subsidiaries.



 



    15. Miscellaneous.



 



    15.1.  Limit on
    Distribution.  Distribution of shares of Stock
    or other amounts under the Plan shall be subject to the
    following:



 



    (a) Notwithstanding any other provision of the Plan, the
    Company shall have no liability to deliver any shares of Stock
    under the Plan or make any other distribution of benefits under
    the Plan unless such delivery or distribution would comply with
    all applicable laws and the applicable requirements of any
    securities exchange or similar entity.



 



    (b) In the case of a Participant who is subject to
    Section 16(a) and 16(b) of the Exchange Act, the
    Administrator may, at any time, add such conditions and
    limitations to any Award to such Participant, or any feature of
    any such Award, as the Administrator, in its sole discretion,
    deems necessary or desirable to comply with Section 16(a)
    or 16(b) of the Exchange Act and the rules and regulations
    thereunder or to obtain any exemption therefrom.



 



    (c) To the extent that the Plan provides for issuance of
    certificates to reflect the transfer of shares of Stock, the
    transfer of such shares may be effected on a non-certificated
    basis, to the extent not prohibited by applicable law or the
    rules of any stock exchange.



 



    15.2.  Withholding.  All
    Awards and other payments under the Plan are subject to
    withholding of all applicable taxes, which withholding
    obligations may be satisfied, with the consent of the
    Administrator, through the surrender of shares of Stock which
    the Participant already owns, or to which a Participant is
    otherwise entitled under the Plan; provided, however, that in no
    event shall the Fair Market Value of the number of shares
    withheld from any Award to satisfy tax withholding obligations
    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 transaction.



 



    15.3.  Transferability.  Awards
    under the Plan are not transferable except as designated by a
    Participant by will or by the laws of descent and distribution.
    To the extent that the Participant who receives an Award under
    the Plan has the right to exercise such Award, the Award may be
    exercised during the lifetime of the Participant only by the
    Participant.



 



    15.4.  Notices.  Any notice or
    document required to be filed with the Administrator under the
    Plan will be properly filed if delivered or mailed by registered
    mail, postage prepaid, to the Administrator, in care of the
    Company, at its principal executive offices. The Administrator
    may, by advance written notice to affected persons, revise such
    notice procedure from time to time. Any notice required under
    the Plan (other than a notice of election) may be waived by the
    person entitled to notice.



 



    15.5.  Form and Time of
    Elections.  Unless otherwise specified herein,
    each election required or permitted to be made by any
    Participant or other person entitled to benefits under the Plan,
    and any permitted modification or revocation thereof, shall be
    in writing filed with the Administrator at such times, in such
    form, and subject to such restrictions and limitations, not
    inconsistent with the terms of the Plan, as the Administrator
    shall require.



 



    15.6.  Agreement With
    Company.  At the time of an Award to a
    Participant under the Plan, the Administrator may require a
    Participant to enter into an Award Agreement with the Company in
    a form specified by the Administrator, agreeing to the terms and
    conditions of the Plan and to such additional terms and
    conditions, not inconsistent with the Plan, as the Administrator
    may, in its sole discretion, prescribe.



 



    15.7.  Limitation of Implied Rights.



 



    (a) Neither a Participant nor any other person shall, by
    reason of the Plan, acquire any right in or title to any assets,
    funds or property of the Company whatsoever, including, without
    limitation, any specific funds, assets, or other property which
    the Company, in its sole discretion, may set aside in
    anticipation of a liability under the Plan. A Participant shall
    have only a contractual right to the amounts, if any, payable
    under the Plan, unsecured by any assets of the Company. Nothing
    contained in the Plan shall constitute a guarantee by the
    Company that the assets of such companies shall be sufficient to
    pay any benefits to any person.





    

15








 







    (b) The Plan does not constitute a contract of employment,
    and selection as a Participant will not give any employee the
    right to be retained in the employ of the Company, nor any right
    or claim to any benefit under the Plan, unless such right or
    claim has specifically accrued under the terms of the Plan.
    Except as otherwise provided in the Plan, no Award under the
    Plan shall confer upon the holder thereof any right as a
    shareholder of the Company prior to the date on which he
    fulfills all service requirements and other conditions for
    receipt of such rights.



 



    15.8.  Evidence.  Evidence
    required of anyone under the Plan may be by certificate,
    affidavit, document or other information which the person acting
    on it considers pertinent and reliable, and signed, made or
    presented by the proper party or parties.



 



    15.9.  Gender and
    Number.  Where the context admits, words in
    one gender shall include the other gender, words in the singular
    shall include the plural and the plural shall include the
    singular.



 



    15.10.  Severability.  Notwithstanding
    any contrary provision of the Plan or an Award to the contrary,
    if any one or more of the provisions (or any part thereof) of
    this Plan or the Awards shall be held invalid, illegal or
    unenforceable in any respect, such provision shall be modified
    so as to make it valid, legal and enforceable, and the validity,
    legality and enforceability of the remaining provisions (or any
    part thereof) of the Plan or Award, as applicable, shall not in
    any way be affected or impaired thereby.



 



    15.11.  Date of Grant.  The
    date of grant of an Award will be, for all purposes, the date on
    which the Committee makes the determination granting such Award,
    or such other later date as is determined by the Committee.
    Notice of the determination will be provided to each Participant
    within a reasonable time after the date of such grant.



 



    16. Amendment and Termination.



 



    16.1.  Amendment and
    Termination.  The Administrator may at any
    time amend, alter, suspend or terminate the Plan.



 



    16.2.  Stockholder
    Approval.  The Company will obtain stockholder
    approval of any Plan amendment to the extent necessary and
    desirable to comply with Applicable Laws. Other than pursuant to
    Section 13, the Company also will obtain stockholder
    approval before implementing a program to reduce the exercise
    price of outstanding Options
    and/or SARs
    through a repricing or Award exchange.



 



    16.3.  Effect of Amendment or
    Termination.  No amendment, alteration,
    suspension or termination of the Plan will impair the rights of
    any Participant, unless mutually agreed otherwise between the
    Participant and the Company, which agreement must be in writing
    and signed by the Participant and the Company. Termination of
    the Plan will not affect the Committee’s ability to
    exercise the powers granted to it hereunder with respect to
    Awards granted under the Plan prior to the date of such
    termination.





    

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