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8-K - 8-K - TD AMERITRADE HOLDING CORP | c63133e8vk.htm |
EX-10.1 - EX-10.1 - TD AMERITRADE HOLDING CORP | c63133exv10w1.htm |
Exhibit
10.2
TD
AMERITRADE HOLDING CORPORATION
MANAGEMENT INCENTIVE PLAN
MANAGEMENT INCENTIVE PLAN
SECTION 1
BACKGROUND, PURPOSE AND DURATION
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
Companys objectives. The Plans 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
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 Committees 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 Participants 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
Awards 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.
1
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 individuals 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
Companys 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.
2
SECTION 3
SELECTION OF PARTICIPANTS AND DETERMINATION OF AWARDS
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 Participants 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 Participants 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 Participants 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 Participants 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
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 Participants 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
Companys 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 Companys 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 Companys 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 Companys (or its
Affiliates) 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 Companys 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 Companys 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 Companys 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 Participants
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 Companys
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 Companys outstanding Shares or
substantially all of the Companys 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
Companys right to later assert its rights hereunder with
respect to other or subsequent claims against the Affected
Participant.
(g) No Limitation on Remedies. The
Companys 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.
5
SECTION 5
ADMINISTRATION
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 Plans 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
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 Participants
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 individuals 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 Companys 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 Companys 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 Participants 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
Participants death shall be paid to the Participants
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
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
Boards right to amend or terminate the Plan), shall remain
in effect thereafter.
SECTION 8
LEGAL CONSTRUCTION
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.
7
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.
8