AMENDMENT NUMBER ONE TO THE AMENDED AND RESTATED AMERITRADE HOLDING CORPORATION ASSOCIATES 401(k) PROFIT SHARING PLAN AND TRUST
Exhibit 99.5
AMENDMENT NUMBER ONE TO THE AMENDED AND RESTATED
AMERITRADE HOLDING CORPORATION ASSOCIATES
401(k) PROFIT SHARING PLAN AND TRUST
AMERITRADE HOLDING CORPORATION ASSOCIATES
401(k) PROFIT SHARING PLAN AND TRUST
THIS AGREEMENT, is hereby made and entered into this first day of August, 2004 by and between
Ameritrade Online Holding Corporation (herein referred to as the “Employer”) and INTRUST Bank, N.
A. (herein referred to as the “Trustee”).
WITNESSETH:
WHEREAS, effective August 1, 2004, the Xxxxxxx & Company Standardized Code 401(k) Profit
Sharing Plan was merged with and in the Ameritrade Holding Corporation Associates 401(k) Profit
Sharing Plan and Trust (herein referred to as “Plan”);
WHEREAS, under the terms of the Plan the Employer has the ability to amend the Plan, provided
the Trustee joins in such amendment if the provisions of the Plan affecting the Trustee are
amended:
WHEREAS, effective as of August 1, 2004, the Employer and the Trustee in accordance with the
provisions of the Plan pertaining to amendments thereof, hereby amend the Plan as follows:
Section 1.9C shall be added and shall read as follows:
1.9C “Xxxxxxx Participant” means a Participant who was a participant in the
Xxxxxxx Plan as of July 31, 2004 and, for purposes of the service crediting
provisions of the Plan, also includes a person who was employed by Xxxxxxx &
Company prior to the July 31, 2004 and who subsequently becomes an Eligible
Employee.
Section 1.9D shall be added and shall read as follows:
1.9D “Xxxxxxx Plan” means the Xxxxxxx & Company Standardized Code 401(k)
Profit Sharing Plan.
Section 1.25 shall be amended to read as follows:
1.25 “Former Participant” means a person who has been a Participant, but
who has ceased to be a Participant for any reason. Datek Participants who are
not employed by the Employer as of January 1, 2004 shall be treated as Former
Participants as of that
date and thereafter, subject to the terms and conditions of the Plan.
Xxxxxxx Participants who are not employed by the Employer as of August 1, 2004
shall be treated as Former Participants as of August 1, 2004 and thereafter,
subject to the terms and conditions of the Plan.
Section 1.39 shall be amended to read as follows:
1.39 “Normal Retirement Age” means the Participant’s 65th birthday, or the
Participant’s 5th anniversary of joining the Plan, if later, or, with respect to
any Xxxxxxx Participant who was a participant in the Xxxxxxx Plan as of July 31,
2004, the Participant’s 60th birthday. A Participant shall become
fully Vested in the Participant’s Account upon attaining Normal Retirement Age.
Section 1.42 shall be amended to read as follows:
1.42 “Participant” means any Eligible Employee who participates in the Plan and
has not for any reason become ineligible to participate further in the Plan.
Notwithstanding any other provision of the Plan to the contrary, “Participant”
also includes any Datek Participant or any Xxxxxxx Participant whose account
balances under the Datek Plan or the Xxxxxxx Plan, as applicable, were
transferred to the Plan in connection with the merger of the Datek Plan or the
Xxxxxxx Plan, as applicable, into the Plan; provided, however, that a person
described in this sentence shall not be a Participant in the Plan for benefits
other than the amounts transferred from the Datek Plan or the Xxxxxxx Plan, as
applicable, unless and until he or she is otherwise an Eligible Employee and
satisfies the eligibility requirements of the Plan.
The last paragraph of Section 1.63 shall be amended to read as follows:
Notwithstanding any other provision of the Plan to the contrary, as of
January 1, 2004, each Datek Participant shall be given credit for the number of Years of
Service under the Plan equal to the number of years of service (and portions thereof)
credited to such Datek Participant under the Datek Plan on December 31, 2003; and as of
August 1, 2004, each Xxxxxxx Participant shall be given credit for the number of Years of
Service under the Plan equal to the number of years of service (and portions thereof)
credited to such Xxxxxxx Participant under the Xxxxxxx Plan on July 31, 2004.
The last paragraph of Section 3.2 shall be amended to read as follows:
Notwithstanding any other provision of the Plan to the contrary, an individual who
had a balance under the Datek Plan immediately prior to January 1, 2004 shall become a
Participant or Former Participant (as applicable) in the Plan as of January 1, 2004 with
respect to the balance that was transferred to the Plan from the Datek Plan in connection
with the merger of the Datek Plan with and into the Plan; and any individual who had a
balance under the Xxxxxxx Plan immediately prior to August 1, 2004 shall become a
Participant or Former Participant (as applicable) in the Plan as of August 1, 2004 with
respect to the balance that was transferred to the Plan from the Xxxxxxx Plan in
connection with the merger of the Datek Plan with and into the Plan.
Subsection 4.2(j)(4) shall be amended to read as follows:
In the case of any Datek Participant who is an Eligible Employee as of January 1,
2004, the salary reduction agreement in effect under the Datek Plan with respect to such
Datek Participant as of December 31, 2003 shall be treated as a salary reduction agreement
made pursuant to the Plan as of January 1, 2004 unless and until such salary reduction
agreement is revoked or modified in accordance with the terms and conditions of the Plan.
In the case of any Xxxxxxx Participant who is an Eligible Employee as of August 1, 2004,
the salary reduction agreement in effect under the Xxxxxxx Plan with respect to such
Xxxxxxx Participant as of July 31, 2004 shall be treated as a salary reduction agreement
made pursuant to the Plan as of August 1, 2004 unless and until such salary reduction
agreement is revoked or modified in accordance with the terms and conditions of the Plan.
Subsection 6.4(b) shall be amended to read as follows:
(b) In the case of any Datek Participant who completes an Hour of Service on or after
January 1, 2004, as well as any other Participant who completes an Hour of Service after
January 1, 2004, and in the case of any Xxxxxxx Participant who completes an Hour of
Service on or after August 1, 2004, the Vested portion of such Participant’s Account shall
be a percentage of the total amount credited to the Participant’s Account determined on
the basis of the Participant’s number of Years of Service according to the following
schedule but subject to subsection (c) below:
| Vesting Schedule | ||
| Years of Service | Percentage | |
Less than 1 |
0% | |
1 |
20% | |
2 |
40% | |
3 |
60% | |
4 |
80% | |
5 |
100% |
Subsection 6.4(c) shall be amended to read as follows:
(c) Notwithstanding the vesting schedule above, the Vested percentage of a
Participant’s Account shall not be less than the Vested percentage attained as of
the later of the effective date or adoption date of this amendment and
restatement or, in the case of a Xxxxxxx Participant who was a participant in the
Xxxxxxx Plan as of August 1, 2004, the vesting percentage determined under the
Xxxxxxx Plan as of July 31, 2004.
Subsection 7.4(g) shall be amended to read as follows:
(g) Notwithstanding anything in this Section to the contrary, any loans made
prior to January 1, 2004, shall be subject to the terms of the plan in effect at
the time such loan was made and any loans made under the Datek Plan prior to the
merger of the Datek Plan into the Plan shall be governed by the terms of the
promissory notes evidencing such loans and, to the extent required by law, the
Datek Plan, and any loans made under the Xxxxxxx Plan prior to the merger of the
Xxxxxxx Plan into the Plan shall be governed by the terms of the promissory notes
evidencing such loans and, to the extent required by law, the Xxxxxxx Plan.
All other provisions of the Plan shall remain in effect as amended and restated on January 1,
2004.
IN WITNESS WHEREOF, Employer and Trustee have caused this Amendment Number One to the Plan as
amended and restated on January 1, 2004 to be executed this 30th day of July, 2004, effective as
provided herein.
| Ameritrade Online Holdings Corporation |
||||
| “Employer” | By: | /s/ XXXX XXXXXXXXX | ||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Vice President | |||
| INTRUST Bank, N. A. |
||||
| “Trustee” | By: | /s/ XXXXXX X. XXXXXXX XX. | ||
| Name: | Xxxxxx X. Xxxxxxx Xx. | |||
| Title: | Vice President | |||
