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EX-10.4
4
c05131exv10w4.txt
AMENDMENT NO.1 TO STOCKHOLDERS AGREEMENT
EXHIBIT 10.4
AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT
This AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT (this "AMENDMENT") is made
and entered into this 22nd day of February, 2006 by and among TD Ameritrade
Holding Corporation (the "COMPANY"), the stockholders of the Company listed on
the signature pages hereto under the heading "R Parties" (collectively, the "R
PARTIES"), The Toronto-Dominion Bank, a Canadian chartered bank ("TD BANK") and
TD Discount Brokerage Holdings LLC, a Delaware limited liability company and a
direct, wholly-owned subsidiary of TD Bank ("TD HOLDINGS," and collectively with
TD Bank, "TD").
RECITALS
WHEREAS, the parties hereto are parties to that certain Stockholders
Agreement dated as of June 22, 2005 (the "ORIGINAL AGREEMENT");
WHEREAS, the Original Agreement provides that, promptly after the closing
of the sale of TD Waterhouse Group, Inc. by TD to the Company, TD is required to
commence or cause to be commenced a tender offer (the "TENDER OFFER") to
acquire, at a price of not less than $16 per share, a number of shares of Common
Stock constituting the lesser of (A) 8% of the outstanding shares of Common
Stock and (B) the number of shares that would result in TD Beneficially Owning
Voting Securities representing 39.9% of the outstanding shares of Common Stock,
upon the terms and conditions set forth in Section 5.8 of the Original
Agreement;
WHEREAS, in light of (among other things) the fact that the Common Stock
has been trading at a price per share in excess of the minimum price at which TD
is obligated to effect the TENDER OFFER, the Company, the R Parties and TD
desire to amend the Original Agreement to eliminate TD's obligation to
conduct the Tender Offer and, in lieu thereof, to reflect TD's agreement to
purchase, pursuant to one or more Plans described herein or otherwise, in each
case in open market purchases (including block trades, subject to the
limitations set forth below) effected in compliance with Rule 10b-18 under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), at least
15,000,000 shares of Common Stock within six months of the date hereof;
WHEREAS, in addition to the 15,000,000 shares which TD is agreeing to
purchase within six months of the date hereof, TD currently intends to acquire
up to 15,000,000 additional shares of Common Stock by January 24, 2007; and
WHEREAS, in accordance with Section 6.4 of the Original Agreement, each of
TD, the R Parties and the Outside Independent Directors Committee has approved
this Amendment and the transactions contemplated hereby.
NOW THEREFORE, in consideration of the foregoing, and of the covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed thereto in the Original Agreement.
ARTICLE II
AMENDMENTS TO THE ORIGINAL AGREEMENT
SECTION 2.1. Amendment to the Recitals. The second paragraph of the
Recitals of the Original Agreement is hereby deleted in its entirety.
SECTION 2.2. Amendment to Section 1.1 (Definitions). Section 1.1 of the
Original Agreement is hereby amended and supplemented to add the following
definitions:
"CLOSING" means the closing under the Share Purchase Agreement.
"JR" means J. Joe Ricketts.
SECTION 2.3. Amendment to Section 3.2 (Specific Transfer Restrictions).
Section 3.2(g) of the Original Agreement is hereby amended by amending and
restating clause (v) thereof in its entirety as follows: "to TD or any of its
Subsidiaries pursuant to the purchases contemplated by Section 5.8(a) hereof or
otherwise, subject to the limitations of Section 2.1(a)(i)(A) hereof."
SECTION 2.4. Elimination of Tender Offer Obligation; Amendment to Section
5.8 (Tender Offer).
(a) The Company and each of the R Parties hereby expressly waive and
release TD and its Affiliates from any and all obligations relating to the
Tender Offer.
(b) Section 5.8 of the Original Agreement is hereby amended and restated in
its entirety as follows:
"Section 5.8. TD Share Purchases; No Company Repurchases. (a) Prior to
August 22, 2006, TD and/or one or more of its wholly-owned Subsidiaries
shall acquire at least 15,000,000 shares of Common Stock. Such acquisition
may be effected pursuant to one or more stock purchase plans meeting the
requirements of Rule 10b5-1(c)(1) under the Exchange Act (each, a "PLAN"
and together, the "PLANS"), to be established by TD promptly following
February 22, 2006 (which Plan or Plans will contemplate the purchase of up
to an aggregate of at least 15,000,000 shares of Common Stock, on the terms
and subject to the conditions contained therein) or otherwise. Such
acquisition shall be effected at such times and on such terms as are
determined by TD, in its sole discretion, provided that all such purchases
shall be effected by means of open market purchases in compliance with Rule
10b-18 under the Exchange Act (including block trades, provided that TD
shall purchase at least 7,500,000 shares pursuant to open market purchases
that are not block purchases effected under the once-a-week block purchase
exception provided in Rule 10b-18(b)(4) under the Exchange Act). TD
shall give the Company written notice promptly following its satisfaction
of its obligations under this Section 5.8(a). The purchases contemplated by
this Section 5.8(a) shall be subject at all times to the restrictions
contained in Section 2.1(a)(i)(A) hereof. The Company and TD will cooperate
with each other to prepare and make all regulatory filings required as a
result of or in order to effect the purchases contemplated by this Section
5.8(a).
(b) Prior to August 22, 2006 (or such earlier date on which TD provides
notice to the Company of the satisfaction of TD's obligations under
Section 5.8(a)) (the "TERM"), the Company shall not effect any repurchase
of shares of Common Stock. In the event that repurchases would otherwise be
required under Section 5.3 of this Agreement during the Term, the
Company's obligations to effect such repurchases shall be tolled
during the Term, and at the expiration of the Term the Company shall use
all reasonable efforts to repurchase any shares which it otherwise would
have been required to repurchase under Section 5.3 during the Term, which
repurchases shall be effected as promptly as reasonably practicable (which
may exceed 120 days) following the date of such expiration.
(c) All share numbers referred to in this Section 5.8 shall be adjusted
from time to time to reflect any stock dividend paid in respect of, or any
subdivision, split, combination or reclassification effected with respect
to, the Common Stock after February 22, 2006."
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Continued Effect of Original Agreement. As amended hereby, the
Original Agreement is hereby ratified and confirmed and agreed to by all of the
parties hereto and thereto and continues in full force and effect. All
references in the Original Agreement to the "Agreement" shall be read as
references to the Original Agreement, as amended by this Amendment and as it may
be further amended, supplemented, restated or otherwise modified from time to
time.
SECTION 3.2. Counterparts. This Amendment may be executed by facsimile in
separate counterparts each of which shall be an original and all of which taken
together shall constitute one and the same agreement.
SECTION 3.3. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware (except to the
extent that mandatory provisions of federal law are applicable), without giving
effect to the principles of conflicts of law, and shall be binding upon the
successors and assigns of the parties.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date set forth in the first paragraph hereof.
COMPANY:
TD AMERITRADE HOLDING CORPORATION
By: /s/ JOSEPH H. MOGLIA
------------------------------------
Name: Joseph H. Moglia
Title: Chief Executive Officer
TD:
THE TORONTO-DOMINION BANK
By: /s/ CHRISTOPHER MONTAGUE
------------------------------------
Name: Christopher Montague
Title: Executive Vice President
TD DISCOUNT BROKERAGE HOLDINGS LLC
By: /s/ FRANK TRIPODI
------------------------------------
Name: Frank Tripodi
Title: Managing Director
R PARTIES:
/s/ J. JOE RICKETTS by THOMAS RICKETTS
----------------------------------------
J. Joe Ricketts
/s/ MARLENE M. RICKETTS
----------------------------------------
Marlene M. Ricketts
MARLENE M. RICKETTS 1994 DYNASTY TRUST
By: /s/ LAURA M. RICKETTS
------------------------------------
Name: Laura M. Ricketts
Title: Trustee Designee
J. JOE RICKETTS 1994 DYNASTY TRUST
By: /s/ LAURA M. RICKETTS
------------------------------------
Name: Laura M. Ricketts
Title: Trustee Designee
RICKETTS GRANDCHILDREN TRUST
By: /s/ DONNA HEWITT ROMER
------------------------------------
Name: Donna Hewitt Romer
Title: Managing Director