þ | Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 for the Quarterly Period Ended March 31, 2006 |
o | Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 for the transition period from ___________ to ___________ |
Delaware | 82-0543156 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification Number) |
Large accelerated filer
þ
|
Accelerated filer o | Non-accelerated filer o |
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41
TD AMERITRADE Holding Corporation
May 5, 2006
Table of Contents
Table of Contents
Three Months Ended
Six Months Ended
March 31,
March 25,
March 31,
March 25,
2006
2005
2006
2005
$
221,394
$
127,973
$
351,193
$
281,519
254,048
116,301
431,402
229,402
(80,648
)
(30,169
)
(130,402
)
(54,849
)
173,400
86,132
301,000
174,553
45,306
45,306
32,503
5,438
40,164
11,493
251,209
91,570
386,470
186,046
24,623
12,962
36,824
26,922
497,226
232,505
774,487
494,487
111,722
42,850
156,614
86,839
12,403
6,371
18,370
12,900
17,164
9,450
25,918
18,896
18,148
9,588
33,195
20,593
5,181
2,230
8,664
4,832
11,281
3,144
14,790
6,814
37,072
9,208
46,665
18,775
25,796
449
26,444
1,006
(219
)
(148
)
(426
)
(246
)
8,818
5,160
15,826
9,107
47,477
27,525
74,041
50,635
(986
)
(10,336
)
10,717
2,669
293,857
105,491
430,818
232,820
203,369
127,014
343,669
261,667
78,840
78,840
282,209
127,014
422,509
261,667
109,374
49,643
163,677
99,887
$
172,835
$
77,371
$
258,832
$
161,780
$
0.31
$
0.19
$
0.54
$
0.40
$
0.30
$
0.19
$
0.53
$
0.39
553,813
402,833
479,377
404,357
566,710
410,674
491,065
412,840
$
6.00
$
0.00
$
6.00
$
0.00
Table of Contents
Six Months Ended
March 31, 2006
March 25, 2005
$
258,832
$
161,780
8,664
4,832
14,790
6,814
26,325
(439
)
(78,840
)
(426
)
(246
)
10,717
2,669
1,284
1,714
200,105
351,093
(657,712
)
(1,524,386
)
(22,857
)
219,009
491,121
923,701
33,981
54,479
(7,852
)
278,132
201,020
(3,081
)
(4,655
)
11
580,056
(25,919
)
(745,875
)
(92,475
)
935,694
46,050
7,492
807
774,297
(76,192
)
1,900,000
(20,992
)
280,000
(200,000
)
(280,000
)
(2,039
)
12,975
4,075
(2,442,234
)
(467
)
(76,875
)
12,520
(740,237
)
(72,800
)
154
299
312,346
52,327
171,064
137,392
$
483,410
$
189,719
$
142,064
$
51,470
$
76,185
$
43,608
$
12,558
$
3,134
$
3,384
$
$
72,077
$
$
2,123,181
$
Table of Contents
For the Three-Month and Six-Month Periods Ended March 31, 2006 and March 25, 2005
(Unaudited)
(Columnar amounts in thousands, except per share amounts)
Table of Contents
$
2,123,181
(580,056
)
(46,289
)
20,396
135,327
$
1,652,559
Amortization
Amount
Period (Years)
$
693,752
17
145,674
None
$
839,426
Three Months Ended
Six Months Ended
March 31, 2006
March 25, 2005
March 31, 2006
March 25, 2005
$
566,748
$
430,731
$
1,072,576
$
889,736
$
180,456
$
66,702
$
289,214
$
147,017
$
0.30
$
0.11
$
0.48
$
0.24
$
0.29
$
0.11
$
0.47
$
0.24
Table of Contents
$
769,215
924,361
(38
)
$
1,693,538
(1)
Represents the tax benefit of exercises of replacement stock options that were issued in
connection with the Datek Online Holdings Corp. (Datek) merger. The tax benefit of an
option exercise is recorded as a reduction of goodwill to the extent the Company recorded fair
value of the replacement option in the purchase accounting. To the extent any gain realized
on an option exercise exceeds the fair value of the replacement option recorded in the
purchase accounting, the tax benefit on the excess is recorded as additional paid-in capital.
Gross
Net
Carrying
Accumulated
Carrying
Amount
Amortization
Amount
$
991,522
$
(52,878
)
$
938,644
300
(223
)
77
145,674
145,674
$
1,137,496
$
(53,101
)
$
1,084,395
Table of Contents
Three Months Ended March 31, 2006
Paid and
Balance at
Exit Costs
Charged Against
Balance at
Dec. 31, 2005
Incurred
Liability
Mar. 31, 2006
$
119
$
66,158
$
(6,969
)
$
59,308
3,048
3,048
3,043
50,149
(3,491
)
49,701
15,972
15,972
$
3,162
$
135,327
$
(10,460
)
$
128,029
Six Months Ended March 31, 2006
Paid and
Balance at
Exit Costs
Charged Against
Balance at
Sept.
30, 2005
Incurred
Liability
Mar. 31, 2006
$
121
$
66,158
$
(6,971
)
$
59,308
3,048
3,048
3,217
50,149
(3,665
)
49,701
15,972
15,972
$
3,338
$
135,327
$
(10,636
)
$
128,029
Table of Contents
Table of Contents
Six Months Ended
March 31,
March 25,
2006
2005
4.4
%
3.5
%
0
%
0
%
58
%
62
%
5.0
5.0
Table of Contents
Weighted
Weighted
Average
Average
Remaining
Aggregate
Number of
Exercise
Contractual
Intrinsic
Options
Price
Term (Years)
Value
21,483
$
6.38
10
$
22.17
(2,027
)
$
6.40
(266
)
$
14.09
6,016
$
4.81
25,216
$
4.80
6.0
$
405,333
22,767
$
4.60
5.8
$
370,527
Weighted
Average
Number of
Grant Date
Options
Fair Value
3,430
$
4.39
10
$
11.97
(1,431
)
$
3.33
(193
)
$
3.56
633
$
3.89
2,449
$
4.00
Table of Contents
Weighted
Average
Number of
Grant Date
Units
Fair Value
$
693
$
20.92
$
(3
)
$
20.92
690
$
20.92
Weighted
Average
Number of
Grant Date
Units
Fair Value
$
1,297
$
20.92
$
$
1,297
$
20.92
Three Months Ended
Six Months Ended
March 25,
March 25,
2005
2005
$
77,371
$
161,780
217
465
(2,881
)
(6,859
)
$
74,707
$
155,386
$
0.19
$
0.40
$
0.19
$
0.38
$
0.19
$
0.39
$
0.18
$
0.38
Table of Contents
Three Months Ended
Six Months Ended
March 31,
March 25,
March 31,
March 25,
2006
2005
2006
2005
$
172,835
$
77,371
$
258,832
$
161,780
553,813
402,833
479,377
404,357
12,863
7,821
11,658
8,462
8
4
26
20
26
21
566,710
410,674
491,065
412,840
$
0.31
$
0.19
$
0.54
$
0.40
$
0.30
$
0.19
$
0.53
$
0.39
Table of Contents
Table of Contents
Table of Contents
Three Months Ended
Six Months Ended
March 31, 2006
March 25, 2005
March 31, 2006
March 25, 2005
$
172,835
$
77,371
$
258,832
$
161,780
1,596
(7,772
)
14,555
6,312
(614
)
2,991
(5,603
)
(2,073
)
(47,647
)
30
(47,647
)
30
(513
)
(513
)
153
(1,165
)
249
461
(47,025
)
(5,916
)
(38,959
)
4,730
$
125,810
$
71,455
$
219,873
$
166,510
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Three months ended
Six months ended
March 31, 2006
March 25, 2005
March 31, 2006
March 25, 2005
$
% of Rev.
$
% of Rev.
$
% of Rev.
$
%
of Rev.
$
250,627
50.4
%
$
144,055
62.0
%
$
428,987
55.4
%
$
314,725
63.6
%
(47,477
)
(9.5
%)
(27,525
)
(11.8
%)
(74,041
)
(9.6
%)
(50,635
)
(10.2
%)
219
0.0
%
148
0.1
%
426
0.1
%
246
0.0
%
0
0.0
%
10,336
4.4
%
(11,703
)
(1.5
%)
(2,669
)
(0.5
%)
203,369
40.9
%
127,014
54.6
%
343,669
44.4
%
261,667
52.9
%
78,840
15.9
%
0
0.0
%
78,840
10.2
%
0
0.0
%
$
282,209
56.8
%
$
127,014
54.6
%
$
422,509
54.6
%
$
261,667
52.9
%
$
245,627
49.4
%
$
132,837
57.1
%
$
393,567
50.8
%
$
274,319
55.5
%
78,840
15.9
%
0
0.0
%
78,840
10.2
%
0
0.0
%
324,467
65.3
%
132,837
57.1
%
472,407
61.0
%
274,319
55.5
%
(5,181
)
(1.0
%)
(2,230
)
(1.0
%)
(8,664
)
(1.1
%)
(4,832
)
(1.0
%)
(11,281
)
(2.3
%)
(3,144
)
(1.3
%)
(14,790
)
(1.9
%)
(6,814
)
(1.4
%)
(25,796
)
(5.2
%)
(449
)
(0.2
%)
(26,444
)
(3.4
%)
(1,006
)
(0.2
%)
$
282,209
56.8
%
$
127,014
54.6
%
$
422,509
54.6
%
$
261,667
52.9
%
Table of Contents
Three months ended March 31, 2006
Three months ended March 25, 2005
Net Interest
Percentage
Average
Interest
Average
Average
Interest
Average
Average
Revenue
Change in
Annualized
Rev/(Exp)
Balance
Annualized
Rev/(Exp)
Balance
Annualized
Inc./(Dec.)
Average
Net Yield
(millions)
(millions)
Yield/(Cost)
(millions)
(millions)
Yield/(Cost)
(millions)
Balances
Inc./(Dec.)
$
79.6
$
7,612
4.18
%
$
43.5
$
7,880
2.37
%
$
36.1
(3
%)
1.81
%
$
126.2
$
6,845
7.37
%
$
45.5
$
3,657
5.33
%
$
80.7
87
%
2.04
%
$
41.4
$
3,254
5.08
%
$
26.0
$
4,252
2.62
%
$
15.4
(23
%)
2.46
%
$
(25.3
)
$
10,247
(0.99
%)
$
(8.3
)
$
9,662
(0.37
%)
$
(17.0
)
6
%
(0.62
%)
$
(54.8
)
$
5,811
(3.77
%)
$
(21.6
)
$
5,126
(1.81
%)
$
(33.2
)
13
%
(1.96
%)
Six months ended March 31, 2006
Six months ended March 25, 2005
Net Interest
Percentage
Average
Interest
Average
Average
Interest
Average
Average
Revenue
Change in
Annualized
Rev/(Exp)
Balance
Annualized
Rev/(Exp)
Balance
Annualized
Inc./(Dec.)
Average
Net Yield
(millions)
(millions)
Yield/(Cost)
(millions)
(millions)
Yield/(Cost)
(millions)
Balances
Inc./(Dec.)
$
150.3
$
7,463
3.98
%
$
84.6
$
7,943
2.11
%
$
65.7
(6
%)
1.87
%
$
196.3
$
5,269
7.37
%
$
93.4
$
3,526
5.24
%
$
102.9
49
%
2.13
%
$
73.9
$
3,171
4.61
%
$
48.8
$
4,068
2.37
%
$
25.1
(22
%)
2.24
%
$
(44.0
)
$
9,689
(0.90
%)
$
(15.9
)
$
9,596
(0.33
%)
$
(28.1
)
1
%
(0.57
%)
$
(85.6
)
$
4,849
(3.49
%)
$
(39.5
)
$
4,897
(1.60
%)
$
(46.1
)
(1
%)
(1.89
%)
Three months ended March 31, 2006
Three months ended March 25, 2005
Fee
Percentage
Average
Fee
Average
Average
Fee
Average
Average
Revenue
Change in
Annualized
Revenue
Balance
Annualized
Revenue
Balance
Annualized
Inc./(Dec.)
Average
Yield
(millions)
(millions)
Yield
(millions)
(millions)
Yield
(millions)
Balances
Inc./(Dec.)
$
45.3
$
6,548
2.85
%
N/A
N/A
N/A
$
45.3
N/A
N/A
$
23.1
$
12,554
0.74
%
$
4.5
$
2,682
0.71
%
$
18.6
368
%
0.03
%
$
9.4
$
26,278
0.14
%
$
1.0
$
3,179
0.13
%
$
8.4
727
%
0.01
%
Six months ended March 31, 2006
Six months ended March 25, 2005
Fee
Percentage
Average
Fee
Average
Average
Fee
Average
Average
Revenue
Change in
Annualized
Revenue
Balance
Annualized
Revenue
Balance
Annualized
Inc./(Dec.)
Average
Yield
(millions)
(millions)
Yield
(millions)
(millions)
Yield
(millions)
Balances
Inc./(Dec.)
$
45.3
$
3,130
2.85
%
N/A
N/A
N/A
$
45.3
N/A
N/A
$
29.6
$
7,953
0.74
%
$
9.6
$
2,630
0.72
%
$
20.0
202
%
0.02
%
$
10.6
$
14,929
0.14
%
$
1.9
$
3,030
0.12
%
$
8.7
393
%
0.02
%
Table of Contents
Three months ended
%
Six months ended
%
Mar. 31, 2006
Mar. 25, 2005
Change
Mar. 31, 2006
Mar. 25, 2005
Change
15.77
9.53
65
%
25.54
21.10
21
%
$
14.04
$
13.43
5
%
$
13.75
$
13.34
3
%
254,382
167,209
52
%
205,116
169,472
21
%
11.7
11.7
0
%
10.9
12.0
(9
%)
4.7
%
4.6
%
2
%
4.3
%
4.7
%
(9
%)
62.0
57.0
9
%
124.5
124.5
0
%
Three months ended
%
Six months ended
%
Mar. 31, 2006
Mar. 25, 2005
Change
Mar. 31, 2006
Mar. 25, 2005
Change
1,722,000
1,764,000
(2
%)
1,735,000
1,677,000
3
%
3,293,000
1,730,000
90
%
3,293,000
1,730,000
90
%
91
%
(2
%)
90
%
3
%
3,739,000
3,627,000
3
%
3,717,000
3,520,000
6
%
6,070,000
3,665,000
66
%
6,070,000
3,665,000
66
%
62
%
1
%
63
%
4
%
$
85.5
$
79.9
7
%
$
83.3
$
68.8
21
%
$
262.9
$
75.6
248
%
$
262.9
$
75.6
248
%
207
%
(5
%)
216
%
10
%
Table of Contents
Three months ended
Six months ended
March 31,
March 25,
%
March 31,
March 25,
%
2006
2005
Change
2006
2005
Change
$
221.4
$
128.0
73
%
$
351.2
$
281.5
25
%
254.0
116.3
118
%
431.4
229.4
88
%
(80.6
)
(30.2
)
167
%
(130.4
)
(54.8
)
138
%
173.4
86.1
101
%
301.0
174.6
72
%
45.3
N/A
45.3
N/A
32.5
5.4
498
%
40.2
11.5
249
%
251.2
91.6
174
%
386.5
186.0
108
%
24.6
13.0
90
%
36.8
26.9
37
%
497.2
232.5
114
%
774.5
494.5
57
%
111.7
42.9
161
%
156.6
86.8
80
%
12.4
6.4
95
%
18.4
12.9
42
%
17.2
9.5
82
%
25.9
18.9
37
%
18.1
9.6
89
%
33.2
20.6
61
%
5.2
2.2
132
%
8.7
4.8
79
%
11.3
3.1
259
%
14.8
6.8
117
%
37.1
9.2
303
%
46.7
18.8
149
%
25.8
0.4
5645
%
26.4
1.0
2529
%
(0.2
)
(0.1
)
48
%
(0.4
)
(0.2
)
73
%
8.8
5.2
71
%
15.8
9.1
74
%
47.5
27.5
72
%
74.0
50.6
46
%
(1.0
)
(10.3
)
(90
%)
10.7
2.7
302
%
293.9
105.5
179
%
430.8
232.8
85
%
203.4
127.0
60
%
343.7
261.7
31
%
78.8
N/A
78.8
N/A
282.2
127.0
122
%
422.5
261.7
61
%
109.4
49.6
120
%
163.7
99.9
64
%
$
172.8
$
77.4
123
%
$
258.8
$
161.8
60
%
90
84
7
%
182
182
0
%
38.8
%
39.1
%
38.7
%
38.2
%
Note: Details may not sum to totals and subtotals due to rounding differences. Change percentages are based on non-rounded
Consolidated Statements of Operations amounts.
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
March 31,
September 30,
2006
2005
Change
$
483,410
$
171,064
$
312,346
(411,208
)
(107,236
)
(303,972
)
72,202
63,828
8,374
40,000
229,819
(189,819
)
262,221
103,061
159,160
$
374,423
$
396,708
$
(22,285
)
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(1)
Represents scheduled minimum principal payments under the Financings. The Financings are
also subject to certain mandatory prepayments, which include prepayments based on amounts of
excess cash flow and from the net cash proceeds of asset sales and debt issuances, subject to
certain exceptions. Pursuant to the Financings, the Company may prepay borrowings without
penalty. Because mandatory prepayments are based on future operating results and events, we
cannot predict the amount or timing of such prepayments.
(2)
Represents exit and involuntary termination costs incurred in connection with the planned
consolidation of certain facilities and functions following the TD Waterhouse acquisition.
(3)
Pursuant to the Stockholders Agreement, as amended, we are obligated to repurchase our common
stock from time to time to offset dilution resulting from stock option exercises and other
stock awards subsequent to the acquisition of TD Waterhouse on January 24, 2006. Our initial
obligation to repurchase our common stock had been deferred until the earlier of August 22,
2006 or TDs acquisition of 15 million shares of our common stock, pursuant to Amendment No. 1
to the Stockholders Agreement, dated February 22, 2006. TD completed its acquisition of 15
million shares of our common stock on May 2, 2006. We are
currently obligated to repurchase
shares as promptly as reasonably practicable. Based on stock options exercised from January
24, 2006 through April 28, 2006, we will be obligated to
repurchase approximately 6.3 million
shares of common stock. The estimated gross dollar amount of repurchase obligation presented
in the table assumes the purchase of 6.3 million shares at a weighted-average price of $18.56
per share, based on the closing market price of our common stock as of April 28, 2006. This
estimate does not reflect offsetting amounts of cash received from exercise prices or income
tax benefits. We cannot estimate the amount and timing of repurchases that may be required as
a result of future stock option exercises.
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Total Number of
Maximum Number
Shares Purchased as
of Shares that May
Total Number of
Average Price
Part of Publicly
Yet Be Purchased
Period
Shares Purchased
Paid per Share
Announced Program
Under the Program
18,553
$
25.07
101
$
20.04
18,654
$
25.05
N/A
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Total Number of
Maximum Number
Shares Purchased as
of Shares that May
Total Number of
Average Price
Part of Publicly
Yet Be Purchased
Period
Shares Purchased
Paid per Share
Announced Program
Under the Program
5,550,000
$
20.99
5,550,000
9,450,000
5,550,000
$
20.99
5,550,000
9,450,000
Proposal No. 1:
A proposal to approve the issuance of 196,300,000 shares
of Company common stock to TD in accordance with the terms
of the share purchase agreement and in connection with the
acquisition by the Company of all of the capital stock of
TD Waterhouse.
Proposal No. 2:
A proposal to approve the amendment and restatement of the
certificate of incorporation of the Company, including all
proposed amendments to the certificate of incorporation
listed in the following sub-proposals:
2A a proposal to approve provisions restricting the authority of the
Company to implement anti-takeover measures that would potentially conflict
with the terms of the stockholders agreement entered into in connection with
the acquisition of TD Waterhouse;
2B a proposal to approve the increase of the authorized number of shares
of common stock, $0.01 par value per share, of the Company from 650,000,000
to 1,000,000,000;
2C a proposal to approve a provision which prohibits action by written
consent of stockholders of the Company;
2D a proposal to approve a provision increasing the size of the
Companys board of directors from nine to twelve members for so long as the
corporate governance provisions of the stockholders agreement entered into in
connection with the acquisition of TD Waterhouse remain in effect, and
thereafter to allow the size of the Companys board of directors to be
determined by the board of directors;
2E a proposal to approve a provision setting forth procedures for the
nomination or appointment of outside independent directors to the Companys
board of directors and the maintenance of an outside independent directors
committee and a non-TD directors committee;
2F a proposal to approve a provision which allocates corporate
opportunities between the Company and TD and which otherwise modifies the
existing corporate opportunities provision of the certificate of
incorporation.
Proposal No. 3:
A proposal to approve the amendment and restatement of the
Ameritrade Holding Corporation 1996 Long-Term Incentive
Plan to reserve an additional 19,000,000 shares of Company
common stock for future issuance under the 1996 Long-Term
Incentive Plan.
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Proposal No. 4:
A proposal to approve the amendment and restatement of the
Ameritrade Holding Corporation 1996 Directors Incentive
Plan to reserve an additional 1,000,000 shares of Company
common stock for future issuance under the 1996 Directors
Incentive Plan.
Proposal No. 5:
A proposal to adjourn the special meeting of stockholders
to a later date or dates with respect to all matters to be
voted on at the special meeting if necessary to permit
further solicitation of proxies on all matters if there
are not sufficient votes at the time of the special
meeting to approve Proposal No. 1 relating to the issuance
of Company common stock to TD and Proposal No. 2 relating
to the amendment and restatement of the certificate of
incorporation, including each of the related
sub-proposals.
ABSTENSIONS
PROPOSAL
AND BROKER
NO.
FOR
AGAINST
NON-VOTES
294,583,090
280,408
82,538
284,129,769
7,627,477
3,188,790
286,590,760
7,641,719
713,557
286,569,979
7,665,689
710,368
286,551,562
7,678,221
716,253
286,577,483
7,653,401
715,152
286,588,793
7,643,509
713,734
286,587,413
7,645,414
713,209
228,421,735
66,378,233
146,068
274,288,192
20,488,279
169,565
230,954,014
46,389,212
17,602,810
Name of Nominee
Director Class
FOR
WITHHELD
I
511,409,903
65,388,086
I
562,983,201
13,814,788
II
564,022,007
12,775,982
I
512,100,535
64,697,454
I
511,335,101
65,462,888
ABSTENSIONS
AND BROKER
FOR
AGAINST
NON-VOTES
569,347,147
2,454,051
4,996,791
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ABSTENSIONS
AND BROKER
FOR
AGAINST
NON-VOTES
465,138,246
4,491,394
107,168,349
Agreement of Sale and Purchase between Ameritrade Holding Corporation and The
Toronto-Dominion Bank dated as of June 22, 2005 (incorporated by reference to Exhibit
2.1 of the Companys Form 8-K filed on June 28, 2005)
Amendment No. 1 to the Agreement of Sale and Purchase between Ameritrade
Holding Corporation and The Toronto-Dominion Bank dated as of October 28, 2005
(incorporated by reference to Exhibit 99.1 of the Companys Form 8-K filed October 31,
2005)
Amendment No. 2 to the Agreement of Sale and Purchase between Ameritrade
Holding Corporation and The Toronto-Dominion Bank dated as of December 23, 2005
(incorporated by reference to Exhibit 2.3 of the Companys Form 8-K filed December 29,
2005)
Amended and Restated Certificate of Incorporation of TD AMERITRADE Holding
Corporation, dated January 24, 2006 (incorporated by reference to Exhibit 3.1 of the
Companys Form 8-K filed on January 27, 2006)
Amended and Restated By-Laws of TD AMERITRADE Holding Corporation, effective
March 9, 2006 (incorporated by reference to Exhibit 3.1 of the Companys Form 8-K filed
on March 15, 2006)
Employment Agreement Addendum, dated as of January 19, 2006, between Joseph H.
Moglia and TD AMERITRADE Holding Corporation
$270,000,000 Promissory Note between TD Waterhouse Group, Inc. and Toronto
Dominion (Texas) LLC, dated January 19, 2006
$2,200,000,000 Credit Agreement, dated January 23, 2006 (incorporated by
reference to Exhibit 10.5 of the Companys Form 10-Q filed on February 8, 2006)
Amendment No. 1 to Stockholders Agreement among TD AMERITRADE Holding
Corporation, The Toronto-Dominion Bank and certain other stockholders of TD AMERITRADE,
dated February 22, 2006
Form of award letter to Bonus Recipients under the Executive Deferred
Compensation Program, dated February 23, 2006 (incorporated by reference to Exhibit
10.1 of the Companys Form 8-K filed on March 1, 2006)
Form of award letter to Bonus Recipients under the 1996 Directors Incentive
Plan, dated February 27, 2006 (incorporated by reference to Exhibit 10.2 of the
Companys Form 8-K filed on March 1, 2006)
Form of Performance Restricted Stock Unit Agreement (incorporated by reference
to Exhibit 10.1 of the Companys Form 8-K filed on March 9, 2006)
Form of Restricted Stock Unit Agreement (incorporated by reference to Exhibit
10.2 of the Companys Form 8-K filed on March 9, 2006)
Ameritrade Holding Corporation 1996 Long-Term Incentive Plan, as amended and
restated (incorporated by reference to Appendix B of the Companys Proxy Statement
filed on January 30, 2006)
Amendment No. 1 to the Loan Documents for the $2,200,000,000 Credit Agreement,
dated March 31, 2006
Awareness Letter of Independent Registered Public Accounting Firm
Certification of Joseph H. Moglia, Principal Executive Officer, as required
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
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Certification of John R. MacDonald, Principal Financial Officer, as required
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
Certification pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section
906 of the Sarbanes-Oxley Act of 2002
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TD AMERITRADE Holding Corporation
(Registrant)
By:
/s/ JOSEPH H. MOGLIA
Joseph H. Moglia
Chief Executive Officer
(Principal Executive Officer)
By:
/s/ JOHN R. MACDONALD
John R. MacDonald
Executive Vice President, Chief Financial Officer
and Chief Administrative Officer
(Principal Financial and Accounting Officer)
EXHIBIT 10.1
EMPLOYMENT AGREEMENT ADDENDUM
WAIVER OF CHANGE IN CONTROL
WHEREAS, Ameritrade Holding Corporation (the "Company") and Joseph H. Moglia, (the "Executive") entered into an employment agreement dated as of March 1, 2001 (the "Employment Agreement"), and option agreement(s) (collectively, the "Option Agreement"); and
WHEREAS, pursuant to an Agreement of Sale and Purchase entered into between the Company and The Toronto-Dominion Bank, the Company has agreed to acquire the U.S. brokerage business of TD Waterhouse Group, Inc., pending applicable approval (the "Transaction");
NOW THEREFORE, it is hereby covenanted and agreed by the Company and the Executive as follows:
The parties have agreed that, for purposes of the Employment Agreement and the Option Agreement, the Transaction does not constitute a Change in Control, as defined in the Employment Agreement and Option Agreement, and the Executive hereby waives all rights that the Executive would have had under the Employment Agreement and Option Agreement if the Transaction constituted a Change in Control within the meaning of the Employment Agreement and/or Option Agreement, as applicable.
The parties agree that this agreement (the "Addendum") does not retroactively impair or otherwise adversely affect the rights the Executive under the Employment Agreement or Option Agreement and does not enrich the Executive by providing any additional benefits under the Employment Agreement or the Option Agreement as a result of the Transaction. Except as provided herein, all provisions of the Employment Agreement and Option Agreement shall remain in full force and effect.
For Ameritrade Holding Corporation:
/s/ JOSEPH H. MOGLIA ------------------------------------- Signature Joseph H. Moglia |
Accepted and agreed to January 19, 2006
/s/ JOSEPH H. MOGLIA ------------------------------------- Executive Joseph H. Moglia |
EXHIBIT 10.2
PROMISSORY NOTE
U.S.$270,000,000.00 Dated: January 19, 2006
FOR VALUE RECEIVED, the undersigned, TD WATERHOUSE GROUP, INC., a Delaware corporation (the "Borrower"), HEREBY UNCONDITIONALLY PROMISES TO PAY to the order of TORONTO DOMINION (TEXAS) LLC (the "Lender"), or its registered assigns, in lawful money of the United States of America the principal sum of TWO HUNDRED SEVENTY MILLION AND 00/100 U.S. DOLLARS (U.S. $270,000,000.00), such amount representing the original aggregate principal amount of the term loan evidenced hereby (the "Term Loan") owed by the Borrower to the Lender pursuant to this Promissory Note.
The Borrower promises to pay all principal and interest due hereunder in immediately available funds in lawful money of the United States of America on July 24, 2006 (the "Maturity Date"). The Borrower promises to pay interest on the unpaid principal amount of the Term Loan from the date hereof to but excluding the date such principal amount is paid in full. Interest shall be computed on the basis of a year of 365 days (based on the actual number of days elapsed) (i) from the date hereof until the date that is the later of (x) the Maturity Date and (y) the date by which all payments required pursuant to Sections 1.3(d) and 1.3(e) of that certain Agreement of Sale and Purchase, dated as of June 22, 2005 (as amended to date and as further amended, restated or otherwise modified from time to time, the "Purchase Agreement"), between The Toronto-Dominion Bank and Ameritrade Holding Corporation are required to be made, at the Fed Funds Rate (as defined in the Purchase Agreement) (such later date in clause (x) or (y) being, the "Rate Change Date") or at such other rate as prescribed by applicable law and (ii) from and after the Rate Change Date, at a rate equal to the Fed Funds Rate plus 150 basis points, or at such other rate as prescribed by applicable law.
The indebtedness evidenced hereby may be prepaid in whole or in part at any time and from time to time without premium or penalty; provided that with respect to any prepayment, all accrued interest on any principal amount to be prepaid shall be paid simultaneously with the prepayment of such principal.
Demand, presentment, protest and notice of nonpayment and protest are hereby waived by Borrower.
Should any payment of principal or interest become due and payable on any day other than a Business Day (as defined in the Purchase Agreement), the maturity thereof shall be extended to the next succeeding Business Day and interest shall continue to accrue at the applicable rate until such payment is made.
Should the indebtedness represented by this Promissory Note or any part hereof be collected at law or in equity or in bankruptcy, receivership or other court proceeding, or should this Promissory Note be placed in the hands of attorneys for collection after default, Borrower agrees to pay, in addition to the principal, interest due and payable hereon and any other sums due and payable hereon, all costs of collecting or attempting to collect this
Promissory Note, including reasonable attorneys' fees and expenses (including those incurred in connection with any appeal).
This Promissory Note shall not require the payment nor permit the collection of interest or any late payment charge in excess of the maximum rate permitted by law. If any excess interest or late payment charge in such respect is provided for under this Promissory Note or shall be adjudicated to provide for such terms, neither Borrower nor its successors or assigns shall be obligated to pay such interest or late payment charge in excess of the maximum amount permitted by law, and the right to demand the payment of any such excess shall be and hereby is waived. In the event Lender shall collect monies which are deemed to constitute interest which would increase the effective interest rate to a rate in excess of the maximum rate permitted by law, all such sums deemed to constitute interest in excess of the maximum rate permitted by law shall, upon such determination, at the option of Lender, be returned to Borrower or credited against the principal balance of Borrower's obligation then outstanding under this Promissory Note. This provision shall control any other provision of this Promissory Note.
Upon the occurrence of any of the following events (each an "Event of Default"): (i) if the Borrower shall fail to pay any principal or interest on the Term Loan when due; (ii) if the Borrower shall fail to perform or observe any other term or condition binding upon it hereunder and such failure shall continue unremedied for a period of sixty (60) days after written notice thereof from the Lender; or (iii) (a) if the Borrower shall generally not pay its debts as such debts become due or shall make a general assignment for the benefit of creditors; (b) if any proceeding shall be instituted by or, unless dismissed within sixty (60) days, against, the Borrower seeking to adjudicate it a bankrupt or insolvent or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency, or relief of debtors generally, or seeking the entry of an order for relief or for the appointment of a receiver, trustee, custodian, or other similar officer for it or for any part of its assets; or (c) if the Borrower shall take any action to authorize any of the actions set forth in subclauses (iii)(a) and (iii)(b) of this paragraph; then the Lender may, without demand, notice or legal process of any kind, declare the outstanding principal amount of the Term Loan together with all accrued and unpaid interest thereon and all other amounts due hereunder (collectively, the "Indebtedness") to be, whereupon the Indebtedness shall become, immediately due and payable; provided, however, that upon the occurrence of any Event of Default specified in subclause (iii) of this paragraph, the Indebtedness shall automatically become due and payable.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
At any time and from time to time, the Borrower agrees that the Borrower will cooperate with the Lender and will execute and deliver, or cause to be executed and delivered, all such further instruments and documents, and will take all such further actions, as the Lender may reasonably request in order to carry out the provisions and purposes of this Promissory Note.
[Remainder of page intentionally left blank.]
Whenever in this Promissory Note reference is made to Lender or Borrower, such reference shall be deemed to include, as applicable, a reference to their respective successors and permitted assigns. Neither Lender nor Borrower shall assign or otherwise transfer this Promissory Note without the prior written consent of the other person, and any such assignment or transfer without such consent shall be void ab initio. The provisions of this Promissory Note shall be binding upon and shall inure to the benefit of said successors and assigns. Borrower's successors and assigns shall include, without limitation, a receiver, trustee or debtor-in-possession of or for Borrower.
TD WATERHOUSE GROUP, INC.
By: /s/ T.C. ARMSTRONG -------------------------------- Name: T.C. Armstrong Title: CEO, TD Waterhouse Group, Inc. |
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 |
EXHIBIT 10.10
AMENDMENT NO. 1 TO THE
LOAN DOCUMENTS
Dated as of March 31, 2006
AMENDMENT NO. 1 TO THE LOAN DOCUMENTS among TD Ameritrade Holding Corporation (formerly, Ameritrade Holding Corporation), a Delaware corporation (the "Borrower"), the banks, financial institutions and other institutional lenders parties to the Credit Agreement referred to below (collectively, the "Lenders") and Citicorp North America, Inc., as administrative agent (the "Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Guarantors, the Lenders and the Agent have entered into a Credit Agreement dated as of January 23, 2006 (the "Credit Agreement"). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement.
(2) The Borrower has requested that the Loan Documents be amended as hereinafter set forth.
(3) The Required Lenders are, on the terms and conditions stated below, willing to grant the request of the Borrower and the Borrower and the Required Lenders have agreed to amend the Loan Documents as hereinafter set forth.
SECTION 1. Amendments to Loan Documents. The Loan Documents are, effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 2, hereby amended as follows:
(a) The definition of "Cash Equivalents" in Section 1.01 of the Credit Agreement is hereby amended by adding immediately after "auction rate securities or similar securities with a rating of AA" therein the new language "or better".
(b) The definition of "Excess Cash Flow" in Section 1.01 of the Credit Agreement is hereby amended by substituting a semi-colon (";") for the period at the end of clause (vii) and inserting at the end thereof the following new proviso:
"provided that for the avoidance of doubt, "Excess Cash Flow" for the Fiscal Year ending September 29, 2006 shall be calculated for the period commencing on the date of this Agreement through and including September 29, 2006."
(c) The definition of "Guarantors" in Section 1.01 of the Credit Agreement is hereby amended by adding at the end thereof "and each other Subsidiary of the Borrower that shall have executed and delivered a Guaranty Supplement".
(d) The definition of "Guaranty" in Section 1.01 of the Credit Agreement is hereby amended by adding immediately after "pursuant to Section 5.01(i)" therein the new language "and each Guaranty Supplement".
(e) Section 5.02(f)(i) of the Credit Agreement is amended by deleting "and" immediately before clause (D) thereof and by adding a new clause (E) at the end thereof to read as follows:
"and (E) in connection with any restructuring of the Broker-Dealer Subsidiaries, after any Loan Party has received any assets or other distributions from a Subsidiary that is not a Loan Party, in the same transaction or series of transactions with such receipt of assets or other distributions, Investments of such assets or such other distributions so received by such Loan Party in any other Subsidiary that is not a Loan Party."
(f) Section 5.02(g)(iii) of the Credit Agreement is amended in full to read as follows:
"(iii) any Subsidiary of the Borrower may (A) declare and pay cash dividends ratably with respect to its Equity Interests and (B) make distributions of assets, liabilities, Equity Interests or securities to the Borrower or any of its Subsidiaries;"
(g) Part I of Schedule I to the Security Agreement Supplement executed and delivered on January 24, 2006 by TD Waterhouse Group, Inc. (the "TD Security Agreement Supplement") is amended by deleting in its entirety row number five that describes Equity Interests issued by TD Waterhouse Canadian Call Center Inc.
SECTION 2. Conditions of Effectiveness. This Amendment shall become effective as of the date first above written when, and only when, the Agent shall have received counterparts of this Amendment executed by the Borrower and the Required Lenders or, as to any of the Lenders, advice satisfactory to the Agent that such Lender has executed this Amendment and the consent attached hereto (the "Consent") executed by each Guarantor. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
SECTION 3. Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Upon the effectiveness of this Amendment and after giving effect hereto, the representations and warranties set forth in Section 4.01(a) of the Credit Agreement are true and correct in all material respects.
(b) The execution, delivery and performance by each Loan Party of this Amendment, the Consent and the Loan Documents, as amended hereby, to which it is or is to be a party are within such Loan Party's corporate, limited liability company or limited partnership (as applicable) powers, have been duly authorized by all necessary corporate, limited liability company or limited partnership (as applicable) action and do not (i) contravene such Loan Party's charter, by-laws, limited liability company agreement, partnership agreement or other constituent documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any loan agreement, indenture, mortgage, deed of trust, material lease or other material contract or instrument binding on or affecting any Loan Party, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries.
(c) No Governmental Authorization, and no notice to or filing with, any Governmental Authority or any other third party is required for the due execution, delivery or performance by any Loan Party of this Amendment, the Consent or any of the Loan Documents, as amended hereby, to which it is or is to be a party, except for (A) such authorizations, approvals, actions, notices and filings as may be required in connection with the disposal of Collateral pursuant to any agreement giving rise to a Lien permitted under Section 5.02(a) of the Credit Agreement and (B) with respect to the exercise of any remedies with respect to, or any other transfer of, the Equity Interests of any Broker-Dealer Subsidiary, giving all necessary notices to third parties and obtaining all necessary Governmental Authorizations in connection with such exercise of remedies or transfer including, without limitation, to the extent required under NASD Rule 1017.
(d) This Amendment and the Consent have been duly executed and delivered by the Borrower and each Guarantor, respectively. This Amendment, the Consent and each of the other Loan Documents, as amended hereby, to which any Loan Party is a party are legal, valid and binding obligations of such Loan Party, enforceable against such Loan Party in accordance with their respective terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 4. Reference to and Effect on the Loan Documents. (a) On and after the effectiveness of this Amendment, each reference in each of the Credit Agreement, the Security Agreement and the TD Security Agreement Supplement (collectively, the "Amended Loan Documents") to "this Agreement", "hereunder", "hereof" or words of like import referring to such Amended Loan Document, and each reference in the Notes and each of the other Loan Documents to "the Credit Agreement", "the Security Agreement", "thereunder", "thereof" or words of like import referring to the Credit Agreement or the Security Agreement, shall mean and be a reference to the Credit Agreement or the Security Agreement, as the case may be, as amended by this Amendment.
(b) Each Amended Loan Document, as specifically amended by this Amendment, is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
SECTION 5. Costs, Expenses. The Borrower agrees to pay, promptly following demand and presentation of invoices or other reasonably detailed statements specifying the costs so incurred, all reasonable out of pocket costs and expenses of the Agent in connection with the preparation, execution, delivery and administration, modification and amendment of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Agent) in accordance with the terms of Section 9.04 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the
same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
TD AMERITRADE HOLDING CORPORATION
By /s/ JOHN R. MACDONALD ------------------------------------- Title: John R. MacDonald Executive Vice President, Chief Financial Officer and Chief Administrative Officer |
CITICORP NORTH AMERICA, INC.,
as Agent and as Lender
By /s/ ROB ZIEMER ------------------------------------- Title: Rob Ziemer Vice President |
By /s/ ROB ZIEMER ------------------------------------- Title: Rob Ziemer Vice President |
CONSENT
Dated as of March 31, 2006
Each of the undersigned, as Guarantor under the Guaranty referred to in the Credit Agreement dated as of January 23, 2006 (the "Credit Agreement") among TD Ameritrade Holding Corporation (formerly, Ameritrade Holding Corporation), the Guarantors named therein, the Lenders and agents named therein, and Citicorp North America, Inc., as administrative agent, hereby consents to the foregoing Amendment No. 1 to the Loan Documents (the "Amendment") and hereby confirms and agrees that (a) notwithstanding the effectiveness of the Amendment, the Guaranty is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of the Amendment, each reference in the Guaranty to the "Credit Agreement", the "Security Agreement", "thereunder", "thereof" or words of like import referring to the Credit Agreement or the Security Agreement shall mean and be a reference to the Credit Agreement or the Security Agreement, as the case may be, as amended by the Amendment, and (b) the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case as amended by this Amendment.
AMERITRADE ONLINE HOLDINGS CORP.
By /s/ JOHN R. MACDONALD -------------------------------------- Title: John R. MacDonald, Treasurer |
AMERITRADE IP COMPANY, INC.
By /s/ JOHN R. MACDONALD -------------------------------------- Title: John R. MacDonald Vice President and Chief Financial Officer |
AMERITRADE SERVICES COMPANY, INC.
By /s/ JOHN R. MACDONALD -------------------------------------- Title: John R. MacDonald CEO, President, and Executive VP |
DATEK ONLINE HOLDINGS CORP.
By /s/ JOHN R. MACDONALD -------------------------------------- Title: John R. MacDonald Treasurer |
THINKTECH, INC.
By /s/ JOHN R. MACDONALD -------------------------------------- Title: John R. MacDonald Treasurer |
TD WATERHOUSE GROUP, inc.
By /s/ T. CHRISTIAN ARMSTRONG -------------------------------------- Title: T. Christian Armstrong Chairman, President, CEO-U.S. |
EXHIBIT 15.1
AWARENESS LETTER OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
May 5, 2006
The Board of Directors
TD AMERITRADE Holding Corporation
We are aware of the incorporation by reference in the Registration Statements (Numbers 333-132016, 333-105336, 333-99481, 333-99353, 333-86164 and 333-77573 on Form S-8, Number 333-87999 on Form S-3 and Post Effective Amendment No. 1 to Registration Statement Number 333-88632 on Form S-3 to Form S-4) of TD AMERITRADE Holding Corporation (formerly Ameritrade Holding Corporation) of our report dated May 5, 2006 relating to the unaudited condensed consolidated interim financial statements of TD AMERITRADE Holding Corporation that is included in its Form 10-Q for the quarter ended March 31, 2006.
/s/ ERNST & YOUNG LLP Kansas City, Missouri |
EXHIBIT 31.1
CERTIFICATION
I, Joseph H. Moglia, certify that:
1. I have reviewed this quarterly report on Form 10-Q of TD AMERITRADE Holding Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors:
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: May 8, 2006 /s/ JOSEPH H. MOGLIA --------------------------- Joseph H. Moglia Chief Executive Officer |
EXHIBIT 31.2
CERTIFICATION
I, John R. MacDonald, certify that:
1. I have reviewed this quarterly report on Form 10-Q of TD AMERITRADE Holding Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors:
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: May 8, 2006 /s/ JOHN R. MACDONALD --------------------- John R. MacDonald Executive Vice President, Chief Financial Officer and Chief Administrative Officer |
EXHIBIT 32.1
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350 AS ADOPTED
PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
The undersigned hereby certify that the Quarterly Report on Form 10-Q for the quarter ended March 31, 2006 filed by TD AMERITRADE Holding Corporation with the Securities and Exchange Commission fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in the report fairly presents, in all material respects, the financial condition and results of operations of TD AMERITRADE Holding Corporation.
Dated: May 8, 2006 /s/ JOSEPH H. MOGLIA -------------------- Joseph H. Moglia Chief Executive Officer Dated: May 8, 2006 /s/ JOHN R. MACDONALD --------------------- John R. MacDonald Executive Vice President, Chief Financial Officer and Chief Administrative Officer |