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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:
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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
