sc13d

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JZsPogHL3+L8gtIgC3zSvmewV4QBM1vSRV++FgVcgFJZ09TDT6LZqEJfnFmlkCoi iaj6y7saHNWmq81e4vjRSA== 0000950137-09-000316.txt : 20090120 0000950137-09-000316.hdr.sgml : 20090119 20090120132511 ACCESSION NUMBER: 0000950137-09-000316 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20090120 DATE AS OF CHANGE: 20090120 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: THINKORSWIM GROUP INC. CENTRAL INDEX KEY: 0001145124 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 760685039 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-79294 FILM NUMBER: 09533656 BUSINESS ADDRESS: STREET 1: 45 ROCKEFELLER PLAZA STREET 2: SUITE 2012 CITY: NEW YORK STATE: NY ZIP: 10111 BUSINESS PHONE: 801-816-6918 MAIL ADDRESS: STREET 1: 45 ROCKEFELLER PLAZA STREET 2: SUITE 2012 CITY: NEW YORK STATE: NY ZIP: 10111 FORMER COMPANY: FORMER CONFORMED NAME: INVESTOOLS INC DATE OF NAME CHANGE: 20010717 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TD AMERITRADE HOLDING CORP CENTRAL INDEX KEY: 0001173431 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 820543156 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 4211 SOUTH 102ND STREET CITY: OMAHA STATE: NE ZIP: 68127 BUSINESS PHONE: 4023317856 MAIL ADDRESS: STREET 1: 4211 SOUTH 102ND STREET CITY: OMAHA STATE: NE ZIP: 68127 FORMER COMPANY: FORMER CONFORMED NAME: AMERITRADE HOLDING CORP DATE OF NAME CHANGE: 20020917 FORMER COMPANY: FORMER CONFORMED NAME: ARROW STOCK HOLDING CORP DATE OF NAME CHANGE: 20020514 SC 13D 1 c48676sc13d.htm SC 13D sc13d

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

thinkorswim Group Inc.

(Name of Issuer)

Common Stock, par value $0.01 per share
(Title of Class of Securities)

88409C105
(CUSIP Number)


Ellen L.S. Koplow		Larry W. Sonsini Martin W. Korman Michael S. Ringler
Executive Vice President and		Wilson Sonsini Goodrich & Rosati,
General Counsel and Corporate Secretary		Professional Corporation
TD AMERITRADE Holding Corporation		650 Page Mill Road
4211 South 102^nd St.		Palo Alto, California 94304
Omaha, Nebraska 68127		(650) 493-9300
(402) 331-7856

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

January 8, 2009
(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).


1		NAMES OF REPORTING PERSONS:

		TD AMERITRADE Holding Corporation

2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
		(a) o
		(b) o
3		SEC USE ONLY:

4		SOURCE OF FUNDS (SEE INSTRUCTIONS):

		OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):

		o
6		CITIZENSHIP OR PLACE OF ORGANIZATION:

		State of Delaware


NUMBER OF	7	SOLE VOTING POWER:
SHARES
BENEFICIALLY		None
OWNED BY	8	SHARED VOTING POWER:
EACH REPORTING		12,416,623 shares of common stock¹
PERSON	9	SOLE DISPOSITIVE POWER:
WITH
		None
	10	SHARED DISPOSITIVE POWER:

		None


11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:

		12,416,623 shares of common stock¹
12		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):
		o
		(See Item 6)
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):

		18.6% of common stock²
14		TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):

		CO
1		Represents the aggregate number of outstanding shares of the issuer’s Common Stock beneficially owned by Lee Barba, Scott Sheridan and Tom Sosnoff (individually and through a living trust of which Tom Sosnoff is the trustee), each of whom entered into a Voting Agreement dated as of January 8, 2009 (each, a “Voting Agreement”) with TD AMERITRADE Holding Corporation (“TDAM”) obligating the holder to vote such shares, among other things, in favor of the proposed acquisition of the issuer by TDAM pursuant to the Merger Agreement (as defined in Item 3) and related matters, and with respect to which such persons granted certain representatives of TDAM a proxy (each, a “Proxy) granting such TDAM representatives the right to vote on each such person’s behalf in favor of such matters. For more information regarding the securities holdings of the

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		persons named above in thinkorswim Group Inc., a Delaware corporation (“TOS”), please see Schedule B (attached hereto). TDAM expressly disclaims beneficial ownership of any of the shares of the issuer’s stock subject to the Voting Agreements and the Proxies.

2		Based on 66,760,578 shares of the issuer’s Common Stock outstanding as of January 6, 2009.

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Item 1. Security and Issuer.

The class of equity securities to which this statement relates is the Common Stock, par value $0.01 per share, of thinkorswim Group Inc., a Delaware corporation (“TOS”). The principal executive offices of TOS are located at 45 Rockefeller Plaza, Suite 2012, New York, New York 10116.

Item 2. Identity and Background.

(a) The name of the corporation filing this statement is TD AMERITRADE Holding Corporation, a Delaware corporation, hereinafter sometimes referred to herein as “TDAM.”

(b) The address of TDAM’s principal office is 4211 South 102^nd St., Omaha, Nebraska 68127.

(c) TDAM is a leading provider of securities brokerage services and technology-based financial services to retail investors and business partners, predominantly through the Internet, a national branch network and relationships with one of the largest groups of independent Registered Investment Advisers.

(d) Neither TDAM nor, to TDAM’s knowledge, any person named on Schedule A attached hereto, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) during the last five years.

(e) During the last five years neither TDAM nor, to TDAM’s knowledge, any person named on Schedule A attached hereto, was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree, or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation with respect to such laws.

(f) To TDAM’s knowledge, except as noted on Schedule A, each of the individuals identified on Schedule A attached hereto is a citizen of the United States. Set forth on Schedule A is the name, principal occupation or employment, and the name, principal business and address of any corporation or other organization in which such employment is conducted, of each of the directors and executive officers of TDAM as of the date hereof.

Item 3. Source and Amount of Funds or Other Consideration.

TOS entered into an Agreement and Plan of Merger, dated as of January 8, 2009, a copy of which is attached hereto as Exhibit 1 (the “Merger Agreement”), with TDAM, Tango Acquisition Corporation One, a Delaware corporation and a wholly owned subsidiary of TDAM (“Merger Sub One”), and Tango Acquisition Corporation Two, a Delaware corporation and a wholly owned subsidiary of TDAM (“Merger Sub Two”), that provides for the acquisition of TOS by TDAM by means of a merger of Merger Sub One with and into TOS (the “First Step Merger”), with TOS as the interim surviving corporation, immediately followed by a merger of TOS, as the interim surviving corporation, with and into Merger Sub Two (the “Second Step Merger” and, together with the First Step Merger, the “Merger”), with Merger Sub Two as the final surviving corporation. As a result of the Merger, TOS would become a wholly owned subsidiary of TDAM. As an inducement for TDAM to enter into the Merger Agreement and in consideration thereof, certain executive officers of TOS identified on Schedule B (collectively, the “Securityholders”), each entered into separate Voting Agreements with TDAM, dated as of January 8, 2009, the forms of which are attached hereto as Exhibit 2 and Exhibit 3, and more fully described in Item 4, whereby, subject to the terms of each such voting agreement, the Securityholders that are parties thereto agreed, among other things, that at every meeting of TOS’s stockholders called, such stockholder shall vote the shares then held by it, among other things, in favor of the adoption of the Merger Agreement and against the approval of any proposal made in opposition to, or in competition with, the Merger or any other transactions contemplated by the Merger Agreement. Each of these Securityholders also granted certain representatives of TDAM an irrevocable proxy granting such TDAM representatives the right to vote such shares in favor of such matters (the voting agreements and proxies, together are referred to herein as, the “Voting Agreements”).

References to, and descriptions of, the merger, the Merger Agreement and the Voting Agreements throughout this Schedule 13D are qualified in their entirety by reference to the Merger Agreement included as Exhibit 1 to this Schedule 13D and the Voting Agreements included as Exhibit 2 and Exhibit 3 to this Schedule 13D, respectively.

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These agreements are incorporated into this Schedule 13D where such references and descriptions appear.

Item 4. Purpose of Transaction.

(a) — (b) As described in Item 3 above, this Schedule 13D relates to the proposed acquisition of TOS by TDAM pursuant to the terms of the Merger Agreement. To induce TDAM to enter into the Merger Agreement, each of the Securityholders party thereto entered into the Voting Agreements. The purpose of the Voting Agreements is to facilitate the consummation of the merger.

Subject to the terms and conditions of the Merger Agreement, at the effective time and as a result of the Merger:

•

Each share of TOS Common Stock issued and outstanding immediately prior to the effective time of the merger, will be converted into the right to receive a cash amount (less any applicable withholding) of $3.34, without interest plus 0.3980 shares of TDAM common stock (the “Per Share Merger Consideration”);

•

Each of TOS’s vested or unvested options to purchase shares of TOS Common Stock with an exercise price less than the total value of the Per Share Merger Consideration (based on the volume-weighted average price of a share of TDAM common stock on the trading day immediately prior to the effective time of the Merger) (each a “TOS Option”) outstanding at the effective time of the Merger will be assumed by TDAM, and, at the effective time of the Merger, converted into the right to receive TDAM stock options, based on an exchange ratio specified in the Merger Agreement;

•

Each of TOS’s vested or unvested options to purchase shares of TOS Common Stock with an exercise price equal to or greater than the total value of the Per Share Merger Consideration (based on the volume-weighted average price of a share of TDAM common stock on the trading day immediately prior to the effective time of the Merger) (each an “Underwater TOS Option”) which is not exchanged for a TOS restricted stock unit pursuant to an option exchange offer to be made by TOS pursuant to the Merger Agreement (the “Option Exchange Program”), and remains outstanding at the effective time of the Merger will be assumed by TDAM, and, at the effective time of the Merger, converted into the right to receive TDAM stock options, based on an exchange ratio specified in the Merger Agreement; and

•

Each of TOS’s unvested restricted stock units (including restricted stock units issued in exchange for Underwater TOS Options pursuant to the Option Exchange Program) and restricted shares outstanding at the effective time of the Merger will be assumed by TDAM, and, at the effective time of the Merger, converted into the right to receive TDAM restricted stock units or restricted shares, as the case may be, based on an exchange ratio specified in the Merger Agreement.

By executing the Voting Agreements, the Securityholders party thereto have (i) agreed to vote all of the shares of TOS Common Stock currently beneficially owned by them or acquired prior to the expiration of the relevant Voting Agreement, including by means of exercise of stock options, in favor of the adoption of the Merger Agreement and any other action contemplated by the Merger Agreement and any action required in furtherance thereof, and against (A) any merger, consolidation, business combination, sale of assets, reorganization or recapitalization of or involving TOS or any of its subsidiaries, (B) any sale, lease or transfer of all or substantially all of the assets of TOS or any of its subsidiaries, (C) any reorganization, recapitalization, dissolution, liquidation or winding up of TOS or any of its subsidiaries, (D) any material change in the capitalization of TOS or any of its subsidiaries, (E) any Acquisition Proposal or Acquisition Transaction (as defined in Article I of the Merger Agreement), or (F) and any other action that is intended to, or would reasonably be expected to materially, impede, interfere with, delay, postpone, discourage or adversely affect the Merger or any of the transactions contemplated by the Merger Agreement, and (ii) granted irrevocable proxies to certain representatives of TDAM granting such TDAM representatives the right to vote such shares as specified in clause (i). The Securityholders have entered into the Voting Agreements only in their capacities as Securityholders of TOS and may vote such shares on all other matters submitted to TOS’s stockholders for their approval. The Voting Agreements terminate upon the earlier to occur of (i) termination of the Merger Agreement, and (ii) the effectiveness of the Merger.

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(d) It is anticipated that upon consummation of the First Step Merger, the officers and directors of Merger Sub One shall become the officers and directors of TOS (the surviving corporation in the First Step Merger), until their respective successors are duly elected or appointed and qualified, and that upon consummation of the Second Step Merger, the officers and directors of the Interim Surviving Corporation shall become the officers and directors of Merger Sub Two (the surviving corporation in the Second Step Merger).

(e) Other than as a result of the Merger described in Item 3 and above in this Item 4, not applicable.

(f) Not applicable.

(g) Upon consummation of the Merger, the Certificate of Incorporation and Bylaws of TOS shall be amended and restated in their entirety in accordance with the terms of Section 2.5 of the Merger Agreement.

(h) — (i) If the Merger is consummated as planned, TOS Common Stock will cease to be quoted on the NASDAQ Stock Market, Inc.’s Global Select Market and will become eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended.

(j) Not applicable.

Item 5. Interest in Securities of the Issuer.

(a) — (b) As a result of the Voting Agreements, TDAM may be deemed to be the beneficial owner of 12,416,623 shares of TOS Common Stock. This number of shares represents approximately 18.6% of the issued and outstanding shares of TOS Common Stock based on the number of shares outstanding as of January 6, 2009. TDAM disclaims any beneficial ownership of such shares, and nothing herein shall be deemed to be an admission by TDAM as to the beneficial ownership of such shares. To TDAM’s knowledge, no shares of TOS Common Stock are beneficially owned by any of the persons identified in Schedule A to this Schedule 13D.

(b) TDAM may be deemed to have shared voting power of the 12,416,623 shares of TOS Common Stock held by the Securityholders due to TDAM’s right under the Voting Agreements to direct the voting of such shares with respect to the matters specified in the Voting Agreements (and to vote such shares in accordance with the proxies granted thereunder). However, TDAM does not control the voting of such shares with respect to other matters, and does not possess any other rights as a TOS stockholder with respect to such shares. Information required by Item 2 (a)-(c) with respect to each Securityholder is set forth on Schedule B. To TDAM’s knowledge, none of the persons identified on Schedule B (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) during the last five years, or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree, or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws during the last five years. To TDAM’s knowledge, each of the individuals identified on Schedule B is a citizen of the United States.

(c) To TDAM’s knowledge, no transactions in TOS Common Stock have been effected during the past sixty days by any person named pursuant to Item 2.

(d) To TDAM’s knowledge, no person other than the Securityholders identified on Schedule B has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, such shares.

(e) Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

The terms of the Voting Agreements are described under Item 4(a)-(b) above. The Voting Agreements also apply to any shares of TOS Common Stock acquired by the parties to such agreements after the date of the Voting Agreements, including by means of exercise of stock options or warrants, or vesting of restricted stock units or

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shares of unvested Common Stock. The number of shares that TDAM may be deemed to beneficially own as of the date of filing of this Schedule 13D, as reported herein, does not include the shares issuable upon the exercise of stock options or warrants or vesting of restricted stock units or shares of unvested Common Stock held by the parties to the Voting Agreements, and TDAM disclaims beneficial ownership of all such shares.

Item 7. Materials to be Filed as Exhibits.

The following documents are incorporated by reference as exhibits:


Exhibit
No.		Title
1		Agreement and Plan of Merger dated as of January 8, 2009 by and among TD AMERITRADE Holding Corporation, Tango Acquisition Corporation One, Tango Acquisition Corporation Two and thinkorswim Group Inc. (incorporated by reference to Exhibit 10.1 to the Form 8-K (File No. 0-49992) filed by TD AMERITRADE Holding Corporation on January 14, 2009).

2		Form of Voting Agreement by and between TD AMERITRADE Holding Corporation and certain securityholders of thinkorswim Group Inc.

3		Form of Voting Agreement by and between TD AMERITRADE Holding Corporation and Lee Barba.

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.


Dated: January 20, 2009	TD AMERITRADE HOLDING CORPORATION
	By:	/s/ William J. Gerber
		William J. Gerber
		Chief Financial Officer

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Schedule A

Directors and Executive Officers of TD AMERITRADE Holding Corporation

The following table sets forth the name, business address and present principal occupation or employment of each director and executive officer of TD AMERITRADE Holding Corporation. The business address of each person is c/o TD AMERITRADE Holding Corporation, 4211 South 102^nd St., Omaha, Nebraska 68127.

Board of Directors


Name		Principal Occupation
Joseph H. Moglia		Chairman of TD AMERITRADE Holding Corporation
W. Edmund Clark*		President and Chief Executive Officer, TD Bank Financial Group; Vice Chairman of TD AMERITRADE Holding Corporation
Mark L. Mitchell		Principal, CNH Partners, LLC
Thomas S. Ricketts		Chairman and Chief Executive Officer, Incapital LLC
Fredric J. Tomczyk*		President and Chief Executive Officer of the Company
J. Joe Ricketts		Founder of TD AMERITRADE Holding Corporation
Marshall A. Cohen*		Counsel, Cassels Brock & Blackwell LLP
Dan W. Cook III		Senior Advisor, MHT Partners, L.P.
William H. Hatanaka*		Chairman and Chief Executive Officer of TD Waterhouse Canada, Inc.
Wilbur J. Prezzano		Director, The Toronto-Dominion Bank
J. Peter Ricketts		Founder of Drakon LLC
Allan R. Tessler		Chairman and Chief Executive Officer of International Financial Group, Inc.

Executive Officers


Name		Title
Joseph H. Moglia		Chairman
Fredric J. Tomczyk*		President and Chief Executive Officer
Michael D. Chochon		Managing Director of Finance, Treasurer
Laurine M. Garrity		Senior Vice President, Chief Marketing Officer
William J. Gerber		Executive Vice President, Chief Financial Officer
David M. Kelley		Executive Vice President, Chief Operating Officer
Ellen L.S. Koplow		Executive Vice President, General Counsel and Secretary


*		Citizen of Canada

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Schedule B

Parties to Voting Agreements with TD AMERITRADE Holding Corporation

The following table sets forth the name and principal occupation or employment, if applicable, of each securityholder of TOS that has entered into a Voting Agreement with TDAM in connection with the Merger Agreement.


Name		Title
Lee K. Barba		Chairman of the Board of Directors and Chief Executive Officer
Scott D. Sheridan		Director, Executive Vice President
Tom Sosnoff		Director, President

The following table sets forth the aggregate number of shares of TOS Common Stock held as of January 8, 2008 by each securityholder of TOS that has entered into a Voting Agreement with TDAM in connection with the Merger Agreement.* Except as otherwise indicated below, the business address of each person set forth on this Schedule B is: c/o thinkorswim Group Inc., 45 Rockefeller Plaza, Suite 2012, New York, New York 10116.

Options and

Warrants to

Shares of Common

Shares of

Purchase Common

Total Beneficial

Stock Directly or

Restricted Common

Stock Exercisable

Ownership of Shares

Indirectly held as

Stock held as of

within 60 days of

as of January 8,

Name

of January 8, 2009

January 8, 2009

2009

Lee Barba

1,029,353

120,475

1,984,852

3,134,680

Scott D. Sheridan

4,390,903

—

237,640

4,628,543

Tom Sosnoff¹

4,415,760

—

237,640

4,653,400

Total

12,416,623


(1)		Includes shares of common stock held in a living trust, of which Mr. Sosnoff is the trustee.

*As noted in Item 6 above, the Voting Agreements also apply to any shares of TOS Common Stock acquired by the parties to such agreements after the date of the Voting Agreements, including by means of exercise of stock options and warrants and vesting of restricted stock units and unvested Common Stock.

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EXHIBIT INDEX


Exhibit
No.		Title
1		Agreement and Plan of Merger dated as of January 8, 2009 by and among TD AMERITRADE Holding Corporation, Tango Acquisition Corporation One, Tango Acquisition Corporation Two and thinkorswim Group Inc. (incorporated by reference to Exhibit 10.1 to the Form 8-K (File No. 0-49992) filed by TD AMERITRADE Holding Corporation on January 14, 2009).

2		Form of Voting Agreement by and between TD AMERITRADE Holding Corporation and certain securityholders of thinkorswim Group Inc.

3		Form of Voting Agreement by and between and TD AMERITRADE Holding Corporation and Lee Barba.

EX-2 2 c48676exv2.htm EX-2 exv2

Exhibit 2

VOTING AGREEMENT

THIS VOTING AGREEMENT (this “Agreement”) is made and entered into as of January 8, 2009 by and between TD AMERITRADE Holding Corporation, a Delaware corporation (“Parent”), and the undersigned Stockholder (the “Stockholder”) of thinkorswim Group Inc., a Delaware corporation (the “Company”).

WITNESSETH:

WHEREAS, Parent, Tango Acquisition Corporation One, a Delaware corporation and wholly-owned subsidiary of Parent (“Merger Sub One”), Tango Acquisition Corporation Two, a Delaware corporation and wholly-owned subsidiary of Parent (“Merger Sub Two”), and the Company have entered into an Agreement and Plan of Merger of even date herewith (the “Merger Agreement”), which provides for, among other things, and as a single integrated transaction, the merger of Merger Sub One with and into the Company (the “First Step Merger”) pursuant to which all outstanding shares of capital stock of the Company will be converted into the right to receive the consideration set forth in the Merger Agreement. As soon as practicable following the First Step Merger, Parent will cause the Company to merge with and into Merger Sub Two (the “Second Step Merger” and, taken together with the First Step Merger, the “Merger”).

WHEREAS, the Stockholder is the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of that number of shares of the outstanding capital stock of the Company, and the holder of options to purchase such number of shares of capital stock of the Company, in each case, as set forth on the signature page of this Agreement.

WHEREAS, as a condition and inducement to the willingness of Parent, Merger Sub One and Merger Sub Two to enter into the Merger Agreement, the Stockholder (in the Stockholder’s capacity as such) has agreed to enter into this Agreement.

NOW, THEREFORE, intending to be legally bound, the parties hereto agree as follows:

1. Certain Definitions. All capitalized terms that are used but not defined herein shall have the respective meanings ascribed to them in the Merger Agreement. For all purposes of and under this Agreement, the following terms shall have the following respective meanings:

(a) “Expiration Date” shall mean the earlier to occur of (i) such date and time as the Merger Agreement shall have been validly terminated pursuant to Article VIII thereof, or (ii) such date and time as the Merger shall become effective in accordance with the terms and provisions of the Merger Agreement.

(b) “Person” shall mean any individual, corporation, limited liability company, general or limited partnership, trust, unincorporated association or other entity of any kind or nature, or any governmental authority.

(c) “Shares” shall mean (i) all equity securities of the Company (including all shares of Company Common Stock, Company Preferred Stock and all Company Options and other

rights to acquire shares of Company Common Stock) owned by the Stockholder as of the date hereof, and (ii) all additional equity securities of the Company (including all additional shares of Company Common Stock, Company Preferred Stock and all additional Company Options, warrants and other rights to acquire shares of Company Common Stock) of which the Stockholder acquires ownership during the period from the date of this Agreement through the Expiration Date (including by way of stock dividend or distribution, split-up, recapitalization, combination, exchange of shares and the like).

(d) “Transfer” A Person shall be deemed to have effected a “Transfer” of a Share if such Person directly or indirectly (i) sells, pledges, encumbers, assigns, grants an option with respect to (or otherwise enters into a hedging arrangement with respect to), transfers, tenders or disposes of such Share or any interest in such Share, or (ii) enters into an agreement or commitment providing for the sale of, pledge of, encumbrance of, assignment of, grant of an option with respect to (or entry into a hedging arrangement with respect to), transfer, tender of or disposition of such Share or any interest therein, provided, for the avoidance of doubt “Transfer” does not include granting a proxy or voting or consent instructions with respect to any matter other than those specified in Section 3(a)(i), (ii) or (iii).

2. Transfer of Shares.

(a) Transfer Restrictions. The Stockholder shall not Transfer (or cause or permit the Transfer of) any of the Shares, or enter into any agreement relating thereto, except (i) by selling already-owned Shares either to pay the exercise price upon the exercise of a Company Option or to satisfy the Stockholder’s tax withholding obligation upon the exercise of a Company Option, in each case as permitted by any Company Option Plan, (ii) transferring Shares to Affiliates, immediate family members, a trust established for the benefit of Stockholder and/or for the benefit of one or more members of Stockholder’s immediate family or charitable organizations or upon the death of the Stockholder, provided that, as a condition to such Transfer, the recipient agrees to be bound by this Agreement and delivers a Proxy (as defined below) in the form attached hereto as Exhibit A, or (iii) with Parent’s prior written consent and in Parent’s sole discretion. Any Transfer, or purported Transfer, of Shares in breach or violation of this Agreement shall be void and of no force or effect.

(b) Transfer of Voting Rights. The Stockholder shall not deposit (or cause or permit the deposit of) any Shares in a voting trust or grant any proxy or enter into any voting agreement or similar agreement in contravention of the obligations of the Stockholder under this Agreement with respect to any of the Shares.

3. Agreement to Vote Shares.

(a) At every meeting of the Stockholders of the Company, and at every adjournment or postponement thereof, and on every action or approval by written consent of the Stockholders of Company, the Stockholder (in the Stockholder’s capacity as such), to the extent not voted by the Person(s) appointed under the Proxy, shall, or shall cause the holder of record on any applicable record date to, vote all Shares that are then-owned by such Stockholder and entitled to vote or act by written consent:

(i) in favor of the adoption of the Merger Agreement, and in favor of each of the other actions contemplated by the Merger Agreement and any action required in furtherance thereof;

(ii) against approval of any proposal made in opposition to, in competition with, or would result in a breach of, the Merger Agreement or the Merger or any other transactions contemplated by the Merger Agreement; and

(iii) against any of the following actions (other than those actions that relate to the Merger and any other transactions contemplated by the Merger Agreement): (A) any merger, consolidation, business combination, sale of assets, reorganization or recapitalization of or involving the Company or any of its Subsidiaries, (B) any sale, lease or transfer of all or substantially all of the assets of the Company or any of its Subsidiaries, (C) any reorganization, recapitalization, dissolution, liquidation or winding up of the Company or any of its Subsidiaries, (D) any material change in the capitalization of the Company or any of its Subsidiaries, or the corporate structure of the Company or any of its Subsidiaries, (E) any Acquisition Proposal or Acquisition Transaction or (F) any other action that is intended to, or would reasonably be expected to materially, impede, interfere with, delay, postpone, discourage or adversely affect the Merger or any other transactions contemplated by the Merger Agreement.

The Stockholder shall retain at all times the right to vote its Shares in its sole discretion and without any other limitation on those matters other than those set forth in clauses (i), (ii) and (iii) that are at any time or from time to time presented for consideration to the Company’s stockholders generally. For the avoidance of doubt, clauses (i), (ii) and (iii) shall not apply to votes, if any, solely on the election or removal of directors as recommended by the Company’s Board of Directors (provided such recommendation is not in violation of the terms of the Merger Agreement).

(b) In the event that a meeting of the Stockholders of the Company is held, the Stockholder shall, or shall cause the holder of record on any applicable record date to, appear at such meeting or otherwise cause the Shares to be counted as present thereat for purposes of establishing a quorum.

(c) The Stockholder shall not enter into any agreement or understanding with any Person to vote or give instructions in any manner inconsistent with the terms of this Section 3.

4. No Solicitation.

(a) The Stockholder shall immediately cease any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal or Acquisition Transaction.

(b) At all times during the period commencing with the execution and delivery of this Agreement and continuing until the Expiration Date the Stockholder shall not, directly or indirectly:

(i) solicit, initiate or knowingly encourage, facilitate or induce any inquiry with respect to, or the making, submission or announcement of, an Acquisition Proposal or an Acquisition Transaction;

(ii) furnish to any Person (other than Parent, Merger Sub One, Merger Sub Two or any designees of Parent or the Merger Subs) any non-public information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to any Person (other than Parent, Merger Sub One, Merger Sub Two or any designees of Parent or the Merger Subs), or take any other action, in each case in a manner that is intended or would be reasonably expected to assist or facilitate any inquiries or the making of any proposal that constitutes or could lead to an Acquisition Proposal or an Acquisition Transaction;

(iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal or an Acquisition Transaction; or

(iv) propose or agree to do any of the foregoing.

5. Agreement Not to Exercise Appraisal Rights. The Stockholder shall not exercise, and hereby irrevocably and unconditionally waives, any statutory rights (including, without limitation, under Section 262 of the DGCL) to demand appraisal of any Shares that may arise in connection with the Merger.

6. Directors and Officers. Notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement shall limit or restrict a Stockholder who is a director or officer of the Company from acting in such capacity or fulfilling the obligations of such office, including by voting, in his capacity as a director of the Company, in the Stockholder’s sole discretion on any matter (it being understood that this Agreement shall apply to the Stockholder solely in the Stockholder’s capacity as a Stockholder of the Company). In this regard, the Stockholder shall not be deemed to make any agreement or understanding in this Agreement in Stockholder’s capacity as a director or officer of the Company. For the avoidance of doubt, nothing in Section 4 or elsewhere in this Agreement shall limit in any way the Company and its officers and directors from taking actions permitted by the Merger Agreement.

7. Irrevocable Proxy. Concurrently with the execution of this Agreement, the Stockholder shall deliver to Parent a proxy in the form attached hereto as Exhibit A (the “Proxy”), which shall be irrevocable to the fullest extent permissible by law, with respect to the Shares.

8. Update of Beneficial Ownership Information. Promptly following the written request of Parent, the Stockholder shall send to Parent a notice in the form of Exhibit B hereto, setting forth the number of Shares beneficially owned by such Stockholder as of the record date of the Company Stockholder Meeting.

9. Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent as follows:

(a) Power; Binding Agreement. The Stockholder has full power and authority to execute and deliver this Agreement and the Proxy, to perform the Stockholder’s obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Stockholder, and, assuming this Agreement constitutes a valid and binding obligation of Parent, Merger Sub One and Merger Sub Two, constitutes a valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

(b) No Conflicts. None of the execution and delivery by the Stockholder of this Agreement, the performance by the Stockholder of its obligations hereunder or the consummation by the Stockholder of the transactions contemplated hereby will (i) result in a violation or breach of any agreement to which the Stockholder is a party or by which the Stockholder may be bound, including any voting agreement or voting trust, except for violations, breaches or defaults that would not in any material respect impair or adversely effect the ability of Stockholder to perform its obligations under this Agreement, or (ii) violate any order, writ, injunction, decree, judgment, order, statute, rule, or regulation applicable to the Stockholder.

(c) Ownership of Shares. The Stockholder (i) is the sole beneficial owner of the shares of Company Common Stock set forth on the signature page of this Agreement, all of which are free and clear of any liens, adverse claims, charges, security interests, pledges or options, proxies, voting trusts or agreements, understandings or agreements, or any other rights or encumbrances whatsoever (“Encumbrances”) (except any Encumbrances arising under securities laws or arising hereunder or arising under Section 2.1 of the Stockholders’ Agreement, dated as of February 15, 2007, by and among the Company, the Stockholder and the other stockholders named therein), (ii) is the sole holder of the Company Options that are exercisable for the number of shares of Company Common Stock set forth on the signature page of this Agreement, all of which Company Options and shares of Company Common Stock issuable upon the exercise of such Company Options are, or in the case of Company Common Stock received upon exercise of an option after the date hereof will be, free and clear of any Encumbrances (except any Encumbrances arising under securities laws, arising under the plans pursuant to which such Company Options were granted or arising hereunder, or arising under Section 2.1 of the Stockholders’ Agreement, dated as of February 15, 2007, by and among the Company, the Stockholder and the other stockholders named therein), and (iii) except as set forth on the signature page to this Agreement, does not own, beneficially or otherwise, any securities of the Company other than the shares of Company Common Stock or options to purchase shares of Company Common Stock, and shares of Company Common Stock issuable upon the exercise of such Company Options, set forth on the signature page of this Agreement.

(d) Voting Power. The Stockholder has or will have sole voting power, sole power of disposition, sole power to issue instructions with respect to the matters specified in Section 2 and Section 3(a)(i), (ii) and (iii), and sole power to agree to all of the matters specified in Section 2 and Section 3(a)(i), (ii) or (iii), in each case with respect to all of the Shares, with no limitations,

qualifications or restrictions on such rights, subject to applicable federal securities laws and the terms of this Agreement and the terms of Section 2.1 of the Stockholders’ Agreement, dated as of February 15, 2007, by and among the Company, the Stockholder and the other stockholders named therein.

(e) No Finder’s Fees. No broker, investment banker, financial advisor, finder, agent or other Person is entitled to any broker’s, finder’s, financial adviser’s or other similar fee or commission in connection with this Agreement based upon arrangements made by or on behalf of the Stockholder in his or her capacity as such.

(f) Reliance by Parent. The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement.

(g) No Legal Actions. Stockholder agrees that Stockholder will not in Stockholder’s capacity as a Stockholder of the Company bring, commence, institute, maintain, prosecute or voluntarily aid any action, claim, suit or cause of action, in law or in equity, in any court or before any governmental entity, which (i) challenges the validity of or seeks to enjoin the operation of any provision of this Agreement or (ii) alleges that the execution and delivery of this Agreement by Stockholder, either alone or together with the other Company voting agreements and proxies to be delivered in connection with the execution of the Merger Agreement, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof.

10. Certain Restrictions. The Stockholder shall not, directly or indirectly, take any voluntary action that would make any representation or warranty of the Stockholder contained herein untrue or incorrect in any material respect.

11. Disclosure. The Stockholder shall permit Parent to publish and disclose in all documents and schedules filed with the SEC, and any press release or other disclosure document that Parent reasonably determines to be necessary or desirable in connection with the Merger and any transactions related to the Merger, the Stockholder’s identity and ownership of Shares and the nature of the Stockholder’s commitments, arrangements and understandings under this Agreement.

12. No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence of ownership of or with respect to any Shares. Except as provided in this Agreement, all rights, ownership and economic benefits relating to the Shares shall remain vested in and belong to Stockholder.

13. Further Assurances. Subject to the terms and conditions of this Agreement, upon request of Parent, the Stockholder shall use commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary to fulfill such Stockholder’s obligations under this Agreement.

14. Stop Transfer Instructions. At all times commencing with the execution and delivery of this Agreement and continuing until the Expiration Date, in furtherance of this Agreement, the

Stockholder hereby authorizes the Company or its counsel to notify the Company’s transfer agent that there is a stop transfer order with respect to all of the Shares of the Stockholder (and that this Agreement places limits on the voting and transfer of such Shares).

15. Termination. This Agreement and the Proxy, and all rights and obligations of the parties hereunder and thereunder, shall terminate and shall have no further force or effect as of the Expiration Date. Notwithstanding the foregoing, nothing set forth in this Section 15 or elsewhere in this Agreement shall relieve either party hereto from liability, or otherwise limit the liability of either party hereto, for any intentional breach of this Agreement prior to such termination. Section 5 shall survive any termination of this Agreement.

16. Miscellaneous.

(a) Validity. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the other provisions of this Agreement, which will remain in full force and effect. In the event any Governmental Entity of competent jurisdiction holds any provision of this Agreement to be null, void or unenforceable, the parties hereto shall negotiate in good faith and execute and deliver an amendment to this Agreement in order, as nearly as possible, to effectuate, to the extent permitted by law, the original intent of the parties hereto with respect to such provision.

(b) Binding Effect and Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests or obligations of the parties hereto may be assigned by either of the parties (whether by operation of law or otherwise) without prior written consent of the other.

(c) Amendments; Waiver. This Agreement may be amended by the parties hereto, and the terms and conditions hereof may be waived, only by an instrument in writing signed on behalf of each of the parties hereto, or, in the case of a waiver, by an instrument signed on behalf of the party waiving compliance.

(d) Specific Performance; Injunctive Relief. The parties hereto acknowledge that Parent shall be irreparably harmed and that there shall be no adequate remedy at law for a violation of any of the covenants or agreements of the Stockholder set forth herein. Therefore, it is agreed that, in addition to any other remedies that may be available to Parent upon any such violation, Parent shall have the right to enforce such covenants and agreements by specific performance, injunctive relief or by any other means available to Parent at law or in equity.

(e) Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by commercial delivery service, or sent via telecopy (receipt confirmed) to the parties at the following addresses or telecopy numbers (or at such other address or telecopy numbers for a party as shall be specified by like notice), or pursuant to such other instructions as may be designated in writing by the party to receive such notice:

If to Parent:

TD AMERITRADE Holding Corporation
4211 South 102^nd Street
Omaha, NE 68127
Attention: General Counsel
Telephone No.: (402) 331-7856
Telecopy No.: (443) 539-2009

with a copy to:

Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Larry W. Sonsini, Martin W. Korman and Michael S. Ringler
Telephone No.: (650) 493-9300
Telecopy No.: (650) 493-6811

If to the Stockholder:

[                    ]
[                    ]
[                    ]

with a copy to:

Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, New York 10006
Attention: Ethan A. Klingsberg and Benet J. O’Reilly
Telecopy No.: (212) 225-3999

(f) No Waiver. The failure of either party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect of this Agreement at law or in equity, or to insist upon compliance by any other party with its obligation under this Agreement, and any custom or practice of the parties at variance with the terms of this Agreement, shall not constitute a waiver by such party of such party’s right to exercise any such or other right, power or remedy or to demand such compliance.

(g) No Third Party Beneficiaries. This Agreement is not intended to confer and does not confer upon any person other than the parties hereto any rights or remedies hereunder.

(h) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof.

(i) Submission to Jurisdiction. Each of the parties hereto irrevocably consents to the exclusive jurisdiction and venue in the Court of Chancery of the State of Delaware or, if under applicable Law exclusive jurisdiction over such matter is vested in the federal courts, any court of the United States located in the State of Delaware in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein, and to the fullest extent permitted by law, waives and covenants not to assert or plead any objection which they might otherwise have to such jurisdiction and venue.

(j) Rules of Construction. The parties hereto hereby waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.

(k) Entire Agreement. This Agreement and the Proxy contain the entire understanding of the parties hereto in respect of the subject matter hereof, and supersede all prior negotiations, agreements and understandings, both written and oral, between the parties hereto with respect to the subject matter hereof.

(l) Interpretation.

(i) Whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed to be followed by the words “without limitation.”

(ii) The article and section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties hereto and shall not in any way affect or be deemed to affect the meaning or interpretation of this Agreement.

(m) Expenses. All fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees, costs and expenses.

(n) Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement.

(o) No Obligation to Exercise Options or Warrants. Notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement shall obligate the Stockholder to exercise any Company Option, warrant or other right to acquire any shares of Company Common Stock.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the undersigned have executed and caused to be effective this Agreement as of the date first above written.


TD AMERITRADE HOLDING CORPORATION						STOCKHOLDER

By:

						[ ]
Name:

Title:


						Shares beneficially owned as of the date hereof:

						shares of Company Common Stock

						shares of Company Common Stock issuable upon exercise of outstanding options

**** VOTING AGREEMENT ****

EXHIBIT A

IRREVOCABLE PROXY

The undersigned Stockholder (the “Stockholder”) of thinkorswim Group Inc., a Delaware corporation (the “Company”), hereby irrevocably (to the fullest extent permitted by law) appoints TD AMERITRADE Holding Corporation, a Delaware corporation (“Parent”), acting through any of its Chief Executive Officer, Chief Financial Officer or General Counsel, as the sole and exclusive attorneys and proxies of the undersigned, with full power of substitution and resubstitution, to vote and exercise all voting and related rights (to the full extent that the undersigned is entitled to do so) with respect to all of the shares of capital stock of the Company that now are or hereafter may be beneficially owned by the undersigned, and any and all other shares or equity securities of the Company issued or issuable in respect thereof on or after the date hereof (collectively, the “Shares”) in accordance with the terms of this Irrevocable Proxy until the Expiration Date (as defined below); provided, however, that such proxy and voting and related rights are expressly limited to the matters discussed in clauses (i) through (iii) in the fourth paragraph of this Irrevocable Proxy. Upon the undersigned’s execution of this Irrevocable Proxy, any and all prior proxies given by the undersigned with respect to any Shares are hereby revoked and the undersigned agrees not to grant any subsequent proxies with respect to the Shares until after the Expiration Date, provided, further, that the undersigned may grant subsequent proxies with respect to any matter other than those specified in clauses (i) through (iii) in the fourth paragraph of this Irrevocable Proxy.

This Irrevocable Proxy is irrevocable to the fullest extent permitted by law, is coupled with an interest and is granted pursuant to that certain Voting Agreement of even date herewith by and between Parent and the undersigned Stockholder (the “Voting Agreement”), and is granted as a condition and inducement to the willingness of Parent, Tango Acquisition Corporation One, a Delaware corporation and wholly-owned subsidiary of Parent (“Merger Sub One”), Tango Acquisition Corporation Two, a Delaware corporation and wholly-owned subsidiary of Parent (“Merger Sub Two”), to enter into that certain Agreement and Plan of Merger of even date herewith (the “Merger Agreement”), among Parent, Merger Sub One, Merger Sub Two and the Company. The Merger Agreement provides for, among other things, and as a single integrated transaction, the merger of Merger Sub One with and into the Company (the “First Step Merger”) pursuant to which all outstanding shares of capital stock of the Company will be converted into the right to receive the consideration set forth in the Merger Agreement. As soon as practicable following the First Step Merger, Parent will cause the Company to merge with and into Merger Sub Two (the “Second Step Merger” and, taken together with the First Step Merger, the “Merger”).

As used herein, the term “Expiration Date” shall mean the earlier to occur of (i) such date and time as the Merger Agreement shall have been validly terminated pursuant to Article VIII thereof, or (ii) such date and time as the Merger shall become effective in accordance with the terms and provisions of the Merger Agreement.

The attorneys and proxies named above, and each of them, are hereby authorized and empowered by the undersigned, at any time prior to the Expiration Date, to act as the undersigned’s attorney and proxy to vote the Shares, and to exercise all voting, consent and similar rights of the undersigned with respect to the Shares (including, without limitation, the power to execute and

deliver written consents) at every annual, special, adjourned or postponed meeting of stockholders of the Company and in every written consent in lieu of such meeting:

(i) in favor of the adoption of the Merger Agreement, and in favor of each of the other actions contemplated by the Merger Agreement and any action required in furtherance thereof;

(ii) against approval of any proposal made in opposition to, or in competition with, the Merger Agreement or the Merger or any other transactions contemplated by the Merger Agreement; and

(iii) against any of the following actions (other than those actions that relate to the Merger and any other transactions contemplated by the Merger Agreement): (A) any merger, consolidation, business combination, sale of assets, reorganization or recapitalization of or involving the Company or any of its Subsidiaries, (B) any sale, lease or transfer of all or substantially all of assets of the Company or any of its Subsidiaries, (C) any reorganization, recapitalization, dissolution, liquidation or winding up of the Company or any of its Subsidiaries, (D) any material change in the capitalization of the Company or any of its Subsidiaries, or the corporate structure of the Company or any of its Subsidiaries, (E) any Acquisition Proposal or Acquisition Transaction or (F) any other action that is intended to, or would reasonably be expected to materially, impede, interfere with, delay, postpone, discourage or adversely affect the Merger or any other transactions contemplated by the Merger Agreement.

The attorneys and proxies named above may not exercise this Irrevocable Proxy on any other matter. The undersigned Stockholder may vote the Shares in its sole discretion on all other matters. For the avoidance of doubt, clauses (i) through (iii) in the fourth paragraph of this Irrevocable Proxy shall not apply to votes, if any, on the election or removal of directors as recommended by the Company’s Board of Directors (provided such recommendation is not in violation of the terms of the Merger Agreement).

Any obligation of the undersigned hereunder shall be binding upon the successors and permitted assigns of the undersigned.

This Irrevocable Proxy shall terminate, and be of no further force and effect, automatically upon the Expiration Date.

Dated: January __, 2009


		STOCKHOLDER



		[ ]

***** IRREVOCABLE PROXY ****

EXHIBIT B

NOTICE OF BENEFICIAL OWNERSHIP

[DATE]¹

The undersigned Stockholder (the “Stockholder”) of thinkorswim Group Inc., a Delaware corporation (the “Company”), hereby notifies TD AMERITRADE Holding Corporation, a Delaware corporation (“Parent”) that, as of the date hereof, such Stockholder beneficially owns the number of Shares set forth below.


STOCKHOLDER


[ ]

Shares beneficially owned as of the date hereof:

shares of Company Common Stock

shares of Company Common Stock issuable upon exercise of outstanding options


¹		Record Date of Company Stockholder Vote.

EX-3 3 c48676exv3.htm EX-3 exv3

Exhibit 3

VOTING AGREEMENT

WITNESSETH:

NOW, THEREFORE, intending to be legally bound, the parties hereto agree as follows:

(c) “Shares” shall mean (i) all equity securities of the Company (including all shares of Company Common Stock, Company Preferred Stock and all Company Options and other

2. Transfer of Shares.

3. Agreement to Vote Shares.

(i) in favor of the adoption of the Merger Agreement, and in favor of each of the other actions contemplated by the Merger Agreement and any action required in furtherance thereof;

(c) The Stockholder shall not enter into any agreement or understanding with any Person to vote or give instructions in any manner inconsistent with the terms of this Section 3.

4. No Solicitation.

(b) At all times during the period commencing with the execution and delivery of this Agreement and continuing until the Expiration Date the Stockholder shall not, directly or indirectly:

(i) solicit, initiate or knowingly encourage, facilitate or induce any inquiry with respect to, or the making, submission or announcement of, an Acquisition Proposal or an Acquisition Transaction;

(iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal or an Acquisition Transaction; or

(iv) propose or agree to do any of the foregoing.

9. Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent as follows:

(d) No Finder’s Fees. No broker, investment banker, financial advisor, finder, agent or other Person is entitled to any broker’s, finder’s, financial adviser’s or other similar fee or commission in connection with this Agreement based upon arrangements made by or on behalf of the Stockholder in his or her capacity as such.

(e) Reliance by Parent. The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement.

(f) No Legal Actions. Stockholder agrees that Stockholder will not in Stockholder’s capacity as a Stockholder of the Company bring, commence, institute, maintain, prosecute or voluntarily aid any action, claim, suit or cause of action, in law or in equity, in any

court or before any governmental entity, which (i) challenges the validity of or seeks to enjoin the operation of any provision of this Agreement or (ii) alleges that the execution and delivery of this Agreement by Stockholder, either alone or together with the other Company voting agreements and proxies to be delivered in connection with the execution of the Merger Agreement, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof.

14. Stop Transfer Instructions. At all times commencing with the execution and delivery of this Agreement and continuing until the Expiration Date, in furtherance of this Agreement, the Stockholder hereby authorizes the Company or its counsel to notify the Company’s transfer agent that there is a stop transfer order with respect to all of the Shares of the Stockholder (and that this Agreement places limits on the voting and transfer of such Shares).

16. Miscellaneous.

hereto shall negotiate in good faith and execute and deliver an amendment to this Agreement in order, as nearly as possible, to effectuate, to the extent permitted by law, the original intent of the parties hereto with respect to such provision.

If to Parent:

TD AMERITRADE Holding Corporation
4211 South 102^nd Street
Omaha, NE 68127
Attention: General Counsel
Telephone No.: (402) 331-7856
Telecopy No.: (443) 539-2009

with a copy to:

If to the Stockholder:

[______]
[______]
[______]

with a copy to:

Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, New York 10006
Attention: Ethan A. Klingsberg and Benet J. O’Reilly
Telecopy No.: (212) 225-3999

(g) No Third Party Beneficiaries. This Agreement is not intended to confer and does not confer upon any person other than the parties hereto any rights or remedies hereunder.

(l) Interpretation.

(i) Whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed to be followed by the words “without limitation.”

(m) Expenses. All fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees, costs and expenses.

(n) Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the undersigned have executed and caused to be effective this Agreement as of the date first above written.


TD AMERITRADE HOLDING CORPORATION						STOCKHOLDER

By:
						[______]
Name:


Title:

						Shares beneficially owned as of the date hereof:

						shares of Company Common Stock

						shares of Company Common Stock
						issuable upon exercise of outstanding options

**** VOTING AGREEMENT ****

EXHIBIT A

IRREVOCABLE PROXY

deliver written consents) at every annual, special, adjourned or postponed meeting of stockholders of the Company and in every written consent in lieu of such meeting:

(i) in favor of the adoption of the Merger Agreement, and in favor of each of the other actions contemplated by the Merger Agreement and any action required in furtherance thereof;

(ii) against approval of any proposal made in opposition to, or in competition with, the Merger Agreement or the Merger or any other transactions contemplated by the Merger Agreement; and

(iii) against any of the following actions (other than those actions that relate to the Merger and any other transactions contemplated by the Merger Agreement): (A) any merger, consolidation, business combination, sale of assets, reorganization or recapitalization of or involving the Company or any of its Subsidiaries, (B) any sale, lease or transfer of all or substantially all of assets of the Company or any of its Subsidiaries, (C) any reorganization, recapitalization, dissolution, liquidation or winding up of the Company or any of its Subsidiaries, (D) any material change in the capitalization of the Company or any of its Subsidiaries, or the corporate structure of the Company or any of its Subsidiaries, (E) any Acquisition Proposal or Acquisition Transaction or (F) any other action that is intended to, or would reasonably be expected to materially, impede, interfere with, delay, postpone, discourage or adversely affect the Merger or any other transactions contemplated by the Merger Agreement.

Any obligation of the undersigned hereunder shall be binding upon the successors and permitted assigns of the undersigned.

This Irrevocable Proxy shall terminate, and be of no further force and effect, automatically upon the Expiration Date.


Dated: January ___, 2009		STOCKHOLDER


		[______]

***** IRREVOCABLE PROXY ****

EXHIBIT B

NOTICE OF BENEFICIAL OWNERSHIP

[DATE]¹

STOCKHOLDER

[______]

Shares beneficially owned as of the date hereof:

shares of Company Common Stock

shares of Company Common Stock issuable upon exercise of outstanding options


1		Record Date of Company Stockholder Vote.

-----END PRIVACY-ENHANCED MESSAGE-----