UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 14)*
TD Ameritrade Holding Corporation
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
87236Y 10 8
(CUSIP Number)
Norie C. Campbell, Esq.
The Toronto-Dominion Bank
Toronto-Dominion Centre
P.O. Box 1
Toronto, Ontario M5K IA2
(416) 982-8222
Copy to:
Ellen Patterson, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
(212) 455-2000
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
March 14, 2012
(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. ¨
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 persons 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).
CUSIP No. 87236Y 10 8 |
1 |
NAMES OF REPORTING PERSONS.
The Toronto-Dominion Bank | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) x (b) ¨
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (SEE INSTRUCTIONS)
N/A | |||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Canada | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
247,419,287* | ||||
8 | SHARED VOTING POWER
0 | |||||
9 | SOLE DISPOSITIVE POWER
247,419,287* | |||||
10 | SHARED DISPOSITIVE POWER
0 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
247,419,287* | |||||
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
45.10% (1) | |||||
14 |
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
BK |
* | As described in the Statement (as defined below), based on the provisions relating to voting agreements and (except with respect to the Ricketts Grandchildren Trust) the grant of proxies contained in the Stockholders Agreement, the TD Entities (as defined below) may be deemed to share voting power over the shares beneficially owned by the Ricketts Parties. Based on information set forth in the Form 4 filed by J. Joe Ricketts on February 17, 2012, the Form 4 filed by Marlene M. Rickets on February 6, 2012, the Form 3 filed by the J. Joe Ricketts 1996 Dynasty Trust on March 17, 2006 and the Form 3 filed by the Marlene M. Ricketts 1994 Dynasty Trust on March 17, 2006, the Ricketts Parties for whom ownership information is publicly available are estimated to beneficially own, in the aggregate, approximately 80.94 million shares of Issuer Common Stock (as defined herein), representing approximately 14.75% of the outstanding shares of Issuer Common Stock (based on the number of shares of Issuer Common Stock outstanding as of January 30, 2012 as reported by the Issuer). The TD Entities disclaim beneficial ownership of all shares held by the Ricketts Parties. The number of shares reported as held by the TD Entities does not include shares held by the Ricketts Parties. However, as described in Item 6 of the Statement, the TD Entities and the Ricketts Parties acknowledge that they constitute a group, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the Exchange Act ), with respect to TD Ameritrade. |
(1) | Based on 548,593,141 shares of Issuer Common Stock outstanding as of January 30, 2012 as reported by the Issuer in its quarterly report on Form 10-Q filed on February 8, 2012. |
Page 2 of 12
CUSIP No. 87236Y 10 8 |
1 |
NAMES OF REPORTING PERSONS.
TD Luxembourg International Holdings S.a.r.l. | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) x (b) ¨
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (SEE INSTRUCTIONS)
N/A | |||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Luxembourg | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
247,419,287* | ||||
8 | SHARED VOTING POWER
0 | |||||
9 | SOLE DISPOSITIVE POWER
247,419,287* | |||||
10 | SHARED DISPOSITIVE POWER
0 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
247,419,287* | |||||
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
45.10%(1) | |||||
14 |
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
OO |
* | As described in the Statement (as defined below), based on the provisions relating to voting agreements and (except with respect to the Ricketts Grandchildren Trust) the grant of proxies contained in the Stockholders Agreement, the TD Entities may be deemed to share voting power over the shares beneficially owned by the Ricketts Parties. Based on information set forth in the Form 4 filed by J. Joe Ricketts on February 17, 2012, the Form 4 filed by Marlene M. Rickets on February 6, 2012, the Form 3 filed by the J. Joe Ricketts 1996 Dynasty Trust on March 17, 2006 and the Form 3 filed by the Marlene M. Ricketts 1994 Dynasty Trust on March 17, 2006, the Ricketts Parties for whom ownership information is publicly available are estimated to beneficially own, in the aggregate, approximately 80.94 million shares of Issuer Common Stock (as defined herein), representing approximately 14.75% of the outstanding shares of Issuer Common Stock (based on the number of shares of Issuer Common Stock outstanding as of January 30, 2012 as reported by the Issuer). The TD Entities disclaim beneficial ownership of all shares held by the Ricketts Parties. The number of shares reported as held by the TD Entities does not include shares held by the Ricketts Parties. However, as described in Item 6 of the Statement, the TD Entities and the Ricketts Parties acknowledge that they constitute a group, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the Exchange Act ), with respect to TD Ameritrade. |
(1) | Based on 548,593,141 shares of Issuer Common Stock outstanding as of January 30, 2012 as reported by the Issuer in its quarterly report on Form 10-Q filed on February 8, 2012. |
Page 3 of 12
Item 1: | Security and Issuer |
This Amendment No. 14 hereby amends and supplements the statement of beneficial ownership on Schedule 13D relating to the common stock, $0.01 par value per share (the Issuer Common Stock) of TD Ameritrade Holding Corporation, a Delaware corporation (the Issuer), initially filed on January 25, 2006, as amended by Amendment No. 1 thereto filed on February 24, 2006, Amendment No. 2 thereto filed on April 14, 2006, Amendment No. 3 thereto filed on May 5, 2006, Amendment No. 4 thereto filed on May 11, 2006, Amendment No. 5 thereto filed on May 19, 2006, Amendment No. 6 thereto filed on May 26, 2006, Amendment No. 7 thereto filed on September 14, 2006, Amendment No. 8 thereto filed on February 5, 2009, Amendment No. 9 thereto filed on August 13, 2010, Amendment No. 10 thereto filed on January 20, 2011, Amendment No. 11 thereto filed on February 10, 2011, Amendment No. 12 thereto filed on February 24, 2011 and Amendment No. 13 thereto filed on November 8, 2011 (as amended, and as it may be further amended from time to time, this Statement), by the Reporting Persons (as defined in Item 2 hereof) with respect to the items set forth below. Unless otherwise indicated herein, capitalized terms used and not defined in this Amendment No. 14 shall have the respective meanings herein as are ascribed to such terms in the Statement.
Item 2: | Identity and Background |
Item 2 of the Statement is hereby amended and restated in its entirety (other than with respect to Schedule I to the Statement, which is amended and supplemented as provided for in this Amendment No. 14) as follows:
This Statement is being filed by The Toronto-Dominion Bank, a Canadian chartered bank (TD), and TD Luxembourg International Holdings S.a.r.l., a private limited liability company existing under the laws of Luxembourg and a wholly-owned subsidiary of TD (TD LIH and together with TD, the TD Entities or the Reporting Persons). TD and its subsidiaries are principally engaged in the business of personal, commercial and wholesale banking and wealth management. The principal executive office of TD is located at Toronto-Dominion Centre, P.O. Box 1, Toronto, Ontario, Canada M5K IA2 and the principal executive office of TD LIH is located at 46A, Avenue J. F. Kennedy, First Floor, L-2958 Luxembourg, Grand-Duchy of Luxembourg.
The name, business address, citizenship and present principal occupation or employment of each director and executive officer of each of the TD Entities and the name and principal business and address of any corporation or other organization in which such employment is conducted are set forth in Schedule I hereto and are incorporated by reference herein.
During the last five years, none of the TD Entities or, to the knowledge of the TD Entities, any of their respective executive officers or directors named in Schedule I hereto has (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been 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.
Item 4: | Purpose of Transaction |
Item 4 of the Statement is hereby amended and supplemented by the following:
As previously disclosed in the Statement, as of October 31, 2011, the Issuer, TD, TD LIH and the Ricketts Parties entered into Amendment No. 4 to the Stockholders Agreement, dated as of June 22, 2005 (Amendment No. 4). Under Amendment No. 4: (i) TD has until January 24, 2014 to take all actions reasonably necessary to reduce its ownership in the Issuer to 45% of the outstanding Issuer Common Stock; (ii) TD is required to take all actions reasonably necessary to commence reduction of its ownership in the Issuer Common Stock and then continue such reduction for so long as such reduction can be executed at a price per share equal to or greater than TDs then-applicable average carrying value per share of Issuer Common Stock; and (iii) in connection with stock repurchases by the Issuer, TDs ownership interest in the Issuer will not exceed 48% of the outstanding Issuer Common Stock. As of March 14, 2012, TDs ownership in the Issuer represented approximately 45.10% of the outstanding Issuer
Page 4 of 12
Common Stock (based on the number of shares of Issuer Common Stock outstanding as of January 30, 2012 as reported by the Issuer). In compliance with their obligations under Amendment No. 4 and consistent with their review of their investment in the Issuer and their business affairs, financial position and capital requirements, the TD Entities currently intend to sell up to 15,000,000 shares of Issuer Common Stock, subject to market conditions, the price limitations specified in Amendment No. 4, compliance with applicable law and the Stockholders Agreement and other factors. Accordingly, on March 14, 2012, TD LIH entered into a stock sales plan with its broker, Goldman, Sachs & Co., which plan is intended to comply with Rule 10b5-1(c)(1) under the Exchange Act (the Sales Plan). The Sales Plan provides for the sale of up to 15,000,000 shares of Issuer Common Stock held by TD LIH, which sales would be effected at or above a per share price of $ 21.30 and subject to the limitations prescribed by Rule 144 under the Securities Act of 1933. Assuming such sales are completed and the Issuer completes the authorized repurchase program approved by the Issuers board of directors in October 2011, TDs beneficial ownership of the Issuer Common Stock is expected to be approximately 44.82%. The Sales Plan will expire on April 23, 2012, subject to earlier termination in certain circumstances. A form of the Sales Plan is attached as Exhibit 14 hereto and incorporated herein by reference. Depending on market conditions, the price limitations contained in the Sales Plan and other variables, the Sales Plan may not result in sales of the full number of shares of Issuer Common Stock necessary to sell all 15,000,000 shares subject to the Sales Plan and/or to reduce TD and TD LIHs beneficial ownership of the Issuer Common Stock to the extent required by the Stockholders Agreement. Accordingly, from time to time in the future, sales of Issuer Common Stock may be effected by or on behalf of TD or TD LIH pursuant to the Sales Plan, future stock sales plans (which may have different price limitations and/or be entered into with different brokers) designed to comply with Rule 10b5-1(c)(1) under the Exchange Act, in open market transactions, privately negotiated transactions, through a public offering or otherwise. Any such dispositions will be subject to market conditions and other considerations and the terms of the Stockholders Agreement, as amended to date and as it may be further amended or otherwise modified from time to time.
In addition, as previously disclosed in the Statement, the TD Entities intend to continue to review from time to time their investment in the Issuer and their business affairs, financial position and capital requirements. Based upon such review, as well as general economic, market and industry conditions and prospects existing at the time, the TD Entities may consider from time to time alternative courses of action as permitted by the Stockholders Agreement. Subject to the terms of the Stockholders Agreement, such actions may include additional sales of shares of Issuer Common Stock or other securities of the Issuer through sales plans, in open market transactions, privately negotiated transactions, through a public offering or otherwise, or the acquisition of additional shares of Issuer Common Stock or other securities of the Issuer directly from the Issuer, through open market purchases, in privately negotiated transactions, through a tender or exchange offer or a merger, reorganization or comparable transaction, through exercise of its rights under the Stockholders Agreement or otherwise. Subject to the terms of the Stockholders Agreement, these actions may constitute a going-private transaction and/or could result in (i) changes to the board of directors of the Issuer, (ii) changes in the capitalization or dividend policy of the Issuer, (iii) changes in the Issuers certificate of incorporation or bylaws, (iv) delisting of the Issuer Common Stock from the Nasdaq National Market System (or other national securities market or inter-dealer quotation system), (v) termination of registration of the Issuer Common Stock pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended, and/or (vi) other events comparable to those enumerated above.
Other than as described in this Statement, the TD Entities do not have any present plans or proposals that relate to or would result in any of the actions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.
Item 5: | Interest in Securities of the Issuer |
Item 5(a), (b) and (c) of the Statement is hereby amended and supplemented by the following:
(a) and (b). As of March 14, 2012, TD LIH is the record and beneficial owner of 247,419,287 shares of Issuer Common Stock, representing approximately 45.10% of the outstanding shares of Issuer Common Stock (based on the number of shares of Issuer Common Stock outstanding as of January 30, 2012 as reported by the Issuer). TD controls TD LIH and accordingly beneficially owns the shares of Issuer Common Stock held by such entity.
Page 5 of 12
Except for Mr. Clark, Mr. Bragg, Ms. Maidment and Mr. Prezzano, as of March 14, 2012, none of the individuals listed on Schedule I beneficially owned any shares of Issuer Common Stock. As of March 14, 2012, Mr. Clark beneficially owned 6,000 shares of Issuer Common Stock; Mr. Bragg beneficially owned 113,000 shares of Issuer Common Stock; Ms. Maidment beneficially owned 24,940 shares of Issuer Common Stock and Mr. Prezzano beneficially owned 86,884 shares of Issuer Common Stock.
Based on the provisions relating to voting agreements and (except with respect to the Ricketts Grandchildren Trust) the grant of proxies contained in the Stockholders Agreement, the TD Entities may be deemed to share voting power over the shares beneficially owned by the Ricketts Parties. Based on information set forth in the Form 4 filed by J. Joe Ricketts on February 17, 2012, the Form 4 filed by Marlene M. Rickets on February 6, 2012, the Form 3 filed by the J. Joe Ricketts 1996 Dynasty Trust on March 17, 2006 and the Form 3 filed by the Marlene M. Ricketts 1994 Dynasty Trust on March 17, 2006, the Ricketts Parties for whom ownership information is publicly available are estimate to beneficially own, in the aggregate, approximately 80.94 million shares of Issuer Common Stock (as defined herein), representing approximately 14.75% of the outstanding shares of Issuer Common Stock (based on the number of shares of Issuer Common Stock outstanding as of January 30, 2012 as reported by the Issuer). The TD Entities disclaim beneficial ownership of all shares held by the Ricketts Parties. The number of shares reported as held by the TD Entities does not include shares held by the Ricketts Parties. However, as described in Item 6 of the Statement, the TD Entities and the Ricketts Parties acknowledge that they constitute a group, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the Exchange Act), with respect to the Issuer.
All information contained in the Statement relating to the Ricketts Parties is based on information provided in, and solely with respect to the Ricketts Parties for whom ownership information is reported in, the public filings of the Issuer. While the TD Entities have no reason to believe that such information is inaccurate or incomplete, the TD Entities do not assume any responsibility for the accuracy or completeness of such information.
(c) Except for the acquisitions by Ms. Maidment and Mr. Prezzano as described below, none of the TD Entities nor, to the best of the TD Entities knowledge, any of the individuals named in Schedule I hereto, has engaged in any transaction in shares of Issuer Common Stock in the last 60 days.
On February 15, 2012, Mr. Prezzano acquired 222 shares of Issuer Common Stock from the Issuer as a result of a dividend equivalent adjustment in respect of his restricted stock units.
On January 18, 2012, Mr. Prezzano received a grant of 13,771 shares of Issuer Common Stock pursuant to the Issuers Directors Incentive Plan.
On February 15, 2012, Ms. Maidment acquired 84 shares of Issuer Common Stock from the Issuer as a result of a dividend equivalent adjustment in respect of her restricted stock units.
On January 18, 2012, Ms. Maidment received a grant of 8,177 shares of Issuer Common Stock pursuant to the Issuers Directors Incentive Plan.
Item 6: | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer |
Item 6 of the Statement is hereby amended and supplemented by the following:
On March 14, 2012, TD LIH entered into the Sales Plan described above in Item 4 of this Amendment No. 14, which description is incorporated herein by reference. A form of the Sales Plan is attached hereto as Exhibit 14. As described in Item 4 above, TD and/or TD LIH may from time to time in the future enter into additional sales plans intended to comply with Rule 10b5-1(c)(1) under the Exchange Act in order to effect sales of Issuer Common Stock as required by Amendment No. 4 or as otherwise described in Item 4.
Page 6 of 12
From time to time, equity, debt or other securities of the Issuer may be held in managed or similar accounts of customers of TD or its affiliates.
Item 7: | Material to be Filed as Exhibits |
Item 7 of the Statement is hereby supplemented as follows:
Exhibit |
Description of Exhibit | |
14 | Form of Sales Plan |
Page 7 of 12
SIGNATURES
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: March 16, 2012
THE TORONTO-DOMINION BANK | ||
By: | /s/ Leslie Johnson | |
Name: | Leslie Johnson | |
Title: | Vice President, Legal, Transactions |
TD LUXEMBOURG INTERNATIONAL HOLDINGS S.A R.L. | ||
By: | /s/ Dave Sparvell | |
Name: | Dave Sparvell | |
Title: | Board Manager |
Page 8 of 12
SCHEDULE I
INFORMATION RELATING TO THE DIRECTORS AND EXECUTIVE OFFICERS
OF THE TD ENTITIES
Schedule I to the Schedule 13D Filing is hereby amended and restated as follows:
Name |
Present Principal Occupation or Employment and Address | |
THE TORONTO-DOMINION BANK | ||
DIRECTORS |
||
William E. Bennett (US Citizen) |
Corporate Director and former President and Chief Executive officer, Draper & Kramer, Inc. 55 West Monroe Street Suite 2530 Chicago, Illinois 60603-5008 | |
Hugh J. Bolton (Canadian Citizen) |
Chair of the Board EPCOR Utilities Inc. 2000-10423 101 Street NW Edmonton, Alberta T5H 0E8 | |
John L. Bragg (Canadian Citizen) |
Chairman, President & Co-Chief Executive Officer Oxford Frozen Foods Limited 4881 Main St. P.O. Box 220 Oxford, N.S. B0M 1P0 | |
Amy W. Brinkley (US Citizen) |
Consultant, AWB Consulting, LLC 2225 Sharon Lane Charlotte, North Carolina 28211 | |
W. Edmund Clark (Canadian Citizen) |
Group President and Chief Executive Officer The Toronto-Dominion Bank P.O. Box 1 Toronto-Dominion Centre 66 Wellington Street West, 4th Floor, TD Bank Tower Toronto, Ontario M5K 1A2 | |
Wendy K. Dobson (Canadian Citizen) |
Professor and Co-Director Institute for International Business Joseph L. Rotman School of Management University of Toronto 105 St. George Street Toronto, Ontario M5S 3E6 |
Page 9 of 12
Henry H. Ketcham (US and Canadian Citizen) |
Chairman, President and Chief Executive Officer West Fraser Timber Co. Ltd. Suite 501 858 Beatty Street Vancouver, BC V6B 1C1 | |
Pierre H. Lessard (Canadian Citizen) |
Executive Chairman of the Board METRO INC. 1002 Sherbrooke St. West Suite 2200 Montreal, Quebec H3A 3L6 | |
Brian M. Levitt (Canadian Citizen) |
Chairman of the Board The Toronto-Dominion Bank P.O. Box 1 Toronto-Dominion Centre 66 Wellington Street West, 4th Floor Toronto, Ontario M5K 1A2 | |
Harold H. MacKay (Canadian Citizen) |
Counsel MacPherson Leslie & Tyerman LLP 1500 1874 Scarth St. Regina, Saskatchewan S4P 4E9 | |
Karen E. Maidment (Canadian Citizen) |
Corporate Director 92 Salisbury Avenue Cambridge, Ontario N1S 1J5 | |
Irene R. Miller (US and Canadian Citizen) |
Chief Executive Officer Akim, Inc. 186 Riverside Drive #10E New York, NY 10024 | |
Nadir H. Mohamed (Canadian Citizen) |
President and Chief Executive Officer Rogers Communications Inc. 333 Bloor Street East, 10th Floor Toronto, Ontario M4W 1G9 | |
Wilbur J. Prezzano (US Citizen) |
Corporate Director and retired Vice Chairman Eastman Kodak Company 28 Murray Blvd. Charleston, South Carolina 29401-2350 |
Page 10 of 12
Helen K. Sinclair (Canadian Citizen) |
Chief Executive Officer BankWorks Trading Inc. 181 Bay Street Bay Wellington Tower Brookfield Place Suite 1400 Toronto, Ontario M5J 2V1 | |
Carole S. Taylor (Canadian Citizen) |
Corporate Director #5103 1128 West Georgia Street Vancouver, BC V6E 0A8 | |
John M. Thompson (Canadian Citizen) |
Corporate Director 20 Hedgewood Road Toronto, Ontario M2L 1L5 |
EXECUTIVE OFFICERS
Riaz Ahmed (Canadian Citizen) |
Group Head, Corporate Development, Enterprise Strategy and Treasury Corporate Office, TD Bank Group | |
Mark Russell Chauvin (Canadian Citizen) |
Group Head and Chief Risk Officer, Risk Management, Corporate Office, TD Bank Group | |
William Edmund Clark (Canadian Citizen) |
Group President and Chief Executive Officer, TD Bank Group | |
Theresa Lynn Currie (Canadian and U.S. Citizen) |
Group Head, Direct Channels, Corporate and People Strategies, Corporate Office, TD Bank Group | |
Robert Edward Dorrance (Canadian Citizen) |
Group Head, Wholesale Banking, TD Bank Group and Chairman, Chief Executive Officer & President, TD Securities | |
Timothy David Hockey (Canadian Citizen) |
Group Head, Canadian Banking, Auto Finance and Credit Cards, TD Bank Group and President and Chief Executive Officer, TD Canada Trust | |
Colleen Mary Johnston (Canadian Citizen) |
Group Head, Finance and Chief Financial Officer, Corporate Office, TD Bank Group | |
Bharat Bhagwanji Masrani (Canadian and British Citizen) |
Group Head, U.S. Personal and Commercial Banking, TD Bank Group and President and Chief Executive Officer, TD Bank, N.A. | |
Francis Joseph McKenna (Canadian Citizen) |
Deputy Chair, TD Bank Group | |
Michael Bo Pedersen (Canadian Citizen) |
Group Head, Wealth Management, Insurance, and Corporate Shared Services, TD Bank Group |
Page 11 of 12
TD LUXEMBOURG INTERNATIONAL HOLDINGS S.A.R.L.
DIRECTORS
Annemarie Jung (Luxembourg Citizen) |
Board Manager TD Luxembourg International Holdings S.a.r.l. 46A Avenue JF Kennedy L-2958 Luxembourg | |
Yves Sawaya (Canadian and French Citizen) |
Board Manager TD Luxembourg International Holdings S.a.r.l. 46A Avenue JF Kennedy L-2958 Luxembourg | |
Dave Sparvell (British Citizen) |
Board Manager TD Luxembourg International Holdings S.a.r.l. 46A Avenue JF Kennedy L-2958 Luxembourg |
Page 12 of 12
EXHIBIT 14
Form of Sales Plan
This Agreement (the Sales Plan) is made and entered into as of this 14th day of March, 2012 by and between TD Luxembourg International Holdings, a Luxembourg société à responsabilité limitée (private limited liability company), with a share capital of USD 24,000 having its registered office at 46A, Avenue John F. Kennedy, L-2958 Luxembourg, Grand-Duchy of Luxembourg and registered with the Luxembourg Registre de Commerce et des Sociétés (Trade and Companies Register) under number B 154.812 (Seller) and Goldman, Sachs & Co. (Broker).
WHEREAS, Seller desires to establish the Sales Plan to sell shares of common stock, par value $0.01 per share (the Stock), of TD AMERITRADE Holding Corporation (the Issuer) in accordance with the requirements of Rule 10b5-1 under the U.S. Securities Exchange Act of 1934, as amended (the Exchange Act) as further set forth herein;
NOW, THEREFORE, Seller and Broker hereby agree as follows:
1. Broker shall effect one or more sales (each a Sale) of shares of Stock (the Shares) as further set forth in the attached Annex A to this Sales Plan. All orders will be deemed day orders only and not held unless otherwise specified in Annex A. Brokers sole compensation for services rendered under this Sales Plan shall be a commission of $0.015 per share of Stock sold.
2. Sales under this Sales Plan shall commence in accordance with the terms of Annex A and shall terminate on the earliest of (a) April 23, 2012, (b) the date that this Sales Plan is terminated in accordance with paragraph 11 below, (c) the date on which Broker has sold all Shares specified in Annex A, (d) three days after the receipt of written notice of termination signed by an authorized representative of Seller, it being understood that any such termination will not cause Sales previously executed under this Sales Plans to fail to be entitled to the benefit of Rule 10b5-1(c) or (e) the date Broker receives notice of the dissolution of Seller.
3. Seller understands that Broker may effect Sales hereunder jointly with orders for other sellers of Stock of the Issuer and that the average price for executions resulting from bunched orders will be assigned to Sellers account, it being understood that such average price must comply with the parameters specified in Annex A.
4. Seller represents and warrants that Seller is not aware of material, nonpublic information with respect to the Issuer or any securities of the Issuer (including the Stock) and is entering into this Sales Plan in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1.
5. It is the intent of the parties that this Sales Plan comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act and this Sales Plan shall be interpreted to comply with the requirements of Rule 10b5-1(c). Seller has consulted with Sellers own advisors as to the legal and tax aspects of Sellers adoption and implementation of this Sales Plan.
6. Seller represents that the Shares are restricted securities and/or that Seller may be deemed an affiliate of the Issuer as those terms are defined under Rule 144 of the U.S. Securities Act of 1933. Seller shall not take, and shall not cause any person or entity with which Seller would be required to aggregate sales of Stock pursuant to paragraph (a)(2) or (e) of Rule 144 to take, any action that would cause the Sales not to comply with Rule 144.
7. Seller has provided Broker with three (3) executed Forms 144, which Broker will complete and file on behalf of the Seller. Seller and Broker understand and agree that unless otherwise agreed or instructed, Broker will make one Form 144 filing no later than the date of the first Sale to be effected pursuant to this Plan, which will cover the sale of shares of Stock equal to the lesser of (i) the maximum number of shares of Stock then eligible for sale pursuant to the volume limit calculated under Rule 144(e) and (ii) the number of shares of Stock then eligible for sale under this Sales Plan as specified on Annex A; provided that Broker shall file Forms 144 as frequently as necessary to comply with Rule 144 and the requirements of this Sales Plan, including as set forth on Annex A. Such Form 144 shall specify that the Sales are being effected in accordance with a sales plan intended to comply with Rule 10b5-1. Seller agrees to provide Broker with such information as is reasonably necessary for Broker accurately and timely to complete the Forms 144. Broker agrees not to execute Sales at any time in an amount that exceeds the volume limit as then calculated under Rule 144(e) (for these purposes, Broker may assume that no sales of stock, other than Sales executed by Broker pursuant to this Sales Plan, that would be required to be included for purposes of this calculation have been or will be executed by Seller or any other person whose sales would be required to be aggregated with sales by Seller for purposes of Rule 144 at any time during the period beginning three months prior to the date of this Sales Plan and ending on the date of termination of this Sales Plan) and the Broker agrees to comply with the manner of sale provisions under Rule 144(f) (including the provisions of 144(g) to the extent applicable), in each case in executing Sales under this Sales Plan.
8. Seller represents and warrants that, as of the date hereof, Seller is currently permitted to sell Stock in accordance with the Issuers insider trading policies; and that, other than any Rule 144 requirements set forth herein, there are no contractual, regulatory, or other restrictions applicable to Seller and to the Sales contemplated under this Sales Plan that would interfere with Brokers ability to execute Sales under this Sales Plan and effect delivery and settlement of such Sales on behalf of Seller, other than restrictions with respect to which the Seller has obtained all required consents, approvals and waivers. Seller shall notify Broker immediately in the event that any of the above statements become inaccurate prior to the termination of this Sales Plan. Seller has advised the Issuers internal counsel of Sellers intent to enter into this Sales Plan, and the Issuers internal counsel has not advised Seller of an objection to this Sales Plan.
9. Except as specifically provided in Annex A hereto, Seller will not directly or indirectly communicate any information relating to Issuer or Issuer securities to any employee of Broker or its affiliates who is directly or indirectly involved in executing this Sales Plan at any time while this Sales Plan is in effect.
10. Seller shall make all filings, if any, required under Sections 13(d) and 16 of the Exchange Act. Broker shall provide Seller (and/or its designee(s)) with written confirmation of Sales executed on behalf of Seller on a daily basis (showing the date of
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the transactions, the number of shares of Stock sold, the price received, Brokers compensation for the Sales, and settlement dates). Unless otherwise directed by Seller, such confirmation shall be delivered to the following, who are the initial designees of Seller for this purpose: Barbara Hooper, TD Bank (barbara.hooper@tdsecurities.com), Sharon Martin, TD Bank (sharon.martin@tdsecurities.com), Leslie Johnson, TD Bank Legal Department (leslie.johnson@td.com), Eileen Pierre, TD Luxembourg International Holdings S.à r.l. (Eileen.Pierre@tdlih.lu) and Lee Meyerson, Simpson Thacher & Bartlett LLP (lmeyerson@stblaw.com).
11. Seller understands that Broker may not effect a Sale due to a market disruption or a legal, regulatory or contractual restriction applicable to the Broker (a Broker Blackout). Seller also understands that even in the absence of a Broker Blackout, Broker may be unable to effect Sales consistent with ordinary principles of best execution due to insufficient volume of trading, failure of the Stock to reach and sustain a limit order price, or other market factors in effect on the date of a Sale set forth in Annex A (Unfilled Sales).
Broker agrees that if Issuer enters into a transaction that imposes trading restrictions on the Seller, such as a stock offering requiring an affiliate lock-up (an Issuer Restriction), and if Issuer and Seller shall provide Broker at least three (3) days prior notice of such trading restrictions, then Broker will cease effecting Sales under this Sales Plan until notified by Issuer and Seller that such restrictions have terminated. All required notifications to Broker under this paragraph 11 shall be made in writing (signed by Seller and Issuer) and confirmed by telephone as follows: (Attn: Neil Kearns; Fax No. (212) 493-9487; Tel: (212) 902-5281). Broker shall resume effecting Sales in accordance with this Sales Plan as soon as practicable after the cessation or termination of a Broker Blackout or Issuer Restriction. Any Unfilled Sales, and any Sales that would have been executed in accordance with the terms of Annex A but are not executed due to the existence of a Broker Blackout or Issuer Restriction, shall be deemed to be cancelled, and shall not be effected pursuant to this Sales Plan.
12. This Sales Plan and its enforcement, and each transaction entered into hereunder and all matters arising in connection with this Sales Plan and transactions hereunder shall be governed by, and construed in accordance with, the laws of the State of New York, without reference to its choice of law doctrine. The Sales Plan may be modified or amended only by a writing signed by the parties hereto, and provided that any such modification or amendment shall only be permitted at a time when the Seller is otherwise permitted to effect sales under the Issuers trading policies and at a time when the Seller is not aware of material nonpublic information concerning the Issuer or its securities. In the event of a modification or amendment to this Sales Plan, or in the event Seller establishes a new plan after termination of the Sales Plan, no sales shall be effected during the five business days immediately following such modification or amendment (other than Sales already provided for in the Sales Plan prior to modification or amendment). As used herein, a business day shall mean any day on which The Nasdaq Stock Market is open for regular way trading.
13. Seller agrees that Broker and its affiliates and their directors, officers, employees, and agents (collectively, Broker Persons) shall not have any liability whatsoever to Seller for any action taken or omitted to be taken in connection with the Sales Plan, the making of any Sale, or any amendment, modification or termination of the Sales Plan,
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except to the extent such liability is determined in a non-appealable order of a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct or bad faith of a Broker Person. Seller further agrees to hold each Broker Person free and harmless from any and all losses, damages, liabilities or expenses (including reasonable attorneys fees and costs) incurred or sustained by such Broker Person in connection with or arising out of any suit, action or proceeding relating to this Sales Plan, any Sale, or any amendment, modification or termination of the Sales Plan (each an Action) and to reimburse each Broker Person for its expenses, as they are incurred, in connection with any Action, except to the extent such loss, damage, liability or expense is determined in a non-appealable order of a court of competent jurisdiction to be the result of a Broker Persons gross negligence, willful misconduct or bad faith. This paragraph 13 shall survive termination of this Sales Plan.
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IN WITNESS WHEREOF, the undersigned have signed this Sales Plan as of the date first set forth above.
TD LUXEMBOURG INTERNATIONAL HOLDINGS S.À R.L. | GOLDMAN, SACHS & CO. | |||||||
By: | /s/ Dave Sparvell | By: | /s/ Neil Kearns | |||||
Name: | Dave Sparvell | Name: | Neil Kearns | |||||
Title: | type A manager | Title: | Managing Director |
Annex A
Number of shares of Stock to be sold:
In accordance with the Sales Plan, Broker will sell, subject to the price limit described below and the volume limitations of Rule 144, up to, but no more than, an aggregate of 15,000,000 shares of Stock. Sales shall be made on each day that the Sales Plan is in effect on which The NASDAQ Stock Market (or such other national securities exchange that is the principal trading market for the Stock) (the Exchange) is open for trading and the Stock trades regular way on the Exchange.
Minimum price for sales:
Broker will only execute sales pursuant to the Sales Plan if the sale can be executed at a price per share equal to or greater than $21.30.
All orders will be deemed day limit orders only and not held.