sv3asr
As filed with the Securities and Exchange Commission on
November 19, 2009
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC
20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TD AMERITRADE HOLDING
CORPORATION
(Exact name of Registrant as
specified in charter)
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Delaware
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82-0543156
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(State or other jurisdiction of
incorporation or organization)
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(IRS Employer Identification No.)
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4211 South
102nd
Street
Omaha, Nebraska 68127
(402) 331-7856
(Address, including zip code, and
telephone number, including area code,
of Registrants principal
executive offices)
David L.
Lambert, Esq.
Deputy General
CounselFinance/Securities
6940 Columbia Gateway
Drive
Columbia, Maryland
21046
(443) 539-2124
(Name, address, including zip code,
and telephone number,
including area code, of agent for
service)
With Copy to:
Lisa J.
Reategui, Esq.
Sidley Austin LLP
One South Dearborn
Street
Chicago, Illinois
60603
Telephone:
(312) 853-7000
Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of this Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. x
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. x
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
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Large accelerated
filer x
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Accelerated
filer o
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Non-accelerated
filer o
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Smaller reporting
company o
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION
FEE
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Amount to be registered/
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Proposed maximum
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offering price per
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unit/Proposed maximum
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Title of each class
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aggregate offering
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Amount of
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of securities to be registered
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price (1)
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registration fee (2)
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Debt Securities
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Guarantees (3)
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(1)
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An indeterminate amount of debt
securities to be offered at indeterminate prices is being
registered pursuant to this Registration Statement.
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(2)
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In reliance on and in accordance
with Rules 456(b) and 457(r), the Registrant is deferring
payment of all of the registration fee.
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(3)
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Guarantees of TD AMERITRADE Holding
Corporations Debt Securities by TD AMERITRADE Online
Holdings Corp., a wholly owned subsidiary of TD AMERITRADE
Holding Corporation. Pursuant to Rule 457(n) under the
Securities Act of 1933, no separate fee is required for the
guarantees.
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Additional Registrant
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State or other
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jurisdiction of
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I.R.S. employer
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incorporation
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identification
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Exact name of Registrant as specified in its charter*
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or organization
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number
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TD AMERITRADE Online Holdings Corp.
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Delaware
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47-0642657
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*
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The address for the additional
Registrants principal executive office is 4211 South 102nd
Street, Omaha, Nebraska 68127, and the telephone number for the
additional Registrants principal executive office is
(402) 331-7856.
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PROSPECTUS
TD AMERITRADE Holding
Corporation
Debt Securities
Guarantees
We may offer senior debt securities and related guarantees by
one or more of our subsidiaries from time to time in one or more
series. We will provide specific terms of any offering of these
debt securities and related guarantees, together with the terms
of the offering, the public offering price and our net proceeds
from the sale thereof, in supplements to this prospectus. You
should read this prospectus and any prospectus supplement, as
well as the documents incorporated and deemed to be incorporated
by reference in this prospectus and any prospectus supplement,
carefully before you invest.
We may sell these debt securities and related guarantees on a
continuous or delayed basis through one or more agents, dealers
or underwriters as designated from time to time, or directly to
purchasers or through a combination of these methods. We reserve
the sole right to accept, and together with any agents, dealers
and underwriters, reserve the right to reject, in whole or in
part, any proposed purchase of debt securities and related
guarantees. If any agents, dealers or underwriters are involved
in the sale of any debt securities and related guarantees, the
applicable prospectus supplement will set forth any applicable
commissions or discounts. Our net proceeds from the sale of debt
securities and related guarantees will be the public offering
price of those debt securities less the applicable discount, in
the case of an offering made through an underwriter, or the
purchase price of those debt securities less the applicable
commission, in the case of an offering through an agent, and, in
each case, less other expenses payable by us in connection with
the issuance and distribution of those debt securities and
related guarantees.
This prospectus may not be used to sell securities unless
accompanied by a prospectus supplement.
Investing in our securities involves risks. You should
carefully consider the information referred to under the heading
Risk Factors on page 3 of this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is November 19, 2009.
TABLE OF
CONTENTS
Prospectus
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Page
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ABOUT
THIS PROSPECTUS
This prospectus incorporates by reference important business
and financial information about us that is not included in or
delivered with this document. This information, other than
exhibits to documents that are not specifically incorporated by
reference in this prospectus, is available to you without charge
upon written or oral request to: TD AMERITRADE Holding
Corporation, 4211 South
102nd
Street, Omaha, Nebraska 68127, Attention: Investor Relations,
(800) 237-8692.
This prospectus is part of an automatic shelf registration
statement that we filed with the Securities and Exchange
Commission, or SEC, as a well-known seasoned
issuer as defined in Rule 405 under the Securities
Act of 1933, or the Securities Act. Under the
automatic shelf process, we may, over time, offer and sell the
debt securities described in this prospectus or in any
applicable prospectus supplement in one or more offerings. This
prospectus only provides you with a general description of the
debt securities we may offer. Each time we offer and sell debt
securities, we will provide a prospectus supplement that
contains specific information about the terms of those debt
securities. The prospectus supplement may also add, update or
change information contained in this prospectus. Before you make
any investment decision, you should read both this prospectus
and any prospectus supplement, together with the documents
incorporated and deemed to be incorporated by reference in this
prospectus and the additional information described below under
the heading Where You Can Find More Information.
Unless otherwise indicated, references to we,
us, our, the Company, or
TD AMERITRADE mean TD AMERITRADE Holding Corporation
and its subsidiaries, and references to fiscal mean
the Companys fiscal year ended September 30 (for fiscal
years 2009, 2008 and 2007) or the last Friday of September
(for fiscal years prior to 2007).
You should rely only on the information contained in this
prospectus and the accompanying prospectus supplement, including
the information incorporated or deemed to be incorporated by
reference herein or any free writing prospectus that we prepare
and distribute. We have not authorized anyone to provide you
with information different from that contained in or
incorporated by reference into this prospectus, the accompanying
prospectus supplement or any such free writing prospectus.
This prospectus does not constitute an offer to sell or a
solicitation of an offer to buy by anyone in any jurisdiction in
which such offer or solicitation is not authorized, or in which
the person is not qualified to do so or to any person to whom it
is unlawful to make such offer or solicitation. Neither the
delivery of this prospectus nor any sale hereunder shall, under
any circumstances, create any implication that there has been no
change in our affairs since the date hereof, that the
information contained herein is correct as of any time
subsequent to its date, or that any information incorporated or
deemed to be incorporated by reference herein is correct as of
any time subsequent to its date.
The exhibits to our registration statement contain the full text
of certain agreements and other important documents we have
summarized in or incorporated by reference into this prospectus.
Since these summaries may not contain all the information that
you may find important in deciding whether to purchase the debt
securities and related guarantees we offer, you should review
the full text of these documents. The registration statement and
the exhibits can be obtained from the SEC as indicated under the
heading Where You Can Find More Information.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. The SEC allows us to
incorporate by reference into this prospectus the
information we file with the SEC, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is
considered to be part of this prospectus, and information that
we file later with the SEC will automatically update and
supersede this information. SEC rules and regulations also
permit us to furnish rather than file
certain reports and information with the SEC. Any such reports
or information which we furnish or have
furnished shall not be deemed to be incorporated by
reference into or otherwise become a part of this prospectus,
regardless of when furnished to the SEC. We incorporate by
reference the following documents we have already filed with the
SEC (file number
000-49992)
and any future filings that we will make with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934, or the Exchange Act (other
than any portion of such filings that are furnished under
applicable SEC rules rather than filed):
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Annual Report on
Form 10-K
for the fiscal year ended September 30, 2009 filed with the
SEC on November 13, 2009;
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Current Reports on
Form 8-K
filed with the SEC on October 30, 2009 and
November 10, 2009; and
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Definitive Proxy Statement for the 2009 Annual Meeting of
Stockholders filed with the SEC on January 6, 2009.
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Our SEC filings are available free of charge through our
Internet website at
http://www.amtd.com
as soon as reasonably practicable after we electronically file
these materials with the SEC. You may access these SEC filings
on our website. However, the information on our Internet site is
not part of this prospectus or any accompanying prospectus
supplement or other offering materials. You may also request a
copy of our SEC filings at no cost, by writing or telephoning us
at:
TD
AMERITRADE Holding Corporation
4211 South
102nd
Street
Omaha, Nebraska 68127
Attention: Investor Relations
Telephone:
(800) 237-8692
Our SEC filings are also available at the SECs website at
http://www.sec.gov.
You may also read and copy any documents that we file with the
SEC at the SECs public reference room at
100 F Street, N.E., Washington, D.C. 20549. You
can request copies of these documents by writing to the SEC and
paying a fee for the copying cost. Please call the SEC at
1-800-SEC-0330
for more information about the operation of the public reference
room.
CAUTIONARY
STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This prospectus contains or incorporates by reference a number
of forward-looking statements within the meaning of the
U.S. Private Securities Litigation Reform Act of 1995.
Statements that are not historical facts, including statements
about our beliefs and expectations, are forward-looking
statements. Forward-looking statements include statements
preceded by, followed by or that include the words
may, could, would,
should, believe, expect,
anticipate, plan, estimate,
target, project, intend and
similar expressions. In particular, forward-looking statements
include, without limitation, our expectations regarding: the
effect of client trading activity on our results of operations;
the effect of changes in interest rates on our net interest
spread; average commissions and transaction fees per trade;
amounts of commissions and transaction fees, asset-based
revenues and other revenues; our migration of client cash
balances into the insured deposit account offering; amounts of
total expenses; our effective income tax rate; our capital and
liquidity needs and our plans to finance such needs; and the
impact of recently-issued accounting pronouncements. Our actual
results could differ materially from those anticipated in such
forward-looking statements. Important factors that may cause
such differences include, but are not limited to: general
economic and political conditions; fluctuations in interest
rates; stock market fluctuations and changes in client trading
activity; credit risk with clients and counterparties; increased
competition; systems failures and capacity constraints; network
security risks; our ability to service debt obligations; our
ability to achieve the benefits of the thinkorswim Group Inc.
acquisition; regulatory and legal uncertainties and the other
risks and uncertainties set forth under the caption
Item 1A Risk Factors of the
Companys Annual Report on
Form 10-K
for the fiscal year ended September 30, 2009 and any
subsequently filed Quarterly Reports on
Form 10-Q
and Current Reports on
Form 8-K.
You should refer to the Risk Factors section of this
prospectus and to the Companys periodic and current
reports filed with the SEC for specific risks which would cause
actual results to be significantly different from those
expressed or implied by these forward-looking statements. Any
forward-looking statements speak only as of the date the
statement is made and we undertake no obligation to update or
revise any forward-looking statements, whether as a result of
new information, future events or otherwise. It is not possible
to identify all of the risks, uncertainties and other factors
that may affect future results. In light of these risks and
uncertainties, the forward-looking events and circumstances
discussed in this
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prospectus may not occur and actual results could differ
materially from those anticipated or implied in the
forward-looking statements. Accordingly, readers of this
prospectus are cautioned not to place undue reliance on the
forward-looking statements.
THE
COMPANY
TD AMERITRADE, a Delaware corporation, was established in 1971
as a local investment banking firm and began operations as a
retail discount securities brokerage firm in 1975. TD AMERITRADE
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 independent
registered investment advisors. TD AMERITRADE common stock is
traded on the NASDAQ Global Select Market under the symbol
AMTD. Our principal executive offices are located at
4211 South
102nd
Street, Omaha, Nebraska 68127, and our telephone number at that
address is
(402) 331-7856.
Our website is located at
http://www.amtd.com.
Information on our website does not constitute part of this
prospectus.
RISK
FACTORS
An investment in our debt securities involves significant risks.
Before purchasing any debt securities and the related
guarantees, you should carefully consider and evaluate all of
the information included and incorporated by reference or deemed
to be incorporated by reference in this prospectus or the
applicable prospectus supplement, including the risk factors
incorporated by reference herein from our Annual Report on
Form 10-K
for the fiscal year ended September 30, 2009, as updated by
annual, quarterly and other reports and documents we file with
the SEC after the date of this prospectus and that are
incorporated by reference herein or in the applicable prospectus
supplement. Our business, financial position, results of
operations or liquidity could be adversely affected by any of
these risks.
USE OF
PROCEEDS
Unless otherwise specified in a prospectus supplement
accompanying this prospectus, the net proceeds from the sale of
debt securities to which this prospectus relates will be used
for general corporate purposes. General corporate purposes may
include repayment of debt, acquisitions, additions to working
capital, capital expenditures and investments in our
subsidiaries. Net proceeds may be temporarily invested or
applied to repay short-term debt prior to their stated use.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratio of
earnings to fixed charges for the periods indicated:
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Fiscal Year Ended
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September 30, 2009
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September 30, 2008
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September 30, 2007
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September 29, 2006
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September 30, 2005
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Ratio of earnings to
fixed charges (1)
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16.4
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4.7
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2.8
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2.9
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4.7
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Ratio of earnings to fixed charges, excluding brokerage interest
expense (2)
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20.8
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15.2
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8.9
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9.1
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57.6
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(1) |
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For purposes of calculating our ratio of earnings to fixed
charges, earnings consist of earnings from
continuing operations before income taxes plus fixed charges.
Fixed charges consist of (i) interest on
indebtedness, including amortization of capitalized debt
issuance costs, (ii) brokerage interest expense, and
(iii) the portion of rents representative of interest
expense (which the Company estimates to be one-third of rental
expense). |
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Because interest expense incurred in connection with brokerage
activities is completely offset by brokerage interest revenue,
the Company considers such interest to be a reduction of net
revenues. Accordingly, the ratio of earnings to fixed charges,
excluding brokerage interest expense, reflects the elimination
of such interest expense from fixed charges. |
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DESCRIPTION
OF DEBT SECURITIES
We will issue the senior debt securities in one or more series.
Debt securities will be issued under the indenture dated as of
November 19, 2009, among us, TD AMERITRADE Online Holdings
Corp., a Delaware corporation and one of our wholly-owned
subsidiaries, as guarantor, and The Bank of New York Mellon
Trust Company, National Association, as trustee, or any
other indenture which we identify in a prospectus supplement (we
refer to the indenture dated as of November 19, 2009, and
any such other indenture, as the indenture). We have
summarized below the material provisions of the indenture.
Additionally, the indenture is subject to the provisions of the
Trust Indenture Act of 1939, as amended. However, because
this summary is not complete, it is subject to and is qualified
in its entirety by reference to the indenture, which we have
filed as an exhibit to the registration statement of which this
prospectus forms a part. Definitions of certain terms used in
this Description of Debt Securities may be found
below under Certain Definitions. In this
Description of Debt Securities, we,
us, our, the Company and
similar words refer to TD AMERITRADE Holding Corporation and not
any of its subsidiaries.
General
The debt securities will be our general obligations and will
rank on a parity with our other unsecured and unsubordinated
indebtedness. The debt securities will be effectively
subordinated to our senior secured indebtedness to the extent of
the value of the collateral securing such indebtedness.
The debt securities will be fully and unconditionally guaranteed
as described below by each of our current and future
subsidiaries that is or becomes a borrower or a guarantor under
our Restated Credit Agreement (each a Subsidiary
Guarantor and, collectively, the Subsidiary
Guarantors). Each guarantee of the debt securities will be
a general obligation of the Subsidiary Guarantors and will rank
on a parity with the other unsecured and unsubordinated
indebtedness of the Subsidiary Guarantors. The guarantees will
be effectively subordinated to any secured indebtedness of the
Subsidiary Guarantors, to the extent of the value of the
collateral securing such indebtedness. As of the date of this
prospectus, the only subsidiary guarantor is TD AMERITRADE
Online Holdings Corp., a Delaware corporation and one of our
wholly-owned subsidiaries.
We may issue the debt securities in one or more series, as
authorized from time to time by our Board of Directors, any
committee of our Board of Directors or any duly authorized
officer. The indenture does not limit our ability to incur
additional indebtedness, nor does it afford holders of the debt
securities protection in the event of a highly leveraged or
similar transaction involving our Company. Reference is made to
the applicable prospectus supplement for information with
respect to any additions to, or modifications or deletions of,
the events of default or covenants described below.
We will describe in a supplement to this prospectus the
particular terms of any debt securities being offered, any
modifications of or additions to the general terms of the debt
securities and any U.S. Federal income tax considerations
that may be applicable in the case of offered debt securities.
Accordingly, you should read both the prospectus supplement
relating to the particular debt securities being offered and the
general description of debt securities set forth in this
prospectus before investing.
The particular terms of a series of debt securities will be set
forth in an officers certificate or supplemental
indenture, and described in the applicable prospectus
supplement. We urge you to read the indenture as supplemented by
any officers certificate or supplemental indenture because
the indenture, as supplemented, and not this section, defines
your rights as a holder of the debt securities.
The applicable prospectus supplement will describe specific
terms relating to the series of debt securities being offered.
These terms will include some or all of the following:
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the title of the series of debt securities;
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the aggregate principal amount and authorized denominations (if
other than $1,000 and integral multiples of $1,000);
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the public offering price;
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the original issue and stated maturity date or dates;
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the interest rate or rates (which may be fixed or floating), if
any, the method by which the rate or rates will be determined
and the interest payment and regular record dates;
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the manner and place of payment of principal and interest, if
any;
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if other than U.S. dollars, the currency or currencies in
which payment of the public offering price
and/or
principal and interest, if any, may be made;
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whether (and if so, when and at what price) we may be obligated
to repurchase the debt securities;
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whether (and if so, when and at what price) the debt securities
can be redeemed by us or the holder;
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under what circumstances, if any, we will pay additional amounts
on the debt securities to
non-U.S. holders
in respect of taxes;
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whether the debt securities will be issued in registered or
bearer form (with or without coupons) and, if issued in the form
of one or more global securities, the depositary for such
securities;
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where the debt securities can be exchanged or transferred;
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whether the debt securities may be issued as original issue
discount securities, and if so, the amount of discount and the
portion of the principal amount payable upon declaration of
acceleration of the maturity thereof;
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whether (and if so, when and at what rate) the debt securities
will be convertible into shares of our common stock;
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whether there will be a sinking fund;
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provisions, if any, for the defeasance or discharge of the debt
securities;
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any addition to, or modification or deletion of, any events of
default or covenants contained in the indenture relating to the
debt securities; and
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any other terms of the series.
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If we issue original issue discount securities, we will also
describe in the applicable prospectus supplement the
U.S. Federal income tax consequences and other special
considerations applicable to those securities.
We are not required to issue all of the debt securities of a
series at the same time, and debt securities of the same series
may vary as to interest rate, maturity and other provisions.
Unless otherwise provided in the applicable prospectus
supplement, the aggregate principal amount of a series may be
increased and additional debt securities of such series may be
issued.
Denominations,
Registration, Transfer and Exchange
Unless otherwise specified in the applicable prospectus
supplement, the debt securities of any series will be issued
only as registered securities, in global or certificated form
and in denominations of $1,000 and any integral multiple
thereof, and will be payable only in U.S. dollars. For more
information regarding debt securities issued in global form, see
Book-Entry, Delivery and Form below. Unless
otherwise indicated in the applicable prospectus supplement, any
debt securities we issue in bearer form will have coupons
attached.
Registered debt securities of any series will be exchangeable
for other registered debt securities of the same series in the
same aggregate principal amount and having the same stated
maturity date and other terms and conditions. If so provided in
the applicable prospectus supplement, to the extent permitted by
law, debt securities of any series issued in bearer form which
by their terms are registrable as to principal and interest may
be exchanged, at the option of the holders, for registered debt
securities of the same series in the same
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aggregate principal amount and having the same stated maturity
date and other terms and conditions, upon surrender of those
securities at the corporate trust office of the trustee or at
any other office or agency designated by us for the purpose of
making any such exchanges. Except in certain limited
circumstances, debt securities issued in bearer form with
coupons surrendered for exchange must be surrendered with all
unmatured coupons and any matured coupons in default attached
thereto.
Upon surrender for registration of transfer of any registered
debt security of any series at the office or agency maintained
for that purpose, we will execute, and the trustee will
authenticate and deliver, in the name of the designated
transferee, one or more new registered debt securities of the
same series in the same aggregate principal amount of authorized
denominations and having the same stated maturity date and other
terms and conditions. We may not impose any service charge,
other than any required tax or other governmental charge, on the
transfer or exchange of debt securities.
We are not required (i) to issue, register the transfer of
or exchange debt securities of any series during the period from
the opening of business 15 days before the day a notice of
redemption relating to debt securities of that series selected
for redemption is sent to the close of business on the day that
notice is sent, or (ii) to register the transfer of or
exchange any debt security so selected for redemption, except
for the unredeemed portion of any debt security being redeemed
in part.
Payment
and Paying Agents
If we issue a series of debt securities only in registered form,
we will maintain in each place of payment for those debt
securities an office or agency where the debt securities may be
presented or surrendered for payment or for registration of
transfer or exchange and where holders may serve us with notices
and demands in respect of the debt securities and the indenture.
We may also maintain an office or agency in a place of payment
for that series of debt securities located outside the United
States, where any registered debt securities of a series may be
surrendered for registration of transfer or exchange and where
holders may serve us with notices and demands in respect of the
debt securities and the indenture.
We will give prompt written notice to the trustee of the
location, and any change in the location, of such office or
agency. If we fail to maintain any required office or agency or
fail to furnish the trustee with the address of such office or
agency, presentations, surrenders, notices and demands may be
made or served at the corporate trust office of the trustee. We
have appointed the trustee as our agent to receive all
presentations, surrenders, notices and demands with respect to
the applicable series of debt securities.
Restrictive
Covenants
The prospectus supplement relating to a series of debt
securities may describe restrictive covenants, if any, to which
we may be bound under the applicable indenture.
Merger or
Consolidation
Unless otherwise indicated in the applicable prospectus
supplement, as long as any debt securities are outstanding, we
may not, directly or indirectly: (1) consolidate or merge
with or into another Person (whether or not the Company is the
surviving corporation) or (2) sell, assign, transfer,
convey or otherwise dispose of all or substantially all of the
properties or assets of the Company and its Subsidiaries, taken
as a whole, in one or more related transactions, to another
Person, unless:
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either (a) we are the survivor formed by or resulting from
such consolidation or merger or (b) the surviving or
successor entity is a corporation or limited liability company
organized or existing under the laws of the United States, any
State of the United States or the District of Columbia;
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the surviving or successor entity (if other than the Company) or
the person to which such sale, assignment, transfer, conveyance
or other disposition has been made expressly assumes all the
obligations of the Company under the debt securities and the
indenture pursuant to a supplemental indenture reasonably
satisfactory to the trustee;
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immediately after completion of the transaction, no Event of
Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, has occurred and is
continuing; and
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the surviving or successor entity shall have delivered to the
trustee an opinion of counsel stating that such transaction and
any supplemental indenture entered into in connection with such
transaction comply with the indenture provisions and that all
conditions precedent in the indenture relating to such
transaction have been complied with.
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In addition, the Company may not, directly or indirectly, lease
all or substantially all of the properties or assets of the
Company and its Subsidiaries, taken as a whole, in one or more
related transactions, to another person. However, this
restriction on mergers and consolidations shall not apply to:
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a merger of the Company with an Affiliate solely for the purpose
of reincorporating the Company in another jurisdiction; or
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any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of assets between or
among the Company and its Subsidiaries.
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Additional
Subsidiary Guarantees
We will not permit any of our domestic subsidiaries to, directly
or indirectly, guarantee any persons obligations under our
Restated Credit Agreement unless such Subsidiary is a Subsidiary
Guarantor or concurrently executes a supplemental indenture and
a guarantee.
Reports
by the Company
We and each Subsidiary Guarantor will file with the trustee,
within 15 days after we are required to file with the SEC,
copies of the annual reports and of the information, documents,
and other reports which we have so filed with the SEC pursuant
to Section 13 or Section 15(d) of the Exchange Act.
Filing of any such annual report, information, documents and
such other reports on the SECs EDGAR system (or any
successor thereto) or any other publicly available database
maintained by the SEC will be deemed to satisfy this requirement.
Events of
Default
Event of Default means, with respect to a series of
debt securities, any of the following events:
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failure to pay interest on the debt securities of such series,
which failure continues for a period of 30 days after
payment is due;
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failure to make any principal or premium payment on the debt
securities of such series when due;
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failure to comply with any covenant or other agreement in the
indenture or any term in the debt securities for 60 days
after we receive notice from the trustee or the holders of at
least 25% in aggregate principal amount of the debt securities
of such series then outstanding voting as a single class;
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default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed (or the payment of
which is guaranteed by the Company or any of its Subsidiaries),
whether such indebtedness now exists, or is created after the
date of the indenture, and which default (i) is caused by a
failure to pay principal of, or interest or premium, if any, on,
such indebtedness prior to the expiration of the grace period
provided in such indebtedness on the date of such default (a
Payment Default) or (ii) results in the
acceleration of such indebtedness prior to its express maturity;
and, in each case, the principal amount of any such
indebtedness, together with the principal amount of any other
such indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates
$75.0 million or more;
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certain events of bankruptcy, insolvency or reorganization of
our Company or any of our Subsidiaries that is a Significant
Subsidiary or any group of our Subsidiaries that, taken
together, would constitute a Significant Subsidiary;
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except as permitted by the indenture, any guarantee is held in
any judicial proceeding to be unenforceable or invalid or ceases
for any reason to be in full force and effect, or any Subsidiary
Guarantor, or any person acting on behalf of any Subsidiary
Guarantor, denies or disaffirms its obligations under its
guarantee; or
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any other event of default provided with respect to debt
securities of such series pursuant to the indenture.
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In the case of an event of default arising from certain events
of bankruptcy or insolvency with respect to the Company, any
Subsidiary of the Company that is a Significant Subsidiary or
any group of Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary, all outstanding debt
securities of each series will become due and payable
immediately without further action or notice. If any other event
of default occurs and is continuing, the trustee or the holders
of at least 25% in aggregate principal amount of the then
outstanding debt securities of a particular series may declare
all the debt securities of such series to be due and payable
immediately.
Subject to certain limitations, holders of a majority in
aggregate principal amount of the then outstanding debt
securities of a particular series may direct the trustee in its
exercise of any trust or power with respect to that series. The
trustee may withhold from holders of the debt securities of any
series notice of any continuing default or event of default if
it determines that withholding notice is in their interest,
except a default or event of default relating to the payment of
principal, interest or premium, on such debt securities, if any.
Subject to the provisions of the indenture relating to the
duties of the trustee, in case an event of default occurs and is
continuing, the trustee will be under no obligation to exercise
any of the rights or powers under the indenture with respect to
any series of debt securities at the request or direction of any
holders of such series of debt securities unless such holders
have offered to the trustee reasonable indemnity or security
against any loss, liability or expense. Except to enforce the
right to receive payment of principal, premium, if any, or
interest, if any, when due, no holder of a debt security of a
particular series may pursue any remedy with respect to the
indenture or such series of debt securities unless:
(1) such holder has previously given the trustee notice
that an event of default is continuing;
(2) holders of at least 25% in aggregate principal amount
of the then outstanding debt securities of such series have
requested the trustee to pursue the remedy;
(3) such holders have offered security or indemnity
reasonably satisfactory to the Trustee against any loss,
liability or expense;
(4) the trustee has not complied with such request within
60 days after the receipt of the request and the offer of
security or indemnity; and
(5) holders of a majority in aggregate principal amount of
the then outstanding debt securities of such series have not
given the trustee a direction inconsistent with such request
within such
60-day
period.
The holders of a majority in aggregate principal amount of the
then outstanding debt securities of a particular series by
notice to the trustee may, on behalf of the holders of all of
the debt securities of such series, rescind an acceleration or
waive any existing default or event of default and its
consequences under the indenture, except a continuing default or
event of default in the payment of interest or premium on, or
the principal of, the debt securities of such series.
We are required to deliver to the trustee annually a certificate
regarding compliance with the indenture. Upon becoming aware of
any default or event of default, we are required to deliver to
the trustee a statement specifying such default or event of
default.
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Modification
or Waiver
We, each Subsidiary Guarantor and the trustee may, at any time
and from time to time, amend the indenture without the consent
of the holders of outstanding debt securities for any of the
following purposes:
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to effect the assumption of our or any Subsidiary
Guarantors obligations under the indenture by a successor
corporation;
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to impose additional covenants and events of default or to add
guarantees of any Person for the benefit of the holders of any
series of debt securities;
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to add or change any of the provisions of the indenture relating
to the issuance or exchange of debt securities of any series in
registered form, but only if such action does not adversely
affect the interests of the holders of outstanding debt
securities of such series or related coupons in any material
respect;
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to change or eliminate any of the provisions of the indenture,
but only if the change or elimination becomes effective when
there is no outstanding debt security of any series or related
coupon which is entitled to the benefit of such provision and as
to which such modification would apply;
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to secure the debt securities;
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to supplement any of the provisions of the indenture to permit
or facilitate the defeasance and discharge of any series of debt
securities, but only if such action does not adversely affect
the interests of the holders of outstanding debt securities of
any series or related coupons in any material respect;
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to establish the form or terms of the debt securities and
coupons, if any, of any series as permitted by the indenture;
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to evidence and provide for the acceptance of appointment by a
successor trustee and to add to or change any of the provisions
of the indenture to facilitate the administration of the trusts
by more than one trustee;
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to correct any mistakes or defects in the indenture, but only if
such action does not adversely affect the interests of the
holders of outstanding debt securities of any series or related
coupons in any material respect;
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to conform the text of the indenture, the debt securities or the
guarantees to any provision of a description of such debt
securities appearing in a prospectus or a prospectus supplement
to which such debt securities were offered to the extent that
such provision was intended to be a verbatim recitation of a
provision of the indenture, the debt securities or the
guarantees;
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to allow any Subsidiary Guarantor to execute a supplemental
indenture
and/or a
guarantee with respect to the debt securities of a particular
series; and
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to comply with requirements of the SEC in order to effect or
maintain the qualification of this indenture under the
Trust Indenture Act of 1939.
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In addition, we, each Subsidiary Guarantor and the trustee may
modify the indenture with the consent of the holders of not less
than a majority in principal amount of each series of
outstanding debt securities affected by such modification to
add, change or eliminate any provision of, or to modify the
rights of holders of debt securities of such series under, the
indenture. But we may not take any of the following actions
without the consent of each holder of outstanding debt
securities affected thereby:
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change the stated maturity of the principal of, or any
installment of interest on, the debt securities of any series or
related coupon, reduce the principal amount thereof, the
interest thereon or any premium payable upon redemption thereof,
change the currency or currencies in which the principal,
premium or interest is denominated or payable;
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reduce the amount of, or impair the right to institute suit for
the enforcement of, any payment on the debt securities of any
series following maturity thereof;
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reduce the percentage in principal amount of outstanding debt
securities of any series required for consent to any waiver of
defaults or compliance with certain provisions of the indenture;
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release any Subsidiary Guarantor from any of its obligations
under its guarantee of the indenture, except in accordance with
the term of the indenture; or
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modify any provision of the indenture relating to modifications
and waivers of defaults and covenants, except to increase any
such percentage or to provide that certain other provisions
cannot be modified or waived without the consent of each holder
of outstanding debt securities affected thereby.
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A modification with respect to one or more particular series of
debt securities and related coupons, if any, will not affect the
rights under the indenture of the holders of debt securities of
any other series and related coupons, if any.
The holders of a majority in principal amount of the outstanding
debt securities of any series may, on behalf of the holders of
all debt securities of such series, waive any past default under
the indenture with respect to the debt securities of such
series, except a default (i) in the payment of principal
of, premium, if any, or interest on such series or (ii) in
respect of a covenant or provision which, as described above,
cannot be modified or amended without the consent of each holder
of debt securities of such series. Upon any such waiver, the
default will cease to exist with respect to the debt securities
of such series and any Event of Default arising therefrom will
be deemed to have been cured for every purpose of the debt
securities of such series under the indenture, but the waiver
will not extend to any subsequent or other default or impair any
right consequent thereon.
We may elect in any particular instance not to comply with
certain covenants set forth in the indenture or the debt
securities of any series if, before the time for such
compliance, the holders of at least a majority in principal
amount of the outstanding debt securities of such series either
waive compliance in that instance or generally waive compliance
with those provisions, but the waiver may not extend to or
affect any term, provision or condition except to the extent
expressly so waived, and, until the waiver becomes effective,
our obligations and the duties of the trustee in respect of any
such provision will remain in full force and effect.
Discharge,
Legal Defeasance and Covenant Defeasance
We may be discharged from all of our obligations with respect to
the outstanding debt securities of any series (except as
otherwise provided in the indenture) when:
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either (i) all the debt securities of such series and
related coupons, if any, have been delivered to the trustee for
cancellation, or (ii) all the debt securities of such
series and related coupons, if any, not delivered to the trustee
for cancellation:
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have become due and payable;
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will become due and payable at their stated maturity within one
year; or
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are to be called for redemption within one year under
arrangements satisfactory to the trustee for the giving of
notice by the trustee;
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and we, in the case of clause (ii), have irrevocably deposited
or caused to be deposited with the trustee, in trust, an amount
in U.S. dollars or the equivalent in U.S. government
securities sufficient for payment of all principal of, premium,
if any, and interest on those debt securities when due or to the
date of deposit, as the case may be; provided, however,
in the event a petition for relief under any applicable federal
or state bankruptcy, insolvency or other similar law is filed
with respect to our Company within 91 days after the
deposit and the trustee is required to return the deposited
money to us, our obligations under the indenture with respect to
those debt securities will not be deemed terminated or
discharged;
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we have paid or caused to be paid all other sums payable by us
under the indenture;
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we have delivered to the trustee an officers certificate
and an opinion of counsel each stating that all conditions
precedent relating to the satisfaction and discharge of the
indenture with respect to such series of debt securities have
been complied with; and
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we have delivered to the trustee an opinion of counsel of
recognized standing in respect of U.S. federal income tax
matters or a ruling of the Internal Revenue Service to the
effect that holders of debt securities of such series will not
recognize income, gain or loss for U.S. federal income tax
purposes as a result of such deposit and discharge.
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We may elect (i) to be discharged from our obligations with
respect to the outstanding debt securities of any series (except
as otherwise specified in the indenture) or (ii) to be
released from our obligation to comply with certain of the
provisions of the indenture described above under
Merger or Consolidation with respect to the
outstanding debt securities of any series (and, if so specified,
any other obligation or restrictive covenant added for the
benefit of the holders of such series of debt securities), in
either case, if we satisfy each of the following conditions:
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we deposit or cause to be deposited irrevocably with the
trustee, in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the holders of debt
securities of such series money or the equivalent in
U.S. government securities, or any combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification delivered to the trustee, for payment of all
principal of, premium, if any, and interest on the outstanding
debt securities of such series when due;
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such deposit does not cause the trustee with respect to the debt
securities of such series to have a conflicting interest with
respect to the debt securities of such series;
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such deposit will not result in a breach or violation of, or
constitute a default under, the indenture or any other agreement
or instrument to which we are a party or by which we are bound;
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on the date of such deposit, there is no continuing Event of
Default with respect to the debt securities of such series or
event (including such deposit) which, with notice or lapse of
time or both, would become an Event of Default with respect to
the debt securities of such series and, with respect to the
option under clause (i) above only, no Event of Default
with respect to such series under the provisions of the
indenture relating to certain events of bankruptcy or insolvency
or event which, with notice or lapse of time or both, would
become an Event of Default with respect to such series under
such bankruptcy or insolvency provisions shall have occurred and
be continuing on the 91st day after such date; and
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we deliver to the trustee an opinion of counsel of recognized
standing in respect of U.S. federal income tax matters or a
ruling of the Internal Revenue Service to the effect that the
holders of debt securities of such series will not recognize
income, gain or loss for U.S. federal income tax purposes
as a result of such deposit, defeasance or discharge.
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Notwithstanding the foregoing, if we exercise our option under
clause (ii) above and an Event of Default with respect to
such series of debt securities under the provisions of the
indenture relating to certain events of bankruptcy or insolvency
or event which, with notice or lapse of time or both, would
become an Event of Default with respect to such series of debt
securities under such bankruptcy or insolvency provisions shall
have occurred and be continuing on the 91st day after the
date of such deposit, our obligation to comply with the
provisions of the indenture described above under
Merger or Consolidation with respect to those
debt securities will be reinstated.
The
Trustee Under the Indenture
We maintain ordinary banking relationships and, from time to
time, obtain credit facilities and lines of credit with a number
of banks, including the trustee, The Bank of New York Mellon
Trust Company, National Association, or its affiliates.
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Book-Entry,
Delivery and Form
We may issue the debt securities of a series in whole or in part
in global form that we will deposit with, or on behalf of, a
depositary identified in the applicable prospectus supplement.
Global securities may be issued in either registered or bearer
form and in either temporary or permanent form. We will make
payments of principal of, and premium, if any, and interest on
debt securities represented by a global security to the trustee
and then by the trustee to the depositary.
We anticipate that any global securities will be deposited with,
or on behalf of, The Depository Trust Company
(DTC), New York, New York, and will be registered in
the name of DTCs nominee, and that the following
provisions will apply to the depositary arrangements with
respect to any global securities. We will describe additional or
differing terms of the depositary arrangements in the prospectus
supplement relating to a particular series of debt securities
issued in the form of global securities.
Upon the issuance of a registered global security, the
depositary will credit, on its book-entry registration and
transfer system, the participants accounts with the
respective principal or face amounts of the debt securities
beneficially owned by the participants. Any dealers,
underwriters or agents participating in the distribution of the
debt securities will designate the accounts to be credited.
Ownership of beneficial interests in a registered global
security will be shown on, and the transfer of ownership
interests will be effected only through, records maintained by
the depositary, with respect to interests of participants, and
on the records of participants, with respect to interests of
persons holding through participants.
So long as the depositary, or its nominee, is the registered
owner of a registered global security, that depositary or its
nominee, as the case may be, will be considered the sole owner
or holder of the debt securities represented by the registered
global security for all purposes under the indenture. Except as
described below, owners of beneficial interests in a registered
global security will not be entitled to have the debt securities
represented by the registered global security registered in
their names, will not receive or be entitled to receive physical
delivery of the debt securities in definitive form and will not
be considered the owners or holders of the debt securities under
the indenture. Accordingly, each person owning a beneficial
interest in a registered global security must rely on the
procedures of the depositary for that registered global security
and, if that person is not a participant, on the procedures of
the participant through which the person owns its interest, to
exercise any rights of a holder under the indenture. The laws of
some states may require that some purchasers of securities take
physical delivery of those securities in definitive form. Such
laws may impair the ability to transfer beneficial interests in
a global security.
To facilitate subsequent transfers, all debt securities
deposited by participants with DTC are registered in the name of
DTCs nominee, Cede & Co. The deposit of the debt
securities with DTC and their registration in the name of
Cede & Co. effect no change in beneficial ownership.
DTC has no knowledge of the actual beneficial owners of the debt
securities. DTCs records reflect only the identity of the
direct participants to whose accounts such debt securities are
credited, which may or may not be the beneficial owners. The
participants will remain responsible for keeping account of
their holdings on behalf of their customers.
We will make payments due on any debt securities represented by
a global security to Cede & Co., as nominee of DTC, in
immediately available funds. DTCs practice upon receipt of
any payment of principal, premium, interest or other
distribution of underlying securities or other property to
holders on that registered global security is to immediately
credit participants accounts in amounts proportionate to
their respective beneficial interests in that registered global
security as shown on the records of the depositary. Payments by
participants to owners of beneficial interests in a registered
global security held through participants will be governed by
standing customer instructions and customary practices, as is
now the case with the securities held for the accounts of
customers in bearer form or registered in street
name, and will be the responsibility of those
participants. Payment to Cede & Co. is our
responsibility. Disbursement of such payments to direct
participants is the responsibility of Cede & Co.
Disbursement of such payments to the beneficial owners is the
responsibility of direct and indirect participants.
Neither we nor the trustee nor any other agent of ours or any
agent of the trustee will have any responsibility or liability
for any aspect of the records relating to payments made on
account of beneficial
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ownership interests in the registered global security or for
maintaining, supervising or reviewing any records relating to
those beneficial ownership interests.
We expect that DTC will take any action permitted to be taken by
a holder of securities (including the presentation of securities
for exchange as described below) only at the direction of one or
more participants to whose account the DTC interests in a global
security are credited and only in respect of such portion of the
aggregate principal amount of the securities as to which such
participant or participants has or have given such direction.
However, if there is an Event of Default under the debt
securities represented by a global security, DTC will exchange
each global security for definitive securities, which it will
distribute to its participants.
If the depositary for any of the debt securities represented by
a registered global security is at any time unwilling or unable
to continue as depositary or ceases to be a clearing agency
registered under the Exchange Act, and a successor depositary
registered as a clearing agency under the Exchange Act is not
appointed by the obligor within 90 days, we will issue debt
securities in definitive form in exchange for the registered
global security that had been held by the depositary. Any debt
securities issued in definitive form in exchange for a
registered global security will be registered in the name or
names that the depositary gives to the trustee or other relevant
agent of the obligor or trustee. It is expected that the
depositarys instructions will be based upon directions
received by the depositary from participants with respect to
ownership of beneficial interests in the registered global
security that had been held by the depositary. In addition, we
may at any time determine that the debt securities of any series
shall no longer be represented by a global security and will
issue securities in definitive form in exchange for such global
security pursuant to the procedure described above.
DTC is a limited-purpose trust company organized under the New
York Banking Law, a banking organization within the
meaning of the New York Banking Law, a member of the Federal
Reserve System, a clearing corporation within the
meaning of the New York Uniform Commercial Code and a
clearing agency registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC was
created to hold securities of its participants and to facilitate
the clearance and settlement of securities transactions, such as
transfers and pledges, among its participants in such securities
through electronic computerized book-entry changes in accounts
of the participants, thereby eliminating the need for physical
movement of securities certificates. DTCs participants
include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations, some of
whom own DTC. Access to DTCs book-entry system is also
available to others, such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly.
The rules applicable to DTC and its participants are on file
with the SEC.
The information in this prospectus concerning DTC and DTCs
book-entry system has been obtained from sources that we believe
to be reliable, but we take no responsibility for its accuracy
or completeness. We assume no responsibility for the performance
by DTC or its participants of their respective obligations,
including obligations that they have under the rules and
procedures that govern their operations.
Certain
Definitions
We have summarized below certain defined terms as used in the
indenture. We refer you to the indenture for the full definition
of these terms.
Capital Stock means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any
and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;
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(3) in the case of a partnership or limited liability
company, partnership interests (whether general or limited) or
membership interests; and
(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person;
but excluding from all of the foregoing any debt securities
convertible into Capital Stock, whether or not such debt
securities include any right of participation with Capital Stock.
GAAP means, as to a particular Person, such
accounting principles as, in the opinion of the independent
public accountants regularly retained by such Person, conform at
the time to accounting principles generally accepted in the
United States.
Governmental Authority means any nation or
government, any state or other political subdivision thereof and
any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
Person means an individual, corporation,
partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated
organization, Governmental Authority or other entity of whatever
nature.
Restated Credit Agreement means the Amended and
Restated Credit Agreement of the Company, to be dated on or
about November 25, 2009, among the Company, the lending
institutions party thereto and The Bank of New York Mellon, as
administrative agent, and any related notes, guarantees,
instruments and agreements executed in connection therewith, and
in each case, as amended, restated, modified, renewed, refunded,
replaced (whether upon termination or otherwise) or refinanced
in whole or in part from time to time.
Significant Subsidiary means, at any time, any
Subsidiary of the Company that is a significant
subsidiary as defined in Rule 1-02(w) of
Regulation S-X,
promulgated by the SEC pursuant to the Securities Act of 1933,
as amended, as such regulation is in effect on the date of the
indenture, determined based upon the Companys most recent
consolidated financial statements for the most recently
completed fiscal year as set forth in the Companys Annual
Report on
Form 10-K
(or
10-K/A) filed
with the SEC; provided that in the case of a Subsidiary formed
or acquired after the date of the indenture, the determination
of whether such Subsidiary is a Significant Subsidiary shall be
made on a pro forma basis based on the Companys most
recent consolidated financial statements for the most recently
completed fiscal quarter or fiscal year, as applicable, as set
forth in the Companys Quarterly Report on
Form 10-Q
or Annual Report on
Form 10-K
(or 10-K/A),
as applicable, filed with the SEC.
Subsidiary means, with respect to any specified
Person:
(1) any corporation, association or other business entity
of which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any
contingency and after giving effect to any voting agreement or
stockholders agreement that effectively transfers voting
power) to vote in the election of directors, managers or
trustees of the corporation, association or other business
entity is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general partners
of which are that Person or one or more Subsidiaries of that
Person (or any combination thereof).
PLAN OF
DISTRIBUTION
We may sell debt securities offered by this prospectus in
and/or
outside the United States:
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through underwriters or dealers;
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through agents; or
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14
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directly to purchasers.
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We will describe in a prospectus supplement the particular terms
of any offering of debt securities, including the following:
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the names of any underwriters or agents;
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the proceeds we will receive from the sale;
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any discounts and other items constituting underwriters or
agents compensation;
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any discounts or concessions allowed or reallowed or paid to
dealers; and
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any securities exchanges on which the applicable debt securities
may be listed.
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If we use underwriters in the sale, such underwriters will
acquire the debt securities for their own account. The
underwriters may resell the debt securities in one or more
transactions, at a fixed price or prices, which may be changed,
or at market prices prevailing at the time of sale, at prices
relating to prevailing market prices or at negotiated prices.
The debt securities may be offered to the public through
underwriting syndicates represented by managing underwriters or
by underwriters without a syndicate. The obligations of the
underwriters to purchase the debt securities will be subject to
certain conditions. The underwriters will be obligated to
purchase all the debt securities of the series offered if any of
the debt securities are purchased.
We may sell debt securities through agents or dealers designated
by us. Any agent or dealer involved in the offer or sale of the
debt securities for which this prospectus is delivered will be
named, and any commissions payable by us to that agent or dealer
will be set forth, in the prospectus supplement. Unless
indicated in the prospectus supplement, the agents will agree to
use their reasonable efforts to solicit purchases for the period
of their appointment and any dealer will purchase debt
securities from us as principal and may resell those debt
securities at varying prices to be determined by the dealer.
We also may sell debt securities directly. In this case, no
underwriters or agents would be involved.
Underwriters, dealers and agents that participate in the
distribution of the debt securities may be underwriters as
defined in the Securities Act, and any discounts or commissions
received by them from us and any profit on the resale of the
debt securities by them may be treated as underwriting discounts
and commissions under the Securities Act.
We may have agreements with the underwriters, dealers and agents
to indemnify them against certain civil liabilities, including
liabilities under the Securities Act, or to contribute with
respect to payments which the underwriters, dealers or agents
may be required to make, and to reimburse them for certain
expenses.
Underwriters, dealers and agents may engage in transactions
with, or perform services for, us or our subsidiaries in the
ordinary course of their businesses.
In order to facilitate the offering of the debt securities, any
underwriters or agents, as the case may be, involved in the
offering of such securities may engage in transactions that
stabilize, maintain or otherwise affect the price of such
securities or other securities the prices of which may be used
to determine payments on the securities. Specifically, the
underwriters or agents, as the case may be, may overallot in
connection with the offering, creating a short position in such
securities for their own account. In addition, to cover
overallotments or to stabilize the price of the securities or of
such other securities, the underwriters or agents, as the case
may be, may bid for, and purchase, such securities in the open
market. Finally, in any offering of such securities through a
syndicate of underwriters, the underwriting syndicate may
reclaim selling concessions allotted to an underwriter or a
dealer for distributing such securities in the offering if the
syndicate repurchases previously distributed securities in
transactions to cover syndicate short positions, in
stabilization transactions or otherwise. Any of these activities
may stabilize or maintain the market price of the securities
above independent market levels. The underwriters or agents, as
the case may be, are not required to engage in these activities,
and may end any of these activities at any time.
15
We may solicit offers to purchase debt securities directly from,
and we may sell debt securities directly to, institutional
investors or others. The terms of any of those sales, including
the terms of any bidding or auction process, if utilized, will
be described in the applicable prospectus supplement.
Some or all of the debt securities may be new issues of
securities with no established trading market. We cannot and
will not give any assurances as to the liquidity of the trading
market for any of our securities.
In compliance with the guidelines of the Financial Industry
Regulatory Authority (FINRA), the aggregate maximum
discount, commission or agency fees or other items constituting
underwriting compensation to be received by any FINRA member or
independent broker-dealer will not exceed 8% of any offering
pursuant to this prospectus and any applicable prospectus
supplement or pricing supplement, as the case may be; however,
it is anticipated that the maximum commission or discount to be
received in any particular offering of securities will be
significantly less than this amount.
LEGAL
MATTERS
The validity of the debt securities and certain other matters
will be passed upon for us by Sidley Austin LLP, Chicago,
Illinois. Any underwriter, dealer or agent will be advised about
other issues relating to any offering by its own legal counsel
named in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of TD AMERITRADE appearing
in TD AMERITRADEs Annual Report on
Form 10-K
for the year ended September 30, 2009, and the
effectiveness of TD AMERITRADEs internal control over
financial reporting as of September 30, 2009 have been
audited by Ernst & Young LLP, independent registered
public accounting firm, as set forth in their reports thereon,
included therein, and incorporated herein by reference. Such
consolidated financial statements, are incorporated herein by
reference in reliance upon such reports given on the authority
of such firm as experts in auditing and accounting.
16
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution
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The following table sets forth the estimated expenses (other
than underwriting compensation), all of which will be paid by
us, to be incurred in connection with the registration and sale
of the securities:
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Securities and Exchange Commission registration fee
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$
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(*
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)
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Rating agency fees
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1,100,000
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Legal fees and expenses
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75,000
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Accounting fees and expenses
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75,000
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Trustees fees and expenses
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6,000
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Printing, distribution and engraving fees
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45,000
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Miscellaneous
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25,000
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Total
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$
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1,326,000
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(*) |
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Deferred in reliance upon Rule 456(b) and 457(r). |
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Item 15.
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Indemnification
of Directors and Officers.
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The following is a summary of the statute, charter and bylaw
provisions or other arrangements under which the
Registrants directors and officers are insured or
indemnified against liability in their capacities as such. Both
of the Registrants, TD AMERITRADE Holding Corporation (the
Company) and TD AMERITRADE Online Holdings Corp.
(the Guarantor), are incorporated in Delaware. The
following is only a general summary of certain aspects of
Delaware law, the Amended and Restated Certificate of
Incorporation of the Company, the Amended and Restated Bylaws of
the Company, the Restated Certificate of Incorporation of the
Guarantor, and the By-Laws of the Guarantor, in each case
dealing with indemnification of directors and officers, and does
not purport to be complete. It is qualified in its entirety by
reference to the detailed provisions of Section 145 of the
General Corporation Law of the State of Delaware (Delaware
Corporation Law), Article VII of the Amended and
Restated Certificate of Incorporation of the Company,
Article VI of the Amended and Restated Bylaws of the
Company, Article IX of the Restated Certificate of
Incorporation of the Guarantor and Article VI of the
By-Laws of the Guarantor.
Section 145(a) of the Delaware Corporation Law provides, in
general, that a corporation shall have the power to indemnify
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation), because the person is or was a director, officer,
employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or
agent of any other enterprise. Such indemnity may be against
expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
the person in connection with such action, suit or proceeding,
if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best
interests of the corporation and if, with respect to any
criminal action or proceeding, the person did not have
reasonable cause to believe the persons conduct was
unlawful.
Section 145(b) of the Delaware Corporation Law provides, in
general, that a corporation shall have the power to indemnify
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its
favor because the person is or was a director, officer, employee
or agent of the corporation or is or was serving at the request
of the corporation as a director, officer, employee or agent of
any other enterprise, against any expenses (including
attorneys fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such
action or suit if the person acted in good faith and in a manner
the person reasonably believed to be in or not opposed to the
best interests of the corporation, except that no
II-1
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 145(g) of the Delaware Corporation Law provides, in
general, that a corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation or is or
was serving at the request of the corporation as a director,
officer, employee or agent of any other enterprise, against any
liability asserted against the person in any such capacity, or
arising out of the persons status as such, regardless of
whether the corporation would have the power to indemnify the
person against such liability under the provisions of the law.
The Amended and Restated Certificate of Incorporation and
Amended and Restated Bylaws of the Company require the Company
to indemnify, to the full extent permitted by law, any person
who is or was a party, or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative
(including, without limitation, any action by or in the right of
the Company) by reason of the fact that he or she is or was a
director or officer of the Company against any liability or
expense actually or reasonably incurred in respect thereof. The
Companys Amended and Restated Bylaws also require it to
advance litigation expenses (including in the case of
stockholder derivative actions or other actions) against an
undertaking by the officer or director to repay such advances if
it is ultimately determined that the officer or director is not
entitled to indemnification. The Amended and Restated
Certificate of Incorporation and Amended and Restated Bylaws
further provide that rights conferred under such Amended and
Restated Certificate of Incorporation and Amended and Restated
Bylaws shall not be deemed to be exclusive of any other right
such persons may have or acquire under law or otherwise.
In addition, the Companys Amended and Restated Certificate
of Incorporation provides that, to the fullest extent permitted
by the Delaware Corporation Law, the Companys directors
shall have no personal liability to the Company or its
stockholders for monetary damages for breach of the
directors fiduciary duty. Each director will continue to
be subject to liability for breach of the directors duty
of loyalty to the Company, or acts or omissions not in good
faith or involving intentional misconduct, for knowing
violations of law, for actions leading to improper personal
benefit to the director, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful
under the Delaware law. The provision also does not affect a
directors responsibilities under any other law, such as
the federal securities laws or state or federal environmental
laws.
The Restated Certificate of Incorporation and By-Laws of the
Guarantor contain provisions relating to the indemnification of
directors and officers of the Guarantor. These provisions are
substantially similar to those in the Companys Amended and
Restated Certificate of Incorporation and Amended and Restated
Bylaws described above, including with respect to advancement of
expenses, exculpation, and insurance.
Pursuant to the Companys Amended and Restated Bylaws, the
Company may maintain a directors and officers
insurance policy which insures the directors, officers,
employees or agents of the Company and those serving at the
request of the Company as a director, officer, employee or agent
of another enterprise, against liability asserted against such
persons in such capacity whether or not such directors or
officers have the right to indemnification pursuant to Delaware
law. The Company currently has a policy providing directors and
officers liability insurance in certain circumstances.
In addition, the Company has entered into separate
indemnification agreements with its current directors and
certain former directors. The indemnification agreements provide
generally that the Company will indemnify and advance expenses
to the fullest extent permitted by applicable law. Each director
is entitled to be indemnified against all expenses, judgments,
penalties and amounts paid in settlement actually and reasonably
incurred if the director acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the Company in the event he is, or is threatened to
be made, a party to any threatened, pending or completed action,
suit, investigation or inquiry, other than proceedings brought
by or in the right of the Company. In the case of proceedings by
or in the right of the Company, the director is entitled
II-2
to be indemnified against all expenses if he acted in good faith
and in a manner he reasonably believed to be in or not opposed
to the best interests of the Company, except that no
indemnification against expenses will be made in respect of any
matter as to which the director has been found liable to the
Company unless the Court of Chancery of the State of Delaware
has determined that such indemnification may be made. The
Company has agreed to advance all reasonable expenses incurred
by a director in connection with any proceeding within twenty
days after receipt of a statement requesting such advance, which
statement includes an undertaking to repay any advanced expenses
in the event it is determined that the director is not entitled
to indemnification.
The following is a list of all the exhibits filed as part of
this registration statement.
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1.1*
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Form of Underwriting Agreement.
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3.1
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Restated Certificate of Incorporation of TD AMERITRADE Online
Holdings Corp.
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3.2
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By-Laws of TD AMERITRADE Online Holdings Corp.
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4.1
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Indenture, dated as of November 19, 2009, among TD AMERITRADE
Holding Corporation, TD AMERITRADE Online Holdings Corp., as
guarantor, and The Bank of New York Mellon Trust Company, N.A.,
as trustee.
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4.2*
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Form of Senior Note.
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5.1
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Opinion of Sidley Austin LLP.
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12.1
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Statement Regarding Computation of Ratio of Earnings to Fixed
Charges.
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23.1
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Consent of Ernst & Young LLP.
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23.2
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Consent of Sidley Austin LLP (included in Exhibit 5.1).
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24.1
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TD AMERITRADE Holding Corporations Powers of Attorney (set
forth on TD AMERITRADE Holding Corporations signature page
to this Registration Statement).
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24.2
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TD AMERITRADE Online Holdings Corp.s Powers of Attorney
(set forth on TD AMERITRADE Online Holdings Corp.s
signature page to this Registration Statement).
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25.1
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Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of the Trustee on Form T-1.
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* |
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To be filed by amendment or as an exhibit to a document to be
incorporated or deemed to be incorporated by reference in the
registration statement. |
Item 17. Undertakings
(a) Each undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
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(i)
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to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the Act);
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(ii)
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to reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission
(the Commission) pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering
price set forth in the Calculation of Registration
Fee table in the effective registration statement;
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II-3
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(iii)
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to include any material information with respect to the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
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provided, however, that subparagraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any
liability under the Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability
under the Act to any purchaser:
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(i)
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Each prospectus filed by the Registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
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(ii)
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Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant
to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by Section 10(a) of the
Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form
of prospectus is first used after effectiveness or the date of
the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that
date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the
securities in the registration statement to which that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made
in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date;
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(5) That, for the purpose of determining liability of
the Registrant under the Act to any purchaser in the initial
distribution of the securities:
The undersigned Registrant undertakes that in a primary offering
of securities of the undersigned Registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed
pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned Registrant or used or referred
to by the undersigned Registrant;
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II-4
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(iii)
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The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
Registrant or its securities provided by or on behalf of the
undersigned Registrant; and
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(iv)
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Any other communication that is an offer in the offering made by
the undersigned Registrant to the purchaser.
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(b) Each undersigned Registrant hereby undertakes that, for
the purpose of determining any liability under the Act, each
filing of the Registrants annual report pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plans annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Act may be permitted to directors, officers
and controlling persons of each Registrant, pursuant to the
provisions described under Item 15 or otherwise, the
Registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by a Registrant
of expenses incurred or paid by a director, officer or
controlling person of such Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, each Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Omaha, State of Nebraska, on November 19, 2009.
TD AMERITRADE HOLDING CORPORATION
(Registrant)
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By:
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/s/ Fredric
J. Tomczyk
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Fredric J. Tomczyk
Chief Executive Officer
POWER OF
ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Fredric J.
Tomczyk and Ellen L.S. Koplow, and each of them, as
attorneys-in-fact, each with the power of substitution, for him
or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and
to sign any registration statement for the same offering covered
by this Registration Statement that is to be effective upon
filing pursuant to Rule 462(b) promulgated under the
Securities Act of 1933, as amended, and all post-effective
amendments thereto, and to file the same, with all exhibits
thereto and all documents in connection therewith, with the SEC,
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that such attorneys-in-fact and agents or any of them, or her or
their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities indicated on November 19, 2009.
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Signature
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Title
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/s/ Fredric
J. Tomczyk
Fredric
J. Tomczyk
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Chief Executive Officer and Director
(Principal Executive Officer)
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/s/ William
J. Gerber
William
J. Gerber
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Executive Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
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/s/ Joseph
H. Moglia
Joseph
H. Moglia
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Chairman of the Board
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/s/ W.
Edmund Clark
W.
Edmund Clark
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Director
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/s/ Marshall
A. Cohen
Marshall
A. Cohen
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Director
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/s/ Dan
W. Cook III
Dan
W. Cook III
|
|
Director
|
|
|
|
/s/ William
H. Hatanaka
William
H. Hatanaka
|
|
Director
|
II-6
|
|
|
|
|
|
|
|
/s/ Mark
L. Mitchell
Mark
L. Mitchell
|
|
Director
|
|
|
|
/s/ Wilbur
J. Prezzano
Wilbur
J. Prezzano
|
|
Director
|
|
|
|
/s/ J.
Joe Ricketts
J.
Joe Ricketts
|
|
Director
|
|
|
|
/s/ J.
Peter Ricketts
J.
Peter Ricketts
|
|
Director
|
|
|
|
/s/ Allan
R. Tessler
Allan
R. Tessler
|
|
Director
|
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Omaha, State of Nebraska, on November 19, 2009.
TD AMERITRADE ONLINE HOLDINGS CORP.
(Registrant)
|
|
|
|
By:
|
/s/ Fredric
J.Tomczyk
|
Fredric J. Tomczyk
President
POWER OF
ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Fredric J.
Tomczyk and Ellen L.S. Koplow, and each of them, as
attorneys-in-fact, each with the power of substitution, for him
or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and
to sign any registration statement for the same offering covered
by this Registration Statement that is to be effective upon
filing pursuant to Rule 462(b) promulgated under the
Securities Act of 1933, as amended, and all post-effective
amendments thereto, and to file the same, with all exhibits
thereto and all documents in connection therewith, with the SEC,
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that such attorneys-in-fact and agents or any of them, or her or
their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities indicated on November 19, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Fredric
J. Tomczyk
Fredric
J. Tomczyk
|
|
President and Director
(Principal Executive Officer)
|
|
|
|
/s/ Michael
D. Chochon
Michael
D. Chochon
|
|
Treasurer
(Principal Financial and Accounting Officer)
|
|
|
|
/s/ William
J. Gerber
William
J. Gerber
|
|
Director
|
II-8
EXHIBIT INDEX
|
|
|
1.1*
|
|
Form of Underwriting Agreement.
|
3.1
|
|
Restated Certificate of Incorporation of TD AMERITRADE Online
Holdings Corp.
|
3.2
|
|
By-Laws of TD AMERITRADE Online Holdings Corp.
|
4.1
|
|
Indenture, dated as of November 19, 2009, among TD
AMERITRADE Holding Corporation, TD AMERITRADE Online Holdings
Corp., as guarantor, and The Bank of New York Mellon
Trust Company, N.A., as trustee.
|
4.2*
|
|
Form of Senior Note.
|
5.1
|
|
Opinion of Sidley Austin LLP.
|
12.1
|
|
Statement Regarding Computation of Ratio of Earnings to Fixed
Charges.
|
23.1
|
|
Consent of Ernst & Young LLP.
|
23.2
|
|
Consent of Sidley Austin LLP (included in Exhibit 5.1).
|
24.1
|
|
TD AMERITRADE Holding Corporations Powers of Attorney (set
forth on TD AMERITRADE Holding Corporations signature page
to this Registration Statement).
|
24.2
|
|
TD AMERITRADE Online Holdings Corp.s Powers of Attorney
(set forth on TD AMERITRADE Online Holdings Corp.s
signature page to this Registration Statement).
|
25.1
|
|
Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of the Trustee on
Form T-1.
|
|
|
|
* |
|
To be filed by amendment or as an exhibit to a document to be
incorporated or deemed to be incorporated by reference in the
registration statement. |