sc13d
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
thinkorswim Group Inc.
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
88409C105
(CUSIP Number)
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Ellen L.S. Koplow
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Larry W. Sonsini
Martin W. Korman
Michael S. Ringler |
Executive Vice President and
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Wilson Sonsini Goodrich & Rosati, |
General Counsel and Corporate Secretary
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Professional Corporation |
TD AMERITRADE Holding Corporation
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650 Page Mill Road |
4211 South 102nd St.
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Palo Alto, California 94304 |
Omaha, Nebraska 68127
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(650) 493-9300 |
(402) 331-7856 |
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
January 8, 2009
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition
that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e),
240.13d-1(f) or 240.13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and five copies of the
schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting persons initial filing on
this form with respect to the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be filed for
the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to
the liabilities of that section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
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1
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NAMES OF REPORTING PERSONS: |
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TD AMERITRADE Holding Corporation |
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS): |
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(a) o |
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(b) o |
3
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SEC USE ONLY: |
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SOURCE OF FUNDS (SEE INSTRUCTIONS): |
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OO |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): |
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o |
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CITIZENSHIP OR PLACE OF ORGANIZATION: |
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State of Delaware |
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NUMBER OF
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7 |
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SOLE VOTING POWER: |
SHARES |
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BENEFICIALLY
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None |
OWNED BY
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8 |
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SHARED VOTING POWER: |
EACH REPORTING
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12,416,623 shares of common stock1 |
PERSON
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SOLE DISPOSITIVE POWER: |
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None |
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SHARED DISPOSITIVE POWER: |
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None |
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: |
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12,416,623 shares of common stock1 |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): |
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o |
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(See Item 6) |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): |
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18.6% of common stock2 |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): |
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CO |
1
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Represents the aggregate number of outstanding shares of the issuers Common Stock beneficially owned by Lee Barba,
Scott Sheridan and Tom Sosnoff (individually and through a living trust of which Tom Sosnoff is the trustee), each of
whom entered into a Voting Agreement dated as of January 8, 2009 (each, a Voting Agreement) with TD AMERITRADE
Holding Corporation (TDAM) obligating the holder to vote such shares, among other things, in favor of the proposed
acquisition of the issuer by TDAM pursuant to the Merger Agreement (as defined in Item 3) and related matters, and with
respect to which such persons granted certain representatives of TDAM a proxy (each, a Proxy) granting such TDAM
representatives the right to vote on each such persons behalf in favor of such matters. For more information
regarding the securities holdings of the |
- 2 -
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persons named above in thinkorswim Group Inc., a Delaware corporation (TOS),
please see Schedule B (attached hereto). TDAM expressly disclaims beneficial ownership of any of the shares of the
issuers stock subject to the Voting Agreements and the Proxies. |
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2
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Based on 66,760,578 shares of the issuers Common Stock outstanding as of January 6, 2009. |
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Item 1. Security and Issuer.
The class of equity securities to which this statement relates is the Common Stock, par value $0.01
per share, of thinkorswim Group Inc., a Delaware corporation (TOS). The principal executive
offices of TOS are located at 45 Rockefeller Plaza, Suite 2012, New York, New York 10116.
Item 2. Identity and Background.
(a) The name of the corporation filing this statement is TD AMERITRADE Holding Corporation, a
Delaware corporation, hereinafter sometimes referred to herein as TDAM.
(b) The address of TDAMs principal office is 4211 South 102nd St., Omaha, Nebraska
68127.
(c) TDAM is a leading provider of securities brokerage services and technology-based financial
services to retail investors and business partners, predominantly through the Internet, a national
branch network and relationships with one of the largest groups of independent Registered
Investment Advisers.
(d) Neither TDAM nor, to TDAMs knowledge, any person named on Schedule A attached hereto,
has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors)
during the last five years.
(e) During the last five years neither TDAM nor, to TDAMs knowledge, any person named on
Schedule A attached hereto, was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree, or final order enjoining future violations of, or prohibiting or mandating
activities subject to, Federal or state securities laws or finding any violation with respect to
such laws.
(f) To TDAMs knowledge, except as noted on Schedule A, each of the individuals identified
on Schedule A attached hereto is a citizen of the United States. Set forth on Schedule
A is the name, principal occupation or employment, and the name, principal business and address
of any corporation or other organization in which such employment is conducted, of each of the
directors and executive officers of TDAM as of the date hereof.
Item 3. Source and Amount of Funds or Other Consideration.
TOS entered into an Agreement and Plan of Merger, dated as of January 8, 2009, a copy of which is
attached hereto as Exhibit 1 (the Merger Agreement), with TDAM, Tango Acquisition
Corporation One, a Delaware corporation and a wholly owned subsidiary of TDAM (Merger Sub One),
and Tango Acquisition Corporation Two, a Delaware corporation and a wholly owned subsidiary of TDAM
(Merger Sub Two), that provides for the acquisition of TOS by TDAM by means of a merger of Merger
Sub One with and into TOS (the First Step Merger), with TOS as the interim surviving corporation,
immediately followed by a merger of TOS, as the interim surviving corporation, with and into Merger
Sub Two (the Second Step Merger and, together with the First Step Merger, the Merger), with
Merger Sub Two as the final surviving corporation. As a result of the Merger, TOS would become a
wholly owned subsidiary of TDAM. As an inducement for TDAM to enter into the Merger Agreement and
in consideration thereof, certain executive officers of TOS identified on Schedule B
(collectively, the Securityholders), each entered into separate Voting Agreements with TDAM,
dated as of January 8, 2009, the forms of which are attached hereto as Exhibit 2 and
Exhibit 3, and more fully described in Item 4, whereby, subject to the terms of each such
voting agreement, the Securityholders that are parties thereto agreed, among other things, that at
every meeting of TOSs stockholders called, such stockholder shall vote the shares then held by it,
among other things, in favor of the adoption of the Merger Agreement and against the approval of
any proposal made in opposition to, or in competition with, the Merger or any other transactions
contemplated by the Merger Agreement. Each of these Securityholders also granted certain
representatives of TDAM an irrevocable proxy granting such TDAM representatives the right to vote
such shares in favor of such matters (the voting agreements and proxies, together are referred to
herein as, the Voting Agreements).
References to, and descriptions of, the merger, the Merger Agreement and the Voting Agreements
throughout this Schedule 13D are qualified in their entirety by reference to the Merger Agreement
included as Exhibit 1 to this Schedule 13D and the Voting Agreements included as
Exhibit 2 and Exhibit 3 to this Schedule 13D, respectively.
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These agreements are incorporated into this Schedule 13D where such references and descriptions
appear.
Item 4. Purpose of Transaction.
(a) (b) As described in Item 3 above, this Schedule 13D relates to the proposed acquisition of
TOS by TDAM pursuant to the terms of the Merger Agreement. To induce TDAM to enter into the Merger
Agreement, each of the Securityholders party thereto entered into the Voting Agreements. The
purpose of the Voting Agreements is to facilitate the consummation of the merger.
Subject to the terms and conditions of the Merger Agreement, at the effective time and as a result
of the Merger:
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Each share of TOS Common Stock issued and outstanding immediately prior to the effective
time of the merger, will be converted into the right to receive a cash amount (less any
applicable withholding) of $3.34, without interest plus 0.3980 shares of TDAM common stock
(the Per Share Merger Consideration); |
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Each of TOSs vested or unvested options to purchase shares of TOS Common Stock with an
exercise price less than the total value of the Per Share Merger Consideration (based on
the volume-weighted average price of a share of TDAM common stock on the trading day
immediately prior to the effective time of the Merger) (each a TOS Option) outstanding at
the effective time of the Merger will be assumed by TDAM, and, at the effective time of the
Merger, converted into the right to receive TDAM stock options, based on an exchange ratio
specified in the Merger Agreement; |
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Each of TOSs vested or unvested options to purchase shares of TOS Common Stock with an
exercise price equal to or greater than the total value of the Per Share Merger
Consideration (based on the volume-weighted average price of a share of TDAM common stock
on the trading day immediately prior to the effective time of the Merger) (each an
Underwater TOS Option) which is not exchanged for a TOS restricted stock unit pursuant to
an option exchange offer to be made by TOS pursuant to the Merger Agreement (the Option
Exchange Program), and remains outstanding at the effective time of the Merger will be
assumed by TDAM, and, at the effective time of the Merger, converted into the right to
receive TDAM stock options, based on an exchange ratio specified in the Merger Agreement;
and |
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Each of TOSs unvested restricted stock units (including restricted stock units issued
in exchange for Underwater TOS Options pursuant to the Option Exchange Program) and
restricted shares outstanding at the effective time of the Merger will be assumed by TDAM,
and, at the effective time of the Merger, converted into the right to receive TDAM
restricted stock units or restricted shares, as the case may be, based on an exchange ratio
specified in the Merger Agreement. |
By executing the Voting Agreements, the Securityholders party thereto have (i) agreed to vote all
of the shares of TOS Common Stock currently beneficially owned by them or acquired prior to the
expiration of the relevant Voting Agreement, including by means of exercise of stock options, in
favor of the adoption of the Merger Agreement and any other action contemplated by the Merger
Agreement and any action required in furtherance thereof, and against (A) any merger,
consolidation, business combination, sale of assets, reorganization or recapitalization of or
involving TOS or any of its subsidiaries, (B) any sale, lease or transfer of all or substantially
all of the assets of TOS or any of its subsidiaries, (C) any reorganization, recapitalization,
dissolution, liquidation or winding up of TOS or any of its subsidiaries, (D) any material change
in the capitalization of TOS or any of its subsidiaries, (E) any Acquisition Proposal or
Acquisition Transaction (as defined in Article I of the Merger Agreement), or (F) and any other
action that is intended to, or would reasonably be expected to materially, impede, interfere with,
delay, postpone, discourage or adversely affect the Merger or any of the transactions contemplated
by the Merger Agreement, and (ii) granted irrevocable proxies to certain representatives of TDAM
granting such TDAM representatives the right to vote such shares as specified in clause (i). The
Securityholders have entered into the Voting Agreements only in their capacities as Securityholders
of TOS and may vote such shares on all other matters submitted to TOSs stockholders for their
approval. The Voting Agreements terminate upon the earlier to occur of (i) termination of the
Merger Agreement, and (ii) the effectiveness of the Merger.
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(c) Not applicable.
(d) It is anticipated that upon consummation of the First Step Merger, the officers and directors
of Merger Sub One shall become the officers and directors of TOS (the surviving corporation in the
First Step Merger), until their respective successors are duly elected or appointed and qualified,
and that upon consummation of the Second Step Merger, the officers and directors of the Interim
Surviving Corporation shall become the officers and directors of Merger Sub Two (the surviving
corporation in the Second Step Merger).
(e) Other than as a result of the Merger described in Item 3 and above in this Item 4, not
applicable.
(f) Not applicable.
(g) Upon consummation of the Merger, the Certificate of Incorporation and Bylaws of TOS shall be
amended and restated in their entirety in accordance with the terms of Section 2.5 of the Merger
Agreement.
(h) (i) If the Merger is consummated as planned, TOS Common Stock will cease to be quoted on the
NASDAQ Stock Market, Inc.s Global Select Market and will become eligible for termination of
registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended.
(j) Not applicable.
Item 5. Interest in Securities of the Issuer.
(a) (b) As a result of the Voting Agreements, TDAM may be deemed to be the beneficial owner of
12,416,623 shares of TOS Common Stock. This number of shares represents approximately 18.6% of the
issued and outstanding shares of TOS Common Stock based on the number of shares outstanding as of
January 6, 2009. TDAM disclaims any beneficial ownership of such shares, and nothing herein shall
be deemed to be an admission by TDAM as to the beneficial ownership of such shares. To TDAMs
knowledge, no shares of TOS Common Stock are beneficially owned by any of the persons identified in
Schedule A to this Schedule 13D.
(b) TDAM may be deemed to have shared voting power of the 12,416,623 shares of TOS Common Stock
held by the Securityholders due to TDAMs right under the Voting Agreements to direct the voting of
such shares with respect to the matters specified in the Voting Agreements (and to vote such shares
in accordance with the proxies granted thereunder). However, TDAM does not control the voting of
such shares with respect to other matters, and does not possess any other rights as a TOS
stockholder with respect to such shares. Information required by Item 2 (a)-(c) with respect to
each Securityholder is set forth on Schedule B. To TDAMs knowledge, none of the persons
identified on Schedule B (i) has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) during the last five years, or (ii) was a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree, or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws during the last five years. To TDAMs knowledge, each of the
individuals identified on Schedule B is a citizen of the United States.
(c) To TDAMs knowledge, no transactions in TOS Common Stock have been effected during the past
sixty days by any person named pursuant to Item 2.
(d) To TDAMs knowledge, no person other than the Securityholders identified on Schedule B
has the right to receive or the power to direct the receipt of dividends from, or the proceeds from
the sale of, such shares.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the
Issuer.
The terms of the Voting Agreements are described under Item 4(a)-(b) above. The Voting Agreements
also apply to any shares of TOS Common Stock acquired by the parties to such agreements after the
date of the Voting Agreements, including by means of exercise of stock options or warrants, or
vesting of restricted stock units or
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shares of unvested Common Stock. The number of shares that TDAM may be deemed to beneficially own
as of the date of filing of this Schedule 13D, as reported herein, does not include the shares
issuable upon the exercise of stock options or warrants or vesting of restricted stock units or
shares of unvested Common Stock held by the parties to the Voting Agreements, and TDAM disclaims
beneficial ownership of all such shares.
Item 7. Materials to be Filed as Exhibits.
The following documents are incorporated by reference as exhibits:
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Exhibit |
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No. |
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Title |
1
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Agreement and Plan of Merger dated as of January 8, 2009 by and
among TD AMERITRADE Holding Corporation, Tango Acquisition
Corporation One, Tango Acquisition Corporation Two and thinkorswim
Group Inc. (incorporated by reference to Exhibit 10.1 to the Form
8-K (File No. 0-49992) filed by TD AMERITRADE Holding Corporation
on January 14, 2009). |
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2
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Form of Voting Agreement by and between TD AMERITRADE Holding
Corporation and certain securityholders of thinkorswim Group Inc. |
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3
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Form of Voting Agreement by and between TD AMERITRADE Holding
Corporation and Lee Barba. |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information
set forth in this statement is true, complete and correct.
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Dated: January 20, 2009 |
TD AMERITRADE HOLDING
CORPORATION
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By: |
/s/ William J. Gerber
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William J. Gerber |
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Chief Financial Officer |
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Schedule A
Directors and Executive Officers of TD AMERITRADE Holding Corporation
The following table sets forth the name, business address and present principal occupation or
employment of each director and executive officer of TD AMERITRADE Holding Corporation. The
business address of each person is c/o TD AMERITRADE Holding Corporation, 4211 South
102nd St., Omaha, Nebraska 68127.
Board of Directors
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Name |
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Principal Occupation |
Joseph H. Moglia
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Chairman of TD AMERITRADE Holding Corporation |
W. Edmund Clark*
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President and Chief Executive Officer, TD Bank
Financial Group; Vice Chairman of TD AMERITRADE
Holding Corporation |
Mark L. Mitchell
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Principal, CNH Partners, LLC |
Thomas S. Ricketts
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Chairman and Chief Executive Officer,
Incapital LLC |
Fredric J. Tomczyk*
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President and Chief Executive Officer
of the Company |
J. Joe Ricketts
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Founder of TD AMERITRADE Holding Corporation |
Marshall A. Cohen*
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Counsel, Cassels Brock & Blackwell LLP |
Dan W. Cook III
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Senior Advisor, MHT Partners, L.P. |
William H. Hatanaka*
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Chairman and Chief Executive Officer of TD
Waterhouse Canada, Inc. |
Wilbur J. Prezzano
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Director, The Toronto-Dominion Bank |
J. Peter Ricketts
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Founder of Drakon LLC |
Allan R. Tessler
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Chairman and Chief Executive Officer of
International Financial Group, Inc. |
Executive Officers
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Name |
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Title |
Joseph H. Moglia
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Chairman |
Fredric J. Tomczyk*
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President and Chief Executive Officer |
Michael D. Chochon
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Managing Director of Finance, Treasurer |
Laurine M. Garrity
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Senior Vice President, Chief Marketing Officer |
William J. Gerber
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Executive Vice President, Chief Financial Officer |
David M. Kelley
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Executive Vice President, Chief Operating Officer |
Ellen L.S. Koplow
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Executive Vice President, General Counsel and
Secretary |
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Schedule B
Parties to Voting Agreements with TD AMERITRADE Holding Corporation
The following table sets forth the name and principal occupation or employment, if applicable,
of each securityholder of TOS that has entered into a Voting Agreement with TDAM in connection with
the Merger Agreement.
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Name |
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Title |
Lee K. Barba
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Chairman of the Board of Directors and Chief Executive Officer |
Scott D. Sheridan
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Director, Executive Vice President |
Tom Sosnoff
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Director, President |
The following table sets forth the aggregate number of shares of TOS Common Stock held as of
January 8, 2008 by each securityholder of TOS that has entered into a Voting Agreement with TDAM in
connection with the Merger Agreement.* Except as otherwise indicated below, the business address
of each person set forth on this Schedule B is: c/o thinkorswim Group Inc., 45 Rockefeller
Plaza, Suite 2012, New York, New York 10116.
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Options and |
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Warrants to |
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Shares of Common |
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Shares of |
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Purchase Common |
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Total Beneficial |
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Stock Directly or |
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Restricted Common |
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Stock Exercisable |
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Ownership of Shares |
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Indirectly held as |
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Stock held as of |
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within 60 days of |
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as of January 8, |
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Name |
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of January 8, 2009 |
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January 8, 2009 |
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January 8, 2009 |
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2009 |
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Lee Barba |
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1,029,353 |
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120,475 |
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1,984,852 |
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3,134,680 |
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Scott D. Sheridan |
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4,390,903 |
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237,640 |
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4,628,543 |
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Tom Sosnoff1 |
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4,415,760 |
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237,640 |
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4,653,400 |
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Total |
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12,416,623 |
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(1) |
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Includes shares of common stock held in a living trust, of which Mr. Sosnoff is the trustee. |
*As noted in Item 6 above, the Voting Agreements also apply to any shares of TOS Common Stock
acquired by the parties to such agreements after the date of the Voting Agreements, including by
means of exercise of stock options and warrants and vesting of restricted stock units and unvested
Common Stock.
- 9 -
EXHIBIT INDEX
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Exhibit |
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No. |
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Title |
1
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Agreement and Plan of Merger dated as of January 8, 2009 by and
among TD AMERITRADE Holding Corporation, Tango Acquisition
Corporation One, Tango Acquisition Corporation Two and thinkorswim
Group Inc. (incorporated by reference to Exhibit 10.1 to the Form
8-K (File No. 0-49992) filed by TD AMERITRADE Holding Corporation
on January 14, 2009). |
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2
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Form of Voting Agreement by and between TD AMERITRADE Holding
Corporation and certain securityholders of thinkorswim Group Inc. |
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3
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Form of Voting Agreement by and between and TD AMERITRADE Holding
Corporation and Lee Barba. |