exv10w33






EXHIBIT 10.33




AMENDMENT NO. 2 AND WAIVER TO STOCKHOLDERS AGREEMENT




          This AMENDMENT NO. 2 AND WAIVER TO STOCKHOLDERS AGREEMENT (this “Amendment and
Waiver”) is made and entered into this 3rd day of August 2009 by and among TD
AMERITRADE Holding Corporation (the “Company”), the stockholders of the Company listed on
the signature pages hereto under the heading “R Parties” (collectively, the “R Parties”),
The Toronto-Dominion Bank, a Canadian chartered bank (“TD Bank”), and TD Discount Brokerage
Holdings LLC, a Delaware limited liability company and a direct, wholly-owned subsidiary of TD Bank
(collectively with TD Bank, “TD”). Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to them in the Stockholders Agreement (defined below).




RECITALS




          WHEREAS, the parties hereto are parties to that certain Stockholders Agreement, dated as of
June 22, 2005, as amended by Amendment No. 1, dated February 22, 2006 (the “Stockholders
Agreement”);




          WHEREAS, TD waived of its right to designate one of its five TD Directors for the purpose of
allowing Joseph H. Moglia to remain on the Board as Chairman pursuant to that certain waiver dated
May 14, 2008 (“TD Waiver”) and is desirous of having the TD Waiver terminated and regaining
its fifth seat on the Board as permitted under section 4.1(b)(ii) of the Stockholders Agreement;




          WHEREAS, the R Party Ownership Level was recently reduced to an amount that decreased the
number of R Directors from three to two directors, resulting in the resignation of one R Director
and a vacancy on the Board (“R Party Vacancy”);




          WHEREAS, the parties to the Stockholders Agreement are desirous of having Joseph H. Moglia
fill the R Party Vacancy and terminate the TD Waiver; and




          WHEREAS, in accordance with Section 6.4 of the Stockholders Agreement, each of TD, the R
Parties and the Company has approved this Amendment and Waiver.




          NOW THERFORE, in consideration of the foregoing and of the covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound thereby, the parties hereto agree as
follows:




ARTICLE I

WAIVER AND REVOCATION




          SECTION 1.1. Waiver of Certain Provisions of Sections 4.1(f)(iii), 4.2(c) and
4.2(d). The parties agree that notwithstanding the last sentence of Section 4.1(f)(iii),
Section 4.2(c) and Section 4.2(d) to the contrary, the R Party Vacancy on the Board, resulting from
the resignation of Tom Ricketts effective on February 20, 2009, will not be required to be filled
by an Outside Independent Director but instead will be filled by Joseph H. Moglia for so long as he
shall serve as chairman of the Board pursuant to the Employment Agreement, dated as of May 14,
2008, between Mr. Moglia and the Company, as amended to date (the “Employment Agreement”).
It is agreed and understood that the application of the last sentence of Section 4.1(f)(iii),
Section 4.2(c) and 4.2(d) of the Stockholders Agreement and Article VI(a)(ii) of the Restated
Charter is waived by the parties hereto to the extent necessary to permit the selection of Mr.
Moglia to fill the R Party Vacancy. The waiver agreed upon herein is limited to the R Party
Vacancy described herein and will not be deemed to amend or modify




 









 







the terms of Sections 4.1(f)(iii), 4.2(c) or 4.2(d) for any vacancies subsequently created that
would otherwise be governed by these provisions. Any vacancy created by the cessation of Mr.
Moglia’s term as chairman of the Board pursuant to the Employment Agreement for any reason shall be
filled by an Outside Independent Director in accordance with Section 4.2(c) of the Stockholders
Agreement (or, if applicable, by an R Director pursuant to Section 4.1(f)(iv)).




          SECTION 1.2. Termination of TD Waiver. The Company hereby gives its consent to the
revocation and termination of the TD Waiver. Upon execution of this Amendment and Waiver, the TD
Waiver will be revoked and of no further force or effect and TD will have the right to designate a
director to fill its fifth Board seat as provided for in Section 4.3(b) of the Stockholders
Agreement, which director shall be a Class I director.




ARTICLE II

AMENDMENT




          SECTION 2.1. Amendment of Section 4.1(b)(ii). The parties agree that the
parenthetical in Section 4.1(b)(ii) shall be deleted and the following inserted in its stead: “(two
of whom shall be a Class I Director, two of whom shall be a Class II Director and one of whom shall
be a Class III Director).”




ARTICLE III

MISCELLANEOUS




          SECTION 3.1. Section 4.1(f)(iv). In the event that under the terms of Section
4.1(f)(iv) the R Directors are entitled to fill a third Board seat during any time that Mr. Moglia
serves as chairman of the Board pursuant to the Employment Agreement, TD agrees to waive its right
to designate one of its five TD Directors to accommodate the continued service of Mr. Moglia as a
director of the Company, and TD shall cause one of its five designated TD Directors to resign,
effective as of the date that the third R Director’s term commences pursuant to Section 4.1(f)(iv).
This waiver by TD of its right to designate one of its five TD Directors shall continue only so
long as Mr. Moglia serves as chairman of the Board pursuant to the Employment Agreement, and upon
Mr. Moglia ceasing to be chairman of the Board, the waiver will expire and TD will have the right
to designate the full number of TD Directors provided for in the Stockholders Agreement.




          SECTION 3.2. Continued Effect of Original Agreement. As amended hereby, the
Stockholders Agreement is hereby ratified and confirmed and agreed to by all of the hereto and
thereto and continues in full force and effect. All references in the Stockholders Agreement to
the “Agreement” shall be read as references to the Stockholders Agreement as amended by this
Amendment and Waiver and as it may be further amended, supplemented, restated or otherwise modified
from time to time.




          SECTION 3.3. Counterparts. This Amendment and Waiver may be executed by facsimile in
separate counterparts each of which shall be an original and all of which taken together shall
constitute one and the same agreement.




          SECTION 3.4. Governing Law. This Amendment and Waiver shall be governed by and
construed in accordance with the laws of the State of Delaware (except to the extent that mandatory
provisions of federal law are applicable), without giving effect to the principles of conflicts of
law, and shall be binding upon the successors and assigns of the parties.




[signature page follows]





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IN WITNESS WHEREOF, the parties hereto have executed this Amendment and Waiver as of the date set
forth in the first paragraph hereof.




	 	 	 	 	 	 	 	 	 	 	 
	COMPANY:	 	 	 	R PARTIES:
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	TD AMERITRADE HOLDING CORPORATION	 	/s/ J. JOE RICKETTS	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	J. Joe Ricketts	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ FRED TOMCZYK	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	Name: Fredric J. Tomczyk	 	/s/	 	MARLENE M. RICKETTS	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	Title: Chief Executive Officer	 	Marlene M. Ricketts	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	TD:	 	MARLENE M. RICKETTS 1994 DYNASTY TRUST	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	THE TORONTO-DOMINION BANK	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ J. PETER RICKETTS	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Name: J. Peter Ricketts	 	 
	By:	 	/s/ RIAZ AHMED	 	 	 	Title: Trustee	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	Name: Riaz Ahmed	 	 	 	 	 	 
	Title: EVP, Corporate Development	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	TD DISCOUNT BROKERAGE HOLDINGS LLC	 	J. JOE RICKETTS 1996 DYNASTY TRUST	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ FRANK TRIPODI
	 	 	 	By:
	 	/s/ J. PETER RICKETTS	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	Name: Frank Tripodi	 	Name: J. Peter Ricketts	 	 
	Title: Vice President & Treasurer	 	Title: Trustee