exv10w1



 







Exhibit 10.1




INDEMNIFICATION AGREEMENT




     This Agreement, made and entered into this 30th day of May, 2006 (“Agreement”), by
and between Ameritrade Holding Corporation, a Delaware corporation (“Company”), and
                                         (“Indemnitee”):



     WHEREAS, in order to retain and attract qualified directors, on January 4, 2006 [(the
“Effective Date”)], the Board of Directors approved a form of this Indemnification Agreement for
all directors of the Company;



     WHEREAS, Indemnitee [began serving as a director of the Company on January 24, 2006 and is
currently continuing to serve as a director of the Company][was serving as a director of the
Company on the Effective Date and resigned as a director of the Company on                     ][was serving
as a director of the Company on the Effective Date and is currently continuing to serve as a
director of the Company]; and



     WHEREAS, this Agreement is a supplement to and in furtherance of the By-laws and Certificate
of Incorporation of the Company and any resolution adopted pursuant thereto, [and any employment
agreement between the Company and Indemnittee,] and shall not be deemed a substitute therefore, nor
to diminish or abrogate any rights of Indemnitee thereunder; and



     WHEREAS, each of Section 145 of the General Corporation Law of the State of Delaware and the
By-laws is nonexclusive, and therefore contemplates that contracts may be entered into with respect
to indemnification of directors, officers and employees; and



     WHEREAS, Indemnitee [continued to serve as a director of the Company following the Effective
Date][is willing to serve and to continue to serve as a director of the Company] on the condition
that he be so indemnified;



     NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree, effective for all purposes as of January 24,
2006, as follows:



     Section 1. Services by Indemnitee. Indemnitee agrees to serve as a director of the
Company. Indemnitee may at any time and for any reason resign from such position (subject to any
other contractual obligation or any obligation imposed by operation of law), in which event the
Company shall have no obligation under this Agreement to continue Indemnitee in such position.
This Agreement shall not be deemed an employment contract between the Company and Indemnitee. The
foregoing notwithstanding, this Agreement shall continue in force after Indemnitee has ceased to
serve as a director of the Company.



     Section 2. Indemnification – General. The Company shall indemnify, and advance
Expenses (as hereinafter defined) to, Indemnitee (a) as provided in this Agreement and



 









 




(b) (subject to the provisions of this Agreement) to the fullest extent permitted by applicable law
in effect on the date hereof and as amended from time to time.




     Section 3. Proceedings Other Than Proceedings by or in the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification provided in this Section 3 if, he is,
or is threatened to be made, a party to or a participant in any threatened, pending, or completed
Proceeding (as hereinafter defined), other than a Proceeding by or in the right of the Company.
Pursuant to this Section 3, Indemnitee shall be indemnified against all Expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such Proceeding or any claim, issue or matter therein, 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 and, with respect to any criminal Proceeding, had no reasonable cause to believe his
conduct was unlawful.



     Section 4. Proceedings by or in the Right of the Company. Indemnitee shall be
entitled to the rights of indemnification provided in this Section 4 if he is, or is threatened to
be made, a party to or a participant in any threatened, pending or completed Proceeding brought by
or in the right of the Company to procure a judgment in its favor. Pursuant to this Section,
Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection with such Proceeding 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; provided,
however, that, if applicable law so provides, no indemnification against such Expenses
shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee
shall have been adjudged to be liable to the Company unless and to the extent that the Court of
Chancery of the State of Delaware, or the court in which such Proceeding shall have been brought or
is pending, shall determine that such indemnification may be made.



     Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is a party to
(or a participant in) and is successful, on the merits or otherwise, in any Proceeding (including
dismissal without prejudice), he shall be indemnified to the maximum extent permitted by law
against all Expenses actually and reasonably incurred by him or on his behalf in connection
therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf in connection with each successfully resolved claim, issue or
matter.



     Section 6. Indemnification for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is a witness in any Proceeding to which
Indemnitee is not a party, he shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith.



     Section 7. Advancement of Expenses. Notwithstanding any provision of this Agreement
to the contrary, the Company shall advance all reasonable Expenses incurred by on behalf of
Indemnitee in connection with any Proceeding in which Indemnitee is involved within



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twenty days after the receipt by the Company of a statement or statements from Indemnitee
requesting such advance or advances from time to time, whether prior to or after final disposition
of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred
by Indemnitee and shall include or be preceded or accompanied by an undertaking by or on behalf of
Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is
not entitled to the indemnified against such Expenses. Any advances and undertakings to repay
pursuant to this Section 7 shall be unsecured and interest free.



     Section 8. Procedure for Determination of Entitlement to Indemnification.



          (a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a
written request, including therein or therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board in writing that Indemnitee has
requested indemnification.




          (b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of
Section 8(a) hereof, a determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case: (i) if a Change in Control (as hereinafter
defined) shall have occurred, by Independent Counsel (as hereinafter defined) in a written opinion
to the Board of Directors, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in
Control shall not have occurred, (A) by a majority vote of the Disinterested Directors (as
hereinafter defined), even though less than a quorum of the Board, or (B) if there are no such
Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a
written opinion to the board, a copy of which shall be delivered to Indemnitee or (C) if so
directed by the Board, by the stockholders of the company; and, if it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days
after such determination. Indemnitee shall cooperate with the person, persons or entity making
such determination with respect to Indemnitee’s entitlement to indemnification, including providing
to such person, persons or entity upon reasonable advance request any documentation or information
which is not privileged or otherwise protected from disclosure and which is reasonably available to
Indemnitee and reasonably necessary to such determination.




          (c) In the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 8(b) hereof, the Independent Counsel shall be selected as
provided in this Section 8(c). If a Change in Control shall not have occurred, the Independent
Counsel shall be selected by the Board of Directors, and the Company shall give written notice to
Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change in
Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board of Directors, in which event the
preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising
it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the
Company, as the case may be, may, within 10 days after such written notice of selection shall have
been given, deliver to the company or to Indemnitee, as the

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case may be, a written objection to such selection; provided, however, that such
objection may be asserted only on the ground that the Independent Counsel so selected does not meet
the requirements of “Independent Counsel” as defined in Section 17 of this Agreement, and the
objection shall set for with particularity the factual basis of such assertion. Absent a proper
and timely objection, the person so selected shall act as Independent Counsel. If such written
objection is so made and substantiated, the Independent Counsel so selected may not serve as
Independent Counsel unless and until such objection is withdrawn or a court has determined that
such objection is without merit. If, within 20 days after submission by Indemnitee of a written
request for indemnification pursuant to Section 8(a) hereof, no Independent Counsel shall have been
selected and not objected to, either the Company or Indemnitee may petition the Court of Chancery
of the State of Delaware or other court of competent jurisdiction for resolution of any objection
which shall have been made by the Company or Indemnitee to the other’s selection of Independent
Counsel and/or for appointment as Independent Counsel of a person selected by the Court or by such
other person as the Court shall designate, and the person with respect to whom all objections are
so resolved or the person so appointed shall act as Independent Counsel under Section 8(b) hereof.
Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 10(a) of
this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility
in such capacity (subject to the applicable standards of professional contact then prevailing).




          (d) The Company shall not be required to obtain the consent of the Indemnitee to the
settlement of any Proceeding which the Company has undertaken to defend if the Company assumes full
and sole responsibility for such settlement and the settlement grants the Indemnitee a complete and
unqualified release in respect of the potential liability. The Company shall not be liable for any
amount paid by the Indemnitee in settlement of any Proceeding that is not defended by the Company,
unless the Company has consented to such settlement, which consent shall not be unreasonably
withheld.




     Section 9. Presumptions and Effect of Certain Proceedings.



          (a) Neither the failure of the Company (including by its directors or independent legal
counsel) to have made a determination prior to the commencement of any action pursuant to this
Agreement that indemnification is proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Company (including by its
directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that Indemnitee has not met the applicable
standard of conduct.




          (b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee
did not act in good faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.




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          (c) Actions of Others. The knowledge and/or actions, or failure to act, of any
director, officer, agent or employee of the Organization shall not be imputed to Indemnitee for
purposes of determining the right to indemnification under this Agreement.




     Section 10. Remedies of Indemnitee.



          (a) In the event that (i) a determination is made pursuant to Section 8 of this Agreement that
Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is
not timely made pursuant to Section 7 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 8(b) of this Agreement within 120 days
after receipt by the Company of the request for indemnification, (iv) payment of indemnification
is not made pursuant to Section 5 or 6 of this Agreement within twenty (20) days after receipt by
the Company of a written request therefor, or (v) payment of indemnification pursuant to Section 3
or 4 of this Agreement is not made within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification, Indemnitee shall be entitled to seek an adjudication by
the Court of Chancery of the State of Delaware of his entitlement to such indemnification or
advancement of Expenses. Alternatively, Indemnitee, at his option, may seek an award in
arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of
the American Arbitration Association. Indemnitee shall commence such proceeding seeking an
adjudication or an award in arbitration within 180 days following the date on which Indemnitee
first has the right to commence such proceeding pursuant to this Section 10(a); provided,
however, that the foregoing clause shall not apply in respect of a proceeding brought by
Indemnitee to enforce his rights under Section 5 of this Agreement. The Company shall not oppose
Indemnitee’s right to seek any such adjudication or award in arbitration.




          (b) In the event that a determination shall have been made pursuant to Section 8(b) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 10 shall be conducted in all respects as a
de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced
by reason of that adverse determination.




          (c) If a determination shall have been made pursuant to Section 8(b) of this Agreement that
Indemnitee is entitled to indemnification, the company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 10, absent (i) a misstatement
by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law.




          (d) In the event that Indemnitee, pursuant to this Section 10, seeks a judicial adjudication
of or an award in arbitration to enforce his rights under, or to recover damages for breach of,
this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be indemnified
by the Company against, any and all expenses (of the types described in the definition of Expenses
in Section 17 of this Agreement) actually and reasonably incurred by him in such judicial
adjudication or arbitration, but only if (and only to the extent) he prevails therein. If it shall
be determined in said judicial adjudication or arbitration that

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Indemnitee is entitled to receive part but not all of the indemnification or advancement of
Expenses sought, the expenses incurred by Indemnitee in connection with such judicial adjudication
or arbitration shall be appropriately prorated.




          (e) The Company shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 10 that the procedures and presumptions of this Agreement are
not valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement.




     Section 11. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.



          (a) The rights of indemnification and to receive advancement of Expenses as provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be
entitled under applicable law, the Company’s Certificate of Incorporation, the Company’s By-laws,
any agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment,
alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any
rights of Indemnitee under this Agreement in respect of any action taken or omitted by such
Indemnitee in his Corporate Status prior to such amendment, alteration or repeal. To the extent
that a change in the General Corporation Law of the State of Delaware, whether by statute or
judicial decision, permits greater indemnification or advancement of Expenses than would be
afforded currently under the Company’s By-Laws and this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy under this Agreement, the greater benefits so afforded by such
change. No right or remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right and remedy shall be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.




          (b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which
such person serves at the request of the company, Indemnitee shall be covered by such policy or
policies in accordance with its or their terms to the maximum extent of the coverage available for
any such director, officer, employee or agent under such policy or policies. Nothwithstanding the
foregoing, for a period of six years after the date the Indemnitee ceases to be a director of the
Company (the “Termination Date”), the Company agrees either (i) to cause to be obtained “tail”
insurance policies with a claims period of at least six years from the Termination Date with
respect to officers’ and directors’ liability insurance at least as favorable (including in amount
and scope) as the Company’s existing policies for claims arising from facts or events that occurred
on or prior to the Termination Date or (ii) to maintain in effect its current policies of
directors’ and officers’ liability insurance for the benefit of Indemnitee (provided that the
Company may substitute therefore policies of at least the same coverage and amounts with
financially sound and responsible insurers containing terms and conditions which are not materially
less advantageous in the aggregate) with respect to claims arising from facts or events

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which occurred at or before the Termination Date; provided, however, that in each case the Company
shall not be obligated to make annual premium payments for such insurance to the extent such
premiums exceed 200% of the premiums being paid by the Company as of January 1, 2006 for such
insurance or reserved pursuant to a self-insurance program and if such premiums for such insurance
would at any time exceed 200% of such premium or reserves, then the Company shall cause to be
maintained policies of insurance which, in Boards’ good faith determination, provide the maximum
coverage available at an annual premium equal to 200% of such premium or reserves. The Company
further agrees that in the event the Company or any of its successors or assigns (i) consolidates
with or merges into any other corporation or entity and shall not be the continuing or surviving
corporation or entity of such consolidation or merger or (ii) transfers or conveys all or
substantially all of its properties and assets to any corporation or entity, then, and in each such
case, to the extent necessary, proper provision shall be made so that the successors and assigns of
the Company assume the obligations set forth in this Section 11.




          (c) In the event of any payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers
required and take all action necessary to secure such rights, including execution of such documents
as re necessary to enable the Company to bring suit to enforce such rights.




          (d) The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable (or for which advancement is provided hereunder) hereunder if and to the
extent that Indemnitee has otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise.




          (e) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is
or was serving at the request of the Company as a director, officer, employee or agent of any other
corporation, partnership, joint venture, trust employee benefit plan or other enterprise shall be
reduced by any amount Indemnitee has actually received as indemnification or advancement of
expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise.




     Section 12. Duration of Agreement. This Agreement shall continue until and terminate
upon the later of: (a) six years after the date that Indemnitee shall have ceased to serve as a
director of the Company; or (b) the final termination of any Proceeding then pending in respect of
which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of
any proceeding commenced by Indemnitee pursuant to Section 10 of this Agreement relating thereto.
This Agreement shall be binding upon the Company and its successors and assigns and shall inure to
the benefit of Indemnitee and his heirs, executors and administrators.



     Section 13. Severability. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including without limitation,
each portion of any Section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid illegal or unenforceable) shall not in



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any way be affected or impaired thereby and shall remain enforceable to the fullest extent
permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary
to conform to applicable law and to give the maximum effect to the intent of the parties hereto;
and (c) to the fullest extent possible, the provisions of this Agreement (including, without
limitation, each portion of any Section of this Agreement containing any such provision held to be
invalid illegal or unenforceable, that it not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.



     Section 14. Exception to Right of Indemnification or Advancement of Expenses.
Notwithstanding any other provision of this Agreement, but subject to Section 10(d) hereof,
Indemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement
with respect to any Proceeding brought by Indemnitee, or any claim therein, unless the bringing of
such Proceeding or making of such claim shall have been approved by the Board of Directors.



     Section 15. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the existence of this
Agreement.



     Section 16. Headings. The headings of the paragraphs of this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.



     Section 17. Definitions. For purposes of this Agreement:



          (a) “Change in Control” means, and shall be deemed to have occurred if, (i) any “person” (as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended),
other than a trustee or other fiduciary holding securities under an employee benefit plan of the
Company acting in such capacity or a corporation owned directly or indirectly by the stockholders
of the Company in substantially the same proportions as their ownership of stock of the Company,
becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company representing more than fifty percent (50%) of the total voting power
represented by the Company’s then outstanding voting stock, (ii) during any period of two (2)
consecutive years, individuals who at the beginning of such period constitute the Board of
Directors of the Company and any new director whose election by the Board of Directors or
nomination for election by the Company’s stockholders was approved by a vote of at least two thirds
(2/3) of the directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger
or consolidation of the Company with any other corporation other than a merger or consolidation
which would result in the voting stock of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted into voting stock of
the surviving entity) at least fifty percent (50%) of the total voting power represented by the
voting stock of the Company or such

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surviving entity outstanding immediately after such merger or consolidation, or the stockholders of
the Company approve a plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of (in one transaction or a series of related transactions) all or
substantially all of the Company’s assets.




          (b) “Corporate Status” describes the status of a person who is or was a director, officer,
employee or agent of the Company or of any other corporation, partnership, joint venture, trust
employee benefit plan or other enterprise which such person is or was serving at the request of the
Company.




          (c) “Disinterested Director” means a director of the Company who is not and as not a party to
the Proceeding in respect of which indemnification is sought by Indemnitee.




          (d) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding.




          (e) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past three years has been, retained
to represent: (i) the Company or Indemnitee in any matter material to either such party (other
than with respect to matters concerning the Indemnitee under this Agreement, or of other
indemnities under similar indemnification agreements), or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term
“Independent Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The
Company agrees to pay the reasonable fees and expenses of the Independent Counsel referred to above
and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages
arising out of or relating to this Agreement or its engagement pursuant hereto.




          (f) “Organization” shall mean the Company and any other corporation, partnership, joint
venture trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at
the express written request of the Company as a director, officer, employee, agent or fiduciary.




          (g) “Proceeding” includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other
actual, threatened or completed proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is
or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was a
director of the Company, by reason of any action taken by

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him or of any inaction on his part while acting as director of the Company, or by reason of the
fact that he is or was serving at the request of the Company as director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other enterprise, in each case
whether or not he is acting or serving in any such capacity at the time any liability or expense is
incurred for which indemnification or advancement of expenses can be provided under this Agreement;
except one initiated by an Indemnitee pursuant to Section 10 of this Agreement to enforce his
rights under this Agreement.




          (h) Reference to “other enterprise” shall include employee benefit plans; references to
“fines” shall include any excise tax assessed with respect to any employee benefit plan; references
to “serving at the request of the Company” shall include any service as a director, officer,
employee or agent of the Company which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, as participants or
beneficiaries; and a person who acted in good faith and in the manner he reasonably believed to be
in the interests of the participants and beneficiaries of an employee benefit plan shall not be
deemed to have acted in manner “not opposed to the best interests of the Company” as referred to in
this Agreement.




     Section 18. Enforcement.



          (a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to continue to serve as
a director of the Company, and the Company acknowledges that the Indemnitee is relying upon this
Agreement in continuing to serve as a director of the Company.




          (b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof, except as set forth
in the Recitals to this Agreement.




     Section 19. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both or the parties hereto. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.



     Section 20. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in
writing upon being served with any summons, citation, subpoena, complaint, indictment, information
or other document relating to any Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company
shall not relieve the Company of any obligation which it may have to the Indemnitee under this
Agreement or otherwise, except to the extent the Company is materially prejudiced by such failure.



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     Section 21. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i) delivered by hand
and receipted for by the party to whom said notice or other communication shall have been directed,
or (ii) mailed by certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:



	 	 	 	 	 
	 

	 	(a)
	 	If to Indemnitee, to the address set forth on
the signature page hereto
	 
	 	 	 	 
	 

	 	(b)
	 	If to the Company, to:
	 
	 	 	 	 
	 

	 	 	 	Ameritrade Holding Corporation
	 

	 	 	 	6940 Columbia Gateway Drive, Suite 200
	 

	 	 	 	Columbia, MD 21046
	 

	 	 	 	Attn: Ellen Koplow
	 

	 	 	 	Executive Vice President and General Counsel





or to such other address as may have been furnished to Indemnitee by the Company or to the Company
by Indemnitee, as the case may be.




     Section 22. Governing Law; Submission to Jurisdiction: Appointment of Agent for Service
of Process. This Agreement and the legal relations among the parties shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware, without regard to its
conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to
Section 10(a) of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally
(i) agree that any action or proceeding arising out of or in connection with this Agreement shall
be brought only in the Chancery Court of the State of Delaware (the “Delaware Court”), and not in
any other state or federal court in the United States of America or any court in any other country,
(ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any
action or proceeding arising out of or in connection with this Agreement, (iii) appoint, to the
extent such party is not a resident of the State of Delaware, irrevocably The Corporation Trust
Company, 1209 Orange Street, Wilmington, Delaware 19801 as its agent in the State of Delaware as
such party’s agent for acceptance of legal process in connection with any such action or proceeding
against such party with the same legal force and validity as if served upon such party personally
within the State of Delaware, (iv) waive any objection to the laying of venue of any such action or
proceeding in the Delaware Court, and (v) waive, and agree not to plead or to make, any claim that
any such action or proceeding brought in the Delaware Court has been brought in an improper or
otherwise inconvenient forum.



     Section 23. Miscellaneous. Use of the masculine pronoun shall be deemed to include
usage of the feminine pronoun where appropriate.



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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first
above written.



	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	TD AMERITRADE Holding Corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Name:
	 	Ellen L.S. Koplow	 	 	 	 
	 	 	Title:	 	Executive Vice President, General Counsel	 	 
	 

	 	 	 	and Secretary	 	 	 	 






	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Indemnitee:	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Address:
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 






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