exv10w35






EXHIBIT 10.35




AMENDMENT NO. 3 TO STOCKHOLDERS AGREEMENT




          This AMENDMENT NO. 3 TO STOCKHOLDERS AGREEMENT (this “Agreement”) is made and entered
into as of August 6, 2010 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”), TD Luxembourg International Holdings S.à r.l., a Luxembourg company and a
direct, wholly-owned subsidiary of TD Bank (“TD Lux” and, together 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 Company, the R Parties and TD Bank are parties to that certain Stockholders
Agreement, dated as of June 22, 2005, as amended (the “Stockholders Agreement”);




          WHEREAS, TD Lux has become an owner of record of shares of Common Stock;




          WHEREAS Section 2.1(c) of the Stockholders Agreement requires TD and the R Parties to reduce
the number of Voting Securities Beneficially Owned by such persons under certain circumstances;




          WHEREAS, the Company entered into a stock repurchase plan on May 7, 2010 for the purchase of
up to 15 million shares of Common Stock and completed such purchases on or about July 2, 2010 (the
“May 2010 Repurchase Plan”);




          WHEREAS, on August 5, 2010, the Company’s board of directors authorized the Company to
repurchase up to an additional 30 million shares of Common Stock (together with the May 2010
Repurchase Plan, the “Repurchase Plans”);




          WHEREAS, the parties hereto have entered into that certain Joinder and Waiver to Stockholders
Agreement, dated July 19, 2010 (the “Prior Waiver”); and




          WHEREAS, each of TD, the R Parties and the Company agree that TD shall effect the reduction,
if any, required by Section 2.1(c) of the Stockholders Agreement to the extent (and only to the
extent) such reduction is required as a result of the Repurchase Plans in accordance with terms of
this Agreement.




          NOW THEREFORE, 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

AMENDMENT




          SECTION 1.1. The parties agree that any requirement that TD reduce, pursuant to Section
2.1(c) of the Stockholders Agreement, as soon as reasonably practicable the number of Voting
Securities Beneficially Owned, to the extent (and only to the extent) such reduction is necessary
as a result of repurchases of Common Stock by the Company pursuant to the Repurchase Plans, is
hereby amended and replaced as set forth in this Section 1.1. TD shall take all actions reasonably
necessary to cause any such reduction to be (a) completed by January 24, 2014 and (b) commenced at
any time that, and then continued for so long as, such reduction can be accomplished by means of
sales executed at a price per share equal to or greater than TD’s then-applicable U.S.
dollar-denominated average carrying value per share of Voting Securities Beneficially Owned. In no
event shall TD, as a result of the Repurchase Plans, Beneficially Own Voting Securities in excess
of 48% of the Total Voting Power. Notwithstanding anything in this Agreement to the contrary, it
is agreed and understood that (i) the implementation of a written plan complying with Rule
10b5-1(c) under the Exchange Act and Rule 144 under the Securities Act (applicable to sales of
securities by Affiliates of an issuer), with no other limitations, except for the price limitation
set forth in clause (b) above, shall satisfy the requirements of clause (b) above for so long as
such plan is in place, which method of sales will in no event affect the obligation of TD to
complete its requirement in this Section 1.1 by January 24, 2014 and (ii) no reduction required
pursuant to this Section 1.1 shall require TD to (A) incur liability under Section 16(b) of the
Exchange Act or (B) Transfer Voting Securities during a period in which (x) the Company has imposed
trading restrictions on Directors or other Affiliates of the Company or (y) the general counsel of
the Company has determined that the Company or TD is in possession of material nonpublic
information relating to the Company.




          Except as set forth in the prior paragraph, all provisions of Section 2.1(c) of the
Stockholders Agreement shall remain in full force and effect, including, without limitation, the
provision whereby TD shall not, and shall not cause any of its Affiliates to, exercise any voting
rights in respect of any Voting Securities Beneficially Owned by such Person to the extent such
Voting Securities exceed the TD Ownership Limitation Percentage (including, for the avoidance of
doubt, any Voting Securities that are the subject of this Agreement), or alternatively, upon the
request of the Company, shall cause such shares in excess of the TD Ownership Limitation Percentage
to be voted, on any matter submitted to the holders of the Common Stock for a vote, in the same
proportions as the votes cast by all holders of Common Stock other than TD, the R Parties and their
respective Affiliates, and nothing in this Agreement shall in any way increase the TD Ownership
Limitation Percentage. TD shall provide to the Company and the R Parties, on an ongoing and
confidential basis, information in order to assess compliance with this Section 1.1 as may from
time to time reasonably be requested by such persons.




          SECTION 1.2. Termination of Amendment. The provisions of Section 1.1 of this
Agreement shall terminate without any further action by any of the parties hereto and shall have no
further force and effect on the earlier of January 24, 2014 or the termination of the Stockholders
Agreement in accordance with the terms thereof.







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          SECTION 1.3. Termination of Article II of Prior Waiver. Article II of the Prior
Waiver is hereby terminated and shall have no further force and effect. Except as set forth in the
prior sentence, all of the provisions of the Prior Waiver shall remain in full force and effect.




ARTICLE II

MISCELLANEOUS




          SECTION 2.1. Continued Effect of Original Agreement. As modified hereby, the
Stockholders Agreement is hereby ratified and confirmed and agreed to by all of the parties hereto
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 modified by this Agreement
and as it may be further amended, supplemented, restated or otherwise modified from time to time.




          SECTION 2.2. Counterparts. This Agreement 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 2.3. Governing Law. This Agreement 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 Agreement 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/ FREDERIC J. 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: Group Head, Corporate Development, 

Enterprise Strategy & Treasury
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	TD LUXEMBOURG INTERNATIONAL 

HOLDINGS S.À R.L.	 	J. JOE RICKETTS 1996 DYNASTY TRUST	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ YVES SAWAYA
	 	 	 	By: 
	/s/ J. PETER RICKETTS	 	 
	 

	 	 
	 	 	 	 	 	 	 
	Name: Yves Sawaya	 	Name: J. Peter Ricketts	 	 
	Title: Manager	 	Title: Trustee	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ NICOLAS HORLAIT
	 	 	 	 
	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	Name: Nicolas Horlait	 	 	 	 
	Title: Manager