exv10w44






EXHIBIT 10.44




CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT.

PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED

BY [CONFIDENTIAL TREATMENT REQUESTED]. MATERIAL OMITTED HAS BEEN

FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.




Barclays Bank PLC

5 The North Colonnade

Canary Wharf, London E14 4BB

Facsimile: ****

Telephone: ****




c/o Barclays Capital Inc.

as Agent for Barclays Bank PLC

745 Seventh Ave

New York, NY 10019




	 	 	 

	DATE:

	 	August 20, 2010
	 

	 	 
	TO:

	 	TD AMERITRADE HOLDING CORPORATION
	Attention:

	 	****
	Facsimile:

	 	****
	Telephone:

	 	****
	Email:

	 	****
	 

	 	 
	FROM:

	 	Barclays Capital Inc., acting as Agent for Barclays Bank PLC
	TELEPHONE:

	 	****






	 	 	 

	SUBJECT:

	 	Share Repurchase Transaction
	 

	 	 
	Reference Number(s):

	 	****






          The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and
conditions of the Transaction entered into between Barclays Bank PLC (“Barclays”), through its
agent Barclays Capital Inc. (the “Agent”), and TD Ameritrade Holding Corporation (“Counterparty”)
on the Trade Date specified below (the “Transaction”). This Confirmation constitutes a
“Confirmation” as referred to in the Master Agreement specified below. Barclays Bank PLC is not a
member of the Securities Investor Protection Corporation (“SIPC”). Barclays is regulated by the
Financial Services Authority.



The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the
“Equity Definitions”), as published by the International Swaps and Derivatives Association, Inc.,
are incorporated into this Confirmation. In the event of any inconsistency between the Equity
Definitions and this Confirmation, this Confirmation shall govern. For purposes of the Equity
Definitions, this Transaction shall be deemed to be a Share Forward Transaction.



Each party is hereby advised, and each such party acknowledges, that the other party has engaged
in, or refrained from engaging in, substantial financial transactions and has taken other material
actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates
on the terms and conditions set forth below.



1. This Confirmation evidences a complete and binding agreement between Barclays and Counterparty
as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall
supplement, form a part of, and be subject to, an agreement in the form of the ISDA 1992 Master
Agreement (Multicurrency – Cross Border)






1









 







(the “Master Agreement Form”) together with the 1994 ISDA Credit Support Annex (New York Law –
Bilateral Form) (the “CSA” and, together with the Master Agreement Form, the “Agreement”) as if
Barclays and Counterparty had executed an agreement in such form (without any Schedule but with
such elections set forth in this Confirmation) on the Trade Date. In the event of any
inconsistency between provisions of the Agreement and this Confirmation, this Confirmation will
prevail for the purpose of the Transaction. The parties hereby agree that no Transaction other
than the Transaction to which this Confirmation relates shall be governed by the Agreement.



2. The terms of the particular Transaction to which this Confirmation relates are as follows:




	 	 	 

	General Terms:
	 	 
	 
	 	 
	Trade Date:

	 	August 20, 2010
	 
	 	 
	Seller:

	 	Barclays
	 
	 	 
	Buyer:

	 	Counterparty
	 
	 	 
	Shares:

	 	The Common Stock, USD 0.01 par value per share of
Counterparty (Ticker symbol “AMTD”).
	 
	 	 
	Prepayment:

	 	Applicable
	 
	 	 
	Prepayment Amount:

	 	As specified in Schedule A
	 
	 	 
	Prepayment Date:

	 	Counterparty shall pay the Prepayment Amount to Barclays
no later than the Second Exchange Business Day following
the Trade Date.
	 
	 	 
	Variable Obligation

	 	Not Applicable
	 
	 	 
	Exchange:

	 	NASDAQ Global Select Market
	 
	 	 
	Related Exchange(s):

	 	All Exchanges.
	 
	 	 
	Calculation Agent:

	 	Barclays. All determinations made by the Calculation
Agent shall be made in good faith and in a commercially
reasonable manner. Promptly following a reasonable
request by Counterparty, the Calculation Agent shall
provide to such party in reasonable detail (i) the
material inputs or assumptions utilized by the
Calculation Agent in making such determination and (ii)
in the case of a calculation, the manner in which such
calculation was performed using such inputs or
assumptions. For the avoidance of doubt, the
Calculation Agent shall not be required to disclose any
proprietary models or data.
	 
	 	 
	Valuation:
	 	 
	 
	 	 
	Trading Period:

	 	The period of consecutive Scheduled Trading Days from
and including the Trade Date to and including the
Maximum Maturity Date, as specified in Schedule A;
provided that, Barclays may designate any Scheduled
Trading Day on or after the Minimum Maturity Date, as
specified in Schedule A, as the last Scheduled Trading
Day of the Trading Period. Barclays shall notify
Counterparty of any designation made pursuant to this
provision on the Scheduled Trading Day immediately
following such designated day.
	 
	 	 
	Market Disruption Event:

	 	Section 6.3(a) of the Equity Definitions shall be
amended by deleting the words “at any time during the
one hour period that ends at the relevant Valuation
Time, Latest Exercise Time, Knock-in Valuation Time or
Knock-out Valuation Time, as the case may be” and
replacing them with the words “at any time during the
regular trading session on the






2









 






	 	 	 

	 

	 	Exchange, without regard
to after hours or any other trading outside of the
regular trading session hours”, by amending and
restating clause (a)(iii) thereof in its entirety to
read as follows: “(iii) an Early Closure that the
Calculation Agent determines is material” and by adding
the words “ or (iv) a Regulatory Disruption” after
clause (a)(iii) as restated above.




Section 6.3(d) of the Equity Definitions is hereby
amended by deleting the remainder of the provision
following the term “Scheduled Closing Time” in the
fourth line thereof.
	 
	 	 
	Regulatory Disruption:

	 	A “Regulatory Disruption” shall occur if Barclays
determines in its commercially reasonable discretion
exercised in good faith that it is required in light of
legal, regulatory or self-regulatory requirements or
related policies or procedures for Barclays to refrain
from all or any part of the market activity in which it
would otherwise engage in connection with this
Transaction.
	 
	 	 
	Disrupted Day:

	 	The definition of “Disrupted Day” in Section 6.4 of the
Equity Definitions shall be amended by adding the
following sentence after the first sentence: “A
Scheduled Trading Day on which a Related Exchange fails
to open during its regular trading session will not be a
Disrupted Day if the Calculation Agent determines that
such failure will not have a material impact on
Barclays’s ability to unwind any hedging transactions
related to the Transaction”.
	 
	 	 
	Consequence of Disrupted Days:

	 	Notwithstanding anything to the contrary in the Equity
Definitions, to the extent that a Disrupted Day occurs
during the Trading Period, the Calculation Agent may
postpone the Maximum Maturity Date and the Minimum
Maturity Date. If any Disrupted Day occurs during the
Trading Period, the Calculation Agent shall determine
whether (i) such Disrupted Day is a Disrupted Day in
whole, in which case the 10b-18 VWAP for such Disrupted
Day shall not be included for purposes of determining
the Settlement Price or (ii) such Disrupted Day is a
Disrupted Day only in part, in which case the 10b-18
VWAP for such Disrupted Day shall be determined by the
Calculation Agent based on Rule 10b-18 eligible
transactions in the Shares on such Disrupted Day
effected before the relevant Market Disruption Event (if
any) occurred and/or after the relevant Market
Disruption Event (if any) ended, and the Settlement
Price shall be determined by the Calculation Agent using
an appropriately weighted average of the 10b-18 VWAPs
for all Scheduled Trading Days in the Trading Period
instead of an arithmetic average.
	 
	 	 
	Valuation Time:

	 	Scheduled Closing Time; provided that if the principal
trading session is extended, the Calculation Agent shall
determine the Valuation Time in its reasonable
discretion.
	 
	 	 
	Valuation Date:

	 	The last Scheduled Trading Day during the Trading Period.
	 
	 	 
	Settlement Terms:
	 	 
	 
	 	 
	Settlement Method Election:

	 	Not Applicable; subject to the terms of “Net Share
Settlement” below.






3









 






	 	 	 

	Physical Settlement:

	 	Applicable, subject to the terms of “Delivery of
Shares and Cash” below
	 
	 	 
	Settlement Currency:

	 	USD
	 
	 	 
	Settlement Price:

	 	The amount equal to (i) the arithmetic average of
the 10b-18 VWAPs for all Exchange Business Days in
the Trading Period (the “Average 10b-18 VWAP”)
minus (ii) the Discount, as specified in Schedule
A.
	 
	 	 
	10b-18 VWAP:

	 	(A) For any Scheduled Trading Day that is not a
Disrupted Day, the volume-weighted average price
at which the Shares trade as reported in the
composite transactions for all United States
securities exchanges on which such Shares are
traded, excluding (i) trades that do not settle
regular way, (ii) opening (regular way) reported
trades in the consolidated system on such
Scheduled Trading Day, (iii) trades that occur in
the last ten minutes before the scheduled close
of trading on the Exchange on such Scheduled
Trading Day and ten minutes before the scheduled
close of the primary trading in the market where
the trade is effected, and (iv) trades on such
Scheduled Trading Day that do not satisfy the
requirements of Rule 10b-18(b)(3) of the
Securities Exchange Act of 1934, as amended (the
“Exchange Act”), as determined in good faith by
the Calculation Agent, or (B) for any Scheduled
Trading Day that is a Disrupted Day, an amount
determined in good faith and in a commercially
reasonable manner by the Calculation Agent as
10b-18 VWAP pursuant to “Consequence of Disrupted
Days” above. Counterparty acknowledges that the
Calculation Agent may refer to the Bloomberg Page
“AMTD <Equity> AQR SEC” (or any successor
thereto) for any Scheduled Trading Day to
determine the 10b-18 VWAP.
	 
	 	 
	Delivery of Shares and Cash:

	 	On the Settlement Date, Barclays will deliver to
Counterparty, the Number of Shares to be
Delivered, plus an amount in cash equal to the
amount (the “Cash Delivery Amount”) by which the
Prepayment Amount exceeds the Final Notional
Amount (collectively, the “Final Delivery
Amount”).
	 
	 	 
	Number of Shares to be Delivered:

	 	As specified in Schedule A.
	 
	 	 
	Final Notional Amount:

	 	The product of the Number of Shares to be
Delivered multiplied by the Settlement Price.
	 
	 	 
	Settlement Date:

	 	Three Exchange Business Days following the last
Scheduled Trading Day during the Trading Period.
	 
	 	 
	Net Share Settlement:

	 	The terms of “Delivery of Shares and Cash” above
notwithstanding Counterparty may, by a separate
instruction given to Barclays on or prior to the
second Scheduled Trading Day following the final
day of the Trading Period, elect that Net Share
Settlement shall apply to the Cash Delivery Amount
provided that Counterparty makes the
representation contained in Paragraph 5(m)
hereunder as of the date of such election. If Net
Share Settlement is applicable, on the day that is
three Scheduled Trading Days after the completion
of the Net Share Settlement Period (the “Net Share
Settlement Date”) Barclays shall deliver (in
addition to the Number of Shares to be Delivered
previously delivered on the Settlement






4









 






	 	 	 	 	 

	 	 	Date) a
number of Shares to Counterparty (the “Net
Delivery Shares”) equal to the sum of the Daily
Net Delivery Shares for all Scheduled Trading Days
during the Net Share Settlement Period. No
fractional Shares shall be delivered in connection
with Net Share Settlement by Barclays, and the
value of any fractional Shares otherwise
deliverable with respect to any Scheduled Trading
Day during the Net Share Settlement Period shall
be paid in cash to Counterparty on the Net Share
Settlement Date (such value to be determined by
multiplying such fractional Share by the volume
weighted average price at which Barclays purchased
such Shares).
	 
	 	 	 	 
	Daily Net Delivery Shares:	 	For any Scheduled Trading Day during the Net Share
Settlement Period, a number of Shares, rounded
down to the nearest whole integer, equal to (a)
the quotient of (x) USD 8,000,000 (the “Daily
Purchase Amount”) or, with respect to the final
Scheduled Trading Day during the Net Share
Settlement Period, a lesser amount equal to (i)
the Cash Delivery Amount minus (ii) the sum of all
prior Daily Purchase Amounts divided by (y) (i)
the volume weighted average price at which
Barclays purchased such Shares on such Scheduled
Trading Day plus (ii) the Fee Amount or (b) such
lesser number of shares as may be necessary in
order for Barclays to comply with its obligations
under Section 5(b) hereof.
	 
	 	 	 	 
	Fee Amount:	 	USD 0.02
	 
	 	 	 	 
	Net Share Settlement Period:	 	The period during which Barclays makes purchases
of the Net Delivery Shares, commencing on the
third Scheduled Trading Day immediately following
the final day of the Trading Period and ending on
the Scheduled Trading Day on which Barclays
completes its purchases of the Net Delivery
Shares.
	 
	 	 	 	 
	Credit Support	 	Paragraph 2 of the the CSA is hereby amended by
adding the following to the end thereof:
	 
	 	 	 	 
	 	 	In addition, to secure its Obligations under this
Agreement, Barclays hereby pledges, assigns and
grants to Counterparty a security interest in,
lien on and right of set-off against, all of
Barclays’s right, title, interest, powers and
privileges in the property described below,
whether now owned or existing or hereafter
acquired or arising and wherever located
(collectively, the “Collateral”):
	 
	 	 	 	 
	 

	 	1.
	 	that certain account number in the name of
Barclays Bank PLC, maintained by The Bank of New
York Mellon (in such capacity, the “Custodian”)
and all investment property, instruments,
financial assets and other property (as such terms
are defined in the Uniform Commercial Code in
effect in the State of New York from time to time,
(the “UCC”)) from time to time held in or standing
to the credit of such account or arising in
connection with such account (or any successor
account, the “Collateral Account” and together
with any property credited thereto and rights
related thereto, the “Custodial Collateral”);
	 
	 	 	 	 
	 

	 	2.
	 	all books and records pertaining to the
Custodial Collateral; and






5









 






	 	 	 	 	 

	 

	 	3.
	 	all proceeds (as such term is defined in the
UCC) relating to any of the foregoing; including,
without limitation, distributions (whether
principal or interest), dividends (in money,
shares of stock or other property), return of
capital, securities or other property issued
pursuant to any recapitalization, reorganization,
merger, exchange or other transaction or any
property received in substitution for the
Custodial Collateral, and all proceeds of any
sale, transfer, liquidation, redemption or
reinvestment of the Custodial Collateral.
	 
	 	 	 	 
	 	 	At all times commencing on the Prepayment Date and
while this Transaction remains outstanding, unless
otherwise explicitly agreed between the parties
hereto, Barclays shall have credited to and
maintain in the Collateral Account, an amount of
property having a Value (taking into account the
Valuation Percentage with respect to each type of
Eligible Collateral) not less than the Independent
Amount.
	 
	 	 	 	 
	 	 	“Independent Amount” for purposes of this
Transaction and with respect to Barclays means an
amount equal to the Prepayment Amount.
	 
	 	 	 	 
	 	 	Barclays agrees that all property credited to the
Collateral Account shall consist of items that
constitute Eligible Collateral. For purposes
hereof, “Eligible Collateral” shall mean any of
the following:
	 
	 	 	 	 
	 

	 	(i)
	 	cash in USD at a Valuation Percentage of 100%;
	 
	 	 	 	 
	 

	 	(ii)
	 	negotiable debt obligations issued by the
United States Treasury Department (“Treasury
Securities”) having a remaining term to maturity
of less than one year at a Valuation Percentage of
99.25%;
	 
	 	 	 	 
	 

	 	(iii)
	 	Treasury Securities having a remaining term
to maturity of one year or greater but less than
five years at a Valuation Percentage of 97%;
	 
	 	 	 	 
	 

	 	(iv)
	 	Treasury Securities having a remaining term
to maturity of five years or greater but less than
ten years at a Valuation Percentage of 93%;
	 
	 	 	 	 
	 

	 	(v)
	 	Treasury Securities having a remaining term to
maturity of ten years or greater but less than 20
years at a Valuation Percentage of 91%; and
	 
	 	 	 	 
	 

	 	(vi)
	 	Treasury Securities having a remaining term
to maturity of 20 years or greater but less than
30 years at a Valuation Percentage of 85%.
	 
	 	 	 	 
	 	 	Delivery of Custodial Collateral to the Custodian
shall constitute a Transfer to the Secured Party
for purposes of Paragraphs 3 and 9 of the CSA.
The Collateral shall be deemed to be Posted
Collateral for all purposes of the CSA. Following
the delivery of the Independent Amount to the
Collateral Account, Barclays’s Exposure to this
Transaction shall be deemed to be zero. The
parties agree that Secured






6









 






	 	 	 

	 

	 	Party’s Exposure to
this Transaction shall at all times be zero.
	 
	 	 
	 

	 	Paragraph 6(c) of the CSA is hereby amended by
deleting the words commencing with “if the Secured
Party is” in the second line thereof to, and
including, the words “Uniform Commercial Code,” in
the fifth line thereof and replacing them with the
words “the Secured Party shall not”.
	 
	 	 
	 

	 	With respect to the Custodial Collateral pledged
hereunder, Paragraph 9(ii) of the CSA is hereby
deleted in its entirety and replaced with the
following: “it is the sole owner of or otherwise
has the right to pledge all Eligible Collateral it
has pledged to the Secured Party, free and clear
of any security interest, lien, encumbrance or
other restriction other than the security interest
created hereby and any security interest of the
Custodian.”
	 
	 	 
	 

	 	Barclays agrees that the Custodian meets all of
the conditions set forth in Paragraph 13(g) of the
CSA.
	 
	 	 
	 

	 	“Valuation Date” for purposes of Paragraph
13(c)(ii) of the CSA shall mean each Local
Business Day while this Transaction remains
outstanding.
	 
	 	 
	 

	 	“Valuation Time” for purposes of Paragraph
13(c)(iii) of the CSA shall mean the close of
business on the Local Business Day immediately
preceding the Valuation Date or date of
calculation, as applicable, provided that the
calculations of Value and Exposure will, as far as
practicable, be made as of approximately the same
time on the same date.
	 
	 	 
	Adjustments:
	 	 
	 
	 	 
	Method of Adjustment:

	 	Calculation Agent Adjustment; provided that the
Equity Definitions shall be amended (a) by
replacing the words “diluting or concentrative” in
Sections 11.2(a), 11.2(c) (in two instances) and
11.2(e)(vii) with the word “material”, (b) by
adding the words “or the Transaction” after the
words “theoretical value of the relevant Shares”
in Section 11.2(a), 11.2(c) and 11.2(e)(vii) and
(c) by deleting Section 11.2(e)(iii); provided,
further that adjustments may be made to account
for changes in volatility and liquidity relative
to the relevant Shares.






7









 






	 	 	 

	Extraordinary Events:
	 	 
	 
	 	 
	New Shares:

	 	Section 12.1(i) of the Equity
Definitions is hereby amended by
deleting the text in clause (i) in
its entirety and replacing it with
the phrase “publicly quoted, traded
or listed on any of the New York
Stock Exchange, the American Stock
Exchange, the NASDAQ Global Select
Market or the NASDAQ Global Market
(or their respective successors)”.
	 
	 	 
	Share-for-Share:

	 	The definition of “Share-for-Share”
set forth in Section 12.1(f) of the
Equity Definitions is hereby amended
by the deletion of the parenthetical
in clause (i) thereof.
	 
	 	 
	Consequence of Merger Events:
	 	 
	 
	 	 
	Share-for-Share:

	 	Modified Calculation Agent Adjustment.
	 
	 	 
	Share-for-Other:

	 	Cancellation and Payment (Calculation
Agent Determination).
	 
	 	 
	Share-for-Combined:

	 	Cancellation and Payment (Calculation
Agent Determination); provided that
Barclays may elect Component
Adjustment.
	 
	 	 
	Consequence of Tender Offers:
	 	 
	 
	 	 
	Tender Offer:

	 	Applicable
	 
	 	 
	Share-for-Share:

	 	Modified Calculation Agent Adjustment.
	 
	 	 
	Share-for-Other:

	 	Modified Calculation Agent Adjustment.
	 
	 	 
	Share-for-Combined:

	 	Modified Calculation Agent Adjustment.
	 
	 	 
	Modified Calculation Agent Adjustment:

	 	For greater certainty, the definition
of “Modified Calculation Agent
Adjustment” in Sections 12.2 and 12.3
of the Equity Definitions shall be
amended by (i) revising the second
parenthetical provision to read as
follows “(including adjustments to
account for changes in volatility,
stock loan rate or liquidity relevant
to the Shares or to this Transaction,
but excluding adjustments to account
for changes in expected dividends)”
and (ii) adding the following
italicized language after the
stipulated parenthetical provision:
	 

	 	from the Announcement Date to the
Merger Date (Section 12.2) or Tender
Offer Date (Section 12.3).”.
	 
	 	 
	Announcement Date:

	 	The definition of “Announcement Date”
in Section 12.1 of the Equity
Definitions shall be amended by (i)
replacing the word “leads to the” in
the third and the fifth lines thereof
with the words “, if completed, would
lead to a”, (ii) replacing the words
“voting shares” in the fifth line
thereof with the word “Shares”, (iii)
inserting the words “by any entity”
after the word “announcement” in the
third and the fifth lines thereof,
(iv) inserting the words “or to
explore the possibility of engaging
in” after the words “engage in” in
the third line thereto and (v)
inserting the words “or to explore
the possibility of purchasing or
otherwise obtaining” after the word
“obtain” in the fifth line thereto.
	 
	 	 
	Announcement Event:

	 	If an Announcement Event occurs, the
Calculation Agent will determine the
economic effect of the Announcement
Event on the theoretical value of
this Transaction (including without
limitation any change in volatility,
stock loan rate or liquidity relevant
to the Shares or to this Transaction)
from the Announcement Date to the
Valuation Date. If such economic






8









 






	 	 	 

	 

	 	effect is material, the Calculation
Agent will adjust the terms of this
Transaction to reflect such economic
effect. “Announcement Event” shall
mean the occurrence of the
Announcement Date of a Merger Event
or Tender Offer.
	 
	 	 
	Composition of Combined Consideration:

	 	Not Applicable; provided that,
notwithstanding Sections 12.5(b) and
12.1(f) of the Equity Definitions, to
the extent that the composition of
the consideration for the relevant
Shares pursuant to a Tender Offer or
Merger Event could be elected by an
actual holder of the Shares, the
Calculation Agent will, in its sole
discretion, determine such
composition.
	 
	 	 
	Nationalization, Insolvency or Delisting:

	 	Cancellation and Payment (Calculation
Agent Determination); provided that,
in addition to the provisions of
Section 12.6(a)(iii) of the Equity
Definitions, it will also constitute
a Delisting if the Exchange is
located in the United States and the
Shares are not immediately re-listed,
re-traded or re-quoted on any of the
New York Stock Exchange, the American
Stock Exchange, the NASDAQ Global
Select Market or the NASDAQ Global
Market (or their respective
successors); if the Shares are
immediately re-listed, re-traded or
re-quoted on any such exchange or
quotation system, such exchange or
quotation system shall thereafter be
deemed to be the Exchange.
	 
	 	 
	Additional Disruption Events:
	 	 
	 
	 	 
	Change in Law:

	 	Applicable; provided that Section
12.9(a)(ii) of the Equity Definitions
is hereby amended by (i) replacing
the phrase “the interpretation” in
the third line thereof with the
phrase “or public announcement of the
formal or informal interpretation”,
(ii) immediately following the word
“Transaction” in clause (X) thereof,
adding the phrase “in the manner
contemplated by Barclays on the Trade
Date” and (iii) deleting clause (Y)
thereof.
	 
	 	 
	Failure to Deliver:

	 	Not Applicable.
	 
	 	 
	Insolvency Filing:

	 	Applicable; provided that the
definition of “Insolvency Filing” in
Section 12.9 of the Equity
Definitions shall be amended by
deleting the clause “provided that
proceedings instituted or petitions
presented by creditors and not
consented to by the Issuer shall not
be deemed an Insolvency Filing” at
the end of such definition and
replacing it with the following: “;
or it has instituted against it a
proceeding seeking a judgment of
insolvency or bankruptcy or any other
relief under any bankruptcy or
insolvency law or other similar law
affecting creditors’ rights, or a
petition is presented for its
winding-up or liquidation by a
creditor and such proceeding is not
dismissed, discharged, stayed or
restrained in each case within 15
days of the institution or
presentation thereof.”
	 
	 	 
	 

	 	Section 12.9(b)(i) of the Equity
Definitions is hereby amended by
adding the following sentence at the
end: “If neither party elects to
terminate the Transaction, the
Calculation Agent may adjust the
terms of the Transaction upon the
occurrence of such an event pursuant
to Modified Calculation Agent
Adjustment (as if such event were a
Tender Offer).”






9









 






	 	 	 

	Hedging Disruption:

	 	Applicable.
	 
	 	 
	Increased Cost of Hedging:

	 	Applicable.
	 
	 	 
	Loss of Stock Borrow:

	 	Not Applicable
	 
	 	 
	Increased Cost of Stock Borrow:

	 	Not Applicable
	 
	 	 
	Hedging Party:

	 	Barclays or an affiliate of Barclays
that is involved in the hedging of
this Transaction for all applicable
Additional Disruption Events.
	 
	 	 
	Determining Party:

	 	Barclays for all applicable
Extraordinary Events. All
determinations made by the
Determining Party shall be made in
good faith and in a commercially
reasonable manner. Promptly
following a reasonable request by
Counterparty, the Determining Party
shall provide to such party in
reasonable detail (i) the material
inputs or assumptions utilized by the
Determining Party in making such
determination and (ii) in the case of
a calculation, the manner in which
such calculation was performed using
such inputs or assumptions. For the
avoidance of doubt, the Determining
Party shall not be required to
disclose any proprietary models or
data.
	 
	 	 
	Acknowledgments:
	 	 
	 
	 	 
	Non-Reliance:

	 	Applicable.
	 
	 	 
	Agreements and Acknowledgments Regarding
Hedging Activities:

	 	Applicable.
	 
	 	 
	Additional Acknowledgments:

	 	Applicable.






3. Mutual Representations, Warranties and Agreements.



Each of Barclays and Counterparty represents and warrants to, and agrees with, the other party
that:





	 	(a)	 	Commodity Exchange Act. It is an “eligible contract participant” within the
meaning of Section 1a(12) of the U.S. Commodity Exchange Act, as amended (the “CEA”).
The Transaction has been subject to individual negotiation by the parties. The
Transaction has not been executed or traded on a “trading facility” as defined in
Section 1a(33) of the CEA;
	 
	 	(b)	 	Securities Act. It is a “qualified institutional buyer” as defined in Rule
144A under the Securities Act, or an “accredited investor” as defined in Section
2(a)(15)(ii) of the Securities Act; and
	 
	 	(c)	 	ERISA. The assets used in the Transaction (1) are not assets of any “plan” (as
such term is defined in Section 4975 of the U.S. Internal Revenue Code (the “Code”))
subject to Section 4975 of the Code or any “employee benefit plan” (as such term is
defined in Section 3(3) of the U.S. Employee Retirement Income Security Act of 1974, as
amended (“ERISA”)) subject to Title I of ERISA, and (2) do not constitute “plan assets”
within the meaning of Department of Labor Regulation 2510.3-101, 29 CFR Section
2510-3-101.





4. Representations, Warranties and Agreements of Counterparty.



In addition to the representations and warranties in the Agreement and those contained elsewhere
herein, Counterparty further represents, warrants and agrees that:





	 	(a)	 	If Counterparty purchases any Shares pursuant to this Transaction, such
purchase(s) will comply with (i) all laws and regulations applicable to it and (ii) all
contractual obligations of Counterparty;




10









 






	 	(b)	 	Counterparty shall immediately provide written notice to Barclays upon
obtaining knowledge of the occurrence of any event that would constitute an Event of
Default, a Potential Event of Default, a Potential Adjustment Event (other than an
event constituting a Potential Adjustment Event solely by reason of Section
11.2(e)(vii) of the Equity Definitions), a Merger Event or any other Extraordinary
Event; provided, however, that should Counterparty be in possession of material
non-public information regarding Counterparty, Counterparty shall not communicate such
information to Barclays;
	 
	 	(c)	 	(A) Counterparty is acting for its own account, and it has made its own
independent decisions to enter into the Transaction and as to whether the Transaction
is appropriate or proper for it based upon its own judgment and upon advice from such
advisers as it has deemed necessary, (B) Counterparty is not relying on any
communication (written or oral) of Barclays or any of its affiliates as investment
advice or as a recommendation to enter into the Transaction (it being understood that
information and explanations related to the terms and conditions of the Transaction
shall not be considered investment advice or a recommendation to enter into the
Transaction) and (C) no communication (written or oral) received from Barclays or any
of its affiliates shall be deemed to be an assurance or guarantee as to the expected
results of the Transaction;
	 
	 	(d)	 	[Reserved]
	 
	 	(e)	 	Counterparty has (and shall at all times during the Transaction have) the
capacity and authority to invest directly in the Shares underlying the Transaction and
has not entered into the Transaction with the intent to avoid any regulatory filings;
	 
	 	(f)	 	Counterparty’s financial condition is such that it has no need for liquidity
with respect to its investment in the Transaction and no need to dispose of any portion
thereof to satisfy any existing or contemplated undertaking or indebtedness;
	 
	 	(g)	 	[Reserved]
	 
	 	(h)	 	Counterparty is not as of the Trade Date, and shall not be after giving effect
to the transactions contemplated hereby, “insolvent” (as such term is defined in
Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the
“Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal
to the maximum Number of Shares to be Delivered hereunder in compliance with the laws
of the jurisdiction of Counterparty’s incorporation or organization;
	 
	 	(i)	 	the Transaction, and any repurchase of the Shares by Counterparty in connection
with the Transaction, is pursuant to a publicly announced Share repurchase program that
has been approved by Counterparty’s board of directors and is in accordance with
Counterparty’s Derivative Use Policy, which has been approved by Counterparty’s board
of directors, and any such repurchase has been, or shall when so required be, publicly
disclosed in its periodic filings under the Exchange Act and its financial statements
and notes thereto;
	 
	 	(j)	 	Counterparty understands, agrees and acknowledges that Barclays has no
obligation or intention to register the Transaction under the Securities Act, any state
securities law or other applicable federal securities law;
	 
	 	(k)	 	each of Counterparty’s filings under the Securities Act, the Exchange Act, or
other applicable securities laws that are required to be filed have been filed and
that, as of the respective dates thereof and as of the date of this representation,
such filings when considered as a whole (with the more recent such filings deemed to
amend inconsistent statements contained in any earlier such filings) do not contain any
misstatement of a material fact or any omission of a material fact




11









 






	 	 	 	required to be stated therein or necessary to make the statements made therein, in
the light of the circumstances under which they were made, not misleading;
	 
	 	(l)	 	Counterparty is not, and after giving effect to the transactions contemplated
hereby will not be, required to register as an “investment company” as such term is
defined in the Investment Company Act of 1940, as amended;
	 
	 	(m)	 	Counterparty understands, agrees and acknowledges that no obligations of
Barclays to it hereunder shall be entitled to the benefit of deposit insurance and that
such obligations shall not be guaranteed by any affiliate of Barclays or any
governmental agency;
	 
	 	(n)	 	without limiting the generality of Section 13.1 of the Equity Definitions,
Counterparty acknowledges that Barclays is not making any representations or warranties
with respect to the treatment of the Transaction under FASB Statements 128, 133, as
amended, 149 or 150, EITF Issue No. 00-19, 01-6, 03-6 or 07-5 (or any successor issue
statements), under FASB’s Liabilities & Equity Project or under FASB Staff Position or
any other accounting guidance; and
	 
	 	(o)	 	Counterparty is not entering into the Transaction for the purpose of (i)
creating actual or apparent trading activity in the Shares (or any security convertible
into or exchangeable for the Shares) or (ii) raising or depressing or otherwise
manipulating the price of the Shares (or any security convertible into or exchangeable
for the Shares) or otherwise in violation of the Exchange Act.





5. Other Provisions:





	 	(a)	 	Method of Delivery. Whenever delivery of funds or other assets is required
hereunder by or to Counterparty, such delivery shall be effected through Agent. In
addition, all notices, demands and communications of any kind relating to the
Transaction between Barclays and Counterparty shall be transmitted exclusively through
Agent.
	 
	 	(b)	 	Rule 10b-18.






	 	(i)	 	During the Net Share Settlement Period, if any, Barclays agrees
(x) to make all purchases of Shares (A) through only one broker or dealer on
any single day and (B) in a manner that would comply with the limitations set
forth in clauses  (b)(2), (b)(4) and (c) of Rule 10b-18 under the
Securities Exchange Act of 1934 (“Rule 10b-18”) and (y) to use commercially
reasonable efforts to make all purchases of Shares in a manner that would
comply with the limitations set forth in clause (b)(3) of Rule 10b-18, in each
case as if such rule was applicable to such purchases.
	 
	 	(ii)	 	Except as disclosed to Barclays in writing prior to the Trade
Date, Counterparty represents and warrants to Barclays that it has not made any
purchases of blocks by or for itself or any of its Affiliated Purchasers
pursuant to the one block purchase per week exception in Rule 10b-18(b)(4)
under the Exchange Act during each of the four calendar weeks preceding such
date (“Rule 10b-18 purchase,” “blocks” and “Affiliated Purchaser”, each as
defined in Rule 10b-18).
	 
	 	(iii)	 	Counterparty agrees that it (A) will not, on any day during
the Trading Period and the Net Share Settlement Period, if any, make, or permit
to be made, any public announcement (as defined in Rule 165(f) under the
Securities Act) of any Merger Transaction or potential Merger Transaction
unless such public announcement is made prior to the opening or after the close
of the regular trading session on the Exchange for the Shares or unless
Counterparty reasonably concludes, based on the advice of outside counsel, that
it is required to make such an announcement during such a regular trading
session; (B) shall promptly (but in any event prior to the next opening of the
regular trading session on the Exchange in the case of such an announcement not
made during such a regular trading




12









 






	 	 	 	session) notify Barclays following any such announcement that such
announcement has been made; and (C) shall promptly (but in any event prior
to the next opening of the regular trading session on the Exchange) provide
Barclays with written notice specifying (i) Counterparty’s average daily
Rule 10b-18 Purchases (as defined in Rule 10b-18) during the three full
calendar months immediately preceding the announcement date that were not
effected through Barclays or its affiliates and (ii) the number of Shares
purchased pursuant to the proviso in Rule 10b-18(b)(4) under the Exchange
Act for the three full calendar months preceding the announcement date. Such
written notice shall be deemed to be a certification by Counterparty to
Barclays that such information is true and correct. In addition,
Counterparty shall promptly notify Barclays of the earlier to occur of the
completion of such transaction and the completion of the vote by target
shareholders. “Merger Transaction” means any merger, acquisition or similar
transaction involving a recapitalization as contemplated by Rule
10b-18(a)(13)(iv) under the Exchange Act.






	 	(c)	 	Rule 10b5-1. It is the intent of the parties that this Transaction comply with
the requirements of Rule 10b5-1(c)(1)(i)(B) of the Exchange Act (“Rule 10b5-1”), and
the parties agree that this Confirmation shall be interpreted to comply with the
requirements of Rule 10b5-1(c), and Counterparty shall take no action that results in
this Transaction not so complying with such requirements. Without limiting the
generality of the preceding sentence, Counterparty acknowledges and agrees that (A)
Counterparty does not have, and shall not attempt to exercise, any influence over how,
when or whether Barclays effects any purchases in connection with this Transaction, (B)
during the Trading Period and the Net Share Settlement Period, if any, neither
Counterparty nor its officers or employees shall, directly or indirectly, communicate
any information regarding Counterparty or the Shares to any employee of Barclays or its
affiliates who is directly involved with the hedging of and trading with respect to
this Transaction, (C) Counterparty is entering into this Transaction in good faith and
not as part of a plan or scheme to evade compliance with federal securities laws
including, without limitation, Rule 10b-5 and (D) Counterparty will not alter or
deviate from this Confirmation or enter into or alter a corresponding hedging
transaction with respect to the Shares. Counterparty also acknowledges and agrees that
any amendment, modification, waiver or termination of this Confirmation must be
effected in accordance with the requirements for the amendment or termination of a
“plan” as defined in Rule 10b5-1(c). Without limiting the generality of the foregoing,
any such amendment, modification, waiver or termination shall be made in good faith and
not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 and no such
amendment, modification or waiver shall be made at any time at which Counterparty or
any officer or director of Counterparty is aware of any material non-public information
regarding Counterparty or the Shares.
	 
	 	(d)	 	Company Purchases. Without the prior written consent of Barclays and except for
purchases which are not solicited by or on behalf of Counterparty or its affiliated
purchasers (each as defined in Rule 10b-18 of the Exchange Act) or purchases executed
by Barclays or an Affiliate of Barclays, Counterparty shall not purchase, and shall
cause its affiliated purchasers not to directly or indirectly (including, without
limitation, by means of any cash-settled or other derivative instrument) purchase,
offer to purchase, place any bid or limit order that would effect a purchase of, or
commence any tender offer relating to, any Shares (or an equivalent interest, including
a unit of beneficial interest in a trust or limited partnership or a depository share)
or any security convertible into or exchangeable or exercisable for Shares during the
Trading Period and the Net Share Settlement Period, if any.
	 
	 	(e)	 	Regulation M. Counterparty is not on the date hereof, engaged in a
distribution, as such term is used in Regulation M under the Exchange Act, of any
securities of Counterparty for which the Shares are a “covered security”, as defined in
Rule 100 of Regulation M and Counterparty is subject to a Rule 102 “restricted period”
with respect to the Shares, other than a distribution meeting the requirements of the
exception set forth in Section 102(b)(7) of Regulation M under the Exchange Act.
Counterparty shall not, until the Settlement Date or the Net Share Settlement Date, as
applicable, engage in any such distribution.




13









 






	 	(f)	 	[Reserved]
	 
	 	(g)	 	Transfer or Assignment. Counterparty may not transfer or assign any of its
rights or obligations under the Transaction without the prior written consent of
Barclays. Notwithstanding any provision of the Agreement to the contrary, Barclays
may, subject to applicable law, freely transfer and assign all of its rights and
obligations under the Transaction without the consent of Counterparty to any affiliate
of Barclays whose obligations hereunder are guaranteed by Barclays.
	 
	 	 	 	Notwithstanding any other provision in this Confirmation to the contrary requiring
or allowing Barclays to purchase, sell, receive or deliver any Shares or other
securities to or from Counterparty, Barclays may designate any of its affiliates to
purchase, sell, receive or deliver such Shares or other securities and otherwise to
perform Barclays’ obligations in respect of the Transaction and any such designee
may assume such obligations. Barclays shall be discharged of its obligations to
Counterparty to the extent of any such performance.
	 
	 	(h)	 	Role of Agent. Each of Barclays and Counterparty acknowledges to and agrees
with the other party hereto and to and with the Agent that (i) the Agent is acting as
agent for Barclays under the Transaction pursuant to instructions from such party, (ii)
the Agent is not a principal or party to the Transaction, and may transfer its rights
and obligations with respect to the Transaction, (iii) the Agent shall have no
responsibility, obligation or liability, by way of issuance, guaranty, endorsement or
otherwise in any manner with respect to the performance of either party under the
Transaction, (iv) Barclays and the Agent have not given, and Counterparty is not
relying (for purposes of making any investment decision or otherwise) upon, any
statements, opinions or representations (whether written or oral) of Barclays or the
Agent, other than the representations expressly set forth in this Confirmation or the
Agreement, and (v) each party agrees to proceed solely against the other party, and not
the Agent, to collect or recover any money or securities owed to it in connection with
the Transaction. Each party hereto acknowledges and agrees that the Agent is an
intended third party beneficiary hereunder. Counterparty acknowledges that the Agent
is an affiliate of Barclays.
	 
	 	(i)	 	Regulatory Provisions. The time of dealing for the Transaction will be
confirmed by Barclays upon written request by Counterparty. The Agent will furnish to
Counterparty upon written request a statement as to the source and amount of any
remuneration received or to be received by the Agent in connection with a Transaction.
	 
	 	(j)	 	Netting and Setoff. Obligations under the Transaction shall not be netted,
recouped or set off (including pursuant to Section 6 of the Agreement) against any
other obligations of the parties, whether arising under the Agreement, this
Confirmation, under any other agreement between the parties hereto, by operation of law
or otherwise, and no other obligations of the parties shall be netted, recouped or set
off (including pursuant to Section 6 of the Agreement) against obligations under the
Transaction, whether arising under the Agreement, this Confirmation, under any other
agreement between the parties hereto, by operation of law or otherwise, and each party
hereby waives any such right of setoff, netting or recoupment; provided that both
parties agree that subparagraph (ii) of Section 2(c) of the Agreement shall apply to
the Transaction, except that upon the occurrence of an Event of Default or Termination
Event with respect to a party who is the Defaulting Party or the Affected Party (“X”),
the other party (“Y”) will have the right (but not be obliged) without prior notice to
X or any other person to set-off or apply any obligation of X under the Transaction
owed to Y (or any Affiliate of Y) (whether or not matured or contingent and whether or
not arising under the Agreement, and regardless of the currency, place of payment or
booking office of the obligation) against any obligation of Y (or any Affiliate of Y)
under an Equity Contract owed to X (whether or not matured or contingent and whether or
not arising under the Agreement, and regardless of the currency, place of payment or
booking office of the obligation). Y will give notice to the other party of any
set-off effected under this paragraph. “Equity Contract” shall mean for purposes of
this paragraph any transaction relating to Shares between X and Y (or any Affiliate of
Y) that qualifies as ‘equity’ under applicable accounting rules. Amounts (or the
relevant portion of such amounts) subject to set-off may be converted by Y




14









 






	 	 	 	into the Termination Currency at the rate of exchange at which such party would be
able, acting in a reasonable manner and in good faith, to purchase the relevant
amount of such currency. If any obligation is unascertained, Y may in good faith
estimate that obligation and set-off in respect of the estimate, subject to the
relevant party accounting to the other when the obligation is ascertained. Nothing
in this section shall be effective to create a charge or other security interest,
and nothing in this section shall impair Counterparty’s rights to foreclose upon or
liquidate or otherwise dispose of the Collateral in exercising its rights under the
CSA or the UCC.
	 
	 	(k)	 	Staggered Settlement. Barclays may, by notice to Counterparty on or prior to
any Settlement Date (a “Nominal Settlement Date”), elect to deliver any Shares
deliverable on such Nominal Settlement Date on two or more dates (each, a “Staggered
Settlement Date”) or at two or more times on the Nominal Settlement Date as follows:
(i) in such notice, Barclays will specify to Counterparty the related Staggered
Settlement Dates (each of which will be on or prior to such Nominal Settlement Date) or
delivery times and how it will allocate the Shares it is required to deliver under the
applicable settlement method above among the Staggered Settlement Dates or delivery
times; and (ii) the aggregate number of Shares that Barclays will deliver to
Counterparty hereunder on all such Staggered Settlement Dates and delivery times will
equal the number of Shares that Barclays would otherwise be required to deliver on such
Nominal Settlement Date.
	 
	 	(l)	 	Alternative Calculations and Counterparty Payment on Early Termination and on
Certain Extraordinary Events. If Barclays owes Counterparty any amount in connection
with the Transaction (i) pursuant to Sections 12.2, 12.3, 12.6, 12.7 or 12.9 of the
Equity Definitions or (ii) pursuant to Section 6(d)(ii) of the Agreement (a “Payment
Obligation”), Counterparty shall have the right, in its sole discretion, to require
Barclays to satisfy any such Payment Obligation by delivery of Termination Delivery
Units (as defined below) by giving irrevocable telephonic notice to Barclays, confirmed
in writing within one Scheduled Trading Day, no later than noon New York time on the
Early Termination Date or other date the Transaction is cancelled or terminated, as
applicable, where such notice shall include a representation and warranty from
Counterparty that it is not, as of the date of the telephonic notice and the date of
such written notice, aware of any material non-public information concerning itself or
the Shares (where “material” shall have the meaning set forth in paragraph 5(m) below)
(“Notice of Counterparty Termination Delivery”); provided that Counterparty shall not
have the right to so elect in the event of (i) an Insolvency, a Nationalization or a
merger event, in each case, in which the consideration or proceeds to be paid to
holders of Shares consists solely of cash or (ii) an Event of Default in which
Counterparty is the Defaulting Party or a Termination Event in which Counterparty is
the Affected Party, which Event of Default or Termination Event resulted from an event
or events within Counterparty’s control. Within a commercially reasonable period of
time following receipt of a Notice of Counterparty Termination Delivery, Barclays shall
deliver to Counterparty a number of Termination Delivery Units having a fair market
value (net of any brokerage and underwriting commissions and fees) equal to the amount
of such Payment Obligation (such number of Termination Delivery Units to be delivered
to be determined by the Calculation Agent as the number of whole Termination Delivery
Units that could be sold over a commercially reasonable period of time to generate
proceeds equal to the cash equivalent of such payment obligation). If the provisions
set forth in this paragraph are applicable, the provisions of Sections 9.8, 9.9, 9.10,
9.11 and 9.12 of the Equity Definitions shall be applicable, except that all references
to “Shares” shall be read as references to “Termination Delivery Units.” “Termination
Delivery Units” means in the case of a Termination Event, Event of Default or
Delisting, one Share or, in the case of Nationalization, Insolvency, Tender Offer or
Merger Event, a unit consisting of the number or amount of each type of property
received by a holder of one Share (without consideration of any requirement to pay cash
or other consideration in lieu of fractional amounts of any securities) in such
Nationalization, Insolvency, Tender Offer or Merger Event; provided that if such
Nationalization, Insolvency, Tender Offer or Merger Event involves a choice of
consideration to be received by holders, such holder shall be deemed to have elected to
receive the maximum possible amount of cash.




15









 






	 	(m)	 	No Material Non-Public Information. On the Trade Date, Counterparty represents
and warrants to Barclays that it is not aware of any material non-public information
concerning itself or the Shares. “Material” information for these purposes is any
information to which an investor would reasonably attach importance in reaching a
decision to buy, sell or hold Shares.
	 
	 	(n)	 	No Counterparty Payment or Delivery Obligations upon Settlement.
Notwithstanding anything to the contrary herein, under no circumstances will
Counterparty owe Barclays any amount upon settlement (including settlement upon Early
Terminations and Certain Extraordinary Events).
	 
	 	(o)	 	[Reserved]
	 
	 	(p)	 	Tax Disclosure. Notwithstanding anything to the contrary herein, in the Equity
Definitions or in the Agreement, and notwithstanding any express or implied claims of
exclusivity or proprietary rights, the parties (and each of their employees,
representatives or other agents) are authorized to disclose to any and all persons,
beginning immediately upon commencement of their discussions and without limitation of
any kind, the tax treatment and tax structure of the Transaction, and all materials of
any kind (including opinions or other tax analyses) that are provided by either party
to the other relating to such tax treatment and tax structure.
	 
	 	(q)	 	Status of Claims in Bankruptcy. Barclays acknowledges and agrees that this
Confirmation is not intended to convey to Barclays rights with respect to the
Transaction that are senior to the claims of common stockholders in any U.S. bankruptcy
proceedings of Counterparty; provided that nothing herein shall limit or shall be
deemed to limit Barclays’ right to pursue remedies in the event of a breach by
Counterparty of its obligations and agreements with respect to the Transaction;
provided, further, that nothing herein shall limit or shall be deemed to limit
Barclays’ rights in respect of any transactions other than the Transaction.
	 
	 	(r)	 	No Collateral. Notwithstanding any provision of this Confirmation, the
Agreement, Equity Definitions or any other agreement between the parties to the
contrary, the obligations of Counterparty under the Transaction are not secured by any
collateral.
	 
	 	(s)	 	Securities Contract; Swap Agreement. The parties hereto agree and acknowledge
that Barclays is one or more of a “financial institution,” “swap participant” and
“financial participant” within the meaning of Sections 101(22), 101(53C) and 101(22A)
of the Bankruptcy Code. The parties hereto further agree and acknowledge (A) that this
Confirmation is (i) a “securities contract,” as such term is defined in Section 741(7)
of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in
connection herewith is a “termination value,” “payment amount” or “other transfer
obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement
payment” or a “transfer” within the meaning of Section 546 of the Bankruptcy Code, and
(ii) a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy
Code, with respect to which each payment and delivery hereunder or in connection
herewith is a “termination value,” a “payment amount” or “other transfer obligation”
within the meaning of Section 362 of the Bankruptcy Code and a “transfer” within the
meaning of Section 546 of the Bankruptcy Code, and (B) that Barclays is entitled to the
protections afforded by, among other sections, Section 362(b)(6), 362(b)(17),
362(b)(27), 362(o), 546(e), 546(g), 546(j), 548(d)(2), 555, 560 and 561 of the
Bankruptcy Code.
	 
	 	(t)	 	[Reserved]
	 
	 	(u)	 	Payments on Early Termination. The parties hereto agree that for the
Transaction, for the purposes of Section 6(e) of the Agreement, Loss and Second Method
will apply. Notwithstanding anything to the contrary herein, in no event will any
Adjustment be made or consideration be paid as a result of an Extraordinary Dividend
declared by Counterparty.




16









 






	 	(v)	 	Governing Law. The law of the State of New York (without reference to choice
of law doctrine).
	 
	 	(w)	 	Waiver of Jury Trial. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION
OR PROCEEDING RELATING TO THE TRANSACTION. EACH PARTY (I) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF SUCH A SUIT, ACTION OR
PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE
OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THE TRANSACTION, AS APPLICABLE, BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS PROVIDED HEREIN.




6. Account Details:





	 	(a)	 	Account for payments to Counterparty:
	 
	 	 	 	TD Ameritrade Holding Corporation

ABA: ****

Acct: ****

Acct No.: ****
	 
	 	 	 	Account for delivery of Shares to Counterparty:
	 
	 	 	 	TD Ameritrade Holding Corporation

Ref: ****
	 
	 	(b)	 	Account for payments to Barclays:
	 
	 	 	 	Bank: Barclays Bank plc NY

ABA: ****

BIC: ****

Acct: ****

Beneficiary: ****

Ref: ****





7. Offices:



The Office of Counterparty for the Transaction is: Inapplicable, Counterparty is not a Multibranch
Party.



The Office of Barclays for the Transaction is: Inapplicable, Barclays is not a Multibranch Party.




8. Notices:



For purposes of this Confirmation:







17









 









	 	(a)	 	Address for notices or communications to Counterparty:
	 
	 	 	 	TD Ameritrade Holding Corporation

4211 South 102nd Street

Omaha, NE 68127

Attention: ****

Telephone No.: ****

Facsimile No.: ****
	 
	 	(b)	 	Address for notices or communications to Barclays:
	 
	 	 	 	Barclays Bank PLC

c/o Barclays Capital Inc.

745 Seventh Ave.

New York, NY 10019

Attn: ****

Telephone: ****

Facsimile: ****




This Confirmation may be executed in several counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.



THE SECURITIES REPRESENTED BY THE CONFIRMATION HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR ANY OTHER UNITED STATES
FEDERAL OR STATE SECURITIES LAWS; SUCH SECURITIES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF APPROPRIATE REGISTRATION UNDER SUCH SECURITIES LAWS OR EXCEPT IN A TRANSACTION EXEMPT
FROM OR NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF SUCH SECURITIES LAWS.






18









 







Counterparty hereby agrees to check this Confirmation and to confirm that the foregoing correctly
sets forth the terms of the Transaction by signing in the space provided below and returning to
Barclays a facsimile of the fully-executed Confirmation to Barclays at ****. Originals shall be
provided for your execution upon your request.




	 	 	 	 	 

	Very truly yours,
	 
	 	 	 	 
	BARCLAYS CAPITAL INC.,
	acting solely as Agent in connection with this Transaction
	 
	 	 	 	 
	By:

	 	/s/PAUL ROBINSON
 

Name: Paul Robinson
	 	 
	 

	 	Title: Managing Director	 	 






Accepted and confirmed as of the Trade Date:




TD AMERITRADE HOLDING CORPORATION




	 	 	 	 	 
	 	 	 
	 	By:  	                                 /s/ WILLIAM J. GERBER
 	 
	 	 	Name: William J. Gerber 
	 	 	Title: Executive Vice President, Chief Financial Officer 



19









 






	 	 	 	 	 



[CONFIDENTIAL TREATMENT REQUESTED]




SCHEDULE A


For the purposes of the Transaction, the following terms shall have the following values/meanings:




	 	 	 

	1. Prepayment Amount:

	 	USD 169,200,000
	 
	 	 
	2. Maximum Maturity Date:

	 	November 30, 2010
	 
	 	 
	3. Minimum Maturity Date:

	 	September 20, 2010
	 
	 	 
	4. Discount:

	 	****
	 
	 	 
	5. Number of Shares to be Delivered:

	 	A number of Shares determined by
reference to the Grid, as set
forth in Schedule B.






20









 






[CONFIDENTIAL TREATMENT REQUESTED]




SCHEDULE B




21