STOCK PURCHASE AGREEMENT
Exhibit
99.5
This Stock Purchase Agreement (this “Agreement”) is entered into on February 17, 2009,
by and between TD AMERITRADE Holding Corporation, a Delaware corporation (“Buyer”), and
Xxxxxxx X. Xxxxxxxx (“Xxxxxxxx”) and the Xxx and Xxxxxxx Xxxxxxxx Grandchildren’s Trust (the
“Grandchildren’s Trust” and, collectively with Xxxxxxxx, “Sellers”). Buyer and each Seller are
referred to individually as a “Party” and collectively as the “Parties.”
WHEREAS, Xxxxxxxx desires to sell to Buyer, and Buyer desires to purchase from Xxxxxxxx, an
aggregate of 15,000,000 shares of common stock of Buyer (the “Xxxxxxxx Shares”) for cash on
the terms set forth below.
WHEREAS, the Grandchildren’s Trust desires to sell to Buyer, and Buyer desires to purchase
from the Grandchildren’s Trust, an aggregate of 19,008,000 shares of common stock of Buyer (the
“Grandchildren’s Trust Shares” and, collectively with the Xxxxxxxx Shares, the
“Shares”) for cash on the terms set forth below.
Now, therefore, in consideration of the premises and the mutual promises herein made, and in
consideration of the representations, warranties, and covenants herein contained, the Parties agree
as follows.
§1. Purchase and Sale of Shares
(a) Transaction. On and subject to the terms and conditions of this Agreement, (i) Buyer
agrees to purchase from Xxxxxxxx (the “Xxxxxxxx Purchase”), and Xxxxxxxx agrees to sell to Buyer,
the Xxxxxxxx Shares at the Closing (defined below), in exchange for an amount equal to U.S. $11.85
in cash per Share (the “Per Share Purchase Price”) multiplied by the number of Xxxxxxxx
Shares (such amount, the “Aggregate Xxxxxxxx Purchase Price”), and (ii) Buyer agrees to
purchase from the Grandchildren’s Trust (the “Grandchildren’s Trust Purchase” and, together
with the Xxxxxxxx Purchase, the “Purchases”), and the Grandchildren’s Trust agrees to sell
to Buyer, the Grandchildren’s Trust Shares at the Closing, in exchange for an amount equal to the
Per Share Purchase Price multiplied by the number of Grandchildren’s Trust Shares (such amount, the
“Aggregate Grandchildren’s Trust Purchase Price”). Buyer shall pay the Aggregate Xxxxxxxx
Purchase Price in immediately available funds by wire transfer to the account designated as the
“Xxxxxxxx Account” on Schedule 1 to this Agreement, and Buyer shall pay the Aggregate
Grandchildren’s Trust Purchase Price in immediately available funds by wire transfer to the account
designated as the “Grandchildren’s Trust Account” on Schedule 1 to this Agreement.
(b) Closing.
(i) Subject to the satisfaction of the conditions set forth in Section 3(a) on and as of the
Closing Date, Buyer and each Seller shall consummate the Purchase at a closing (the
“Closing”) to take place as soon as practicable following the satisfaction of the
conditions set forth in Section 3(a); provided, however, that Buyer shall not be required to
consummate the Purchase prior to the 3rd business day following the date hereof (the
“Closing Date”). If the Closing does not occur prior to February 27, 2009, any Party may
terminate this Agreement by providing written notice of such termination to the other Parties, and
in such case no Party shall have any further obligation or liability hereunder (it being understood
that any Party may still seek appropriate damages from any other Party that breaches any of its
obligations hereunder prior to such termination, including its obligation to effect the Purchases).
At the Closing, Sellers will deliver to Buyer the Shares (including, with any that are in
certificated form, endorsed in blank or accompanied by duly executed assignment documents), and
Buyer will deliver to Sellers the Purchase Price pursuant to §1(a).
(c) Board Representation
(i) On the Closing Date, (A) the number of R Directors (as defined by the Stockholders
Agreement,
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dated as of June 22, 2005, among the Buyer, The Toronto-Dominion Bank and certain other
stockholders, as amended (the “Stockholders Agreement”)) shall be reduced from three to two as a
result of the Purchases (it being understood that nothing herein shall prevent the number of R
Directors from increasing back to three pursuant to the Stockholders Agreement in the event that
the R Parties obtain additional shares of Buyer’s common stock in the future), and (B) the R
Parties shall deliver to the Buyer the resignation of one of the R Directors effective as of the
Closing Date notwithstanding anything to the contrary contained in the Stockholders Agreement.
§2. Representations and Warranties.
(a) Sellers’ Representations and Warranties. Each Seller represents and warrants to Buyer
that the statements contained in this §2(a) are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as though made as of the Closing
Date).
(i) Authorization of Transaction. Such Seller has full legal capacity, power and
authority to execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of such Seller,
enforceable in accordance with its terms and conditions. Such Seller needs not give any
notice to, make any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the transactions contemplated by
this Agreement, except for such filings as may be required under the Securities Act and
regulations promulgated thereunder.
(ii) Non-contravention. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will (A) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling or other restriction
of any government, governmental agency, or court to which such Seller is subject, (B)
conflict with, result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel, or require
any notice under any agreement, contract, lease, license, instrument or other arrangement to
which such Seller is a party or by which he is bound or to which any of his assets are
subject (except under the Stockholders Agreement) or (C) result in the imposition or
creation of any mortgage, pledge, lien, encumbrance or other security interest (a
“Lien”) upon or with respect to the Shares of such Seller.
(iii) Brokers’ Fees. Such Seller has no liability to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions contemplated by this Agreement.
(iv) Shares. Such Seller holds of record and owns beneficially the Shares free and
clear of any restrictions on transfer (other than any restrictions under the Stockholders
Agreement, the Securities Act (and regulations promulgated thereunder) and state securities
laws), Liens, options, warrants and purchase rights, and to such Seller’s knowledge, claims
and demands. Seller is not a party to any option, warrant, purchase right, or other contract
or commitment (other than this Agreement) that could require Seller to sell, transfer, or
otherwise dispose of any of the Shares.
(b) Buyer’s Representations and Warranties. Buyer represents and warrants to each Seller that
the statements contained in this §2(b) are correct and complete as of the date of this Agreement
and will be correct and complete as of the Closing Date (as though made as of the Closing Date).
(i) Organization of Buyer. Buyer is a corporation duly organized, validly existing, and
in good standing under the laws of the jurisdiction of its incorporation.
(ii) Authorization of Transaction. Buyer has full power and authority (including full
corporate or other entity power and authority) to execute and deliver this Agreement and to
perform its obligations
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hereunder. This Agreement constitutes the valid and legally binding obligation of
Buyer, enforceable in accordance with its terms and conditions. Buyer need not give any
notice to, make any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the transactions contemplated by
this Agreement. The execution, delivery, and performance of this Agreement and all other
agreements contemplated hereby have been duly authorized by Buyer.
(iii) Non-contravention. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will (A) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling or other restriction
of any government, governmental agency, or court to which Buyer is subject or any provision
of its charter, bylaws, or other governing documents or (B) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which Buyer is a
party or by which it is bound or to which any of its assets are subject.
(iv) Brokers’ Fees. Buyer has no liability to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions contemplated by this Agreement for
which any Seller could become liable or obligated.
§3. Conditions to Obligation to Close
(a) The obligation of each of Buyer and Seller to consummate the Purchases is subject to
satisfaction of the following conditions at and as of the Closing:
(i) with respect to the obligations of the Buyer, the representations and warranties
set forth in §2(a) above, and with respect to the obligations of Sellers, the
representations and warranties set forth in §2(b) above, shall be true and correct in all
material respects at and as of the Closing Date as if such representations and warranties
had been made on and as of the Closing Date.
(ii) there shall not be any injunction, judgment, order, decree or ruling in effect
prohibiting or otherwise preventing consummation of the Purchases.
§4. Miscellaneous.
(a) Public Announcements. Each Party shall consult with the other before issuing any press
release or making any public announcement or statement with respect to this Agreement and shall not
issue any such press release or make any such public announcement or statement without the prior
written consent of the other Party, which consent shall not be unreasonably withheld, delayed or
conditioned; provided, however, that Buyer may, without the prior consent of the other Party
hereto, issue any such press release or make any such public announcement or statement as may be
required by law or the rules and regulations of the Nasdaq if Buyer first notifies and (if
practicable) consults with each Seller regarding the timing and substance of such public
announcement or statement, and each Seller may, without the prior consent of the other Parties
hereto, make any filings as may be required by the federal securities laws if such Seller first
notifies and (if practicable) consults with Buyer regarding the timing and substance of such
filing.
(b) Entire Agreement. This Agreement constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they relate in any way to the subject matter hereof.
(c) Succession and Assignment. This Agreement shall be binding upon and inure to the benefit
of the Parties named herein and their respective successors and permitted assigns. No Party may
assign either this
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Agreement or any of his, her, or its rights, interests, or obligations hereunder without the
prior written approval of the other Party; provided, however, that Buyer may (i) assign any or all
of its rights and interests hereunder to one or more of its wholly-owned subsidiaries and (ii)
designate one or more of its wholly-owned subsidiaries to perform its obligations hereunder (in any
or all of which cases Buyer nonetheless shall remain responsible for the performance of all of its
obligations hereunder). This Agreement shall not confer any rights or remedies upon any Person
other than the Parties and their respective successors and permitted assigns.
(d) Counterparts. This Agreement may be executed in one or more counterparts (including by
means of facsimile), each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
(e) Governing Law. This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of New York without giving effect to any choice or conflict of law
provision or rule (whether of the State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New York.
(f) Expenses. Buyer and each Seller shall bear its own costs and expenses (including legal
fees and expenses) incurred in connection with this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first above
written.
| TD AMERITRADE HOLDING CORPORATION |
||||
| By: | /s/ Xxxxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxxxx X. Xxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| XXX AND XXXXXXX XXXXXXXX GRANDCHILDREN’S TRUST |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| /s/ Xxxxxxx X. Xxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxx | ||||
| Solely for purposes of §1(c) |
||||
| /s/ J. Xxx Xxxxxxxx | ||||
| J. Xxx Xxxxxxxx | ||||
