UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Rule 14d-100)
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 4)
thinkorswim Group Inc.
(Name of Subject Company (Issuer) and Filing Person (Offeror))
Options to Purchase Common Stock, par value $0.01 per share
(Title of Class of Securities)
88409C105
(CUSIP Number of Common Stock Underlying Class of Securities)
Ida K. Kane
thinkorswim Group Inc.
(formerly known as Investools Inc.)
45 Rockefeller Plaza, Suite 2012
New York, New York 10111
(801) 816-6918
(Name, Address and Telephone Numbers of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
Ethan A. Klingsberg, Esq. and Benet J. O'Reilly, Esq.
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, New York 10006
(212) 225-2000
CALCULATION OF FILING FEE
| Transaction Valuation* |
Amount of Filing Fee** |
|
|---|---|---|
| $14,350,595 | $800.76 | |
| Amount Previously Paid: $800.76 | Filing Party: thinkorswim Group Inc. | ||
| Form or Registration No.: 005-79294 | Date Filed: April 17, 2009 |
Check the appropriate boxes below to designate any transactions to which the statement relates:
Check the following box if the filing is a final amendment reporting the results of the tender offer: o
This Amendment No. 4 (this "Amendment No. 4") amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission (the "Commission") on April 17, 2009 (the "Schedule TO"), as amended and supplemented by Amendment No. 1 filed on April 24, 2009 ("Amendment No. 1"), Amendment No. 2 filed on May 8, 2009 ("Amendment No. 2") and Amendment No. 3 filed on June 9, 2009 ("Amendment No. 3"), relating to an offer by thinkorswim Group Inc. (the "Company") to its eligible employees and independent contractors to exchange outstanding "underwater" options to purchase shares of the Company's common stock granted under the thinkorswim Group Inc. Second Amended and Restated 2001 Stock Option Plan, the Telescan, Inc. Amended and Restated 1995 Stock Option Plan, the Telescan, Inc. 2000 Stock Option Plan and the Telescan, Inc. Amended and Restated Stock Option Plan for new grants of thinkorswim restricted stock units (the "exchange offer").
Except as expressly amended and supplemented herein, all terms of the exchange offer and all disclosures as set forth in the Schedule TO and the exhibits thereto, as amended and supplemented by Amendment No. 1, Amendment No. 2 and Amendment No. 3, remain unchanged and are incorporated herein by reference.
Item 1, 4 and 11. Terms of the Transaction
Items 1, 4 and 11 of the Schedule TO are hereby amended and supplemented to add the following:
The threshold exercise price for purposes of determining whether an option will be eligible for tender in the exchange offer is $10.50. The threshold exercise price was determined by adding (i) $3.34 and (ii) the product of (A) 0.3980 times (B) $17.991, the volume-weighted average price for a share of common stock of TD AMERITRADE Holding Corporation, rounded to the nearest one-tenth of a cent, as reported on the NASDAQ Global Select Market for June 10, 2009.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits:
| (a)(1)(P) | Press Release issued June 10, 2009 (Threshold Exercise Price) | ||
(a)(1)(Q) |
Form of Communication to Eligible Individuals Announcing the Expiration of the Exchange Offer |
| Exhibit No. | Document | ||
|---|---|---|---|
| (a)(1)(A) | * | Offer to Exchange Eligible Stock Options for Restricted Stock Units, dated April 17, 2009 | |
(a)(1)(B) |
* |
Form of Communication to Eligible Individuals Announcing the Exchange Offer |
|
(a)(1)(C) |
* |
Election Form |
|
(a)(1)(D) |
* |
Form of Election Withdrawal Notice |
|
(a)(1)(E) |
* |
Form of Personal Summary Statement |
|
(a)(1)(F) |
* |
Proposed Form of Second Amended and Restated 2001 Stock Option Plan as amended to permit the grant of Restricted Stock Units |
|
(a)(1)(G) |
* |
Proposed Form of Restricted Stock Unit Agreement (Non-Key Management) |
|
(a)(1)(H) |
* |
Proposed Form of Restricted Stock Unit Agreement (Key Management) |
|
(a)(1)(I) |
* |
Notice of Threshold Exercise Price |
|
(a)(1)(J) |
Agreement and Plan of Merger, dated as of January 8, 2009, by and among TD AMERITRADE, Tango Acquisition Corporation One, Tango Acquisition Corporation Two and the Company (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K filed by the Company with the Commission on January 12, 2009) |
||
(a)(1)(K) |
Proxy Statement/Prospectus (incorporated by reference to the proxy statement/prospectus included in Amendment No. 2 to the Registration Statement on Form S-4 filed by TD AMERITRADE with the Commission on April 24, 2009, as further amended from time to time) |
||
(a)(1)(L) |
** |
Form of Communication to Eligible Individuals Delivering a Personalized Statement of the Exchange Ratio Calculation |
|
(a)(1)(M) |
** |
Tender Offer Conversion Form |
|
(a)(1)(N) |
*** |
Form of Communication to Eligible Individuals Regarding the Exchange Offer |
|
(a)(1)(O) |
**** |
Press Release issued June 9, 2009 (Special Meeting Results) |
|
(a)(1)(P) |
Press Release issued June 10, 2009 (Threshold Exercise Price) |
||
(a)(1)(Q) |
Form of Communication to Eligible Individuals Announcing the Expiration of the Tender Offer |
||
(b) |
Not applicable |
||
(d)(1) |
The thinkorswim Group Inc. Second Amended and Restated 2001 Stock Option Plan (incorporated by reference to Exhibit 10.1 of the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2008, filed by the Company with the Commission on August 8, 2008) |
||
(d)(2) |
The Telescan, Inc. Amended and Restated 1995 Stock Option Plan (incorporated by reference to Exhibit 99.1 to the Registration Statement on Form S-8 filed by Telescan, Inc. with the Commission on November 21, 2000) |
||
(d)(3) |
The Telescan, Inc. 2000 Stock Option Plan (incorporated by reference to Exhibit 99.2 to the Registration Statement on Form S-8 filed by Telescan, Inc. with the Commission on November 21, 2000) |
||
| Exhibit No. | Document | ||
|---|---|---|---|
| (d)(4) | The Telescan, Inc. Amended and Restated Stock Option Plan (incorporated by reference to Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 filed by Telescan, Inc. with the Commission on February 2, 1994) | ||
(d)(5) |
Voting Agreement, dated as of January 8, 2009, by and between TD AMERITRADE and Lee Barba (incorporated by reference to Exhibit 99.1 of Amendment No. 1 to Schedule 13D filed by Lee Barba with the Commission on January 8, 2009) |
||
(d)(6) |
Voting Agreement, dated as of January 8, 2009, by and between TD AMERITRADE and Tom Sosnoff (incorporated by reference to Exhibit 99.1 of Amendment No. 1 to Schedule 13D filed by Tom Sosnoff with the Commission on January 9, 2009) |
||
(d)(7) |
Voting Agreement, dated as of January 8, 2009, by and between TD AMERITRADE and Tom Sosnoff, as trustee of the Tom Sosnoff Living Trust (incorporated by reference to Exhibit 99.2 of Amendment No. 1 to Schedule 13D filed by Tom Sosnoff with the Commission on January 9, 2009) |
||
(d)(8) |
Voting Agreement, dated as of January 8, 2009, by and between TD AMERITRADE and Scott Sheridan (incorporated by reference to Exhibit 99.1 of Amendment No. 1 to Schedule 13D filed by Scott Sheridan with the Commission on January 9, 2009) |
||
(g) |
Not applicable |
||
(h) |
Not applicable |
||
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
| THINKORSWIM GROUP INC. | ||||
By: |
/s/ LEE BARBA |
|||
| Name: | Lee Barba | |||
| Title: | Chairman and Chief Executive Officer | |||
| Date: | June 10, 2009 | |||