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EXHIBIT 1
24,000,000 SHARES
TD WATERHOUSE GROUP, INC.
COMMON STOCK
U.S. AND INTERNATIONAL UNDERWRITING AGREEMENT
June 22, 1999
Credit Suisse First Boston Corporation
TD Securities (USA) Inc.
As Representatives of the several U.S. Underwriters,
c/o Credit Suisse First Boston Corporation ("CSFBC"),
Eleven Madison Avenue,
New York, N.Y. 100103629
Credit Suisse First Boston (Europe) Limited
THE TORONTO-DOMINION BANK
As Representatives of the several Managers
c/o Credit Suisse First Boston (Europe) Limited ("CSFBL")
Xxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx X00 0XX
Dear Sirs:
1. Introductory. TD Waterhouse Group, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell to the several Underwriters (as defined
below) 32,000,000 shares of its Common Stock (the "SECURITIES"). It is
understood that, subject to the conditions hereinafter stated: (a) 20,800,000
shares of Securities (the "U.S. FIRM SECURITIES") will be sold to the several
U.S. Underwriters named in Schedule A hereto (the "U.S. UNDERWRITERS") in
connection with the offering (the "U.S. OFFERING") and sale of such U.S. Firm
Securities in the United States to United States Persons (as such terms are
defined in the Agreement Among U.S. Underwriters, Canadian Underwriters and
Managers of even date herewith) and (b) 3,200,000 shares of Securities (the
"INTERNATIONAL FIRM SECURITIES") will be sold to the several Managers named in
Schedule B hereto (the "MANAGERS") in connection with the offering (the
"INTERNATIONAL OFFERING") and sale of such International Firm Securities
outside the United States and Canada to persons other than United States and
Canadian Persons. It is understood that the Company is concurrently entering
into a Canadian Underwriting Agreement, dated the date hereof (the "CANADIAN
UNDERWRITING AGREEMENT"), with Credit Suisse First Boston Securities Canada
Inc. ("CSFBSCI") and TD Securities Inc. ("TD SECURITIES"), and the other
Canadian Underwriters named therein (the "CANADIAN UNDERWRITERS"), relating to
the concurrent offering (the "CANADIAN OFFERING") and sale of 8,000,000 shares
of Securities (the "CANADIAN FIRM SECURITIES") in Canada to Canadian Persons.
CSFBC and TD Securities (USA) Inc. shall act as the representatives (the "U.S.
REPRESENTATIVES") of the several U.S. Underwriters, CSFBL and The
Toronto-Dominion Bank shall act as the representatives (the "INTERNATIONAL
REPRESENTATIVES") of the several Managers and CSFBSCI and TD Securities shall
act as the representatives (the "CANADIAN REPRESENTATIVES" and, together with
the U.S. Representatives and the International Representatives, the
"REPRESENTATIVES") of the several Canadian Underwriters. The U.S.
Underwriters, the Canadian Underwriters and the Managers are hereinafter
collectively referred to as the "UNDERWRITERS ".
In addition, as set forth below the Company proposes to issue and sell:
(a) to the U.S. Underwriters, at the option of the U.S. Representatives, an
aggregate of not more than 3,120,000 additional shares of Securities (the "U.S.
OPTIONAL SECURITIES"), and (b) to the Managers, at the option of the U.S.
Representatives, an aggregate of not more than 480,000 additional shares of
Securities (the "INTERNATIONAL
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OPTIONAL SECURITIES"). It is understood that, pursuant to the Canadian
Underwriting Agreement, the Company proposes to issue and sell to the Canadian
Underwriters, at the option of the U.S. Representatives, an aggregate of not
more than 1,200,000 additional shares of Securities (the "CANADIAN OPTIONAL
SECURITIES").
The U.S. Firm Securities and the U.S. Optional Securities are hereinafter
called the "U.S. SECURITIES"; the International Firm Securities and the
International Optional Securities are hereinafter called the "INTERNATIONAL
SECURITIES"; the Canadian Firm Securities and the Canadian Optional Securities
are hereinafter called the "CANADIAN SECURITIES"; the U.S. Firm Securities, the
International Firm Securities and the Canadian Firm Securities are hereinafter
called the "FIRM SECURITIES"; the U.S. Optional Securities, the International
Optional Securities and the Canadian Optional Securities are hereinafter called
the "OPTIONAL SECURITIES". The U.S. Securities, the International Securities
and the Canadian Securities are collectively referred to as the "OFFERED
SECURITIES".
In connection with the issue and sale of the Offered Securities, The
Toronto-Dominion Bank ("TD BANK"), which as of the date hereof owns 100% of the
voting stock of the Company, will complete a reorganization (the
"REORGANIZATION") of its discount brokerage operations as described in the
Prospectuses (as hereinafter defined). In order to effect the Reorganization,
the Company, TD Bank and certain of their respective subsidiaries will enter
into the agreements listed on Schedule C hereto (the "REORGANIZATION
AGREEMENTS").
To provide for the coordination of their activities, the U.S.
Underwriters, the Canadian Underwriters and the Managers have entered into an
Agreement Among U.S. Underwriters, Canadian Underwriters and Managers that
permits them, among other things, to sell the Offered Securities to each other
for purposes of resale.
The Company hereby agrees with the several U.S. Underwriters and the
several Managers as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several U.S. Underwriters and the several
Managers that:
(a) A registration statement (No. 333-177521) relating to the Offered
Securities, including a form of prospectus relating to the U.S. Securities
being offered in the U.S. Offering, has been filed with the Securities and
Exchange Commission (the "COMMISSION") and either (i) has been declared
effective under the Securities Act of 1933 (the "ACT") and is not proposed
to be amended or (ii) is proposed to be amended by amendment or
post-effective amendment. If such registration statement (the "INITIAL
REGISTRATION STATEMENT") has been declared effective, either (A) an
additional registration statement (the "ADDITIONAL REGISTRATION
STATEMENT") relating to the Offered Securities may have been filed with
the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act and,
if so filed, has become effective upon filing pursuant to such Rule and
the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement or (B) such an additional registration
statement is proposed to be filed with the Commission pursuant to Rule
462(b) and will become effective upon filing pursuant to such Rule and
upon such filing the Offered Securities will all have been duly registered
under the Act pursuant to the initial registration statement and such
additional registration statement (it being understood that the
International Securities and the Canadian Securities have been registered
under the Act solely for the purposes of resale from time to time in the
United States). If the Company does not propose to amend the initial
registration statement or if an additional registration statement has been
filed and the Company does not propose to amend it, and if any
post effective amendment to either such
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registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent amendment (if
any) to each such registration statement has been declared effective by
the Commission or has become effective upon filing pursuant to Rule 462(c)
("RULE 462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"Effective Time" with respect to the initial registration statement or, if
filed prior to the execution and delivery of this Agreement, the
additional registration statement means (i) if the Company has advised the
U.S. Representatives and the International Representatives that it does
not propose to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (ii) if the Company has
advised the U.S. Representatives and the International Representatives
that it proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as the
case may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the U.S.
Representatives and the International Representatives that it proposes to
file one, "Effective Time" with respect to such additional registration
statement means the date and time as of which such registration statement
is filed and becomes effective pursuant to Rule 462(b). "Effective Date"
with respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its Effective
Time, including all information contained in the additional registration
statement (if any) and deemed to be a part of the initial registration
statement as of the Effective Time of the additional registration
statement pursuant to the General Instructions of the Form on which it is
filed and including all information (if any) deemed to be a part of the
initial registration statement as of its Effective Time pursuant to Rule
430A(b) ("RULE 430A(b)") under the Act, is hereinafter referred to as the
"INITIAL REGISTRATION STATEMENT". The additional registration statement,
as amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including all
information (if any) deemed to be a part of the additional registration
statement as of its Effective Time pursuant to Rule 430A(b), is
hereinafter referred to as the "ADDITIONAL REGISTRATION STATEMENT". The
Initial Registration Statement and the Additional Registration Statement
are hereinafter referred to collectively as the "REGISTRATION STATEMENTS"
and individually as a "REGISTRATION STATEMENT". The form of prospectus
relating to the U.S. Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under the
Act or (if no such filing is required) as included in the Registration
Statement, is hereinafter referred to as the "U.S. PROSPECTUS", and the
form of prospectus relating to the Canadian Securities and the form of
prospectus relating to the International Securities are hereinafter
referred to as the "CANADIAN PROSPECTUS" and the "INTERNATIONAL
PROSPECTUS", respectively; and the U.S. Prospectus, the International
Prospectus and the Canadian Prospectus are hereinafter collectively
referred to as the "PROSPECTUSES". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (i) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Act and the rules and regulations of the Commission ("RULES AND
REGULATIONS") and did not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all respects to the
requirements of the Act and the Rules and Regulations and did not
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include, or will not include, any untrue statement of a material fact and
did not omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
and (iii) on the date of this Agreement, the Initial Registration
Statement and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this Agreement, the
Additional Registration Statement each conforms, and at the time of filing
of the U.S. Prospectus pursuant to Rule 424(b) or (if no such filing is
required) at the Effective Date of the Additional Registration Statement
in which the U.S. Prospectus is included, each Registration Statement and
the U.S. Prospectus will conform in all respects to the requirements of
the Act and the Rules and Regulations, and none of such documents
includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. If
the Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement: on the Effective Date of the
Initial Registration Statement, the Initial Registration Statement and
each of the U.S. Prospectus and the International Prospectus will conform
in all respects to the requirements of the Act and the Rules and
Regulations, none of such documents will include any untrue statement of a
material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
and no Additional Registration Statement has been or will be filed. The
two preceding sentences do not apply to statements in or omissions from a
Registration Statement or either of the U.S. Prospectus and the
International Prospectus based upon written information furnished to the
Company by any Underwriter through the applicable Representatives
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(b) hereof.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectuses; and the Company is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified or in good standing would not have, either
individually or in the aggregate, a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole ("MATERIAL
ADVERSE EFFECT").
(d) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectuses; and each subsidiary of the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except where the failure to
be so qualified and in good standing would not have, either individually
or in the aggregate, a Material Adverse Effect; all of the issued and
outstanding capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and the
capital stock of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects in title.
(e) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this
Agreement and the Canadian Underwriting Agreement on each Closing Date (as
defined below), such Offered Securities will have been, validly issued,
fully paid and nonassessable and will
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conform in all material respects to the description thereof contained in
the Prospectuses; and the stockholders of the Company have no preemptive
rights with respect to the Securities.
(f) Except as disclosed in the Prospectuses, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection
with this offering.
(g) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act or a prospectus
under Canadian securities legislation with respect to any securities of
the Company owned or to be owned by such person or to require the Company
to include such securities in the securities registered pursuant to a
Registration Statement or qualified for distribution under the Canadian
Prospectus or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act or being
qualified for distribution under any other prospectus filed by the Company
under Canadian securities legislation.
(h) The Offered Securities have been approved for listing on The New
York Stock Exchange and the Toronto Stock Exchange subject to notice of
issuance and other customary conditions.
(i) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities by the
Company, except such as may be contemplated by the Reorganization
Agreements in connection with the Reorganization, such as have been
obtained and made under the Act and such as may be required under state
securities laws or applicable Canadian securities legislation.
(j) The execution, delivery and performance of this Agreement and the
Reorganization Agreements and the issuance and sale of the Offered
Securities will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, (i) any statute, any
rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, (ii) any agreement
or instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, except where
such breach, violation or default would not have, either individually or
in the aggregate, a Material Adverse Effect, or (iii) the charter,
articles or bylaws of the Company or any such subsidiary, as applicable,
and the Company has full power and authority to authorize, issue and sell
the Offered Securities as contemplated by this Agreement and the Canadian
Underwriting Agreement.
(k) This Agreement has been duly authorized, executed and delivered
by the Company and the Canadian Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(l) Except as disclosed in the Prospectuses, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects in title that would materially affect the value
thereof or materially interfere with the use made or to be made thereof by
them; and except as disclosed in the Prospectuses, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
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with the use made or to be made thereof by them.
(m) Outside of Canada, the Company and its subsidiaries possess
adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them; within Canada, the Company and its subsidiaries will,
after the Reorganization, possess adequate certificates, authorities or
permits issued by appropriate governmental agencies or bodies necessary to
conduct the business to be operated by them, and no such certificates,
authorities or permits are necessary for the Company to receive the
economic benefits of such businesses as operated by The Toronto-Dominion
Bank; neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect.
(n) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(o) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(p) Except as disclosed in the Prospectuses, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that would have, either
individually or in the aggregate, a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement or the Canadian Underwriting Agreement,
or which are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened or,
to the Company's knowledge, contemplated.
(q) The financial statements included in each Registration Statement
and the Prospectuses present fairly in all material respects the financial
consolidated position of the Company (as defined in Note 1 to the combined
financial statements) as of the dates shown and the results of its
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis;
and the assumptions used in preparing the pro forma financial statements
included in each Registration Statement and the Prospectuses provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and
the pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(r) Since the date of the latest audited financial statements
included in the Prospectuses there has been no material adverse change,
nor any development or event involving a prospective
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material adverse change, in the financial condition, business, properties
or results of operations of the Company and its subsidiaries taken as a
whole, and there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(s) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectuses, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(t) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Securities and
Exchange Act of 1934, as amended (the "EXCHANGE ACT") or otherwise, in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Offered Securities.
(u) Except as disclosed in the Prospectuses, there are no business
relationships or related party transactions required to be disclosed
therein by Item 404 of Regulation S-K of the Commission.
(v) The statements set forth under the captions "Management's
Discussion and Analysis of Results of Operations and Financial
Condition--Year 2000 Compliance" and "Risk Factors--Failure to Achieve Year
2000 Compliance Could Cause Significant Losses" accurately and fairly set
forth the current state of the Company's efforts to address the Year 2000
problem and the risks and costs of the Company relating to the Year 2000
Problem. The "Year 2000 Problem" as used herein means any significant
risk that computer hardware or software used in the receipt, transmission,
processing, manipulation, storage, retrieval, transmission or other
utilization of data or in the operation of mechanical or electrical
systems of any kind will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as in
the case of dates or time periods occurring prior to January 1, 2000.
(w) Each of the Reorganization Agreements has been duly authorized by
the Company and each of the other parties thereto and conforms in all
material respects to the description thereof in the Prospectuses and
constitutes a valid and binding obligation of the Company and each of the
other parties thereto enforceable against each of them in accordance with
its terms, except to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights generally and (ii) to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law).
(x) (i) The Company or its subsidiaries have, pursuant to the
Reorganization Agreements, acquired all of the capital stock of TD Bank's
U.S., United Kingdom, Australia and Hong Kong discount brokerage
subsidiaries (other than capital stock issued as part of the
Reorganization and set forth in the Prospectuses), and (ii) upon
completion of the transactions contemplated by the Reorganization
Agreements, the Company or its subsidiaries will, pursuant to such
Reorganization Agreements and to the extent contemplated thereby, acquire
all of the title to or adequate use of the properties and other assets
(tangible and intangible) constituting TD Bank's Canadian discount
brokerage operations, in each case free and clear of all material liens,
charges and encumbrances and consistent with the description set forth in
the Prospectuses.
(y) The exchangeable preference shares to be issued by TD Waterhouse
Investor Services (Canada) Inc., as described in the Prospectuses, have
been duly authorized and, upon issue and delivery pursuant to the
applicable terms of the Reorganization Agreements, will be validly
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issued, fully paid and nonassessable.
(z) The share of special voting preferred stock to be issued by the
Company, as described in the Prospectuses, has been duly authorized and,
upon issue and delivery pursuant to the applicable terms of the
Reorganization Agreements, will be validly issued.
(aa) Outside of Canada, each of the Company and its subsidiaries is
duly registered as a broker-dealer, municipal securities broker or dealer,
investment adviser, or transfer agent, as the case may be, in each
jurisdiction wherein the conduct of its business requires such
registration, and each of the Company and its subsidiaries is in
compliance in all material respects with all applicable laws rules,
regulations, orders, by-laws and similar requirements in connection with
such registrations, except to the extent that the failure to be so
registered or be in compliance would not have a Material Adverse Effect.
Within Canada, each of the Company and its subsidiaries will be duly
registered as a broker-dealer, municipal securities broker-dealer,
investment adviser or transfer agent, as the case may be, in each
jurisdiction wherein the conduct of its business, upon completion of the
Reorganization, will require such registration, and neither the Company
nor any of its subsidiaries will require any such registration as of the
Closing Date.
(bb) The Company and its subsidiaries are members in good standing
of the associations and exchanges indicated in the Prospectuses, the
Company's U.S. brokerage and clearing subsidiaries are registered as a
broker-dealer with the Commission and in all 50 states, the District of
Columbia and Puerto Rico and the Company's Canadian brokerage subsidiaries
are registered as an investment dealer in all provinces and territories in
Canada, in each case except to the extent that the failure to be in good
standing or be so registered would not have a Material Adverse Effect.
3. Purchase, Sale and Delivery of U.S. Offered Securities and
International Offered Securities. On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to the U.S.
Underwriters and the Managers, and the U.S. Underwriters and the Managers
agree, severally and not jointly, to purchase from the Company, at a purchase
price of U.S.$ o per share, the respective numbers of shares of U.S. Firm
Securities and International Firm Securities set forth opposite the names of
the U.S. Underwriters and the Managers in Schedules A and B hereto, as
applicable.
The Company will deliver the U.S. Firm Securities and International Firm
Securities, as applicable, to the applicable U.S. Representatives and
International Representatives for the accounts of the U.S. Underwriters and the
Managers, against payment of the purchase price in U.S. dollars in Federal
(same day) funds by official wire transfer to an account at a bank acceptable
to CSFBC at the office of Cravath, Swaine & Xxxxx, at 9:00 A.M., New York time,
on June 28, 1999, or at such other time not later than seven full business days
thereafter as CSFBC and the Company determine, as applicable, such time being
herein referred to as the "FIRST CLOSING DATE". For purposes of Rule 15c6-1
under the Exchange Act, the First Closing Date (if later than the otherwise
applicable settlement date) shall be the settlement date for payment of funds
and delivery of securities for all the Offered Securities sold pursuant to the
U.S. Offering and the International Offering, respectively. The certificates
for the U.S. Firm Securities and the certificates for the International Firm
Securities will each be in definitive form, in such denominations and
registered in such names as the applicable U.S. Representatives and
International Representatives request and will be made available for checking
and packaging at the above office at least 24 hours prior to the First Closing
Date.
In addition, upon written notice from the U.S. Representatives given to
the Company from time to time not more than 30 days subsequent to the date of
the Prospectuses, the U.S. Underwriters may purchase
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all or less than all of the U.S. Optional Securities and the Managers may
purchase all or less than all of the International Optional Securities at the
purchase price per Security to be paid for the corresponding U.S. Firm
Securities and the International Firm Securities. The U.S. Optional Securities
and the International Optional Securities to be purchased by the U.S.
Underwriters and the Managers, respectively, on any Optional Closing Date shall
be in the same proportion to all the U.S. Optional Securities and the
International Optional Securities to be purchased by the U.S. Underwriters and
the Managers, respectively, on such Optional Closing Date as the U.S. Firm
Securities bear to all the Firm Securities and the International Firm
Securities bear to all the Firm Securities.
The Company agrees to sell to the U.S. Underwriters and the Managers such
U.S. Optional Securities and International Optional Securities and the U.S.
Underwriters and the Managers agree, severally and not jointly, to purchase
such U.S. Optional Securities and International Optional Securities. Such U.S.
Optional Securities or International Optional Securities, as the case may be,
shall be purchased for the account of each U.S. Underwriter or Manager, as
applicable, in the same proportion as the number of shares of U.S. Firm
Securities or International Firm Securities, as applicable, set forth opposite
such U.S. Underwriter's or Manager's name bears to the total number of shares
of U.S. Firm Securities or International Firm Securities (subject to adjustment
by CSFBC to eliminate fractions), as the case may be, and may be purchased by
the U.S. Underwriters and Managers only for the purpose of covering
overallotments made in connection with the sale of the U.S. Firm Securities and
International Firm Securities. No U.S. Optional Securities or International
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the U.S. Optional Securities and International Optional Securities or
any portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice
by the U.S. Representatives on behalf of the U.S. Underwriters and the Managers
to the Company. It is understood that the U.S. Representatives are authorized
to make payment for and accept delivery of such U.S. Optional Securities and
International Optional Securities on behalf of the U.S. Underwriters and the
Managers pursuant to the terms of the U.S. Representatives' instructions to the
Company.
Each time for the delivery of and payment for the U.S. Optional Securities
and International Optional Securities (being herein referred to as an "OPTIONAL
CLOSING DATE"), which may be the First Closing Date (the First Closing Date and
each Optional Closing Date, if any, being sometimes referred to as a "CLOSING
DATE"), shall be determined by CSFBC but shall be not later than five full
business days after written notice of election to purchase U.S. Optional
Securities or International Optional Securities is given. The Company will
deliver the applicable U.S. Optional Securities or International Optional
Securities being purchased on each Optional Closing Date to the applicable U.S.
Representatives or the applicable International Representatives for the
accounts of the several U.S. Underwriters and Managers, as the case may be,
against payment of the purchase price therefor in Federal (same day) funds by
wire transfer to an account at a bank acceptable to the applicable
Representatives, at the office of Cravath, Swaine & Xxxxx. The certificates
for the U.S. Optional Securities and the International Optional Securities will
each be in definitive form, in such denominations and registered in such names
as the applicable Representatives request upon reasonable notice prior to such
Optional Closing Date and will be made available for checking and packaging at
the above office, at a reasonable time in advance of such Optional Closing
Date.
4. Offerings by U.S. Underwriters and Managers. It is understood that
the several U.S. Underwriters and the several Managers propose to offer the
U.S. Securities and the International Securities for sale to the public as set
forth in the U.S. Prospectus and the International Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several U.S. Underwriters and several Managers that:
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(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the U.S. Prospectus with the Commission pursuant to and in accordance
with subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement. The Company will advise CSFBC promptly of any
such filing pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the U.S. Offered Securities or the International
Offered Securities under the Act but the Effective Time thereof has not
occurred as of such execution and delivery, the Company will file the
additional registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance with
Rule 462(b) on or prior to 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, on or prior to the time either Prospectus is
printed and distributed to any U.S. Underwriter or any Manager, or will
make such filing at such later date as shall have been consented to by
CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to amend
or supplement the Initial Registration Statement, the Additional
Registration Statement (if any) or any of the Prospectuses and will not
effect such amendment or supplementation without CSFBC's prior consent,
which consent shall not be unreasonably withheld; and the Company will
also advise CSFBC promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of a
Registration Statement or any of the Prospectuses and of the institution
by the Commission of any stop order proceedings in respect of a
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the U.S. Offered
Securities or the International Offered Securities is required to be
delivered under the Act in connection with sales by any U.S. Underwriter,
Manager or dealer, any event occurs as a result of which either or both of
the U.S. Prospectus and the International Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
or if it is necessary at any time to amend either or both of the U.S.
Prospectus and the International Prospectus to comply with the Act, the
Company will promptly notify CSFBC of such event and will promptly prepare
and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither CSFBC's consent to, nor the
U.S. Underwriters' or the Managers' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "Availability Date" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter.
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(e) The Company will furnish to the Representatives copies of the
Registration Statement (four of which will be signed and will include all
exhibits), each preliminary prospectus relating to the Offered Securities,
and, so long as a prospectus relating to the U.S. Offered Securities and
the International Offered Securities is required to be delivered under the
Act in connection with sales by any U.S. Underwriter, Manager or dealer,
the U.S. Prospectus and the International Prospectus and all amendments
and supplements to such documents, in each case in such quantities as
CSFBC requests. The Prospectuses shall be so furnished in New York City
on or prior to 3:00 P.M., New York time, on the business day following the
later of the execution and delivery of this Agreement or the Effective
Time of the Initial Registration Statement. All other such documents
shall be so furnished as soon as available. The Company will pay the
expenses of printing and distributing to the Underwriters all such
documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions in the United
States and Canada as CSFBC designates and will continue such
qualifications in effect so long as required for the distribution.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Exchange Act, or mailed to stockholders of the
Company, and (ii) from time to time, such other information concerning the
Company as CSFBC may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, for any filing fees and other
expenses (including fees and disbursements of counsel) in connection with
qualification of the U.S. Securities and the International Securities for
sale under the laws of such jurisdictions as CSFBC designates and the
printing of memoranda relating thereto, for the filing fee incidental to,
and the reasonable fees and disbursements of counsel to the U.S.
Underwriters and the Managers in connection with, the review by the
National Association of Securities Dealers, Inc. of the U.S. Offered
Securities and the International Offered Securities, for any travel
expenses of the Company's officers and employees and any other expenses of
the Company in connection with attending or hosting meetings with
prospective purchasers of the U.S. Offered Securities and the
International Offered Securities and for expenses incurred in distributing
preliminary prospectuses and the U.S. Prospectus and the International
Prospectus (including any amendments and supplements thereto) to the U.S.
Underwriters and the Managers.
(i) No action has been or, prior to the completion of the
distribution of the Offered Securities, will be taken by the Company in
any jurisdiction outside the United States and Canada that would permit a
public offering of the Offered Securities, or possession or distribution
of the International Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus issued in connection with the
offering of the Offered Securities, or any other offering material, in any
country or jurisdiction where action for that purpose is required.
(j) For a period of 180 days after the date of the initial public
offering of the Offered Securities, the Company and TD Bank will not
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under the
Act relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to
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make any such offer, sale, pledge, disposition or filing, without the
prior written consent of the U.S. Representatives except for grants of
employee stock options pursuant to the terms of a plan in effect on the
date hereof, issuances of Securities pursuant to the exercise of such
options or the exercise of any other employee stock options outstanding on
the date hereof or issuances of Securities in connection with the exchange
of Exchangeable Preference Shares of TD Waterhouse Investor Services
(Canada) Inc.
6. Conditions of the Obligations of the U.S. Underwriters and the
Managers. The obligations of the several U.S. Underwriters and the several
Managers to purchase and pay for the U.S. Firm Securities and the International
Firm Securities on the First Closing Date and the U.S. Optional Securities and
the International Optional Securities to be purchased on each Optional Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The U.S. Representatives, the International Representatives and
the Canadian Underwriters shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall
be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, shall be prior to the filing of the amendment
or post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time), of PricewaterhouseCoopers LLP
confirming that they are independent accountants within the meaning of the
Act and the applicable published Rules and Regulations thereunder and
stating to the effect that:
(i) in their opinion the financial statements audited by them
and included in the Registration Statements comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all
material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations or
any material modifications should be made to such unaudited
financial statements for them to be in conformity with
generally accepted accounting principles;
(B) the unaudited consolidated total revenues, total
expenses and net income amounts for the six-month periods ended
April 30, 1999 and 1998 included in the Prospectuses do not
agree with the amounts set forth in the unaudited consolidated
financial statements for those same periods or were not
determined on a basis substantially consistent with that of the
corresponding
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amounts in the audited statements of income;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of such letter,
there was any change in the capital stock or any increase in
short-term indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest
available balance sheet read by such accountants, there was any
decrease in consolidated total assets, as compared with amounts
shown on the latest balance sheet included in the Prospectuses;
or
(D) for the period from the closing date of the latest
income statement included in the Prospectuses to the closing
date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year, in consolidated
total revenues, total expenses and or net income,
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectuses disclose have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company (as
defined in Note 1 to the combined financial statements) and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective
amendment to be filed shortly prior to its Effective Time, (ii) if the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement but the Effective Time of the
Additional Registration is subsequent to such execution and delivery,
"Registration Statements" shall mean the Initial Registration Statement
and the additional registration statement as proposed to be filed or as
proposed to be amended by the post-effective amendment to be filed shortly
prior to its Effective Time, and (iii) "Prospectuses" shall mean the U.S.
Prospectus, the International Prospectus and the Canadian Prospectus.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have been consented to
by CSFBC. If the Effective Time of the Additional Registration Statement
(if any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or, if earlier, the time
Prospectus is printed and distributed to any Underwriter, or shall have
occurred at such later date as shall have been consented to by CSFBC. If
the Effective Time of the Initial Registration
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Statement is prior to the execution and delivery of this Agreement, each
of the U.S. Prospectus and the International Prospectus shall have been
filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Company, the U.S. Representatives or International
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) a change in U.S., Canadian or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of a
majority in interest of the Underwriters (including the Representatives),
be likely to prejudice materially the success of the proposed issue, sale
or distribution of the Offered Securities, whether in the primary market
or in respect of dealings in the secondary market, or (ii)(A) any change,
or any development or event involving a prospective change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as one enterprise
which, in the judgment of a majority in interest of the Underwriters
(including the Representatives) is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (B) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating agency or organization" (as
defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (C) any material
suspension or material limitation of trading in securities generally on
the New York Stock Exchange or the Toronto Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
overthecounter market; (D) any banking moratorium declared by U.S.
Federal, Canadian or New York authorities; or (E) any outbreak or
escalation of major hostilities in which the United States or Canada is
involved, any declaration of war by the U.S. Congress, the Canadian
Parliament or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the
Underwriters (including the Representatives), the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the U.S. Offered Securities and
the International Offered Securities.
(d) The U.S. Representatives, the International Representatives and
the Canadian Underwriters shall have received an opinion, dated such
Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Delaware, and has full corporate power and authority to own
its properties and conduct its business as described in the
Prospectuses;
(ii) Each of the Company's U.S. subsidiaries has been duly
incorporated and is validly existing and in good standing as a
corporation under the laws of the jurisdiction of its incorporation,
and has full corporate power and authority to own its properties and
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conduct its business as described in the Prospectuses;
(iii) All outstanding shares of the Company's Common Stock,
including the Offered Securities, have been duly authorized, and all
outstanding shares of the Company's Common Stock have been and, upon
payment and delivery in accordance with the Underwriting Agreements,
the Offered Securities will be validly issued, fully paid and
nonassessable;
(iv) The statements made in the Prospectuses insofar as they
purport to constitute summaries of the terms of the Company's capital
stock (including the Offered Securities), constitute accurate
summaries of the terms of such capital stock in all material
respects;
(v) There are no preemptive rights with respect to the Offered
Securities pursuant to the Company's charter or by-laws or any
agreement or other instrument known to such counsel;
(vi) To such counsel's knowledge, there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to include any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities to
be registered pursuant to the Registration Statement;
(vii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of
the proceeds thereof as described in the Prospectuses, will not be an
"investment company" within the meaning of and subject to regulation
under the Investment Company Act of 1940, as amended;
(viii) No consent, approval, authorization, order, registration
or qualification of or with any federal or New York governmental
agency or body or any Delaware governmental agency or body acting
pursuant to the Delaware General Corporation Law or, to our
knowledge, any federal or New York court or any Delaware court acting
pursuant to the Delaware General Corporation Law is required for the
issue and sale of the Offered Securities by the Company and the
compliance by the Company with all the provisions of this Agreement,
except such as may be contemplated by the Reorganization Agreements
in connection with the Reorganization, the registration under the Act
and the Exchange Act of the Offered Securities, and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Offered Securities by the
Underwriters;
(ix) The execution, delivery and performance of this Agreement,
the Canadian Underwriting Agreement and the Reorganization Agreements
and the issuance and sale of the Offered Securities will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any statute, any rule, regulation or
order of any federal or New York governmental agency or body or any
Delaware governmental agency or body acting pursuant to the Delaware
General Corporation Law or any federal or New York court or any
Delaware court acting pursuant to the Delaware General Corporation
Law, or (ii) any agreement or instrument known to such counsel to
which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, except
where such breach, violation or default would not have,
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either individually or in the aggregate, a Material Adverse Effect,
or (iii) the charter or bylaws of the Company or such subsidiary, and
the Company has full power and authority to authorize, issue and sell
the Offered Securities as contemplated by this Agreement and the
Canadian Underwriting Agreement;
(x) The Initial Registration Statement has become effective
under the Act as of the date and time specified in such opinion, the
Additional Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, the U.S. Prospectus either was filed with
the Commission pursuant to the subparagraph of Rule 424(b) specified
in such opinion on the date specified therein or was included in the
Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the knowledge of such
counsel, no stop order suspending the effectiveness of a Registration
Statement has been issued or proceedings for that purpose have been
instituted or threatened by the Commission, and each Registration
Statement and the U.S. Prospectus and each amendment or supplement
thereto, as of their respective effective or issue dates, complied
with as to form in all material respects with the requirements of the
Act and the Rules and Regulations; such counsel have no reason to
believe that any part of a Registration Statement or any amendment
thereto, as of its effective date or the Closing Date, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that any Prospectus or any
amendment or supplement thereto, as of its issue date or the Closing
Date, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances in which they were made,
not misleading; the descriptions and statements made in the
Registration Statements and Prospectuses, insofar as they purport to
constitute summaries of the terms of New York or federal statutes,
the Delaware General Corporate Law, rules and regulations thereunder
or contracts and other documents, constitute accurate summaries of
the terms of such statutes, rules and regulations, contracts and
other documents or such legal and governmental proceedings in all
material respects; and to such counsel's knowledge, there are not
any legal or governmental proceedings required to be described in a
Registration Statement or the Prospectuses which are not described as
required or any contracts or documents of a character required to be
described in a Registration Statement which are not described and
filed as required; it being understood that such counsel need
express no opinion as to the financial statements or other financial
data contained in the Registration Statements or the Prospectuses;
(xi) This Agreement and the Canadian Underwriting Agreement have
been duly authorized, executed and delivered by the Company;
(xii) Each of the Reorganization Agreements to which the Company
is a party has been duly authorized, executed and delivered by the
Company;
(xiii) Each of the Reorganization Agreements to which the
Company is a party has been duly authorized by the Company and
conforms in all material respects to the description thereof in the
Prospectuses, constitutes a valid and binding obligation of the
Company enforceable against it in accordance with its terms, except
to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights generally and (ii) to general principles
of equity (regardless of whether
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enforcement is considered in a proceeding in equity or at law);
(xiv) The statements made in the Prospectuses, insofar as they
purport to constitute summaries of the terms of the Reorganization
Agreements, constitute accurate summaries of the terms of such
documents in all material respects; and
(xv) (i) The Company or its subsidiaries have, pursuant to the
Reorganization Agreements, acquired all of the capital stock of TD
Bank's U.S., United Kingdom, Australia and Hong Kong discount
brokerage subsidiaries (other than capital stock issued as part of
the Reorganization and set forth in the Prospectuses), and (ii) upon
completion of the transactions contemplated by the Reorganization
Agreements, the Company or its subsidiaries will, pursuant to such
Reorganization Agreements and to the extent contemplated thereby,
acquire all of the title to or adequate use of the properties and
other assets (tangible and intangible) constituting TD Bank's
Canadian discount brokerage operations.
(e) The U.S. Representatives, the International Representatives and
the Canadian Underwriters shall have received an opinion, dated such
Closing Date, of Xxxxxxx X. Xxxxxx, general counsel for the Company, to
the effect that:
(i) The Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in the U.S.
in which its ownership or lease of property or the conduct of its
business requires such qualification;
(ii) Solely with respect to the operations of the Company and
its subsidiaries conducted in the United States, there are no pending
actions, suits or proceedings against or affecting the Company, any
of its U.S. subsidiaries or any of their respective properties that
would have, either individually or in the aggregate, a Material
Adverse Effect, or would materially and adversely affect the ability
of the Company to perform its obligations under this Agreement, the
Canadian Underwriting Agreement or the Reorganization Agreements, or
which are otherwise material in the context of the sale of the
Offered Securities; and, to such counsel's knowledge, no such
actions, suits or proceedings are threatened;
(iii) The Company and its U.S. subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or
any of its U.S. subsidiaries, would individually or in the aggregate
have a Material Adverse Effect;
(iv) Each of the Company and its U.S. subsidiaries which is
required to be licensed or registered as such is duly licensed
registered as a broker-dealer, municipal securities broker or dealer,
investment adviser, or transfer agent, as the case may be, in each
U.S. jurisdiction wherein the conduct of its business requires such
licensing or registration, and to the best of such counsel's
knowledge each of the Company and its U.S. subsidiaries is in
compliance in all material respects with all applicable laws rules,
regulations, orders, by-laws and similar requirements in connection
with such licenses and registrations, except to the extent that the
failure to be so registered or be in compliance would not have a
Material Adverse Effect; and
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(v) The Company and its U.S. subsidiaries are members in good
standing of the associations and exchanges indicated in the
Prospectuses, the Company's U.S. brokerage and clearing subsidiaries
are registered as a brokerdealer with the Commission and in all 50
states, the District of Columbia and Puerto Rico, in each case except
to the extent that the failure to be in good standing or be so
registered would not have Material Adverse Effect.
(f) The U.S. Representatives, the International Representatives and
the Canadian Underwriters shall have received an opinion, dated such
Closing Date, of XxXxxxxx Xxxxxxxx, special Canadian counsel for the
Company, to the effect that:
(i) Each of the Company's subsidiaries outside of the U.S. has
been duly incorporated and is validly existing and in good standing as
a corporation under the laws of the jurisdiction of its
incorporation, and has full corporate power and authority to own its
properties and conduct its business as described in the Prospectuses;
(ii) No consent, approval, authorization, order, registration or
qualification of or with any Canadian governmental agency or body, to
our knowledge, any Canadian federal or provincial court is required
for the issue and sale of the Offered Securities by the Company and
the compliance by the Company with all the provisions of this
Agreement and the Canadian Underwriting Agreement, except such as may
be contemplated by the Reorganization Agreements in connection with
the Reorganization, the registration under the Securities Act
(Ontario) of the Offered Securities, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under territorial or provincial securities laws in connection with
the purchase and distribution of the Offered Securities by the
Underwriters;
(iii) The execution, delivery and performance of this Agreement,
the Canadian Underwriting Agreement and the Reorganization Agreements
and the issuance and sale of the Offered Securities will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any statute, any rule, regulation or
order of any provincial or territorial governmental agency or body in
Canada or any court of any Canadian province or territory, or (ii)
any agreement or instrument known to such counsel to which the
Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, except where such breach,
violation or default would not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect, or (iii)
the charter or bylaws of the Company or such subsidiary, and the
Company has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by the Agreement and the Canadian
Underwriting Agreement;
(iv) Each of the Reorganization Agreements to which TD Bank and
TD Waterhouse Investor Services (Canada) Inc. is a party has been
duly authorized, executed and delivered by TD Bank and TD Waterhouse
Investor Services (Canada) Inc., respectively;
(v) Each of the Reorganization Agreements to which TD Bank and
TD Waterhouse Investor Services (Canada) Inc. are a party has been
duly authorized by TD Bank and TD Waterhouse Investor Services
(Canada) Inc. and conforms in all material respects to the
description thereof in the Prospectuses, constitutes a valid and
binding obligation of TD Bank and TD Waterhouse Securities (Canada)
Inc. enforceable against
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each of them in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights
generally and (ii) to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law);
(vi) The Canadian Underwriting Agreement constitutes a legal,
valid and binding obligation of the Company enforceable in accordance
with its terms except as certain provisions may be limited by
applicable laws. The terms and conditions thereof required to be
complied with or fulfilled by the Company prior to the purchase by
the Canadian Underwriters of the Canadian Firm Securities or the
Canadian Optional Securities, as the case may be, have been complied
with or fulfilled.
(vii) All necessary documents and proceedings have been filed
and taken and all other legal requirements have been fulfilled under
the laws of each of the provinces and territories of Canada to
qualify the Offered Securities to be offered and sold to the public
in each province and territory of Canada by or through registrants,
investment dealers or brokers registered under applicable legislation
of such provinces who have complied with the relevant provisions of
such legislation.
(viii) The Toronto Stock Exchange and The New York Stock
Exchange have listed the Offered Securities and conditionally
approved the posting for trading of the Offered Securities at the
opening of trading on the First Closing Date.
(ix) The statements contained in the Canadian Prospectus under
the heading "Canadian Federal Income Tax Considerations" are a fair
summary of the principal Canadian federal income tax considerations
generally applicable to purchasers of Offered Securities who are
resident in Canada.
(x) The Offered Securities are, at the Closing Date, eligible
investments under the statutes listed in the Canadian Prospectus,
subject to compliance with the prudent investor standards and the
general provisions and restrictions of the statutes (and, where
applicable, the regulations thereunder) and, in certain cases subject
to satisfaction of additional requirements relating to investments or
lending policies or goals and, in certain cases, the filing of such
policies or goals.
(g) The U.S. Representatives, International Representatives and the
Canadian Underwriters shall have received an opinion, dated such Closing
Date, of Xxxxxxxxxxx X. Xxxxxxxx, general counsel for TD Bank, to the
effect that:
(i) Solely with respect to the operations of the Company and its
subsidiaries conducted outside of the United States, there are no
pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective
properties that would have, either individually or in the aggregate,
a Material Adverse Effect, or would materially and adversely affect
the ability of the Company to perform its obligations under this
Agreement, the Canadian Underwriting Agreement or the Reorganization
Agreements, or which are otherwise material in the context of the
sale of
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the Offered Securities; and, to such counsel's knowledge, no such
actions, suits or proceedings are threatened;
(ii) No consent, approval, authorization, order, registration or
qualification of or with any governmental agency or body outside of
the U.S. or Canada acting pursuant to any applicable law outside of
the U.S. and Canada is required for the issue and sale of the Offered
Securities by the Company and the compliance by the Company with all
the provisions of this Agreement and the Canadian Underwriting
Agreement, except such as may be contemplated by the Reorganization
Agreements in connection with the Reorganization, the registration
under any foreign securities act, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under securities laws outside the U.S. and Canada in connection with
the purchase and distribution of the Offered Securities by the
Underwriters;
(iii) The execution, delivery and performance of this Agreement,
the Canadian Underwriting Agreement and the Reorganization Agreements
and the issuance and sale of the Offered Securities will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any statute, any rule, regulation or
order of any governmental agency or body outside the U.S. or Canada
or any governmental agency or body acting pursuant to laws outside of
the U.S. and Canada, or (ii) any agreement or instrument known to
such counsel to which the Company or any such subsidiary is a party
or by which the Company or any such subsidiary is bound or to which
any of the properties of the Company or any such subsidiary is
subject, except where such breach, violation or default would not
have, either individually or in the aggregate, a Material Adverse
Effect, or (iii) the charter or bylaws of the Company or such
subsidiary, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by
this Agreement and the Canadian Underwriting Agreement;
(iv) Each of the Company and its subsidiaries outside of the
U.S. which is required to be licensed or registered as such is duly
licensed registered as a broker-dealer, municipal securities broker or
dealer, investment adviser, or transfer agent, as the case may be, in
each jurisdiction outside of the U.S. wherein the conduct of its
business requires such licensing or registration, and to the best of
such counsel's knowledge each of the Company and its subsidiaries
outside of the U.S. is in compliance in all material respects with
all applicable laws rules, regulations, orders, by-laws and similar
requirements in connection with licenses and such licenses and
registrations, except to the extent that the failure to be so
registered or be in compliance would not have a Material Adverse
Effect;
(v) The Company and its subsidiaries outside of the U.S. are
members in good standing of the associations and exchanges indicated
in the Prospectuses, the Company's Canadian brokerage subsidiaries
are registered as an investment dealer in all provinces and
territories in Canada, and the Company's United Kingdom, Australia
and Hong Kong subsidiaries are registered as an investment dealer in
all jurisdictions in the United Kingdom, Australia or Hong Kong, as
the case may be, in each case except to the extent that the failure
to be in good standing or be so registered would not have Material
Adverse Effect; and
(vi) The subsidiaries of the Company outside of the U.S. possess
adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the revocation
or modification of any such certificate, authority or permit that, if
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determined adversely to any the subsidiaries of the Company outside
of the U.S., would individually or in the aggregate have a Material
Adverse Effect.
(h) The U.S. Representatives, the International Representatives and
the Canadian Underwriters shall have received from Cravath, Swaine &
Xxxxx, U.S. counsel for the Underwriters and Tory Xxxx XxxXxxxxxxx and
Binnington, Canadian counsel for the Underwriters, such opinion or
opinions, dated such Closing Date, with respect to the incorporation of
the Company, the validity of the Offered Securities delivered on such
Closing Date, the Registration Statements, the Prospectuses and other
related matters as the Representatives may require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(i) The U.S. Representatives, the International Representatives and
the Canadian Underwriters shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that: the representations and warranties of the Company in this Agreement
are true and correct; the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date; no stop order suspending the
effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission; the Additional Registration Statement (if any) satisfying
the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing fee in
accordance with Rule 111(a) or (b) under the Act, prior to the time any
Prospectus was printed and distributed to any Underwriter; and, subsequent
to the date of the most recent financial statements in the Prospectuses,
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectuses or as described in such certificate.
(j) The U.S. Representatives, the International Representatives and
the Canadian Underwriters shall have received a letter, dated such Closing
Date, of PricewaterhouseCoopers LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
(k) On the Closing Date, the Canadian Underwriters shall have
purchased the Canadian Securities pursuant to the Canadian Underwriting
Agreement.
(l) The Company shall have filed an application and received
approval for the listing, subject to customary conditions, of the Offered
Securities with The New York Stock Exchange and the Toronto Stock Exchange
and has paid the required fees.
The Company will furnish the Representatives with such conformed copies of
such opinions, certificates, letters and documents as the Representatives
reasonably request. CSFBC may in its sole discretion waive on behalf of the
U.S. Underwriters and the Managers compliance with any conditions to the
obligations of the U.S. Underwriters and the Managers hereunder, whether in
respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each U.S. Underwriter and Manager, its partners, directors and
officers and each person, if any, who controls such U.S. Underwriter or Manager
within the meaning of Section 15 of the Act, against any losses, claims,
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damages or liabilities, joint or several, to which such U.S. Underwriter or
Manager may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, either of the U.S. Prospectus and
the International Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each U.S. Underwriter or Manager for any legal or other expenses
reasonably incurred by such U.S. Underwriter or Manager in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any U.S. Underwriter or Manager through the applicable U.S.
Representative or International Representative specifically for use therein, it
being understood and agreed that the only information furnished by any U.S.
Underwriter or Manager consists of the information described as such in
subsection (b) below; provided, however, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary prospectus the indemnity agreement contained in this subsection
(a) shall not inure to the benefit of any Underwriter to the extent that any
such loss, claim, damage or liability of such Underwriter results from the fact
that such Underwriter sold Offered Securities to a person as to whom it shall
be established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus or of the Prospectus as
then amended or supplemented in any case where such delivery is required by the
Act if (i) the Company had previously furnished copies thereof in sufficient
quantity to such Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus which was identified at such time to
such Underwriter and corrected in the Prospectus or in the Prospectus as then
amended or supplemented and (ii) such failure to give or send such final
Prospectus by the Closing Date to the party or parties asserting such loss,
liability, claim, damage or expense would have constituted the sole defense to
the claim asserted by such person.
Insofar as the foregoing indemnity agreement, or the representations and
warranties contained in Section 2(b), may permit indemnification for
liabilities under the Act of any person who is a U.S. Underwriter or Manager or
a partner or controlling person of a U.S. Underwriter or Manager within the
meaning of Section 15 of the Act and who, at the date of this Agreement, is a
director, officer or controlling person of the Company, the Company has been
advised that in the opinion of the Commission such provisions may contravene
Federal public policy as expressed in the Act and may therefore be
unenforceable. In the event that a claim for indemnification under such
agreement or such representations and warranties for any such liabilities
(except insofar as such agreement provides for the payment by the Company of
expenses incurred or paid by a director, officer or controlling person in the
successful defense of any action, suit or proceeding) is asserted by such a
person, the Company will submit to a court of appropriate jurisdiction (unless
in the opinion of counsel for the Company the matter has already been settled
by controlling precedent) the question of whether or not indemnification by it
for such liabilities is against public policy as expressed in the Act and
therefore unenforceable, and the Company will be governed by the final
adjudication of such issue.
(b) Each U.S. Underwriter and Manager will severally and not jointly
indemnify and hold harmless the Company, its directors and officers and each
person, if any who controls the Company within the meaning of Section 15 of the
Act, against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, any of the Prospectuses, or
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23
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such U.S. Underwriter or Manager
through the U.S. Representatives or International Representatives specifically
for use therein, and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred, it
being understood and agreed that the only such information furnished by any
U.S. Underwriter or Manager consists of the statements with respect to the
public offering of the Offered Securities on the cover page of and in the
fifth, sixth, eighth, ninth and fifteenth paragraphs under, the caption
"Underwriting" in the Prospectuses furnished on behalf of each U.S. Underwriter
or Manager.
(c) Promptly after receipt by an indemnified party under this Section or
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above or Section 9, notify the indemnifying
party of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under subsection (a) or (b) above or
Section 9. In case any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section or Section 9, as the case may be, for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
includes (i) an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and (ii)
does not include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the U.S. Underwriters and the Managers on the other from the
offering of the U.S. Offered Securities and the International Offered
Securities, respectively, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the U.S.
Underwriters and the Managers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the U.S. Underwriters and the Managers on
the other shall be deemed to be in the same proportion as the total net
proceeds from the offering of the U.S. Offered Securities and the International
Offered Securities (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the U.S.
Underwriters and the Managers, respectively. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
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state a material fact relates to information supplied by the Company or the
U.S. Underwriters and the Managers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no U.S. Underwriter or
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the U.S. Offered Securities or the International
Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such U.S.
Underwriter or Manager has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The U.S. Underwriters' obligations and
the Managers' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section and Section 9 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any U.S. Underwriter or Manager or the QIU (as hereinafter defined)
within the meaning of the Act; and the obligations of the U.S. Underwriters and
the Managers under this Section shall be in addition to any liability which the
respective U.S. Underwriters and Managers may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company, to each
officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
8. Default of U.S. Underwriters and Managers. If one or more U.S.
Underwriters or Managers default in their obligations to purchase U.S.
Securities or International Securities hereunder on any Closing Date and the
aggregate number of shares of U.S. Securities or International Securities that
such defaulting U.S. Underwriters or Managers agreed but failed to purchase
does not exceed 10% of the total number of shares of U.S. Securities or
International Securities, as applicable, that the U.S. Underwriters or Managers
are obligated to purchase on such Closing Date, the U.S. Representatives or
International Representatives may make arrangements satisfactory to the Company
for the purchase of such U.S. Offered Securities or International Securities by
other persons, including any of the U.S. Underwriters or the Managers, but if
no such arrangements are made by such Closing Date the non-defaulting U.S.
Underwriters or Managers shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the U.S. Securities or the
International Securities that such defaulting U.S. Underwriters or Managers
agreed but failed to purchase on such Closing Date. If one or more U.S.
Underwriters or Managers so default and the aggregate number of shares of U.S.
Securities or International Securities with respect to which such default or
defaults occur exceeds 10% of the total number of shares of U.S. Securities or
International Securities, as applicable, that the U.S. Underwriters or Managers
are obligated to purchase on such Closing Date and arrangements satisfactory to
the applicable Representatives and the Company for the purchase of such U.S.
Offered Securities or International Offered Securities by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting U.S. Underwriter or Manager or the
Company, except as provided in Section 10 (provided that if such default occurs
with respect to the U.S. Optional Securities or International Optional
Securities after the First Closing Date, this Agreement will not terminate as
to the U.S. Firm Securities or International Firm Securities or any U.S.
Optional Securities or International Optional Securities purchased prior to
such termination). As used in this Agreement, the terms "U.S. Underwriter" and
"Manager" include any person substituted for a U.S. Underwriter or Manager
under this Section. Nothing herein will relieve a defaulting U.S. Underwriter
or Manager from liability for its default.
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9. Qualified Independent Underwriter. The Company hereby confirms that
at its request CSFBC has without compensation acted as "qualified independent
underwriter" (in such capacity, the "QIU") within the meaning of Rule 2720 of
the Conduct Rules of the National Association of Securities Dealers, Inc. in
connection with the offering of the Offered Securities. The Company will
indemnify and hold harmless the QIU against any losses, claims, damages or
liabilities, joint or several, to which the QIU may become subject, in such
capacity, under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
the QIU's acting (or alleged failing to act) as such "qualified independent
underwriter" and will reimburse the QIU for any legal or other expenses
reasonably incurred by the QIU in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Company or its officers and of the several U.S. Underwriters and the
several Managers set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any U.S. Underwriter, Manager, the
Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the U.S.
Securities and the International Securities. If this Agreement is terminated
pursuant to Section 8 or if for any reason the purchase of the U.S. Securities
or the International Securities by the U.S. Underwriters or the Managers is not
consummated, the Company shall remain responsible for the expenses to be paid
or reimbursed by it pursuant to Section 5 and the respective obligations of the
Company, the U.S. Underwriters and the Managers pursuant to Section 7 and the
obligations of the Company pursuant to Section 9 shall remain in effect and if
any U.S. Securities or any International Securities have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the U.S.
Securities or the International Securities by the U.S. Underwriters or
Managers, respectively, is not consummated for any reason other than solely
because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (C), (D) or (E) of Section
6(c)(ii), the Company will reimburse the U.S. Underwriters or the Managers, as
applicable, for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the U.S. Securities and the International Securities.
11. Notices. All communications hereunder will be in writing and, if
sent to the U.S. Underwriters, will be mailed, delivered or telegraphed and
confirmed to: (a) the U.S. Representatives, c/o Credit Suisse First Boston
Corporation, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention:
Investment Banking Department - Transactions Advisory Group; (b) to the
International Representatives c/o Credit Suisse First Boston (Europe) Limited
at Xxx Xxxxx Xxxxxx, Xxxxxx X00 0XX England, Attention: Company Secretary; and
(c) if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at TD Waterhouse Securities, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx,
X.X., Attention: General Counsel; provided, however, that any notice to a U.S.
Underwriter or Manager pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such U.S. Underwriter or Manager.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
13. Representation of U.S. Underwriters and Managers. The U.S.
Representatives will act for the several U.S. Underwriters and the
International Representatives will act for the several Managers, in each case
in connection with this financing. Any action under this Agreement taken by
the U.S. Representatives jointly or by CSFBC will be binding upon all the U.S.
Underwriters. Any action under this Agreement
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26
taken by the International Representatives will be binding upon all the
Managers.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any
suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the U.S. Representatives' and the
International Representatives' understanding of our agreement, kindly sign and
return to the Company one of the counterparts hereof, whereupon it will become
a binding agreement among the Company, the several U.S. Underwriters and the
several Managers in accordance with its terms.
Very truly yours,
TD WATERHOUSE GROUP, INC.,
by
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
The U.S. Underwriters
CREDIT SUISSE FIRST BOSTON CORPORATION
TD SECURITIES (USA) INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
by
Name:
Title:
Acting on behalf of themselves and as the
Representatives of the several U.S.
Underwriters named in Schedule A hereto.
The International Underwriters
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
THE TORONTO-DOMINION BANK
By: CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
by
Name:
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28
Title:
Acting on behalf of themselves and as the Representatives
of the several Managers named in Schedule B hereto.
29
SCHEDULE A
NUMBER OF
UNDERWRITER U.S. FIRM SECURITIES
Credit Suisse First Boston Corporation
TD Securities (USA) Inc
Xxxxxxx, Xxxxx & Co
Xxxxxxx Xxxxx Xxxxxx Inc
Xxxxxx Xxxxxxx & Co. Incorporated
___________________
Total 20,800,000
====================
30
SCHEDULE B
NUMBER OF
INTERNATIONAL UNDERWRITER INTERNATIONAL FIRM SECURITIES
------------------------------------------------------- -----------------------------
Credit Suisse First Boston (Europe) Limited
The Toronto-Dominion Bank
Xxxxxxx Sachs International
Salomon Brothers International Limited
Xxxxxx Xxxxxxx & Co. International Limited
ABN AMRO Rothschild
Deutsche Bank AG London
UBS AG, acting through its division Warburg Dillon Read
__________________
Total 3,200,000
==================
31
SCHEDULE C
REORGANIZATION AGREEMENTS
1. Transfer and Assumption Agreement between The Toronto-Dominion
Bank and TD Waterhouse Securities (Canada), Inc.
2. Transfer and Assumption Agreement between TD Securities Inc.
and TD Waterhouse Securities (Canada), Inc.
3. Support and Exchange Agreement between TD Waterhouse Group,
Inc. and TD Waterhouse Securities (Canada), Inc.
4. Share Transfer Agreement between The Toronto-Dominion Bank and
TD Waterhouse Group, Inc.
5. Master Services Agreement between The Toronto-Dominion Bank and
TD Waterhouse Group, Inc.
32
EXHIBIT A
June 22, 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
TD SECURITIES (USA) INC.
As Representatives of the several U.S. Underwriters
c/o CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
CREDIT SUISSE FIRST BOSTON SECURITIES CANADA, INC.
TD SECURITIES INC.
As Representatives of the several Canadian Underwriters
c/o CREDIT SUISSE FIRST BOSTON SECURITIES CANADA INC.
First Canadian Place, Suite 3000
X.X. Xxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
CREDIT SUISSE FIRST BOSTON (Europe) LIMITED
THE TORONTO-DOMINION BANK
As Representative of the several Managers
c/o CREDIT SUISSE FIRST BOSTON (Europe) LIMITED
One Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx X00 0XX
Dear Sirs:
As an inducement to the U.S. Underwriters, the Canadian Underwriters and
the International Managers to execute, respectively, the U.S. and International
Underwriting Agreement and the Canadian Underwriting Agreement (collectively,
the "Underwriting Agreements"), pursuant to which an offering will be made of
the Common Stock, $0.01 par value per share (the "Securities") of TD Waterhouse
Group, Inc. (the "Issuer"), the undersigned hereby agrees that, for a period of
180 days after the date of the Underwriting Agreements (the "Applicable
Period") to which you are or expect to become parties, the undersigned will not
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or (except pursuant to agreements executed on or prior to the date
hereof) arrange to have declared effective during the Applicable Period a
registration statement under the Securities Act covering the sale by the
undersigned of (a) any shares of Common Stock of the Issuer or any other
capital stock of the Issuer or (b) any other securities which are convertible
into, or exercisable or exchangeable for, Common Stock or other capital stock
of the Issuer (collectively, "Derivative Securities"), without the prior
written consent of Credit Suisse First Boston Corporation and TD Securities
(USA) Inc., except that the foregoing restrictions shall not apply to, in the
case of the Issuer, grants of stock options with respect to its Common Stock to
its officers, directors and employees and issuances of Common Stock in
connection with the exercise of such stock options, and in connection with the
exchange of exchangeable preference shares of TD Waterhouse Securities (Canada)
Inc.
In furtherance of the foregoing, the Issuer and its transfer agent and
registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement.
33
EXHIBIT A
Very truly yours,
This Agreement shall be binding on the undersigned and its respective
successors and assigns. This Agreement shall lapse and become null and void if
the public offering shall not have occurred on or before the date that is o
days after the date of this Agreement.
