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EXHIBIT 1
- SHARES
TD WATERHOUSE GROUP, INC.
COMMON STOCK
U.S. AND INTERNATIONAL UNDERWRITING AGREEMENT
---------------------------------------------
, 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. 10010-3629
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) o shares of its Common Stock (the "SECURITIES"). It is understood
that, subject to the conditions hereinafter stated: (a) o 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)
o 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 o 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".
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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. Underwriters, an
aggregate of not more than o additional shares of Securities (the "U.S. OPTIONAL
SECURITIES"), and (b) to the Managers, at the option of the Managers, an
aggregate of not more than o additional shares of Securities (the "INTERNATIONAL
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 Canadian Underwriters, an aggregate of not
more than o 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".
Immediately prior to the issue and sale of the Offered Securities, The
Toronto-Dominion Bank ("TD BANK") will own 100% of the voting stock of the
Company and will complete a reorganization (the "REORGANIZATION") of its
discount brokerage operations. The Reorganization will include: (i) a
recapitalization of TD Bank's U.S. discount brokerage subsidiaries pursuant to
which those companies will become subsidiaries of the Company and will issue
preferred stock to a subsidiary of TD Bank; (ii) a transfer by TD Bank of its
Canadian discount brokerage operations to a subsidiary of the Company in
exchange for exchangeable preference shares and promissary notes of the
subsidiary; (iii) a transfer by TD Bank of all of the stock of its United
Kingdom, Australia and Hong Kong discount brokerage subsidiaries to the Company
in exchange for a promissary note of the Company and (iv) the execution of a
master services agreement between the Company and TD Bank pursuant to which the
two companies will make certain services available to each other. The agreements
executed in connection with the Reorganization are hereinafter called 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. 333-77521) relating to the
Offered Securities, including a form of prospectus relating to the U.S.
Securities being offered in the U.S. Offering and a form of prospectus
relating to the International Securities being offered in the
International 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. 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
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either such 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 and
the form of prospectus relating to the International Securities, each
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, are hereinafter
referred to as the "U.S. PROSPECTUS" and the "INTERNATIONAL
PROSPECTUS", respectively, and the form of prospectus relating to the
Canadian Securities is hereinafter referred to as the "CANADIAN
PROSPECTUS"; 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 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
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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
each of the U.S. Prospectus and the International 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 and the International Prospectus are included, each
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, 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.
(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; 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.
(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 conform 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
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the Act 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 in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(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.
(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 have been obtained and made under the Act
and such as may be required under state securities laws.
(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, 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, or
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 such subsidiary is
subject, or the charter or by-laws of the Company or any 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.
(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 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 with the use made or to be made thereof by them.
(m) 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 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
subsidiaries, would individually or in the aggregate have 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").
(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
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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, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have 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 the financial position of
the Company and its consolidated subsidiaries as of the dates shown and
their results of 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; the schedules included in each Registration
Statement present fairly the information required to be stated therein;
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 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, 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
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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) The execution, delivery and performance of the
Reorganization Agreements by each of the parties thereto and compliance
with the terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over such parties or any of their properties, or any
agreement or instrument to which any such party is a party or any such
party is bound or to which any of their properties is subject, or the
charter or by-laws of any such party.
(y) The Company or its Subsidiaries have, pursuant to the
Reorganization Agreements acquired (i) all of the title to the
properties and other assets (tangible and intangible) constituting TD
Bank's Canadian discount brokerage operations and (ii) 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,
in each case, free and clear of all liens, charges and encumbrances and
consistent with the description set forth in the Prospectuses.
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 ,
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 will each be in definitive form and the certificates for the
International Firm Securities 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 all or less than all of the
U.S. Optional Securities and the Managers may purchase all or less than all of
the
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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 or 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 over-allotments
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. Representative's 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 Mangers. 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 each of the U.S. Prospectus and the International
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 or any additional registration
statement as filed or either of the related prospectuses or 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; 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.
(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
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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, 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. Offered Securities and the
International Offered Securities for sale under the laws of such
jurisdictions as CSFBC designates and the printing of memoranda
relating thereto, for any fees charged by investment rating agencies
for the rating of the U.S. Offered Securities and the International
Offered Securities, 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 - days after the date of the initial
public offering of the Offered Securities, the Company 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 make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Representatives except the 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 Canada].
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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 of Company officers made
pursuant to the provisions hereof, to the by the Company of its obligations
hereunder and to the following conditions precedent:
(a) The Representatives 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 public 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,
schedules, and summary of earnings examined 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 o-month periods ended o, 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 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
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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 (B) and (C) 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 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.
The Company shall have received from PricewaterhouseCoopers
LLP (and furnished to the Representatives) an examination report with
respect to Management's Discussion and Analysis of Financial Condition
and Results of Operations of the Company for the three fiscal years
ending October 31, 1998, and review report with respect to Management's
Discussion and Analysis of Financial Condition and Results of
Operations of the Company for the o-month period ending o, 1999, and
the corresponding period for the prior fiscal year, each in accordance
with Statement on Standards for Attestation Engagement No. 8 issued by
the Auditing Standards Board of the American Institute of Certified
Public Accountants, and such examination report shall be included in
the Registration Statement.
(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 Statement is prior to the execution and
delivery of this Agreement, each of the U.S.
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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 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 over-the-counter 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 Representatives 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 an
existing corporation in good standing under the laws of the
State of Delaware, with corporate power and authority 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;
(ii) The Offered Securities delivered on such Closing
Date, and all other outstanding shares of the Common Stock of
the Company have been duly authorized and validly issued, are
fully paid and nonassessable and conform to the description
thereof contained in the Prospectuses; and the stockholders of
the Company have no preemptive rights with respect to the
Offered Securities;
(iii) There are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities
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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 the Registration Statement
or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act;
(iv) 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.
(v) 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, the Canadian Underwriting
Agreement or the Reorganization Agreements, except such as
have been obtained and made under the Act and such as may be
required under state securities laws;
(vi) There are no pending actions, suits or
proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have 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 no
such actions, suits or proceedings are threatened or, to such
counsel's knowledge, contemplated.
(vii) 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, any statute, any rule, regulation or order of
any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the
Company or any of their properties, or 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, or the charter or by-laws of
the Company or any 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;
(viii) The Initial Registration Statement was
declared 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, each of the U.S. Prospectus and the
International Prospectus either were filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein or were included in the
Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of a Registration Statement or any part thereof
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and
each Registration Statement and each of the U.S. Prospectus
and the International Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue
dates, complied 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 as of such Closing Date, contained any
untrue statement of a material
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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 as
of such 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 under which they were made, not
misleading; the descriptions in the Registration Statements
and the Prospectuses of statutes, legal and governmental
proceedings and contracts and other documents are accurate
and fairly present the information required to be shown; and
such counsel do not know of any legal or governmental
proceedings required to be described in a Registration
Statement or the Prospectuses which are not described as
required or of any contracts or documents of a character
required to be described in a Registration Statement or the
Prospectuses or to be filed as exhibits to 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;
(ix) 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;
(x) 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);
(xi) The execution, delivery and performance of the
Reorganization Agreements by each of the parties thereto and
compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute,
rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over
such parties or any of their properties, or any agreement or
instrument to which any such party is a party or any such
party is bound or to which any of their properties is subject,
or the charter or by-laws of any such party; and
(xii) The Company or its Subsidiaries have, pursuant to
the Reorganization Agreements acquired (i) all of the title to
the properties and other assets (tangible and intangible)
constituting TD Bank's Canadian discount brokerage operations
and (ii) 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, in
each case, free and clear of all liens, charges and
encumbrances and consistent with the description set forth in
the Prospectuses.
(e) The Representatives 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.
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(f) The Representatives 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.
(g) The Representatives 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.
(h) On the Closing Date, the Canadian Underwriters shall have
purchased the Canadian Securities pursuant to the Canadian Underwriting
Agreement.
(i) The Issuer has filed an application and received approval
for the listing of the Offered Securities with The New York Stock
Exchange and the Toronto Stock Exchange and has paid the required fees.
(j) Each executive officer and director of the Issuer shall
have furnished to the Representatives a letter substantially in the
form of Exhibit A hereto and addressed to the Representatives relating
to sales of shares of Common Stock or any securities convertible into
or exercisable or exchangeable for such Common Stock, and each such
letter shall be in full force and effect on the Closing Date.
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, 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
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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.
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 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 concession and reallowance figures appearing in the
sixth paragraph 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 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
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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 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
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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.
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, 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 fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the U.S. Securities and the
International Securities.
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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 Group 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
Representative 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 taken by the International
Representative 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:
Title:
Acting on behalf of themselves and as the Representatives of the
several Managers named in Schedule B hereto.
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SCHEDULE A
NUMBER OF
UNDERWRITER U.S. FIRM SECURITIES
Credit Suisse First Boston Corporation..........................................
TD Securities (USA) Inc.........................................................
Xxxxxxx, Xxxxx & Co.............................................................
Xxxxxxx Xxxxx Barney Inc........................................................
Xxxxxx Xxxxxxx & Co. Incorporate................................................
-------------------
Total.......................................... ===================
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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........
------------------
Total.................................... ==================
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EXHIBIT A
[DATE]
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.
[ADDRESS]
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
Securities, Inc. (the "Issuer"), the undersigned hereby agrees that, for a
period of - 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, except that the foregoing
restrictions shall not apply to.
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.
This Agreement shall be binding on the undersigned and the respective
successors, heirs, personal representatives and assigns of the undersigned. This
Agreement shall lapse and become null and void if the public offering shall not
have occurred on or before the date that is - days after the date of this
Agreement.
Very truly yours,