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EXHIBIT 2.3
SHARE TRANSFER AGREEMENT
THE TORONTO-DOMINION BANK
(AS VENDOR)
- AND -
TD WATERHOUSE GROUP, INC.
(AS PURCHASER)
DATED JUNE -, 1999
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SHARE TRANSFER AGREEMENT
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THIS AGREEMENT made the - day of June, 1999,
BETWEEN:
THE TORONTO-DOMINION BANK
(a Canadian chartered bank)
(hereinafter referred to as "Vendor")
OF THE FIRST PART,
- and -
TD WATERHOUSE GROUP, INC.,
a corporation incorporated under the laws of
Delaware (hereinafter referred to as the "Purchaser")
OF THE SECOND PART.
WHEREAS Vendor wishes to transfer the shares of its United Kingdom, Australia
and Hong Kong discount broker subsidiaries to the Purchaser and Purchaser
wishes to acquire such shares from the Vendor, subject to and in accordance
with the terms and conditions hereof;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises,
the mutual covenants and agreements hereinafter set forth and for good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the Parties have agreed as follows:
ARTICLE 1
INTERPRETATION
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1.1 DEFINITIONS
In this Agreement, including the recitals and the Schedules, unless the
context otherwise requires:
(a) "AGREEMENT" means this Agreement and all amendments made
hereto by written agreement between the Vendor and the Purchaser;
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(b) "BUSINESS DAY" means any day which is not a Saturday, Sunday
or statutory holiday in Toronto, Ontario;
(c) "DIRECTION AND ESCROW AGREEMENT REGARDING THE 1999 GREEN LINE
REORGANIZATION" means the agreement entered into among Vendor,
Purchaser, TD Securities Inc. and TD Waterhouse Investor Services
(Canada) Inc., dated June -, 1999 setting out with respect to the
transactions contemplated therein, the list of documents to be
exchanged, the parties to whom such documents are to be delivered,
the participants in the closing and the terms of escrow and release
of escrow, including the times at which the various deliveries of
documents are made and the transactions contemplated thereby become
effective;
(d) "EFFECTIVE TIME" means the time of the transfer of the
"Transferred Business", as that term is defined and as specified in
the Direction and Escrow Agreement Regarding the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇;
(e) "ENCUMBRANCES" means liens, charges, security interests,
rights of others or other encumbrances;
(f) "GLH AUSTRALIA" means Green Line Holdings (Australia) Pty Ltd
ACN 077 306 319;
(g) "GLH AUSTRALIA PROMISSORY NOTE" means the promissory note in
the principal amount of CAD15,000,000 to be made by the Purchaser as
of the Effective Time in favour of the Vendor;
(h) "GLH AUSTRALIA SHARES" means all of the issued and
outstanding shares in the capital stock of GLH Australia;
(i) "GLIS AUSTRALIA" means TD Waterhouse Investor Services
(Australia) Limited;
(j) "GLIS EUROPE" means TD Waterhouse Investor Services (Europe) Limited;
(k) "GLIS HK1" means TD Waterhouse Investor Services (Hong Kong) Inc.;
(l) "GLIS HK2" means TD Waterhouse Investor Services (Hong Kong) Limited;
(m) "GLIS HK2 PROMISSORY NOTE" means the promissory note in the
principal amount of CAD1,893,000 to be made by the Purchaser as of
the Effective
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Time in favour of the Vendor in respect of the transfer of the GLIS
HK2 Shares;
(n) "GLIS HK1 SHARES" means all of the issued and outstanding shares in
the capital stock of GLIS HK1;
(o) "GLIS HK2 SHARES" means all of the issued and outstanding shares in
the capital stock of GLIS HK2 other than the one (1) ordinary share
of such corporation held by Tordom Nominees (H.K.) Limited;
(p) "GLIS UK" means TD Waterhouse Investor Services (U.K.) Limited;
(q) "GLIS UK PROMISSORY NOTE"means the promissory note in the principal
amount of CAD20,600,000 to be made by the Purchaser as of the
Effective Time in favour of the Vendor;
(r) "GLIS UK SHARES" means all of the issued and outstanding shares in
the capital stock of GLIS UK;
(s) "PARTIES" means the parties to this Agreement and "PARTY" means any
one of them;
(t) "PURCHASE PRICE" has the meaning ascribed thereto in Section 2.2;
(u) "PURCHASED SHARES" means the GLH Australia Shares, GLIS HK1 Shares,
GLIS HK2 Shares, GLIS UK Shares and TDSS Shares;
(v) "SUBSIDIARIES" means GLH Australia, GLIS HK1, GLIS HK2, GLIS UK and
TDSS;
(w) "TAX ACT" means the Income Tax Act (Canada) 1985 R.S.C. (5th Supp.),
c.1, as amended;
(x) "TDSS" means TD Waterhouse Securities Services (Hong Kong) Limited;
(y) "TDSS SHARES" means all of the issued and outstanding shares in the
capital stock of TDSS other than the one (1) ordinary share of such
corporation held by Tordom Nominees (H.K.) Limited;
(z) "TDSS PROMISSORY NOTE" means the promissory note in the principal
amount of CAD1,893,000 to be made by the Purchaser as of the
Effective Time in favour of Vendor in respect of the transfer of the
TDSS Shares;
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(aa)"THIRD PARTY" means any Person other than a Party; and
(bb)"THIS AGREEMENT", "HEREIN", "HERETO", "HEREOF" and similar expressions
refer to this Share Transfer Agreement as amended from time to time.
1.2 ARTICLE, SECTION AND SCHEDULE REFERENCES
Except as otherwise expressly provided, a reference in this Agreement to
an "Article", "section", "subsection", "paragraph" or "Schedule" is a
reference to an article, section, subsection, paragraph or schedule of or
to this Agreement.
1.3 INTERPRETATION NOT AFFECTED BY HEADINGS
The headings in this Agreement are for convenience only and shall not
affect the construction or interpretation of this Agreement.
1.4 INCLUDED WORDS
When the context reasonably permits, words suggesting the singular shall
be construed as suggesting the plural and vice versa, and words
suggesting one gender shall be construed as suggesting other genders.
1.5 SCHEDULES
The following Schedules are attached to and form a part of this Agreement:
Schedule "A" - Purchased Shares and Purchase Price
Schedule "B" - Authorized and Outstanding Shares of Purchaser
ARTICLE 2
PURCHASE AND SALEARTICLE
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2.1 PURCHASE AND SALE
As of the Effective Time and subject to the provisions of Article 5, the
Vendor hereby sells to the Purchaser and the Purchaser hereby purchases
from the Vendor the Purchased Shares.
2.2 PURCHASE PRICE
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The consideration (the "Purchase Price") for the purchase of the
Purchased Shares shall be the aggregate of all consideration listed in
Schedule "A".
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
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3.1 REPRESENTATIONS AND WARRANTIES OF VENDOR
Vendor represents and warrants to the Purchaser that:
(a) Vendor Standing: Vendor is a Canadian chartered bank, duly organized
and validly existing under the laws of Canada and now has the
requisite corporate power and authority to perform its obligations in
accordance with the Agreement;
(b) Authorized Capital of the Subsidiaries: the authorized capital of
the Subsidiaries consists of the number and classes of shares listed
in Schedule "A", of which the corresponding numbers of shares listed
in Schedule "A" have been validly issued and are outstanding as fully
paid and non-assessable shares;
(c) Ownership of Purchased Shares: Immediately prior to the purchase and
sale of the Purchased Shares herein provided, the Vendor was the
beneficial and registered owner of all of the issued and outstanding
shares in the capital stock of the Subsidiaries except one (1)
ordinary share in the capital stock of GLIS HK2, of which Tordom
Nominees (H.K.) Limited was the registered owner and the Vendor was
the beneficial owner, and one (1) ordinary share in the capital stock
of TDSS, of which Tordom Nominees (H.K.) Limited was the registered
owner and the Vendor was the beneficial owner, free and clear of all
Encumbrances;
(d) Ownership of GLIS Australia Shares: GLH Australia is the beneficial
and registered owner of all of the issued and outstanding shares in
the capital stock of GLIS Australia, free and clear of all
Encumbrances;
(e) Ownership of GLIS Europe Shares: GLIS UK is the beneficial and
registered owner of all of the issued and outstanding shares in the
capital stock of GLIS Europe, free and clear of all Encumbrances;
(f) Authority, No Encumbrances: the Vendor has good and sufficient
power, authority and right to enter into and deliver this Agreement
and to transfer
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the legal and beneficial title and ownership of the Purchased
Shares to the Purchaser free and clear of all Encumbrances;
(g) No Options: there is no contract, option or any other right of
another binding upon or which at any time in the future may become
binding upon:
(i) the Vendor to sell, transfer, assign, pledge, charge, mortgage
or in any other way dispose of or encumber any of the Purchased
Shares other than pursuant to the provisions of this Agreement,
or
(ii) any of the Subsidiaries, GLIS Europe or GLIS Australia to allot
or issue any of its respective unissued shares or to create any
additional class of shares;
(h) No Conflicts: the consummation of the transactions contemplated
herein will not violate, nor be in conflict with, any of the
constating documents, by-laws or governing documents of Vendor;
(i) Execution of Documents: this Agreement has been duly authorized,
executed and delivered by Vendor and all other documents executed and
delivered by Vendor pursuant hereto have been duly executed and
delivered by Vendor, and this Agreement and such documents constitute
legal, valid and binding obligations of the Vendor, enforceable in
accordance with their respective terms;
(j) Residency: Vendor is not a non-resident of Canada within the meaning
of the provisions of the Tax Act; and
(k) Associated Company Status: At the Effective Time, a wholly-owned
subsidiary of the Vendor shall be the beneficial owner of 90% or more
of the issued share capital of the Purchaser.
3.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser represents and warrants to the Vendor that:
(a) Standing: the Purchaser is a corporation duly organized and validly
existing under the laws of the State of Delaware and has the
requisite corporate power and authority to perform its obligations in
accordance with this Agreement;
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(b) No Conflicts: the consummation of the transactions contemplated by
this Agreement will not violate, nor be in conflict with, the
constating documents, by-laws or governing documents of the
Purchaser;
(c) Execution of Documents: this Agreement has been duly authorized,
executed and delivered by the Purchaser and all other documents
(including the GLH Australia Promissory Note, GLIS HK2 Promissory
Note, GLIS UK Promissory Note and TDSS Promissory Note) executed and
delivered by the Purchaser pursuant hereto have been duly executed
and delivered by the Purchaser, and this Agreement and such documents
constitute legal, valid and binding obligations of the Purchaser
enforceable in accordance with their respective terms;
(d) Authorized Capital of Purchaser: Immediately prior to the purchase
and sale of the Purchased Shares herein provided, the authorized
capital of the Purchaser consisted of the number and classes of
shares listed in Schedule "B", of which the corresponding numbers of
shares listed in Schedule "B" had been validly issued and were
outstanding as fully paid and non-assessable shares;
(e) Shares of Purchaser: the - common shares in the capital stock of the
Purchaser issued to the Vendor pursuant to Section 2.2 have been
validly created, allotted and issued as fully-paid and non-assessable
shares, are registered in the name of Vendor, and are free and clear
of all Encumbrances; and
(f) Associated Company Status: At the Effective Time, a wholly-owned
subsidiary of the Vendor shall be the legal owner of at least 90% of
the issued share capital of the Purchaser.
3.3 LIMITATION
No claim under this Article 3 shall be made or be enforceable by the
Vendor or by the Purchaser, unless written notice of such claim, with
reasonable particulars, is given by such Party to the Party against whom
the claim is made.
3.4 SURVIVAL OF VENDOR'S REPRESENTATIONS, WARRANTIES AND COVENANTS
(a) The representations and warranties of the Vendor set forth in Section
3.1 shall survive the completion of the sale and purchase of the
Purchased Shares herein provided for and, notwithstanding such
completion, shall continue in full force and effect for the benefit
of the Purchaser for a period of three (3) years from the Effective
Time.
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(b) The covenants of the Vendor set forth in this Agreement shall
survive the completion of the sale and purchase of the Purchased
Shares herein provided for and, notwithstanding such completion,
shall continue in full force and effect for the benefit of the
Purchaser in accordance with the terms thereof.
3.5 SURVIVAL OF PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
(a) The representations and warranties of the Purchaser set forth
in Section 3.2 shall survive the completion of the sale and purchase
of the Purchased Shares herein provided for and, notwithstanding
such completion, shall continue in full force and effect for the
benefit of the Vendor for a period of three (3) years from the
Effective Time.
(b) The covenants of the Purchaser set forth in this Agreement shall
survive the completion of the sale and purchase of the Purchased
Shares herein provided for and, notwithstanding such completion,
shall continue in full force and effect for the benefit of the Vendor
in accordance with the terms thereof.
ARTICLE 4
COVENANTS AND INDEMNITIES
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4.1 TAXES
The Purchaser does not assume and shall not be liable for any taxes under
the Tax Act or any other taxes whatsoever which may be or become payable
by the Vendor including, without limiting the generality of the
foregoing, any taxes resulting from or arising as a consequence of the
sale by the Vendor to the Purchaser of the Purchased Shares herein
contemplated, and the Vendor shall indemnify and save harmless the
Purchaser from and against all such taxes.
The Purchaser, and not the Vendor, shall be liable for and shall pay
within the required periods all stamp duties and other transfer taxes
which become payable by the Purchaser in connection with the purchase by
the Purchaser from the Vendor of the Purchased Shares herein
contemplated, and the Purchaser shall indemnity and save harmless the
Vendor from and against all such taxes.
4.2 GENERAL INDEMNITY OF THE VENDOR
The Vendor shall indemnify and save harmless the Purchaser from and
against all losses, damages or expenses directly or indirectly suffered
by the Purchaser resulting from any breach of any covenant of the Vendor
contained in this
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Agreement or from any inaccuracy or misrepresentation in any
representation or warranty set forth in Section 3.1.
4.3 GENERAL INDEMNITY OF THE PURCHASER
The Purchaser shall indemnify and save harmless the Vendor from and
against all losses, damages or expenses directly or indirectly suffered
by the Vendor resulting from any breach of any covenant of the Purchaser
contained in this Agreement or from any inaccuracy or misrepresentation
in any representation or warranty set forth in Section 3.2.
ARTICLE 5
CONDITIONS TO PURCHASE AND SALE
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5.1 ABSENCE OF FOREIGN INVESTMENT APPROVAL RE. GLH AUSTRALIA SHARES
(a) The sale and transfer of the GLH Australia Shares and the delivery of
the portion of the Purchase Price payable in consideration thereof
shall not proceed unless (i) a notice in writing is issued by or on
behalf of the Treasurer of the Commonwealth of Australia stating that
the Commonwealth Government does not object to the Purchaser and the
Vendor entering into and completing this Agreement, either
unconditionally or on terms reasonably acceptable to the Purchaser,
or (ii) the Treasurer of the Commonwealth of Australia becomes
precluded from making an order in respect of the transfer of the GLH
Australia Shares under the Foreign Acquisitions and Takeovers ▇▇▇
▇▇▇▇ (Cth).
(b) In the event that the notice referred to in Section 5.1(a) has not
been given prior to the Effective Time, the Parties shall diligently
seek to effect the sale and transfer of the GLH Australia Shares and
the delivery of that portion of the Purchase Price deliverable in
consideration thereof, as soon as practicable following the issuance
of such a notice or the time following which the Treasurer of the
Commonwealth is precluded from making an order in respect of such
transfer.
5.2 OTHER ABSENCE OF CONSENT OR APPROVAL
(a) Where any consent, approval or agreement of any Third Party, other
than the approval described in Section 5.1, is required to the
transfer of any of the Purchased Shares, and such consent, approval
or agreement has not been obtained at or before the Effective Time,
the transfer of the affected
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Purchased Shares only shall not take effect, notwithstanding the
passage of the Effective Time, until that consent, approval or
agreement has been obtained.
(b) After the Effective Time, and until such time as any consent,
approval or agreement referred to in Section 5.2(a) is obtained,
Vendor shall be deemed to hold the benefit of such asset for the
Purchaser.
ARTICLE 6
GENERAL
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6.1 FURTHER ASSURANCES
Each Party will, from time to time and at all times after the Effective
Time, without further consideration, do such further acts and deliver all
such further assurances, deeds and documents as shall be reasonably
required in order to fully perform and carry out the terms of this
Agreement.
6.2 NO MERGER
Subject to any limitations set forth herein, the covenants,
representations, warranties and indemnities contained in this Agreement
shall survive the execution and delivery hereof and shall not merge in
any assignments, conveyances, transfers or other documents executed and
delivered at or after the date hereof, notwithstanding any rule of law,
equity or statute to the contrary and such rules are hereby waived.
6.3 ENTIRE AGREEMENT
The provisions contained in any and all documents and agreements
collateral hereto shall at all times be read subject to the provisions of
this Agreement and, in the event of conflict, the provisions of this
Agreement shall prevail.
6.4 GOVERNING LAW
This Agreement shall be subject to and interpreted, construed and
enforced in accordance with the laws of Ontario and the laws of Canada
applicable therein and shall be treated as a contract made in Ontario.
The Parties irrevocably attorn and submit to the jurisdiction of the
courts of Ontario and courts of appeal therefrom in respect of all
matters arising out of this Agreement.
6.5 ASSIGNMENT, ENUREMENT, ETC.
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Neither the obligations nor the benefits under this Agreement shall be
assignable unless:
(a) The assignor has given notice to the other party hereto;
(b) The assignment is an assignment of all of the assignor's
rights, benefits and obligations hereunder; and
(c) The assignment is made in connection with or as part of a
corporate reorganization of the assignor, a merger or amalgamation
of the assignor with one or more other corporations or the sale by
the assignor of all or substantially all of its assets.
Notwithstanding any such assignment, the assignor shall continue to
remain liable for its obligations hereunder jointly and severally with
the assignee, and the assignee's rights and benefits hereunder shall be
subject to any rights of set-off and equities existing as between the
assignor and the other party hereto. Any purported assignment in
contravention of this section shall be void. This Agreement shall be
binding upon and enure to the benefit of the Purchaser, Vendor and their
respective successors and permitted assigns.
6.6 TIME OF ESSENCE
Time shall be of the essence in this Agreement.
6.7 NOTICES
The addresses and fax number of each Party for notices shall be as
follows:
Vendor: ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Senior Vice-President, Compliance
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Purchaser: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Executive Vice-President and General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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Any notice, communication or statement (a "notice") required, permitted
or contemplated hereunder shall be in writing and shall be delivered as
follows:
(a) by delivery to a Party between 8:00 a.m. and 4:00 p.m. local time on
a Business Day at the address of such Party for notices, in which
case the notice shall be deemed to have been received by that Party
when it is delivered; or
(b) by telecopier to a Party to the telecopier number of such Party for
notices, in which case, if the notice was telecopied prior to 4:00
p.m. local time on a Business Day the notice shall be deemed to have
been received by that Party when it was telecopied and if it was
faxed on a day which is not a Business Day or is faxed after 4:00
p.m. local time on a Business Day, it shall be deemed to have been
received on the next following Business Day.
A Party may from time to time change its address for service or its fax
number for service by giving written notice of such change to the other
Party.
6.8 INVALIDITY OF PROVISIONS
If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, that shall not affect or impair:
(a) the legality, validity or enforceability in that jurisdiction
of any other provision of this Agreement; or
(b) the legality, validity or enforceability under the law of any
other jurisdiction of that or any other provision of this Agreement.
6.9 WAIVER
No waiver by any Party of any breach (whether actual or anticipated) of
any of the terms, conditions, representations or warranties contained
herein shall take effect or be binding upon that Party unless the waiver
is expressed in writing under the authority of that Party. Any waiver so
given shall extend only to the particular breach so waived and shall not
limit or affect any rights with respect to any other or future breach.
6.10 REMEDIES GENERALLY
No failure on the part of any Party in exercising any right or remedy
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any
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such right or remedy preclude any other or further exercise thereof or
the exercise of any other right or remedy in law or in equity or by
statute or otherwise conferred.
6.11 AMENDMENT
This Agreement shall not be varied in its terms or amended by oral
agreement or by representations or otherwise other than by an instrument
in writing dated subsequent to the date hereof, executed by a duly
authorized representative of each Party.
6.12 COUNTERPART EXECUTION
This Agreement may be executed in counterpart and all executed
counterparts together shall constitute one agreement.
6.13 ACCESS TO BOOKS, RECORDS AND PERSONNEL
After the Effective Time, the Purchaser shall permit Vendor and its
representatives to continue to have full and complete access to the books
and records of the Subsidiaries, GLIS Australia and GLIS Europe and their
respective personnel as Vendor may require for the purpose of complying
with all laws as well as its legitimate business purposes, including
without limitation in connection with any claims, demands or litigation.
The Purchaser shall provide Vendor with its full co-operation (including
testimony if requested) in connection with such purposes. The Purchaser
shall ensure that each of the Subsidiaries, GLIS Australia and GLIS Europe
preserves and maintains its books and records for the greater of: (i) 15
years or (ii) such other time as they may be relevant.
IN WITNESS WHEREOF the Parties have executed this Agreement.
THE TORONTO-DOMINION BANK TD WATERHOUSE GROUP, INC.
Per: Per:
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Per: Per:
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