fv9za
As
filed with the Securities and Exchange Commission on July 8, 2010
Registration
No. 333-167637
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Amendment
No. 1
To
FORM F-9
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
The Toronto-Dominion Bank
(Exact name of Registrant as specified in its charter)
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Canada
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6029
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13-5640479 |
(Province or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial Classification
Code Number)
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(I.R.S. Employer Identification No.) |
Toronto Dominion Bank Tower
Toronto-Dominion Centre
Toronto, Ontario M5K 1A2, Canada
(416) 982-8222
(Address and telephone number of Registrants principal executive offices)
Brendan OHalloran
The Toronto-Dominion Bank
31 West 52nd Street
New York, New York 10019-6101
(212) 827-7000
(Name, address and telephone number of agent for service in the United States)
Copies to:
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Christopher A. Montague, Esq.
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Lee Meyerson, Esq. |
Executive Vice President and General Counsel
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Simpson Thacher & Bartlett LLP |
The Toronto-Dominion Bank
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425 Lexington Avenue |
Toronto Dominion Bank Tower
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New York, NY 10017 |
Toronto-Dominion Centre
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(212) 455-2000 |
Toronto, Ontario M5K 1A2, Canada |
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(416) 308-6963 |
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Approximate date of commencement of proposed sale to the public: From time to time after the
effective date of this Registration Statement.
Province of Ontario, Canada
(Principal jurisdiction regulating this offering)
It is proposed that this filing shall become effective (check appropriate box below):
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A.
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o
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upon filing with the Commission, pursuant to Rule 467(a)
(if in connection with an offering being made
contemporaneously in the United States and Canada). |
B.
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þ
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at some future date (check appropriate box below) |
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1.
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pursuant to Rule
467(b) on ________at
________(designate a time
not sooner than seven
calendar days after
filing). |
2.
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pursuant to Rule
467(b) on ________at
________(designate a time
seven calendar days or
sooner after filing)
because the securities
regulatory authority in
the review jurisdiction
has issued a receipt or
notification of clearance
on . |
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3.
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pursuant to Rule
467(b) as soon as
practicable after
notification of the
Commission by the
Registrant or the Canadian
securities regulatory
authority of the review
jurisdiction that a
receipt or notification of
clearance has been issued
with respect hereto. |
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4.
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after the filing of
the next amendment to this
Form (if preliminary
material is being filed). |
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If any of the securities being registered on this form are to be offered on a delayed or continuous
basis pursuant to the home jurisdictions shelf prospectus offering procedures, check the following
box. þ
CALCULATION OF REGISTRATION FEE
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Title of each |
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Proposed Maximum |
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Proposed maximum |
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class of securities |
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Amount to be |
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Offering Price Per |
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aggregate offering |
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Amount of |
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to be registered |
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registered |
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Unit |
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price |
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registration fee |
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Debt Securities |
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(1)(2)(3) |
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100% |
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$15,000,000,000 |
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$1,069,500(4) |
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(1) |
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There is being registered hereunder an indeterminate number of debt securities of The
Toronto-Dominion Bank (the Registrant) as from time to time may be issued at prices
determined at the time of issuance. |
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(2) |
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Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act of 1933, as amended (the Securities Act). In no event will the
aggregate offering price of all debt securities issued from time to time pursuant to this
Registration Statement exceed U.S. $15,000,000,000, or the equivalent thereof in one or more
foreign currencies. |
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This Registration Statement also covers an undeterminable amount of registered debt
securities that may be reoffered and resold on an ongoing basis after their initial sale in
market-making transactions by affiliates of the Registrant. |
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(4) |
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Previously paid. |
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The Registrant hereby amends this registration statement on such date or dates as may be necessary
to delay its effective date until the registration statement shall become effective as provided in
Rule 467 under the Securities Act of 1933 or on such date as the Commission, acting pursuant to
Section 8(a) of the Act, may determine.
PART I
INFORMATION TO BE DELIVERED TO OFFEREES OR PURCHASERS
This short form prospectus is referred to as a base shelf prospectus and has been filed under
legislation in the Province of Ontario that permits certain information about these securities to
be determined after this prospectus has become final and that permits the omission from this
prospectus of that information. The legislation requires the delivery to purchasers of a
prospectus supplement containing the omitted information within a specified period of time after
agreeing to purchase any of these securities.
This short form base shelf prospectus and each document deemed to be incorporated by reference
herein, constitutes a public offering of these securities only in those jurisdictions where they
may be lawfully offered for sale and therein only by persons permitted to sell such securities. No
securities regulatory authority has expressed an opinion about these securities and it is an
offense to claim otherwise.
Information has been incorporated by reference in this short form base shelf prospectus from
documents filed with the securities commission or similar authorities in Canada. Copies of the
documents incorporated herein by reference may be obtained on request without charge from the
Corporate Secretary of The Toronto-Dominion Bank at the following address: Toronto Dominion Bank
Tower, Toronto-Dominion Centre, Toronto, Ontario, Canada, M5K 1A2 (telephone: (416) 308-6963) and
are also available electronically at www.sedar.com.
Short Form Base Shelf Prospectus
July 7, 2010
The Toronto-Dominion Bank
(a Canadian chartered bank)
U.S. $15,000,000,000
Senior Debt Securities
We intend to offer from time to time senior debt securities (which we refer to in this
prospectus as the debt securities) in one or more series with a total offering price not to
exceed U.S. $15,000,000,000 (or the U.S. dollar equivalent thereof if any of the debt securities
are denominated in a currency or a currency unit other than U.S. dollars) during the 25-month
period that this prospectus, including any amendments thereto, remains valid.
All shelf information omitted from this short form base shelf prospectus will be contained in
one or more prospectus supplements that will be delivered to purchasers together with this
prospectus. You should read this prospectus and the applicable supplement carefully before you
invest.
We may sell the debt securities to or through one or more underwriters, dealers or agents. The
names of the underwriters, dealers or agents will be set forth in supplements to this prospectus.
The debt securities will constitute our unsecured and unsubordinated contractual obligations
and will constitute deposit liabilities which will rank pari passu in right of payment with all of
our deposit liabilities, except for obligations preferred by mandatory provisions of law. The debt
securities will not be insured under the Canada Deposit Insurance Corporation Act or by the U.S.
Federal Deposit Insurance Corporation or any other Canadian or U.S. government agency or
instrumentality.
We are permitted, under a multi-jurisdictional disclosure system adopted by the United States,
to prepare this prospectus in accordance with the disclosure requirements of Canada. Prospective
investors should be aware that such requirements are different from those of the United States.
Financial statements included or incorporated herein have been prepared in accordance with Canadian
generally accepted accounting principles, and may be subject to Canadian auditing and auditor
independence standards, and thus may not be comparable to financial statements of United States
companies.
Prospective investors should be aware that the acquisition of the debt securities described
herein may have tax consequences both in the United States and in Canada. Such consequences for
investors who are resident in, or citizens of, the United States may not be described fully herein.
The enforcement by investors of civil liabilities under the United States federal securities
laws may be affected adversely by the fact that we are organized under the laws of Canada, that
most of our officers and directors, and some of the underwriters or experts named in this
prospectus, may be residents of Canada and that all or a substantial portion of our assets and the
assets of said persons may be located outside the United States.
THESE DEBT SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION (THE SEC) OR ANY STATE SECURITIES REGULATOR NOR HAS THE SEC OR ANY STATE SECURITIES
REGULATOR PASSED UPON THE ACCURACY OR ADEQUECY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
This prospectus does not qualify for issuance debt securities in respect of which the payment of principal and/or interest may be determined, in whole or in part, by reference to one or more underlying interests, including, for example, an equity or debt security, a statistical measure of economic or financial performance including, but not limited to, any currency, consumer price
or mortgage index, or the price or value of one or more commodities,
indices or other items, or any other item or formula, or any
combination or basket of the foregoing items. For greater certainty,
this prospectus may qualify for issuance debt securities in respect of which the payment of principal and/or interest may be determined, in whole or in part, by reference to published rates of a central banking authority or one or more financial institutions, such as a prime rate or a bankers acceptance rate, or to recognized market benchmark interest rates such as LIBOR.
Certain of our affiliates may use this
prospectus in the initial sale of
any debt securities or in a market-making transaction in any debt securities after their initial sale.
See Plan of Distribution.
There is no market through which the debt securities may be sold and purchasers may not be
able to resell debt securities purchased under this prospectus. This may affect the pricing of the
debt securities in the secondary market, the transparency and availability of trading prices, the
liquidity of the debt securities, and the extent of issuer regulation. See Plan of Distribution.
TABLE OF CONTENTS
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FORWARD LOOKING STATEMENTS
This prospectus, including those documents incorporated by reference, may contain
forward-looking statements. All such statements are made pursuant to the safe harbour provisions
of the United States Private Securities Litigation Reform Act of 1995 and applicable Canadian
securities legislation. Forward-looking statements include, among others, statements regarding our
objectives and priorities for 2010 and beyond and strategies to achieve them, and our anticipated
financial performance. The forward-looking information contained in this prospectus, including
those documents incorporated by reference, is presented for the purpose of assisting our
securityholders in understanding our financial position as at and for the periods ended on the
dates presented and our strategic priorities and objectives, and may not be appropriate for other
purposes. The economic assumptions for each of our business segments are set out in our Annual
Report as updated in the subsequently filed Quarterly Reports to Shareholders. Forward-looking
statements are typically identified by words such as will, should, believe, expect,
anticipate, intend, estimate, plan, may and could.
By their very nature, these statements require us to make assumptions and are subject to
inherent risks and uncertainties, general and specific. Especially in light of the uncertainty
related to the current financial, economic and regulatory environments, such risks and
uncertainties many of which are beyond our control and the effects of which can be difficult to
predict may cause actual results to differ materially from the expectations expressed in the
forward-looking statements. Risk factors that could cause such differences include: credit, market
(including equity, commodity, foreign exchange and interest rate), liquidity, operational,
reputational, insurance, strategic, regulatory, legal and other risks, all of which are discussed
in our Annual Report and in other regulatory filings made in Canada and with the SEC. Additional
risk factors include changes to and new interpretations of risk-based capital guidelines and
reporting instructions; increased funding costs for credit due to market illiquidity and
competition for funding; the failure of third parties to comply with their obligations to us or our
affiliates relating to the care and control of information; and the use of new technologies in
unprecedented ways to defraud us or our customers and the organized efforts of increasingly
sophisticated parties who direct their attempts to defraud us or our customers through many
channels.
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We caution that the preceding list is not exhaustive of all possible risk factors and other factors could also adversely affect our results. For more
information, see our Annual Report. All such factors should be considered carefully when making
decisions with respect to us, and undue reliance should not be placed on our forward-looking
statements as they may not be suitable for other purposes.
Any forward-looking statements contained in this short form base shelf prospectus represent
the views of management only as of the date hereof and are presented for the purpose of assisting
our securityholders and analysts in understanding our financial position, objectives and
priorities and anticipated financial performance as at and for the periods ended on the dates
presented, and may not be appropriate for other purposes. We do not undertake to update any
forward-looking statements, whether written or oral, that may be made from time to time by or on
our behalf, except as required under applicable securities legislation. See Risk Factors
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DOCUMENTS INCORPORATED BY REFERENCE
The following documents with respect to The Toronto-Dominion Bank (which we refer to in the
prospectus as the Bank), filed with the various securities commissions or similar authorities in
each of the provinces and territories of Canada, are specifically incorporated by reference in and
form an integral part of this prospectus:
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the Management Proxy Circular dated as of January 28, 2010; |
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the Annual Information Form dated December 2, 2009; |
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the consolidated audited financial statements for the fiscal year ended October
31, 2009 with comparative consolidated financial statements for the fiscal year ended
October 31, 2008, together with the auditors report thereon and Managements
Discussion and Analysis as contained in the Annual Report to Shareholders for the
fiscal year ended October 31, 2009; and |
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the Second Quarter Report to Shareholders for the three and six months ended
April 30, 2010, which includes comparative consolidated interim financial statements
(unaudited) and Managements Discussion and Analysis. |
Any documents of the type referred to above and any material change reports (excluding
confidential material change reports) or business acquisition reports, all as filed by the Bank
with the various securities commissions or similar authorities in Canada pursuant to the
requirements of applicable securities legislation after the date of this prospectus and prior to
the termination of the offering of debt securities under any prospectus supplement to this
prospectus, shall be deemed to be incorporated by reference into this prospectus. In addition, any
similar documents filed on Form 40-F or on Form 6-K, if and to the extent expressly provided in
such reports on Form 6-K, by us with the SEC, after the date of this prospectus and prior to the
termination of the offering of debt securities under any prospectus supplement to this prospectus,
shall be deemed to be incorporated by reference into this prospectus.
Any statement contained in this prospectus or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded for the purposes of
this prospectus to the extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein modifies or supersedes
such statement. The modifying or superseding statement need not state that it has modified or
superseded a prior statement or include any other information set forth in the document that it
modifies or supersedes. The making of a modifying or superseding statement is not to be deemed an
admission for any purposes that the modified or superseded statement, when made, constituted a
misrepresentation, an untrue statement of a material fact or an omission to state a material fact
that is required to be stated or that is necessary to make a statement not misleading in light of
the circumstances in which it was made. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this prospectus. Copies of
the documents incorporated by reference herein may be obtained on request without charge from the
Corporate Secretary of The Toronto-Dominion Bank, Toronto Dominion Bank Tower, Toronto-Dominion
Centre, Toronto, Ontario, M5K 1A2 (telephone: (416) 308-6963), or through the Internet on the
Canadian Securities Administrators System for Electronic Document Analysis and Retrieval (SEDAR) at
www.sedar.com.
A prospectus supplement containing the specific terms of an offering of debt securities will
be delivered to purchasers of such securities together with this prospectus and will be deemed to
be incorporated into this prospectus as of the date of the prospectus supplement solely for the
purposes of the offering of the debt securities covered by that prospectus supplement unless
otherwise expressly provided therein.
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Upon a new Management Proxy Circular, Annual Information Form or new interim or annual
financial statements, together with the auditors report thereon and managements discussion and
analysis contained therein, being filed by us with the applicable securities regulatory authorities
during the currency of this prospectus, the previous Annual Information Form, Management Proxy
Circular, interim or annual financial statements and all material change reports, and information
circulars filed prior to the commencement of our financial year in which the new Management Proxy
Circular, Annual Information Form or interim or annual financial statements are filed shall be
deemed no longer to be incorporated into this prospectus for purposes of future offers and sales of
debt securities hereunder.
AVAILABLE INFORMATION
In addition to the continuous disclosure obligations under the securities laws of the
provinces and territories of Canada, we are subject to the informational reporting requirements of
the U.S. Securities Exchange Act of 1934, as amended, and in accordance therewith file reports and
other information with the SEC. Such reports and other information filed by us may be inspected
and copied at the public reference facilities maintained by the SEC at 100 F Street, N.E.,
Washington, D.C. 20549. Prospective investors may call the SEC at 1-800-SEC-0330 for further
information regarding the public reference facilities. The SEC also maintains a website, at
www.sec.gov, that contains reports and other information filed by us with the SEC. Our
common shares are listed on the New York Stock Exchange and reports and other information
concerning us may be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, NY 10005.
We are filing with the SEC a registration statement on Form F-9 under the U.S. Securities Act
of 1933, as amended, with respect to the debt securities. This prospectus does not contain all of
the information set forth in the registration statement, certain parts of which are omitted in
accordance with the rules and regulations of the SEC. For further information with respect to us
and the debt securities, reference is made to the registration statement and the exhibits thereto,
which will be publicly available as described in the preceding paragraph.
THE TORONTO-DOMINION BANK
The Bank is a Canadian chartered bank subject to the provisions of the Bank Act and was formed
on February 1, 1955 through the amalgamation of The Bank of Toronto (established in 1855) and The
Dominion Bank (established in 1869). The Bank and its subsidiaries are collectively known as TD
Bank Financial Group. TD Bank Financial Group is the sixth largest bank in North America by
branches and serves approximately 18 million customers in four key businesses operating in a number
of locations in financial centres around the globe: Canadian Personal and Commercial Banking,
including TD Canada Trust and TD Insurance; Wealth Management, including TD Waterhouse and an
investment in TD Ameritrade; U.S. Personal and Commercial Banking, including TD Bank, Americas
Most Convenient Bank; and Wholesale Banking, including TD Securities. TD Bank Financial Group also
ranks among the worlds leading on-line financial services firms with more than 6 million on-line
customers.
The Banks head office and registered office are located in the Toronto Dominion Bank Tower,
Toronto-Dominion Centre, Toronto, Ontario, M5K 1A2.
Additional information regarding the Bank is incorporated by reference into this prospectus.
See Documents Incorporated by Reference.
CHANGES TO CAPITAL OF THE BANK
On
June 15, 2010, the Bank issued 3,525,000 common shares for aggregate gross proceeds of $250 million.
The common shares issued qualify as Tier 1 regulatory capital of the Bank.
RISK FACTORS
An investment in the debt securities is subject to various risks. From time to time, the
market experiences significant price and volume volatility that may affect the market price of our
debt securities for reasons unrelated to our performance. Also, the financial markets are
generally characterized by extensive interconnections among financial institutions. As such,
defaults by other financial institutions
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in Canada, the United States or other countries could adversely affect us and the market price
of the debt securities. Additionally, the debt securities are subject to market value fluctuations
based upon factors which influence our operations, such as legislative or regulatory developments,
competition, technological change and global capital market activity.
Before deciding whether to invest in any debt securities, investors should consider carefully
the risks set out herein and incorporated by reference in this prospectus (including subsequently
filed documents incorporated by reference) and, if applicable, those described in a prospectus
supplement relating to a specific offering of debt securities. Prospective investors should
consider the categories of risks identified and discussed in the Annual Information Form and
Managements Discussion and Analysis of the Bank incorporated herein by reference including credit
risk, market risk, liquidity risk, operational risk, reputational risk, insurance risk, strategic
risk, regulatory risk, and legal risk.
USE OF PROCEEDS
Unless otherwise specified in a prospectus supplement, the net proceeds to us from the sale of
the debt securities will be added to our general funds and utilized
for general corporate purposes.
DESCRIPTION OF THE DEBT SECURITIES
We have summarized below the material provisions of the indenture and the debt securities, or
indicated which material provisions will be described in the related prospectus supplement. These
descriptions are only summaries, and each investor should refer to the indenture, which describes
completely the terms and definitions summarized below and contains additional information regarding
the debt securities. Any reference to provisions or defined terms of the indenture in any statement
under this heading qualifies the entire statement and incorporates by reference the applicable
section or definition into that statement.
General
We will issue the debt securities under an indenture between us and The Bank of New York
Mellon (as successor in interest to The Bank of New York), as trustee. A copy of the indenture is
filed as an exhibit to the registration statement and is also available at www.sedar.com. We may
issue debt securities under the indenture from time to time in one or more series. The indenture
does not limit the aggregate principal amount of the debt securities which we can issue under such
indenture. We will authorize the aggregate amount from time to time for each series.
Unless otherwise specified in the applicable prospectus supplement, the debt securities will
be unsecured and unsubordinated deposit liability obligations of the Bank and will rank on a parity
in right of payment with all of the Banks deposit liabilities, except for obligations preferred by
mandatory provisions of law. The debt securities will not be insured under the Canada Deposit
Insurance Corporation Act or by the U.S. Federal Deposit Insurance Corporation or any other
Canadian or U.S. governmental agency or instrumentality. In the case of the insolvency of the Bank,
the Bank Act (Canada) provides that priorities among payments of deposit liabilities of the Bank
(including payments in respect of the debt securities) and payments of all other liabilities are to
be determined in accordance with the laws governing priorities and, where applicable, by the terms
of the indebtedness and liabilities.
We may issue debt securities from time to time in one or more series. The provisions of the
indenture allow us to reopen a previous issue of a series of debt securities and issue additional
debt securities of that series. The debt securities in each series may be denominated and payable
in U.S. dollars or foreign currencies.
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The debt securities may bear interest at a floating rate or a fixed rate. A floating rate is
determined by reference to an interest rate formula which may be adjusted by adding or subtracting
the spread or multiplying the spread multiplier.
Terms Specified in Prospectus Supplement
The prospectus supplement will contain, where applicable, the following terms of and other
information relating to any series of offered debt securities:
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the specific title; |
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the aggregate principal amount, purchase price and denomination; |
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any limit upon the aggregate principal amount of the securities of such series; |
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the currency in which the debt securities are denominated and/or in which principal,
and premium, if any, and/or interest, if any, is payable; |
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the date or dates on which the principal is payable; |
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the interest rate or rates or the method by which the calculation agent (to be
designated in the applicable prospectus supplement) will determine the interest rate or
rates, if any; |
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the interest payment dates, if any; |
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the place or places for payment of the principal of and any premium and/or interest
on or other amounts due under the debt securities; |
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any repayment, redemption, prepayment or sinking fund provisions, including any
notice provisions; |
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whether we will issue the debt securities in global form and under what terms and
conditions; |
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terms and conditions, if any, upon which the debt securities may or shall be
convertible into or exchangeable or exercisable for or payable in, among other things,
other securities (whether or not issued by us), instruments, contracts, currencies,
commodities or other forms of property, rights or interests or any combination of the
foregoing; |
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any agents for the debt securities, including trustees, depositories, authenticating
or paying agents, transfer agents or registrars; |
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any applicable United States federal income tax and Canadian federal income tax
consequences, including, but not limited to: |
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whether and under what circumstances we will pay additional
amounts on debt securities for any tax, assessment or governmental charge
withheld or deducted and, if so, whether we will have the option to redeem
those debt securities rather than pay the additional amounts; |
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tax considerations applicable to any discounted debt securities
or to debt securities issued at par that are treated as having original issue
discount for United States federal income tax purposes; and |
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tax considerations applicable to any debt securities
denominated and payable in foreign currencies; |
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any other specific terms of the debt securities, including any additional events of
default or covenants, and any terms required by or advisable under applicable laws or
regulations. |
We may sell the debt securities at a substantial discount below their stated principal amount.
We will describe special United States federal income tax and Canadian federal income tax
considerations, if any, applicable to debt securities sold at an original issue discount in the
prospectus supplement. An original issue discount security is any debt security that provides for
an amount less than the principal amount to be due and payable upon the declaration of acceleration
of the maturity in accordance with the terms of the applicable indenture. The prospectus
supplement relating to any original issue discount securities will describe the particular
provisions relating to acceleration of the maturity upon the occurrence of an event of default.
Registration and Transfer of Debt Securities
Registered holders may present debt securities for exchange or registration of transfer. We
will provide these services without charge except for any tax or other governmental charge payable
in connection with these services and subject to any limitations provided in the indenture.
The procedures for transfer of interests in the debt securities in global form will depend
upon the procedures of the depository for such global securities. See Form of the Debt
Securities.
Merger, Consolidation, Sale, Lease or Conveyance
The indenture provides that we may merge or consolidate with any other person or sell, lease
or convey all or substantially all of our assets to any other person, only if certain conditions,
including the following, are met:
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we will be the continuing corporation or the successor corporation, or person which
acquires all or substantially all of our assets shall either (a) be one or more direct
or indirect affiliates which we control or which are under common control with us or
(b) will expressly assume or guaranty all of our obligations under the indenture; and |
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immediately after such merger, consolidation, sale, lease or conveyance, we, or any
such successor that has assumed our obligations, will not be in default in the
performance of the covenants and conditions of the indenture applicable to us. |
Absence of Protections against All Potential Actions of the Bank. There are no covenants or
other provisions in the indenture that would afford holders of debt securities additional
protection in the event of a recapitalization transaction, a change of control of the Bank or a
highly leveraged transaction. The merger covenant described above would only apply if the
recapitalization transaction, change of control or highly leveraged transaction were structured to
include a merger or consolidation of the Bank or a sale, lease or conveyance of all or
substantially all of our assets.
Events of Default
The indenture provides holders of debt securities with remedies if we fail to perform specific
obligations, such as making payments on the debt securities, or if we become bankrupt. Holders
should review these provisions and understand which of our actions would trigger an event of
default and which actions would not. The indenture permits the issuance of debt securities in one
or more series, and, in many cases, whether an event of default has occurred is determined on a
series by series basis.
I-9
An event of default is defined under the indenture, with respect to any series of debt
securities issued under the indenture, as being:
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default in payment of any principal of the debt securities of that series, either at
maturity or upon any redemption, by declaration or otherwise and continuance of such
default for a period of 7 days; |
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default in payment of any interest on any debt securities of that series and
continuance of such default for a period of 30 days; |
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certain events of bankruptcy, insolvency or reorganization; or |
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any other event of default provided in the applicable board resolution, in the
supplemental indenture under which that series of debt securities is issued or in the
form of security for such series. |
Acceleration of Debt Securities Upon an Event of Default. The indenture provides that:
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if an event of default due to the default in payment of principal of, or any premium
or interest on, any series of debt securities issued under the indenture, or due to the
default in the performance or breach of any other covenant or warranty of the Bank
applicable to the debt securities of that series but not applicable to all outstanding
debt securities issued under the indenture occurs and is continuing, either the trustee
or the holders of not less than 25% in aggregate principal amount of the outstanding
debt securities of each affected series, voting as one class, by notice in writing to
the Bank, may declare the principal of (or such other amount as may be specified) all
debt securities of each affected series and interest accrued thereon to be due and
payable immediately; and |
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if an event of default due to a default in the performance of any of the covenants
or agreements in the indenture applicable to all outstanding debt securities issued
under the indenture or due to specified events of bankruptcy, insolvency or
reorganization of the Bank, occurs and is continuing, either the trustee or the holders
of not less than 25% in aggregate principal amount of all outstanding debt securities
issued under the indenture, voting as one class, by notice in writing to the Bank may
declare the principal of (or such other amount as may be specified) all those debt
securities and interest accrued thereon to be due and payable immediately. |
Annulment of Acceleration and Waiver of Defaults. In some circumstances, if any and all
events of default under the indenture, other than the non-payment of the principal of the
securities that has become due as a result of an acceleration, have been cured, waived or otherwise
remedied, then the holders of a majority in aggregate principal amount of all series of outstanding
debt securities affected, voting as one class, may annul past declarations of acceleration of or
waive past defaults of the debt securities.
Indemnification of Trustee for Actions Taken on Your Behalf. The indenture contains a
provision entitling the trustee, subject to the duty of the trustee during a default to act with
the required standard of care, to be indemnified to its satisfaction by the holders of debt
securities before proceeding to exercise any right or power at the request, order or direction of
the holders. Subject to these provisions and some other limitations, the holders of a majority in
aggregate principal amount of each series of outstanding debt securities of each affected series,
voting as one class, may direct the time, method and place of conducting any proceeding for any
remedy available to the trustee, or exercising any trust or power conferred on the trustee.
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Limitation on Actions by You as an Individual Holder. The indenture provides that no
individual holder of debt securities may institute any action or proceeding under the indenture,
except actions for payment of overdue principal and interest, unless the following actions have
occurred:
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the holder must have previously given written notice to the trustee of the
continuing default; |
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the holders of not less than 25% in aggregate principal amount of the outstanding
debt securities of each affected series, treated as one class, must have (1) requested
the trustee to institute that action and (2) offered the trustee reasonable indemnity
satisfactory to it; |
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the trustee must have failed to institute that action within 60 days after receipt
of the request referred to above; and |
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the holders of a majority in principal amount of the outstanding debt securities of
each affected series, voting as one class, must not have given directions to the
trustee inconsistent with those of the holders referred to above. |
The indenture contains a covenant that we will file annually with the trustee a certificate of
no default or a certificate specifying any default that exists.
Discharge, Defeasance and Covenant Defeasance
We have the ability to eliminate most or all of our obligations on any series of debt
securities prior to maturity if we comply with the following provisions.
Discharge of Indenture. We may discharge all of our obligations, other than certain
obligations including those as to transfers and exchanges, under the indenture after we have:
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paid or caused to be paid the principal of, interest on and any other amounts due
under all of the outstanding debt securities in accordance with their terms; |
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delivered to the trustee for cancellation all of the outstanding debt securities; or |
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irrevocably deposited or caused to be deposited with the trustee cash or, in the
case of a series of debt securities payable only in U.S. dollars, U.S. government
obligations in trust for the benefit of the holders of any series of debt securities
issued under the indenture that have either become due and payable, or are by their
terms due and payable, or are scheduled for redemption, within one year, in an amount
certified to be sufficient to pay on each date that they become due and payable, the
principal of, interest and other amounts on, and any mandatory sinking fund payments
for, those debt securities, except that the deposit of cash or U.S. government
obligations for the benefit of holders of a series of debt securities that are due and
payable, or are scheduled for redemption within one year will discharge obligations
under the indenture relating only to that series of debt securities. |
Defeasance of a Series of Securities at Any Time. We may also discharge all of our
obligations, other than certain obligations including those as to transfers and exchanges, under
any series of debt securities at any time, which we refer to as defeasance.
We may be released with respect to any outstanding series of debt securities from the
obligations imposed by Section 9.01 of the indenture which contains the covenants described above
limiting consolidations, mergers, asset sales and leases, and elect not to comply with those
sections without creating an event of default. Discharge under those procedures is called covenant
defeasance.
I-11
Defeasance or covenant defeasance may be effected only if, among other things:
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we irrevocably deposit with the trustee cash or, in the case of debt securities
payable only in U.S. dollars, U.S. government obligations, as trust funds in an amount
certified to be sufficient to pay on each date that they become due and payable, the
principal, interest and other amounts due on, and any mandatory sinking fund payments
for, all outstanding debt securities of the series being defeased; |
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such deposit will not result in a breach or violation of, or constitute a default
under, any agreement or instrument to which we are a party or to which we are bound;
and |
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we deliver to the trustee an opinion of counsel to the effect that: |
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the holders of the series of debt securities being defeased will not
recognize income, gain or loss for United States federal income tax purposes as
a result of the defeasance or covenant defeasance; |
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such holders will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such defeasance or covenant defeasance had not occurred; and |
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in the case of a defeasance (but not a covenant defeasance), this opinion
must be based on a ruling of relevant tax authorities or a change in United
States tax laws occurring after the date of the indenture. |
Modification of the Indenture
Modification without Consent of Holders. We and the trustee may enter into supplemental
indentures without the consent of the holders of debt securities issued under the indenture to,
among other things:
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secure any debt securities subject to the requirements of the Bank Act; |
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evidence the assumption by a successor corporation of our obligations; |
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add covenants or events of default for the protection of the holders of debt
securities; |
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cure any ambiguity or correct any defect or inconsistency or make any other
provisions with respect to matters arising under the indenture as we may deem
desirable, provided that no such action shall adversely affect the holders in any
material respect; |
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establish the forms or terms of debt securities of any series; |
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evidence the acceptance of appointment by a successor trustee; |
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add to, change or eliminate provisions of the indenture that do not (i) apply to any
series of debt securities created prior to such supplemental indenture and (ii) modify the rights of any holder of such
series of debt securities with respect to such provision; |
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add to, change or eliminate provisions of the indenture with respect to a new series
of debt securities; or |
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to increase the minimum denomination of debt securities of any series as may be
permitted by the terms of such series. |
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Modification with Consent of Holders. We and the trustee, with the consent of the holders of
not less than a majority in aggregate principal amount of each affected series of outstanding debt
securities, voting as one class, may add any provisions to, or change in any manner or eliminate
any of the provisions of, the indenture or modify in any manner the rights of the holders of those
debt securities. However, we and the trustee may not make any of the following changes to any
outstanding debt security without the consent of each affected holder to, among other things:
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extend the stated maturity of any debt security; |
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reduce the principal amount; |
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reduce the rate or extend the time of payment of interest or other amounts due; |
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reduce any amount payable on redemption; |
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change the currency in which the principal, including any amount of original issue
discount, premium, or interest thereon is payable; |
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modify or amend the provisions for conversion of any currency into another currency; |
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reduce the amount of any original issue discount security payable upon acceleration
or provable in bankruptcy; |
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modify or amend the provisions so as to adversely affect the terms or conditions
upon which the debt securities are convertible into or exchangeable or exercisable for
or payable in other securities, instruments, contracts, currencies, commodities or
other forms of property, rights or interests; |
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impair or affect the right of any holder to institute suit for the enforcement of
any payment on any debt security when due; or |
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reduce the percentage of debt securities the consent of whose holders is required
for modification of the indenture or for waiver of certain defaults. |
Payment of Additional Amounts
Unless otherwise indicated in the applicable prospectus supplement, we will, subject to
certain exceptions and limitations set forth below, pay such additional amounts to the beneficial
owner of any debt security who is resident in the United States (for purposes of The Canada-United
States Income Tax Convention (1980)) as may be necessary in order that every net payment of the
principal of and interest on such security and any other amounts payable on the debt security,
after withholding for or on account of any present or future tax, assessment or governmental charge
imposed upon such payment by Canada or any political subdivision or taxing authority thereof or
therein (the Taxing Jurisdiction), will not be less than the amount provided for in such debt
security to be then due and payable. We will not, however, be required to make any payment of
additional amounts to any beneficial owner for or on account of:
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any such tax, assessment or other governmental charge that would not have been so
imposed but for a present or former connection (including, without limitation, carrying
on business in Canada or a province or territory of Canada or having a permanent
establishment or fixed base in Canada or a province or territory of Canada) between
such owner or the beneficial owner of a debt security (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of power over, such owner or
beneficial owner, if such owner or beneficial owner is an estate, trust, partnership,
limited liability company or corporation) and Canada or
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a political subdivision or taxing authority of or in Canada, other than merely holding
such debt security or receiving payments with respect to such debt security; |
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any estate, inheritance, gift, sales, transfer or personal property tax or any
similar tax, assessment or governmental charge with respect to such debt security; |
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any tax, assessment or other governmental charge imposed by reason that such owner
or beneficial owner of a debt security does not deal at arms length within the meaning
of the Income Tax Act (Canada) with us; |
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any tax, assessment or other governmental charge that is levied or collected
otherwise than by withholding from payments on or in respect of any such debt security; |
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any tax, assessment or other governmental charge required to be withheld by any
paying agent from any payment of principal of, or interest on, any such debt security,
if such payment can be made without such withholding by at least one other paying
agent; |
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any tax, assessment or other governmental charge that would not have been imposed
but for the failure of an owner or beneficial owner of a debt security to comply with
certification, information or other reporting requirements, if such compliance is
required by Canada or any political subdivision or taxing authority of or in Canada as
a precondition to relief or exemption from such tax, assessment or other governmental
charge; |
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any tax, assessment or other governmental charge which would not have been imposed
but for the presentation of a debt security (where presentation is required) for
payment on a date more than 30 days after (i) the date on which such payment became due
and payable or (ii) the date on which payment thereof is duly provided for, whichever
occurs later; or |
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any combination of the items listed above; |
nor shall additional amounts be paid with respect to any payment on a debt security to a holder or
beneficial owner who is a fiduciary or partnership or other than the sole beneficial owner of such
payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner would not have been entitled to the additional amounts had such
beneficiary, settlor, member or beneficial owner held its interest in the debt security directly.
Tax Redemption
Unless otherwise indicated in the applicable prospectus supplement, we have the right to
redeem, in whole but not in part, any of the debt securities at our option at any time prior to
maturity, upon the giving of a notice of redemption as described
below (i) we have or will
become obligated to pay additional amounts with respect to any such debt securities as described
above under Payment of Additional Amounts as a result of any change in or amendment
(including any announced prospective change) to the laws or treaties of the relevant Taxing
Jurisdiction or any rules or regulations or administrative pronouncements thereunder or any change
in position regarding the application, administration or interpretation of such laws, treaties,
rules, regulations or administrative pronouncements (including a holding, judgment or order by a
court of competent jurisdiction), which change or amendment was announced or became effective on or
after the date of the prospectus supplement relating to the applicable debt securities, and (ii) we
have determined that the obligation to pay such additional amounts cannot be avoided by taking
reasonable measures available to us. For the avoidance of doubt, reasonable measures do not
include a change in the terms of the debt securities or a substitution of the debtor. If we
exercise this right, the redemption price of the debt securities will be determined in the manner
described in the applicable prospectus supplement. Prior to the giving of any notice of redemption
pursuant to this paragraph, we will deliver to the trustee:
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a certificate stating that we are entitled to effect such redemption and setting forth a
statement of facts showing that the conditions precedent to our right to so redeem have
occurred; and |
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an opinion of independent counsel or written advice of a qualified tax expert, such counsel
or expert being reasonably acceptable to the trustee, to such effect based on such statement
of facts; |
provided that no such notice of redemption shall be given earlier than 60 days prior to the
earliest date on which we would be obligated to pay such additional amounts if a payment in respect
of such debt securities were then due. Notice of redemption will be given not less than 30 nor more
than 60 days prior to the date fixed for redemption, which date and the applicable redemption price
will be specified in the notice.
FORMS OF THE DEBT SECURITIES
Except as provided in an applicable prospectus supplement, each debt security will generally
be represented by one or more global securities representing the entire issuance of securities. We
will issue debt securities evidenced by certificates in definitive form to a particular investor
only in limited circumstances. Both certificated securities in definitive form and global
securities will be issued in registered form, where our obligation runs to the holder of the
security named on the face of the security. Definitive securities name you or your nominee as the
owner of the security, and in order to transfer or exchange these securities or to receive payments
other than interest or other interim payments, you or your nominee must physically deliver the
securities to the trustee, registrar, paying agent or other agent, as applicable. Global securities
name a depository or its nominee as the owner of the debt securities. The depositary maintains a
computerized system that will reflect each investors beneficial ownership of the securities
through an account maintained by the investor with its broker/dealer, bank, trust company or other
representative. See Book-Entry Procedures and Settlement.
BOOK-ENTRY PROCEDURES AND SETTLEMENT
Most offered debt securities will be book-entry (global) securities. Upon issuance, all
book-entry securities will be represented by one or more fully registered global securities,
without coupons. Each global security will be deposited with, or on behalf of, The Depository Trust
Company (DTC), or a successor thereto, a securities depository, and will be registered in the
name of DTC or a successor or nominee of DTC. DTC will thus be the only registered holder of these
debt securities.
DTC has advised us that it is a limited-purpose trust company organized under the New York
Banking Law, a banking organization within the meaning of the New York Banking Law, a member of
the Federal Reserve System, a clearing corporation within the meaning of the New York Uniform
Commercial Code, and a clearing agency registered pursuant to the provisions of Section 17A of
the Securities Exchange Act of 1934.
Purchasers of debt securities may only hold interests in the global securities through DTC if
they are participants in the DTC system. Participants include both U.S. and non-U.S. securities
brokers and dealers, banks, trust companies, clearing corporations, and certain other
organizations. Access to the DTC system is also available to others such as both U.S. and non-U.S.
securities brokers and dealers, banks, trust companies, and clearing corporations that clear
through or maintain a custodial relationship with a participant, either directly or indirectly. DTC
will maintain accounts showing the security holdings of its participants, and these participants
will in turn maintain accounts showing the security holdings of their customers. Some of these
customers may themselves be securities intermediaries holding securities for their customers. Thus,
each beneficial owner of a book-entry security will hold that security indirectly through various
intermediaries.
The debt securities of each beneficial owner of a book-entry security will be evidenced solely
by entries on the books of the beneficial owners securities intermediary. The actual purchaser of
the debt
I-15
securities will generally not be entitled to have the debt securities represented by the
global securities registered in its name and will not be considered the owner under the terms of
the debt securities and their governing documents. That means that we and any trustee, issuing and
paying agent, registrar or other agent of ours for the debt securities will be entitled to treat
the registered holder, DTC, as the holder of the debt securities for all purposes. In most cases, a
beneficial owner will also not be able to obtain a paper certificate evidencing the holders
ownership of debt securities. The book-entry system for holding securities eliminates the need for
physical movement of certificates and is the system through which most publicly traded securities
are held in the United States. However, the laws of some jurisdictions require some purchasers of
securities to take physical delivery of their securities in definitive form. These laws may impair
the ability to own, transfer or pledge beneficial interests in book-entry securities.
A beneficial owner of book-entry securities represented by a global security may exchange the
securities for definitive (paper) securities only if:
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DTC is unwilling or unable to continue as depository for such global security and we
do not appoint a qualified replacement for DTC within 90 days; or |
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we in our sole discretion decide to allow some or all book-entry securities to be
exchangeable for definitive securities in registered form. |
Unless we indicate otherwise, any global security that is so exchangeable will be exchangeable
in whole for definitive securities in registered form, with the same terms and of an equal
aggregate amount. Definitive securities will be registered in the name or names of the person or
persons specified by DTC in a written instruction to the registrar of the debt securities. DTC may
base its written instruction upon directions that it receives from its participants.
In this prospectus, for book-entry securities, references to actions taken by security holders
will mean actions taken by DTC upon instructions from its participants, and references to payments
and notices of redemption to security holders will mean payments and notices of redemption to DTC
as the registered holder of the debt securities for distribution to participants in accordance with
DTCs procedures. Each sale of a book-entry security will settle in immediately available funds
through DTC unless otherwise stated.
We will not have any responsibility or liability for any aspect of the records relating to, or
payments made on account of, beneficial ownership interest in the book-entry securities or for
maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
The information in this section concerning DTC and DTCs book-entry system has been obtained
from sources that we believe to be reliable, but we take no responsibility for the accuracy
thereof.
Clearstream and Euroclear
Links have been established among DTC, Clearstream Banking, Société Anonyme (Clearstream)
and Euroclear Bank S.A./N.V., as operator of Euroclear System (Euroclear) (two international
clearing systems that perform functions similar to those that DTC performs in the U.S.), to
facilitate the initial issuance of book-entry securities and cross-market transfers of book-entry
securities associated with secondary market trading.
Although DTC, Clearstream and Euroclear have agreed to the procedures provided below in order
to facilitate transfers, they are under no obligation to perform such procedures, and the
procedures may be modified or discontinued at any time.
I-16
Clearstream and Euroclear will record the ownership interests of their participants in much
the same way as DTC, and DTC will record the aggregate ownership of each of the U.S. agents of
Clearstream and Euroclear, as participants in DTC.
When book-entry securities are to be transferred from the account of a DTC participant to the
account of a Clearstream participant or a Euroclear participant, the purchaser must send
instructions to Clearstream or Euroclear through a participant at least one business day prior to
settlement. Clearstream or Euroclear, as the case may be, will instruct its U.S. agent to receive
book-entry securities against payment. After settlement, Clearstream or Euroclear will credit its
participants account. Credit for the book-entry securities will appear on the next day (European
time).
Because settlement is taking place during New York business hours, DTC participants can employ
their usual procedures for sending book-entry securities to the relevant U.S. agent acting for the
benefit of Clearstream or Euroclear participants. The sale proceeds will be available to the DTC
seller on the settlement date. Thus, to the DTC participant, a cross-market transaction will settle
no differently than a trade between two DTC participants.
When a Clearstream or Euroclear participant wishes to transfer book-entry securities to a DTC
participant, the seller must send instructions to Clearstream or Euroclear through a participant at
least one business day prior to settlement. In these cases, Clearstream or Euroclear will instruct
its U.S. agent to transfer the book-entry securities against payment. The payment will then be
reflected in the account of the Clearstream or Euroclear participant the following day, with the
proceeds back-valued to the value date (which would be the preceding day, when settlement occurs in
New York). If settlement is not completed on the intended value date (i.e., the trade fails),
proceeds credited to the Clearstream or Euroclear participants account would instead be valued as
of the actual settlement date.
EARNINGS COVERAGE
The following earnings coverage ratios do not reflect the issuance of any debt securities
under this prospectus.
The Banks interest requirements on all subordinated notes and debentures, and
liabilities for preferred shares and capital trust securities after adjustment for new issues and
retirement, amounted to $1,017.4 million for the 12 months ended October 31, 2009 and $997.0
million for the 12 months ended April 30, 2010. The Bank reported a net income, before interest on
subordinated debt and liabilities for preferred shares and capital trust securities and income
taxes of $4,177 million for the 12 months ended October 31, 2009, which was 4.1 times the Banks
interest requirements. The Bank reported a net income, before interest on subordinated debt and
liabilities for preferred shares and capital trust securities and income taxes of $6,138 million
for the 12 months ended April 30, 2010, which was 6.2 times the Banks interest requirements. On
an adjusted basis, the Banks net income before interest on subordinated debt and liabilities for
preferred shares and capital trust securities and income taxes for the 12 months ended October 31,
2009 was $6,457 million, which was 6.3 times its interest requirements. On an adjusted basis, the
Banks net income before interest on subordinated debt and liabilities for preferred shares and
capital trust securities and income taxes for the 12 months ended April 30, 2010 was $7,379
million, which was 7.4 times its interest requirements. The Banks financial results are prepared
in accordance with Canadian generally accepted accounting principles (GAAP). The Bank refers to
results prepared in accordance with GAAP as reported results. The Bank also utilizes non-GAAP
financial measures referred to as adjusted results to assess each of its businesses and to
measure overall Bank performance. To arrive at adjusted results, the Bank removes items of note,
net of income taxes, from reported results. The items of note relate to items which management does
not believe are indicative of underlying business performance. The Bank believes that adjusted
results provide the reader with a better understanding of how management views the Banks
performance. As explained, adjusted results are different from reported results determined in
accordance with GAAP. Adjusted results, items of note and related terms are not defined terms under
GAAP, and therefore may not be comparable to similar terms used by other issuers. Please see the
Managements Discussion and Analysis Financial Results Overview How the Bank Reports
section of the Banks 2009 Annual Report to Shareholders and the Managements Discussion and
Analysis of Operating Performance How we Performed How the Bank Reports section of the
Banks Second Quarter Report to Shareholders for a reconciliation between the Banks reported and
adjusted results.
I-17
RATINGS
The debt securities have been
given a preliminary rating of AA- by Standard & Poors Ratings Services, a division of The McGraw-Hill Companies
(Canada) Corporation (S&P), and Aaa by Moodys Investors Service, Inc. (Moodys), a
subsidiary of Moodys Corporation.
The AA rating by S&P is
the second highest of ten categories used by S&P in its long-term issue credit rating scale. + and -
modifiers may be used to indicate the relative standing of a credit within a particular category. An Aaa rating by Moodys
is the highest of nine categories used by Moodys.
Credit ratings are intended to
provide investors with an independent assessment of the credit quality of an issue or issuer of securities and do not speak
to the suitability of particular securities for any particular investor. The credit ratings assigned to the debt securities may not reflect the potential impact of
all risks on the value of the debt securities. A rating is therefore not a recommendation to buy, sell or hold securities
and may be subject to revision or withdrawal at any time by the rating agency.
PLAN OF DISTRIBUTION (CONFLICTS OF INTEREST)
We may sell the debt securities being offered by this prospectus in four ways: (1) through
agents, (2) through underwriters, (3) through dealers and/or (4) directly to one or more purchasers
(where permitted by applicable law). Any of these agents, underwriters or dealers may include our
affiliates.
We may designate agents from time to time to solicit offers to purchase these securities. We
will name any such agent, who may be deemed to be an underwriter as that term is defined in the
Securities Act, and state any commissions we are to pay to that agent in the applicable prospectus
supplement. That agent will be acting on a reasonable efforts basis for the period of its
appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis.
If we use a dealer to offer and sell these debt securities, we will sell the debt securities
to the dealer, as principal, and will name the dealer in the applicable prospectus supplement. The
dealer may then resell the debt securities to the public at varying prices to be determined by that
dealer at the time of resale.
There is no market through which the debt securities may be sold and purchasers may not be
able to resell debt securities purchased under this prospectus. This may affect the pricing of the
debt securities in the secondary market, the transparency and availability of trading prices, the
liquidity of the debt securities, and the extent of issuer regulation.
If so indicated in the applicable prospectus supplement, one or more firms, which we refer to as remarketing firms, acting as
principals for their own accounts or as agents for us, may offer and sell these debt securities as
part of a remarketing upon their purchase, in accordance with their terms. We will identify any
remarketing firm, the terms of its agreement, if any, with us and its compensation in the
applicable prospectus supplement.
Remarketing firms, agents, underwriters and dealers may be entitled under agreements with us
to indemnification by us against some civil liabilities, including liabilities under the Securities
Act, and may be customers of, engage in transactions with or perform services for us in the
ordinary course of business.
If so indicated in the applicable prospectus supplement, we will authorize agents,
underwriters or dealers to solicit offers by some purchasers to purchase debt securities from us at
the public offering price stated in the applicable prospectus supplement under delayed delivery
contracts providing for payment and delivery on a specified date in the future. These contracts
will be subject to only those conditions described in the applicable prospectus supplement, and the
applicable prospectus supplement will state the commission payable for solicitation of these
offers.
This prospectus may be
used by certain of our affiliates in connection
with offers and sales of the debt securities in market-making transactions. In a market-making
transaction, our affiliates may resell a security it acquires from
other holders, after the original offering and sale of the security. Resales of this kind may occur
in the open market or may be privately negotiated, at prevailing market prices at the time of the
resale or at related or negotiated prices. In these transactions, our affiliates may act as principal or
agent, including as agent for the counterparty in a
transaction in which our affiliates act as principal. Our affiliates may receive compensation in the form of discounts and
commissions, including from both counterparties in some cases.
I-18
We do not expect to receive any proceeds from market-making transactions. We do not
expect that any of our affiliates that engage in these transactions will
pay any proceeds from its market-making resales to us.
Information about the trade and settlement dates, as well as the purchase price, for a
market-making transaction will be provided to the purchaser in a separate confirmation of sale.
Unless we or an agent informs you in your confirmation of sale that your security is being
purchased on its original offering and sale, you may assume that you are purchasing your security
in a market-making transaction.
In this prospectus, the term this offering means the initial offering of debt securities
made in connection with their original issuance. This term does not refer to any subsequent resales
of debt securities in market-making transactions.
Conflicts of Interest
To the extent an initial offering of the debt securities will be distributed by an affiliate
of the Bank, each such offering of debt
securities will be conducted in compliance with the requirements of Rule 2720 of the Financial
Industry Regulatory Authority, which is commonly referred to as FINRA, regarding a FINRA member
firms distribution of securities of an affiliate. Following the initial distribution of any of
these debt securities, affiliates of the Bank may offer and sell these debt securities in the
course of their businesses as broker-dealers. Such affiliates may act as principals or agents in
these transactions and may make any sales at varying prices related to prevailing market prices at
the time of sale or otherwise. Such affiliates may also use this prospectus in connection with
these transactions. None of our affiliates is obligated to make a market in any of these debt
securities and may discontinue any market-making activities at any time without notice. To the
extent an initial offering of the debt securities will be distributed by an affiliate of the Bank,
such affiliate will not confirm sales to accounts over which it exercises discretionary authority
without the prior specific written approval of its customer.
In the event that any FINRA member participates in a public offering of these debt securities
the underwriting discounts and commissions on debt securities sold in the initial distribution will
not exceed 8% of the offering proceeds.
I-19
INTERESTS OF EXPERTS
Ernst & Young LLP, Chartered Accountants, Toronto, Ontario, is the external auditor who
prepared the Auditors Report to Shareholders with respect to the consolidated balance sheet of the
Bank as at October 31, 2009 and the consolidated statements of income, changes in shareholders
equity and comprehensive income and cash flows for the year then ended. Ernst & Young LLP is
independent with respect to the Bank within the meaning of the Rules of Professional Conduct of the
Institute of Chartered Accountants of Ontario, and the Public Company Accounting Oversight Board,
United States.
LEGAL MATTERS
Unless otherwise specified in the prospectus supplement, certain legal matters relating to the
debt securities offered by a prospectus supplement will be passed upon, on behalf of the Bank, by
McCarthy Tétrault LLP, Toronto, Ontario and Simpson Thacher & Bartlett LLP, New York, New York.
I-20
LIMITATIONS ON ENFORCEMENT OF U.S. LAWS AGAINST THE BANK, OUR MANAGEMENT AND OTHERS
We are a Canadian chartered bank. Many of our directors and executive officers, including
many of the persons who signed the Registration Statement on Form F-9, of which this prospectus is
a part, and some of the experts named in this document, are resident outside the United States, and
a substantial portion of our assets and all or a substantial portion of the assets of such persons
are located outside the United States. As a result, it may be difficult for you to effect service
of process within the United States upon such persons to enforce against them judgments of the
courts of the United States predicated upon, among other things, the civil liability provisions of
the federal securities laws of the United States. In addition, it may be difficult for you to
enforce, in original actions brought in courts in jurisdictions located outside the United States,
among other things, civil liabilities predicated upon such securities laws.
We have been advised by our Canadian counsel, McCarthy Tétrault LLP, that a judgment of a
United States court may be enforceable in Canada if: (a) there is a real and substantial connection
between the events, persons and circumstances and the United States proceedings such that the
United States court properly assumed jurisdiction; (b) the United States judgment is final and
conclusive; (c) the defendant was properly served with originating process from the United States
court; and (d) the United States law that led to the judgment is not contrary to Canadian public
policy, as that term would be applied by a Canadian court. We are advised that in normal
circumstances, only civil judgments and not other rights arising from United States securities
legislation (for example, penal or similar awards made by a court in a regulatory prosecution or
proceeding) are enforceable in Canada. The enforceability of a United States judgment in Canada
will be subject to the requirements that: (i) an action to enforce the United States judgment must
be commenced in the Ontario Court within any applicable limitation period; (ii) the Ontario Court
has discretion to stay or decline to hear an action on the United States judgment if the United
States judgment is under appeal or there is another subsisting judgment in any jurisdiction
relating to the same cause of action; (iii) the Ontario Court will render judgment only in Canadian
dollars; and (iv) an action in the Ontario Court on the United States judgment may be affected by
bankruptcy, insolvency or other laws of general application limiting the enforcement of creditors
rights generally. The enforceability of a United States judgment in Canada will be subject to the
following defenses: (i) the United States judgment was obtained by fraud or in a manner contrary to
the principles of natural justice; (ii) the United States judgment is for a claim which under
Ontario law would be characterized as based on a foreign revenue, expropriatory, penal or other
public law; (iii) the United States judgment is contrary to Ontario public policy or to an order
made by the Attorney General of Canada under the Foreign Extraterritorial Measures Act (Canada) or
by the Competition Tribunal under the Competition Act (Canada) in respect of certain judgments
referred to in these statutes; and (iv) the United States judgment has been satisfied or is void or
voidable under United States law.
DOCUMENTS FILED AS PART OF
THE REGISTRATION STATEMENT
The following documents have been filed with the SEC as part of the registration statement of
which this prospectus forms a part: the documents listed in (a) (d) under Documents
Incorporated by Reference; the Indenture; the Statement of Eligibility of Trustee; consents of
Ernst & Young LLP; consent of McCarthy Tétrault LLP; Powers
of Attorney; and Certified Resolution of the Board of Directors.
I-21
PART II
INFORMATION NOT REQUIRED TO BE DELIVERED
TO OFFEREES OR PURCHASERS
Indemnification of Directors and Officers
Under the Bank Act, the Bank may not, by contract, resolution or by-law, limit the liability
of its directors for breaches of their fiduciary duties. However, except in respect of an action
by or on behalf of the Bank to procure a judgment in its favor, the Bank may indemnify a director
or officer, a former director or officer or a person who acts or acted at the Banks request as a
director or officer of or in a similar capacity for another entity, and his or her heirs and legal
representatives, against all costs, charges and expenses, including an amount paid to settle an
action or satisfy a judgment, reasonably incurred by him or her because of any civil, criminal,
administrative, investigative or other proceeding to which he or she is involved by reason of being
or having been associated with the bank or the entity, if:
(1) that person acted honestly and in good faith with a view to the best interests of the
Bank; or the other entity, as the case may be, and
(2) in the case of a criminal or administrative action or proceeding that is enforced by a
monetary penalty, that person had reasonable grounds for believing that his or her conduct was
lawful.
These individuals are entitled to an indemnity from the Bank if the person was not judged by
the court or other competent authority to have committed any fault or omitted to do anything that
they ought to have done and fulfilled the conditions set out in (1) and (2) above. The Bank may
also advance amounts to the director, officer or other person for the costs, charges and expenses
of a proceeding referred to above, provided such amounts are repaid if the conditions set out in
(1) and (2) above are not satisfied. The Bank may, with the approval of a court, also indemnify or
advance funds to that person regarding an action by or on behalf of the Bank to procure a judgment
in its favor, to which the person is made a party by reason of being or having been a director or
officer of the company or entity, if he or she fulfills the conditions set out in (1) and (2)
above.
The Banks by-laws provide that subject to the limitations contained in the Bank Act, but
without limit to the right of the Bank to indemnify or advance funds to any person under the Bank
Act or otherwise, the Bank will indemnify a director or officer or a former director or officer, or
a person who acts or acted at the Banks request as a director or officer or in a similar capacity
of a body corporate, and such persons heirs and legal representatives, against all costs, charges
and expenses, including an amount paid to settle an action or satisfy a judgment reasonably
incurred by such person in respect of any civil, criminal, administrative, investigative or other
proceeding to which such person is made a party by reason of being or having been a director or
officer of the Bank or such body corporate if: (i) such person acted honestly and in good faith
with a view to the best interests of the Bank or the other entity, as the case may be; and (ii) in
the case of a criminal or administrative action or proceeding that is enforced by a monetary
penalty, such person had reasonable grounds for believing that such persons conduct was lawful.
These indemnification provisions could be construed to permit or require indemnification for
certain liabilities arising out of U.S. federal securities laws. Insofar as indemnification for
liabilities arising under the Securities Act of 1933, as amended (the Securities Act) may be
permitted to directors, officers or persons controlling the Bank pursuant to the foregoing
provisions, the Bank has been informed that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is therefore unenforceable.
The Bank maintains directors and officers liability insurance policies providing for the
insurance on behalf of any person who is or was a director or officer of the Bank and subsidiary
companies against any liability incurred by him or her in any such capacity or arising out of his
or her status as such.
II-1
Exhibits
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4.1
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Annual Information Form of the Registrant dated December 2, 2009 (incorporated by reference
to Exhibit 99.1 to The Toronto-Dominion Banks Form 40-F filed on December 3, 2009, File No.
001-14446). |
4.2
|
|
The consolidated audited financial statements for the fiscal year ended October 31, 2009 with
comparative consolidated financial statements for the fiscal year ended October 31, 2008,
together with the auditors report thereon and Managements Discussion and Analysis
(incorporated by reference to Exhibits 99.2 and 99.3 to The Toronto-Dominion Banks Form 40-F
filed on December 3, 2009, File No. 001-14446). |
4.3
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Management Proxy Circular of the Registrant dated as of January 28, 2010 (incorporated by
reference to The Toronto-Dominion Banks Form 6-K filed on February 25, 2010, File No.
001-14446). |
4.4
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|
The Second Quarter Report to Shareholders for the three and six months ended April 30, 2010,
which includes comparative consolidated interim financial statements (unaudited) and
Managements Discussion and Analysis (incorporated by reference to The Toronto-Dominion Banks
Form 6-K filed on May 27, 2010, File No. 001-14446). |
5.1
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Consent of Ernst & Young LLP. |
5.2
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Consent of Ernst & Young LLP addressed to the Canadian securities regulatory authorities. |
5.3
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Consent of McCarthy Tétrault
LLP.* |
7.1
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Indenture between The Toronto-Dominion Bank and The Bank of New York Mellon (as successor in
interest to The Bank of New York) dated June 30, 2006 (incorporated by reference to Exhibit
7.1 to The Toronto-Dominion Banks Registration Statement on form F-9 filed on May 29, 2008
(File No. 333-151254)). |
7.2
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Statement of Eligibility of
Trustee.* |
24.1 |
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Powers of Attorney. * |
24.2 |
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Certified Resolution of the Board
of Directors. |
II-2
PART III
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
Item 1. Undertaking.
The Registrant undertakes to make available, in person or by telephone, representatives to
respond to inquiries made by the Commission staff, and to furnish promptly, when requested to do so
by the Commission staff, information relating to the securities registered pursuant to this Form
F-9 or to transactions in said securities.
Item 2. Consent to Service of Process.
The Registrant and the Trustee with respect to the debt securities registered hereby have each
filed with the Commission an Appointment of Agent for Service of Process and Undertaking on Form
F-X with the original filing of this Registration Statement.
III-1
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form F-9 and has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Toronto, Province of Ontario, country of
Canada, on this 7th day of July, 2010.
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The Toronto-Dominion Bank
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By: |
/s/ Christopher A. Montague
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Name: |
Christopher A. Montague |
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Title: |
Executive Vice President and General Counsel |
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III-2
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Amendment No. 1 to the Registration
Statement has been signed below by or on behalf of the following persons in the capacities and on
the dates indicated:
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Name |
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Title |
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Date |
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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July 7, 2010 |
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Group Head, Finance and Chief Financial
Officer (Principal Financial Officer)
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July 7, 2010 |
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Senior Vice President and Chief Accountant
(Principal Accounting Officer)
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July 7, 2010 |
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Chairman of the Board
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July 7, 2010 |
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Director
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July 7, 2010 |
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Director
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July 7, 2010 |
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Director
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July 7, 2010 |
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Director
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July 7, 2010 |
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Director
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July 7, 2010 |
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Director
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July 7, 2010 |
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Director
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July 7, 2010 |
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Director
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July 7, 2010 |
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Director
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July 7, 2010 |
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Director
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July 7, 2010 |
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Director
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July 7, 2010 |
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Director
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July 7, 2010 |
III-4
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Name |
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Title |
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Date |
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Director
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July 7, 2010 |
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Authorized Representative in the United States
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July 7, 2010 |
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* By |
/s/ Christopher A. Montague
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Christopher A. Montague |
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AttorneyinFact |
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III-5
Exhibits
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|
4.1
|
|
Annual Information Form of the Registrant dated December 2, 2009 (incorporated by reference
to Exhibit 99.1 to The Toronto-Dominion Banks Form 40-F filed on December 3, 2009, File No.
001-14446). |
4.2
|
|
The consolidated audited financial statements for the fiscal year ended October 31, 2009 with
comparative consolidated financial statements for the fiscal year ended October 31, 2008,
together with the auditors report thereon and Managements Discussion and Analysis
(incorporated by reference to Exhibits 99.2 and 99.3 to The Toronto-Dominion Banks Form 40-F
filed on December 3, 2009, File No. 001-14446). |
4.3
|
|
Management Proxy Circular of the Registrant dated as of January 28, 2010 (incorporated by
reference to The Toronto-Dominion Banks Form 6-K filed on February 25, 2010, File No.
001-14446). |
4.4
|
|
The Second Quarter Report to Shareholders for the three and six months ended April 30, 2010,
which includes comparative consolidated interim financial statements (unaudited) and
Managements Discussion and Analysis (incorporated by reference to The Toronto-Dominion Banks
Form 6-K filed on May 27, 2010, File No. 001-14446). |
5.1
|
|
Consent of Ernst & Young LLP. |
5.2
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Consent of Ernst & Young LLP addressed to the Canadian securities regulatory authorities. |
5.3
|
|
Consent of McCarthy Tétrault LLP.* |
7.1
|
|
Indenture between The Toronto-Dominion Bank and The Bank of New York Mellon (as successor in
interest to The Bank of New York) dated June 30, 2006 (incorporated by reference to Exhibit
7.1 to The Toronto-Dominion Banks Registration Statement on form F-9 filed on May 29, 2008
(File No. 333-151254)). |
7.2
|
|
Statement of Eligibility of
Trustee.* |
24.1
|
|
Powers of Attorney.* |
24.2
|
|
Certified Resolution of the Board
of Directors. |
III-6