F-10
As filed with the Securities and Exchange Commission on September 30, 2008
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM F-10
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 (Province or Other Jurisdiction of Incorporation or Organization) |
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6029 (Primary Standard Industrial Classification Code Number) |
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13-5640479 (I.R.S. Employer Identification No., if applicable) |
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.
Executive Vice President and General Counsel
The Toronto-Dominion Bank
Toronto Dominion Bank Tower
Toronto-Dominion Centre
Toronto, Ontario M5K 1A2, Canada
(416) 308-6963 |
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Lee Meyerson, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
(212) 455-2000 |
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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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). |
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at some future date (check appropriate box below) |
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pursuant to Rule 467(b) on __________________ at __________________ (designate a
time not sooner than seven calendar days after filing). |
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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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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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after the filing of the next amendment to this Form (if preliminary material is being filed). |
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 Class of |
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Amount to be |
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Proposed Maximum |
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Amount of |
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Securities to be Registered |
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Registered(1)(2) |
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Aggregate Offering Price(3) |
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Registration Fee |
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Debt Securities (subordinated indebtedness) |
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Common Shares |
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Class A First Preferred Shares |
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Warrants |
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Total |
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U.S.$5,000,000,000 |
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U.S.$196,500 |
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There is being registered hereunder an indeterminate number of securities of The
Toronto-Dominion Bank (the Registrant) as from time to time may be issued at prices
determined at the time of issuance. This Registration Statement also covers such
indeterminate amount of securities of the Registrant as may be issued upon exercise,
conversion or exchange of any securities that provide for such issuance. Separate
consideration may not be received for these securities. |
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This Registration Statement also covers an undeterminable amount of registered 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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Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act of 1933, as amended. In no event will the aggregate offering price of
all securities issued from time to time pursuant to this Registration Statement exceed
U.S.$5,000,000,000, or the equivalent thereof in one or more foreign currencies. |
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A filing fee of U.S.$160,500 in connection with U.S.$1,500,000,000 of unissued securities
registered by the Registrant under Registration Statement No. 333-140393 initially filed on
February 1, 2007, of which $142,100 is being offset against the total filing fee for this
Registration Statement pursuant to Rule 457(p) under the Securities Act of 1933, as amended. |
PART I
INFORMATION TO BE DELIVERED TO OFFEREES OR PURCHASERS
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New Issue
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September 29, 2008 |
Short Form Base Shelf Prospectus
The Toronto-Dominion Bank
(a Canadian chartered bank)
U.S. $5,000,000,000
Debt Securities (subordinated indebtedness)
Common Shares
Class A First Preferred Shares
Warrants to Purchase Preferred Shares
The Toronto-Dominion Bank (the Bank) may from time to time offer and issue the following
securities: (i) unsecured debt securities (Debt Securities); (ii) common shares (Common
Shares); (iii) Class A First Preferred Shares (Preferred Shares); and (iv) warrants to purchase
Preferred Shares (Warrants) or any combination thereof. The Debt Securities, Common Shares,
Preferred Shares and Warrants (collectively, the Securities) offered hereby may be offered
separately or together, in amounts, at prices and on terms to be set forth in an accompanying shelf
prospectus supplement (a Prospectus Supplement). All shelf information omitted from this short
form base shelf prospectus (the Prospectus) will be contained in one or more Prospectus
Supplements that will be delivered to purchasers together with this Prospectus. The Bank may sell
up to U.S.$5,000,000,000 in aggregate initial offering price of Securities (or the U.S. dollar
equivalent thereof if any of the Securities are denominated in a foreign currency or currency unit)
in the United States during the 25-month period that this Prospectus, including any amendments
thereto, remains valid. All references in this Prospectus to dollars, $ and U.S.$ are to U.S.
dollars and all references to C$ are to Canadian dollars, unless otherwise indicated.
The specific terms of the Securities in respect of which this Prospectus is being delivered
will be set forth in the applicable Prospectus Supplement and may include, where applicable: (i) in
the case of Debt Securities, the specific designation, aggregate principal amount, the currency or
the currency unit for which the Debt Securities may be purchased, maturity, interest provisions,
authorized denominations, offering price, any terms for redemption at the option of the Bank or the
holder, any exchange or conversion terms and any other specific terms; (ii) in the case of Common
Shares, the number of shares and offering price; (iii) in the case of Preferred Shares, the
designation of the particular series, aggregate gross proceeds, the number of shares offered, the
issue price, the dividend rate, the dividend payment dates, any terms for redemption at the option
of the Bank or the holder, any exchange or conversion terms and any other specific terms; and (iv)
in the case of Warrants, the designation, number and terms of the Preferred Shares purchasable upon
exercise of the Warrants, any procedures that will result in the adjustment of these numbers, the
exercise price, dates and periods of exercise, the currency in which the Warrants are issued and
any other specific terms.
The outstanding Common Shares are currently listed on the Toronto, New York and Tokyo stock
exchanges and the outstanding Preferred Shares Series M, N, O, P, Q, R, S, Y and AA are listed on
the Toronto Stock Exchange.
This Prospectus does not register 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 does register 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.
The Securities may be sold through underwriters or dealers purchasing as principals, through
agents designated by the Bank (such underwriters, dealers and agents are collectively referred to
in this Prospectus as Investment Dealers and individually as an Investment Dealer) or by the
Bank directly pursuant to applicable statutory exemptions, from time to time. See Plan of
Distribution. Each Prospectus Supplement will identify each Investment Dealer engaged in
connection with the offering and sale of those Securities to which the Prospectus Supplement
relates, and will also set forth the terms of the offering of such Securities including the net
proceeds to the Bank and, to the extent applicable, any fees payable to the Investment Dealers. The
offerings are subject to approval of certain legal matters on behalf of the Bank by McCarthy
Tétrault LLP and/or Simpson Thacher & Bartlett LLP, as applicable.
Warrants will not be offered for sale to any member of the public in Canada unless the
Prospectus Supplement describing the specific terms of the Warrants to be offered is first approved
for filing by each of the securities commissions or similar regulatory authorities in Canada where
the Warrants will be offered for sale.
The Debt Securities will be direct unsecured obligations of the Bank constituting subordinated
indebtedness for the purposes of the Bank Act (Canada) (the Bank Act) and will not constitute
deposits that are insured under the Canada Deposit Insurance Corporation Act (Canada) or by the
U.S. Federal Deposit Insurance Corporation.
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 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 the Bank is organized under the laws of Canada,
that most of its officers and directors may be residents of Canada, that some or all of the
underwriters or experts named in this Prospectus may be residents of Canada, and that all or a
substantial portion of the assets of the Bank and of said persons may be located outside the United
States.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE U.S. SECURITIES AND EXCHANGE
COMMISSION (THE SEC) OR ANY STATE SECURITIES REGULATOR NOR HAS THE SEC PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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TABLE OF CONTENTS
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 harbor 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 the
Banks objectives and targets for 2008 and beyond, and strategies to achieve them, the outlook for
the Banks business lines, and the Banks anticipated financial performance. The economic
assumptions for each of our business segments are set out in the Banks Annual Report.
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, which may cause actual results to differ materially from the
expectations expressed in the forward-looking statements. Some of the factorsmany of which are
beyond our controlthat could cause such differences include: credit, market (including equity and
commodity), liquidity, interest rate, operational, reputational, insurance, strategic, foreign
exchange, regulatory, legal and other risks discussed in the Banks Annual Report and in other
regulatory filings made in Canada and with the SEC; general business and economic conditions in
Canada, the United States and other countries in which the Bank conducts business, as well as the
effect of changes in monetary policy in those jurisdictions and changes in the foreign exchange
rates for the currencies of those jurisdictions; the degree of competition in the markets in which
the Bank operates, both from established competitors and new entrants; the accuracy and
completeness of information the Bank receives on customers and counterparties; the development and
introduction of new products and services in markets; developing new distribution channels and
realizing increased revenue from these channels; the Banks ability to execute its strategies,
including its integration, growth and acquisition strategies and those of its subsidiaries,
particularly in the U.S.; changes in accounting policies (including future accounting changes) and
methods the Bank uses to report its financial condition, including uncertainties associated with
critical accounting assumptions and estimates; changes to our credit ratings; global capital market
activity; the Banks ability to attract and retain key executives; reliance on third parties to
provide components of the Banks business infrastructure; the failure of third parties to comply
with their obligations to the Bank or its affiliates as such obligations relate to the handling of
personal information; technological changes; the use of new technologies in unprecedented ways to
defraud the Bank or its customers; legislative and regulatory developments; change in tax laws;
unexpected judicial or regulatory proceedings; continued negative impact of the United States
securities litigation environment; unexpected changes in consumer spending and saving habits; the
adequacy of the Banks risk management framework, including the risk that the Banks risk
management models do not take into account all relevant factors; the possible impact on the Banks
businesses of international conflicts and terrorism; acts of God, such as
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earthquakes; the effects of disease or illness on local, national or international economies;
and the effects of disruptions to public infrastructure, such as transportation, communication,
power or water supply. A substantial amount of the Banks business involves making loans or
otherwise committing resources to specific companies, industries or countries. Unforeseen events
affecting such borrowers, industries or countries could have a material adverse effect on the
Banks financial results, businesses, financial condition or liquidity. The preceding list is not
exhaustive of all possible factors. Other factors could also adversely affect the Banks results.
For more information, see the Banks Annual Report. All such factors should be considered carefully
when making decisions with respect to the Bank, and undue reliance should not be placed on the
Banks forward-looking statements as they may not be suitable for other purposes. The Bank does not
undertake to update any forward-looking statements, whether written or oral, that may be made from
time to time by or on its behalf, except as required under applicable securities legislation. See
Risk Factors.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents with respect to 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:
(a) the Management Proxy Circular dated as of January 24, 2008;
(b) the Annual Information Form dated November 29, 2007 (the 2007 Annual Information Form);
(c) the consolidated audited financial statements for the fiscal year ended October 31, 2007
with comparative consolidated financial statements for the fiscal year ended October 31, 2006,
together with the auditors report thereon and Managements Discussion and Analysis as contained in
the Annual Report to Shareholders (the Annual Report) for the year ended October 31, 2007; and
(d) the Banks Third Quarter Report to Shareholders for the three and nine months ended July
31, 2008, 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 Securities under any Prospectus Supplement, shall be deemed to
be incorporated by reference into this Prospectus. In addition, any similar documents filed on Form
6-K or Form 40-F by the Bank with the SEC, after the date of this Prospectus and prior to the
termination of the offering of Securities under any Prospectus Supplement, shall be deemed to be
incorporated by reference into this Prospectus, if and to the extent expressly provided in such
reports on Form 6-K or Form 40-F.
Updated earnings coverage ratios, as required, will be filed quarterly with the applicable
securities commissions or similar authorities in Canada, either as Prospectus Supplements or as
exhibits to the Banks unaudited interim and audited annual financial statements, and will be
deemed to be incorporated by reference into this Prospectus. Where the Bank updates its disclosure
of earnings coverage ratios by Prospectus Supplement, the Prospectus Supplement filed with the
applicable securities commissions or similar authorities that contains the most recent updated
disclosure of earnings coverage ratios will be delivered to all subsequent purchasers of Securities
together with 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
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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, The Toronto-Dominion Bank, 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 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 Securities covered by that Prospectus Supplement unless otherwise
expressly provided therein.
Upon a new Management Proxy Circular, Annual Information Form or new annual financial
statements, together with the auditors report thereon and managements discussion and analysis
contained therein, being filed by the Bank with the applicable securities regulatory authorities
during the currency of this Prospectus, the previous Annual Information Form, Management Proxy
Circular, or annual financial statements and all interim financial statements, material change
reports, and information circulars filed prior to the commencement of the Banks financial year in
which the new Management Proxy Circular, Annual Information Form 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 Securities hereunder.
AVAILABLE INFORMATION
In addition to the continuous disclosure obligations under the securities laws of the
provinces and territories of Canada, the Bank is subject to the informational reporting
requirements of the U.S. Securities Exchange Act of 1934, as amended, and in accordance therewith
files reports and other information with the SEC. Such reports and other information filed by the
Bank may be inspected and copied at the public reference facilities maintained by the SEC at Room
1024, 450 Fifth Street, N.W., Judiciary Plaza, 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 the Bank with the SEC. The Banks Common Shares are listed on the New York Stock Exchange and
reports and other information concerning the Bank may be inspected at the offices of the New York
Stock Exchange, 11 Wall Street, New York, NY 10005.
The Bank is filing with the SEC a registration statement on Form F-10 under the U.S.
Securities Act of 1933, as amended, with respect to the 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 the Bank and the 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
General
The Bank and its subsidiaries are collectively known as TD Bank Financial Group. TD Bank
Financial Group is the seventh largest bank in North America by branches and serves approximately
17 million customers in four key businesses operating in a number of locations in key financial
centers around the globe: Canadian Personal and Commercial Banking, including TD Canada Trust;
Wealth Management, including TD Waterhouse and an investment in TD Ameritrade; U.S. Personal and
Commercial Banking through TD Banknorth and Commerce Bank (to be known together as TD 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 5.5 million on-line customers. TD Bank
Financial Group had C$509 billion in assets as of July 31, 2008. The Bank trades on the Toronto
and New York Stock Exchanges under the symbol TD, as well as on the Tokyo Stock Exchange.
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The Banks head office and registered office are located in the Toronto Dominion Bank Tower,
Toronto-Dominion Centre, Toronto, Ontario, M5K 1A2.
A list of the Banks principal subsidiaries is provided in Appendix A of the 2007 Annual
Information Form.
Additional information regarding the Bank is incorporated by reference into this Prospectus.
See Documents Incorporated by Reference.
CHANGES TO CAPITAL OF THE BANK
On September 5, 2008, the Bank redeemed all of its C$1 billion of outstanding 4.54%
subordinated debentures due September 5, 2013, at a redemption price of 100% of the principal
amount. The debentures qualified as Tier 2B regulatory capital of the Bank.
On September 12, 2008, the Bank issued 10,000,000 Non-Cumulative 5-Year Rate Reset Class A
First Preferred Shares, Series AA of the Bank (the Series AA Shares) for aggregate gross proceeds
of C$250 million. The Series AA Shares are redeemable by the Bank for cash, subject to regulatory
consent, after approximately five years and are convertible, in certain circumstances, into
Non-Cumulative Floating Rate Class A First Preferred Shares, Series AB of the Bank, and vice versa.
The net proceeds of the offering were added to the Banks Tier 1 regulatory capital.
On September 17, 2008, TD Capital Trust III, a closed-end trust established by the Bank and
Computershare Trust Company of Canada, as trustee, issued 1,000,000 TD Capital Trust III Securities
Series 2008 (the TD CaTS III) for aggregate gross proceeds of C$1 billion. Cash distributions
are expected to be paid semi-annually on the TD CaTS III at a yield of 7.243% per year up to and
including December 31, 2018, at which time distributions will reset semi-annually. An investment
in TD CaTS III could be replaced in certain circumstances, without the consent of the holders, by
an investment in Class A First Preferred Shares, Series A9 of the Bank. The net proceeds of the
offering were added to the Banks Tier 1 regulatory capital.
DESCRIPTION OF THE DEBT SECURITIES
The following is a summary of the material attributes and characteristics of the subordinated
indebtedness of the Bank evidenced by the Debt Securities, which does not purport to be complete.
Reference is made to the Trust Indenture referred to below for the full text of such attributes and
characteristics. A copy of the Trust Indenture may be obtained on request from the Corporate
Secretary, The Toronto-Dominion Bank, Toronto-Dominion Centre, Toronto, Ontario, Canada, M5K 1A2
(telephone: (416) 308-6963) and is also available electronically at www.sedar.com.
General
The Debt Securities will be issued as one or more series of debentures pursuant to the
provisions of a trust indenture dated as of November 1, 2005 between the Bank and Computershare
Trust Company of Canada as trustee (the Trustee), as supplemented from time to time (including by
supplemental indentures to be entered into with respect to each offering of Debt Securities)
(collectively, the Trust Indenture). The aggregate principal amount of debentures (including the
Debt Securities) that may be issued under the Trust Indenture is unlimited. In addition, the Bank
may offer Debt Securities by way of another trust indenture, the terms of which would be described
in the Prospectus Supplement relating to such offering of Debt Securities.
Status and Subordination
The Debt Securities will be direct unsecured obligations of the Bank, constituting
subordinated indebtedness for the purposes of the Bank Act, ranking at least equally with other
subordinated indebtedness of the
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Bank from time to time issued and outstanding. In the event of the insolvency or winding-up of
the Bank, the indebtedness evidenced by debentures issued by the Bank, including the Debt
Securities, will be subordinate in right of payment to the prior payment in full of the deposit
liabilities of the Bank and all other liabilities of the Bank except liabilities which by their
terms rank in right of payment equally with or subordinate to indebtedness evidenced by such
debentures.
The Debt Securities will not constitute deposits that are insured under the Canada Deposit
Insurance Corporation Act (Canada) or by the U.S. Federal Deposit Insurance Corporation.
Specific Variable Terms
The specific variable terms of any offering of Debt Securities (including, where applicable
and without limitation, the aggregate principal amount of the Debt Securities being offered, the
currency or currency unit, the issue and delivery date, the maturity date, the issue price, the
interest rate (either fixed or floating and, if floating, the manner of calculation thereof), the
interest payment date(s), any redemption, conversion, exchange, sinking fund or repurchase
provisions, the name of any Investment Dealer involved in the distribution of the Debt Securities,
the compensation payable to any Investment Dealer, the method of distribution, the form (either
global book-entry form or certificated form) and the proceeds to the Bank) will be set forth in the
Prospectus Supplement that will accompany this Prospectus. The Bank reserves the right to set forth
in a Prospectus Supplement specific variable terms of any offering of Debt Securities which are not
within the options and parameters set forth in this Prospectus.
Covenant
The Trust Indenture provides that the Bank will not create, issue or incur any indebtedness
subordinate in right of payment to the deposit liabilities of the Bank which, in the event of the
insolvency or winding-up of the Bank, would rank prior in right of payment to the Debt Securities.
Events of Default
The Trust Indenture provides that an event of default in respect of the Debt Securities will
occur only if the Bank becomes insolvent or bankrupt or resolves to wind-up or liquidate or is
ordered wound-up or liquidated. If an event of default has occurred and is continuing, the Trustee
may, in its discretion and shall upon the request of holders of not less than one-quarter of the
principal amount of a series of Debt Securities then outstanding under the Trust Indenture, declare
the principal of and interest on all outstanding Debt Securities of such series to be immediately
due and payable. There will be no right of acceleration in the case of a default in the payment of
interest or a default in the performance of any other covenant of the Bank in the Trust Indenture,
although a legal action could be brought to enforce such covenant.
Form
Unless otherwise specified in the applicable Prospectus Supplement, each offering of Debt
Securities will be issued in book-entry only form. See Book-Entry Only Securities.
Modification
The Trust Indenture and the rights of the holders of debentures issued pursuant to the Trust
Indenture, including the Debt Securities, may in certain circumstances be modified, if authorized
by extraordinary resolution. For that purpose, among others, the Trust Indenture contains
provisions making extraordinary resolutions binding upon all holders of debentures. Extraordinary
resolution is defined, in effect, as a resolution passed at a meeting of holders of the debentures
by the favorable votes of the holders of not less than 662/3% of the principal amount of
debentures voted on the resolution at such meeting at which a quorum, as specified in the Trust
Indenture, is present, or as a resolution contained in one or more instruments in writing signed by
the holders of not less than 662/3% of the principal amount of the then outstanding
debentures. Provision is made in the Trust Indenture for additional approval by the same percentage
of the holders of a series of debentures if the rights of the holders of such series are affected
in a manner or to an extent substantially different from those of other series. The Bank may also
offer Debt
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Securities by way of another trust indenture, the terms of which would be described in the
Prospectus Supplement relating to such offering of Debt Securities.
Holders Rights
Rights of a holder of a Debt Security represented by a global certificate in book-entry form,
including voting rights, must be exercised through a CDS Participant or DTC Participant (each as
defined below) in accordance with the rules and procedures of CDS or DTC (each as defined below),
as applicable. See Book-Entry Only Securities.
Additional Subordinated Indebtedness
The Trust Indenture does not contain any restriction on the aggregate amount of subordinated
indebtedness which may be issued thereunder.
Governing Law
The Trust Indenture and the Debt Securities shall be governed by and construed in accordance
with the laws of the Province of Ontario and the laws of Canada applicable therein. The Bank may
also offer Debt Securities by way of another trust indenture, the terms of which would be described
in the Prospectus Supplement relating to such offering of Debt Securities.
DESCRIPTION OF COMMON SHARES
The authorized common share capital of the Bank consists of an unlimited number of Common
Shares without nominal or par value, of which 807,324,886 were outstanding as at July 31, 2008. The
holders of Common Shares are entitled to vote at all meetings of the shareholders of the Bank
except meetings at which only holders of a specified class or series of shares are entitled to
vote. The holders of Common Shares are entitled to receive dividends as and when declared by the
Board of Directors of the Bank, subject to the preference of the holders of the preferred shares
(including the Preferred Shares) of the Bank. After payment to the holders of the preferred shares
of the Bank of the amount or amounts to which they may be entitled, and after payment of all
outstanding debts, the holders of Common Shares shall be entitled to receive the remaining property
of the Bank upon the liquidation, dissolution or winding-up thereof.
DESCRIPTION OF PREFERRED SHARES
The following describes certain general terms and provisions of the Preferred Shares. The
particular terms and provisions of a series of Preferred Shares offered by a Prospectus Supplement,
and the extent to which the general terms and provisions described below may apply thereto, will be
described in such Prospectus Supplement.
Issuable in Series
The Preferred Shares may be issued from time to time, in one or more series, with such rights,
privileges, restrictions and conditions as the Board of Directors of the Bank may determine.
Currently, there are 14,000,000 Preferred Shares, Series M, 8,000,000 Preferred Shares, Series N,
17,000,000 Preferred Shares, Series O, 10,000,000 Preferred Shares, Series P, 8,000,000 Preferred
Shares, Series Q, 10,000,000 Preferred Shares, Series R, 10,000,000 Preferred Shares, Series S,
10,000,000 Preferred Shares, Series Y and 10,000,000 Preferred Shares, Series AA outstanding.
Priority
The Preferred Shares rank prior to the Common Shares and to any other shares of the Bank
ranking junior to the Preferred Shares with respect to the payment of dividends and the
distribution of assets in the event of the liquidation, dissolution or winding-up of the Bank. Each
series of Preferred Shares ranks on a parity with every other series of Preferred Shares.
8
Restriction
Pursuant to the Bank Act, the Bank may not, without the approval of the holders of the
Preferred Shares, create any class of shares ranking prior to or on a parity with the Preferred
Shares.
Amendment of Class Provisions
Approval of amendments to the provisions of the Preferred Shares as a class may be given in
writing by the holders of all the outstanding Preferred Shares or by a resolution carried by an
affirmative vote of at least two-thirds of the votes cast at a meeting at which the holders of a
majority of the then outstanding Preferred Shares are present or represented by proxy or, if no
quorum is present at such meeting, at an adjourned meeting at which the shareholders then present
or represented by proxy may transact the business for which the meeting was originally called.
Priority on Liquidation, Dissolution or Winding-up
In the event of the liquidation, dissolution or winding-up of the Bank, before any amounts
shall be paid to or any assets distributed among the holders of the Common Shares or shares of any
other class of the Bank ranking junior to the Preferred Shares, the holder of a Preferred Share of
a series shall be entitled to receive to the extent provided for with respect to such Preferred
Shares by the conditions attaching to such series: (i) an amount equal to the amount paid up
thereon; (ii) such premium, if any, as has been provided for with respect to the Preferred Shares
of such series; and (iii) all unpaid cumulative dividends, if any, on such Preferred Shares and, in
the case of non-cumulative Preferred Shares, all declared and unpaid non-cumulative dividends.
After payment to the holders of the Preferred Shares of the amounts so payable to them, they shall
not be entitled to share in any further distribution of the property or assets of the Bank. Each
series of Preferred Shares ranks on a parity with every other series of Preferred Shares.
Voting Rights
There are no voting rights attaching to the Preferred Shares except to the extent provided in
any series or by the Bank Act.
Creation and Issue of Additional Shares
The Bank may not, without the prior approval of the holders of the Preferred Shares, create or
issue (i) any shares ranking in priority to or on a parity with the Preferred Shares; or (ii) any
additional series of Preferred Shares unless at the date of such creation or issuance all
cumulative dividends and any declared and unpaid non-cumulative dividends shall have been paid or
set apart for payment in respect of each series of Preferred Shares then issued and outstanding.
DESCRIPTION OF WARRANTS
The following describes certain general terms and provisions that will apply to the Warrants.
The particular terms and provisions of Warrants offered by a Prospectus Supplement, and the extent
to which the general terms and provisions described below apply to such Warrants, will be described
in such Prospectus Supplement.
Warrants may be offered separately or together with Preferred Shares. Each series of Warrants
will be issued under a separate indenture (each, a Warrant Indenture) in each case between the
Bank and a trustee determined by the Bank. The statements below relating to any Warrant Indenture
and the Warrants to be issued thereunder are summaries of certain anticipated provisions thereof,
are not complete and are subject to, and qualified by reference to all provisions of the applicable
Warrant Indenture. The applicable Prospectus Supplement will include details of the Warrant
Indenture with respect to the Warrants being offered. Reference is made to the applicable
Prospectus Supplement which will accompany this Prospectus for the terms and other information with
respect to the offering of Warrants being offered thereby.
9
Preferred Share Warrants
The particular terms and provisions of each issue of Warrants providing for the issuance of
Preferred Shares on exercise of Warrants will be described in the related Prospectus Supplement and
may include the designation, number and terms of the Preferred Shares purchasable upon exercise of
the Warrants, any procedures that will result in the adjustment of these numbers, the exercise
price, dates and periods of exercise, the currency in which the Warrants are issued and any other
specific terms of the Warrants.
BOOK-ENTRY ONLY SECURITIES
CDS Clearing and Depository Services Inc.
Securities issued in book-entry only form must be purchased, transferred or redeemed through
participants (CDS Participants) in the depository service of CDS Clearing and Depository Services
Inc. or a successor or its nominee (collectively, CDS), except that Securities issued in the
United States generally must be purchased, transferred or redeemed through participants (DTC
Participants) in the depository service of The Depository Trust Company or a successor or its
nominee (collectively, DTC), as described below. Each of the Investment Dealers named in an
accompanying Prospectus Supplement offering securities in book-entry only form will be a CDS
Participant. On the closing of a book-entry only offering, the Bank will cause a global certificate
or certificates representing the aggregate number of Securities subscribed for under such offering
to be delivered to, and registered in the name of, CDS. Except as described below, no purchaser of
Securities will be entitled to a certificate or other instrument from the Bank or CDS evidencing
that purchasers ownership thereof, and no purchaser will be shown on the records maintained by CDS
except through a book-entry account of a CDS Participant acting on behalf of such purchaser. Each
purchaser of Securities will receive a customer confirmation of purchase from the Investment Dealer
from which the Securities are purchased in accordance with the practices and procedures of that
Investment Dealer. The practices of Investment Dealers may vary, but generally customer
confirmations are issued promptly after execution of a customer order. Reference in this Prospectus
to a holder of Securities means, unless the context otherwise requires, the owner of the beneficial
interest in the Securities.
CDS will be responsible for establishing and maintaining book-entry accounts for CDS
Participants having interests in the Securities. If (i) the book-entry only system ceases to exist,
(ii) the Bank determines that CDS is no longer willing or able to discharge properly its
responsibilities as depository with respect to the Securities and the Bank is unable to locate a
qualified successor, or (iii) the Bank at its option elects, or is required by applicable law or
the rules of any securities exchange, to withdraw the Securities from the book-entry only system,
then physical certificates representing the Securities will be issued to holders thereof or their
nominees.
Transfer, Conversion and Redemption of Securities
Transfers of ownership, conversions or redemptions of Securities will be effected only through
records maintained by CDS for such Securities with respect to interests of CDS Participants and on
the records of CDS Participants with respect to interests of persons other than CDS Participants.
Holders of Securities who are not CDS Participants, but who desire to purchase, sell or otherwise
transfer ownership of or other interests in the Securities, may do so only through CDS
Participants. The ability of a holder to pledge Securities or otherwise take action with respect to
such holders interest in Securities (other than through a CDS Participant) may be limited due to
the lack of a physical certificate.
Payments and Deliveries
The Bank will make, or cause to be made, payments of principal, redemption price, if any,
dividends and interest, as applicable, on Securities to CDS as the registered holder of the
Securities and the Bank understands that the payment will be forwarded by CDS to CDS Participants
in accordance with the customary practices and procedures of CDS. As long as CDS is the registered
owner of the Securities, CDS will be considered the sole owner of the Securities for the purposes
of receiving notices or payments on the Securities. As long as the Securities are held in the CDS
book-entry only system, the responsibility and liability of the Bank in respect of the Securities
is limited to making payments of principal, redemption price, if any, dividends and interest, as
applicable, on the
10
Securities to CDS, as registered holder of the Securities. The Bank expects that CDS, upon
receipt of any payment in respect of Securities, will credit CDS Participants accounts in amounts
proportionate to their respective interests in the principal amount of such Securities as shown on
the records of CDS in accordance with the customary practices and procedures of CDS. The Bank also
expects that payments by CDS Participants to the owners of beneficial interests in Securities held
through such CDS Participants will be governed by standing instructions and customary practices,
and will be the responsibility of such CDS Participants. The rules governing CDS provide that it
acts as the agent and depository for the CDS Participants. As a result, CDS Participants must look
solely to CDS, and persons other than CDS Participants having an interest in Securities must look
solely to CDS Participants, for payments or deliveries made by or on behalf of the Bank to CDS in
respect of such Securities.
Each beneficial owner must rely on the procedures of CDS and, if such beneficial owner is not
a CDS Participant, on the procedures of the CDS Participant through which such beneficial owner
owns its interest, to exercise any rights with respect to the Securities. The Bank understands that
under existing policies of CDS and industry practices, if the Bank requests any action of a
beneficial owner or if a beneficial owner desires to give any notice or take any action which a
registered holder is entitled to give or take with respect to the Securities, CDS would authorize
the CDS Participant acting on behalf of the beneficial owner to give such notice or to take such
action, in accordance with the procedures established by CDS or agreed to from time to time by the
Bank, any Trustee and CDS. Any beneficial owner that is not a CDS Participant must rely on the
contractual arrangement it has directly, or indirectly through its financial intermediary, with its
CDS Participant to give such notice or take such action.
None of the Bank, the Investment Dealers, the Trustee or any other trustee (in the case of
Debt Securities) will assume liability or responsibility for (i) any aspect of the records relating
to the beneficial ownership of the Securities held by CDS or the payments or deliveries relating
thereto, (ii) maintaining, supervising or reviewing any records relating to the Securities, or
(iii) any advice or representation made by or with respect to CDS relating to the rules governing
CDS or any action to be taken by CDS or at the direction of CDS Participants.
The Depository Trust Company
On the closing of a book-entry only offering made in the United States, the Bank will cause a
global certificate or certificates representing the aggregate number of Securities subscribed for
under such offering to be delivered to, and registered in the name of, DTC. Purchasers of such
Securities may only hold interests in the global certificates through DTC if they are DTC
Participants. Purchasers may also hold interests through a securities intermediary banks,
brokerage houses and other institutions that maintain securities accounts for customers that has
an account with DTC. DTC will maintain accounts showing the Security holdings of its DTC
Participants, and these DTC Participants will in turn maintain accounts showing the Security
holdings of their customers. Some of these customers may themselves be intermediaries holding
Securities for their customers. Thus, each beneficial owner of a book-entry Security will hold
that Security indirectly through a hierarchy of intermediaries, with DTC at the top and the
beneficial owners own securities intermediary at the bottom.
The 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 Securities will generally not be entitled to have the Securities represented by the global
Securities registered in its name and will not be considered the record holder. In most cases, a
beneficial owner will also not be able to obtain a paper certificate evidencing the holders
ownership of Securities. Accordingly, you must rely on the procedures of DTC and the DTC
participant through which you own your interest to exercise any rights of a holder under the global
Security. 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 transfer book-entry interests in the Securities.
The Bank will make payments on Securities represented by a global Security to DTC as the
registered owner and holder of the global Security representing those Securities. DTC has advised
the Bank that upon receipt of any payment on a global Security, DTC will immediately credit
accounts of DTC participants with payments in amounts proportionate to their respective beneficial
interests in that Security, as shown in the records of DTC. Standing instructions and customary
practices will govern payments by DTC participants to owners of beneficial
11
interests in a global Security held through those DTC participants, as is now the case with
Securities held for the accounts of customers in bearer form or registered in street name. Those
payments will be the sole responsibility of those DTC participants, subject to any statutory or
regulatory requirements in effect from time to time.
None of the Bank, the trustees or any respective agents will have any responsibility or
liability for any aspect of the records of DTC or any DTC participant relating to, or payments made
on account of, beneficial interests in a global Security or for maintaining, supervising or
reviewing any of the records of DTC or any DTC participant relating to those beneficial interests.
A beneficial owner of book-entry Securities represented by a global Security held by DTC will
have its Securities exchanged for definitive Securities only if: (i) the book-entry only system
ceases to exist in the United States, (ii) the Bank determines that DTC is no longer willing or
able to discharge properly its responsibilities as depository with respect to the Securities and
the Bank is unable to locate a qualified successor in the United States, or (iii) the Bank at its
option elects, or is required by applicable law or the rules of the SEC, to withdraw the Securities
from the book-entry only system in the United States.
Unless otherwise specified in the applicable Prospectus Supplement, any global Security that
is exchangeable as described in the preceding paragraph will be exchangeable in whole for
definitive Securities in registered form, with the same terms and of an equal aggregate principal
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 Securities. DTC may base its
written instruction upon directions it receives from DTC Participants.
In this Prospectus, for book-entry Securities held through DTC, references to actions taken by
Security holders will mean actions taken by DTC upon instructions from DTC 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 Securities for distribution to DTC
Participants in accordance with DTCs procedures.
DTC is a limited purpose trust company organized under the laws of the State of New York, 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 under section 17A of the U.S. Securities
Exchange Act of 1934. The rules applicable to DTC and the DTC Participants are on file with the
SEC.
The Bank will not have any responsibility or liability for any aspect of the records relating
to, or payments made on account of, beneficial ownership interests in the book-entry Securities
held through DTC or for maintaining, supervising or reviewing any records relating to the
beneficial ownership interests held through DTC.
BANK ACT RESTRICTIONS AND RESTRICTIONS ON PAYMENT OF DIVIDENDS
The Bank Act contains restrictions on the issue, transfer, acquisition, beneficial ownership
and voting of all shares of a chartered bank. For example, no person shall be a major shareholder
of a bank if the bank has equity of C$8 billion or more (which would include the Bank). A person is
a major shareholder of a bank where: (i) the aggregate of shares of any class of voting shares
beneficially owned by that person, by entities controlled by that person and by any person
associated or acting jointly or in concert with that person is more than 20% of that class of
voting shares; or (ii) the aggregate of shares of any class of non-voting shares beneficially owned
by that person, by entities controlled by that person and by any person associated or acting
jointly or in concert with that person is more than 30% of that class of non-voting shares. No
person shall have a significant interest in any class of shares of a bank, including the Bank,
unless the person first receives the approval of the Minister of Finance (Canada). For purposes of
the Bank Act, a person has a significant interest in a class of shares of a Canadian chartered bank
where the aggregate of any shares of the class beneficially owned by that person, by entities
controlled by that person and by any person associated or acting jointly or in concert with that
person exceeds 10% of all of the outstanding shares of that class of shares of such bank.
Purchasers of Securities (and CDS Participants) may be required to furnish declarations relating to
ownership (and ownership by clients of such CDS Participants) in a form prescribed by the Bank.
12
The Bank Act also prohibits the registration of a transfer or issue of any share of the Bank
to Her Majesty in right of Canada or of a province or any agent or agency of Her Majesty in either
of those rights, or to the government of a foreign country or any political subdivision, agent or
agency of any of them.
Under the Bank Act, the Bank cannot redeem or purchase any of its shares, including the
Preferred Shares, unless the consent of the Superintendent of Financial Institutions (Canada) (the
Superintendent) has been obtained. In addition, the Bank Act prohibits a payment to purchase or
redeem any shares or the declaration of a dividend if there are reasonable grounds for believing
that the Bank is, or the payment would cause the Bank to be, in contravention of the capital
adequacy and liquidity regulations of the Bank Act or directions of the Superintendent.
The Bank is also restricted from paying certain dividends in the event that TD Capital Trust,
TD Capital Trust II or TD Capital Trust III (each a subsidiary of the Bank) fails to pay
semi-annual distributions in full to holders of Capital Trust Securities, TD Capital Trust II
Securities or TD Capital Trust III Securities, respectively, when required pursuant to the terms of
the respective securities. In addition, the ability to pay dividends on the Common Shares without
the approval of the holders of the outstanding Preferred Shares is restricted unless all dividends
on the Preferred Shares have been declared and paid or set apart for payment.
EARNINGS COVERAGE
The following earnings coverage ratios do not reflect the issuance of any 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 C$861 million for the 12 months ended October 31, 2007 and C$844 million for the 12
months ended July 31, 2008.
The Bank reported net income, before interest on subordinated debt and liabilities for
preferred shares and capital trust securities and income taxes of C$5,278 million for the 12 months
ended October 31, 2007, which was 6.1 times the Banks aggregated dividend and interest requirement
for this period. The Bank reported net income, before interest on subordinated debt and liabilities
for preferred shares and capital trust securities and income taxes of C$5,020 million for the 12
months ended July 31, 2008, which was 5.9 times the Banks aggregated dividend and interest
requirement for this period.
On an adjusted earnings 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, 2007 was C$5,594 million, which was 6.5 times the Banks aggregated dividend and
interest requirement for this period. On an adjusted earnings 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 July 31, 2008 was C$5,371 million, which was 6.4 times the
Banks aggregated dividend and interest requirement for this period.
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 used herein are not defined terms under GAAP, and, therefore, may not be
comparable to similar terms used by other issuers. Please see page 6 of the Banks Third Quarter
Report to Shareholders for the three and nine months ended July 31, 2008 and page 15 of the Banks
Annual Report for a reconciliation between the Banks reported and adjusted results.
13
PLAN OF DISTRIBUTION
The Bank may sell Securities to or through underwriters or dealers purchasing as principal,
and also may sell Securities to one or more purchasers directly or through agents. Securities may
be sold from time to time in one or more transactions at a fixed price or prices which may be
changed, at market prices prevailing at the time of sale, at prices related to such prevailing
market prices or at prices to be negotiated with purchasers.
A Prospectus Supplement will set forth the terms of any offering of Securities, including the
name or names of any Investment Dealers, the initial public offering price, the proceeds to the
Bank, any underwriting discount or commission to be paid to any Investment Dealers and any
discounts, concessions or commissions allowed or re-allowed or paid by any Investment Dealers to
other investment dealers. The Securities may be sold directly by the Bank at such prices and upon
such terms as agreed to by the Bank and the purchaser or through agents designated by the Bank from
time to time. Any agent involved in the offering and sale of the Securities in respect of which
this Prospectus is delivered will be named, and any commissions payable by the Bank to such agent
will be set forth, in the applicable Prospectus Supplement. Unless otherwise indicated in the
applicable Prospectus Supplement, any agent is acting on a best efforts basis for the period of its
appointment.
If underwriters are used in the sale, the Securities will be acquired by the underwriters for
their own account and may be resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices determined at the
time of sale, at market prices prevailing at the time of sale or at prices related to such
prevailing market prices. The obligations of the underwriters to purchase such Securities will be
subject to certain conditions precedent, and the underwriters will be obligated to purchase all the
Securities offered by the Prospectus Supplement if any of such Securities are purchased.
Any public offering price and any discounts or concessions allowed or re-allowed or paid to
Investment Dealers may be changed from time to time. The Bank may agree to pay the Investment
Dealers a commission for various services relating to the issue and sale of any Securities offered
hereby. Any such commission will be paid out of the general corporate funds of the Bank. Investment
Dealers who participate in the distribution of the Securities may be entitled under agreements to
be entered into with the Bank to indemnification by the Bank against certain liabilities, including
liabilities under securities legislation, or to contribution with respect to payments which such
Investment Dealers may be required to make in respect thereof.
In connection with any offering of the Securities (unless otherwise specified in a Prospectus
Supplement), the Investment Dealers may over-allot or effect transactions which stabilize or
maintain the market price of the Securities offered at a higher level than that which might exist
in the open market. These transactions may be commenced, interrupted or discontinued at any time.
This Prospectus and related Prospectus Supplement may be used by direct or indirect
wholly-owned subsidiaries of the Bank in connection with offers and sales related to secondary
market transactions in the Securities in the United States. Those subsidiaries may act as principal
or agent in those transactions. Secondary market sales will be made at prices related to prevailing
market prices at the time of sale.
RISK FACTORS
Investment in the Securities is subject to various risks including those risks inherent in
conducting the business of a diversified financial institution. Before deciding whether to invest
in any 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
Securities. Prospective investors should consider the categories of risks identified and discussed
in the Banks Annual Information Form and Managements Discussion and Analysis of the Bank
incorporated herein by reference including credit risk, market risk (including equity and
commodity), liquidity risk, interest rate risk, operational risk, reputational risk, insurance
risk, strategic risk, foreign exchange risk, regulatory risk and legal risk.
14
USE OF PROCEEDS
Unless otherwise specified in a Prospectus Supplement, the net proceeds to the Bank from the
sale of the Securities will be added to the general funds of the Bank and utilized for general
banking purposes.
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 sheets of
the Bank as at October 31, 2007 and 2006 and the consolidated statements of income, changes in
shareholders equity, comprehensive income and cash flows for each of the years 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
Securities offered by a Prospectus Supplement will be passed upon, on behalf of the Bank, by
McCarthy Tétrault LLP and, with respect to Securities offered in the United States, Simpson Thacher
& Bartlett LLP.
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 Trust Indenture; consents of Ernst & Young LLP; and Powers of
Attorney.
15
PART II
INFORMATION NOT REQUIRED TO BE DELIVERED
TO OFFEREES OR PURCHASERS
Indemnification of Directors and Officers
Under the Bank Act (Canada) (the Bank Act), The Toronto-Dominion Bank (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 or administrative action or
proceeding to which he or she is made a party by reason of being or having been a director or
officer of the bank or the entity, if:
(1) |
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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 |
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(2) |
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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 impugned 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 they
ought to have done and fulfilled the conditions set out in (1) and (2) above. 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 Bank or the 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 or administrative action or 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; 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
Securities and Exchange Commission (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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Exhibit No. |
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Description |
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4.1
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Annual Information Form of the Registrant dated November 29, 2007 (incorporated by
reference to Exhibit 99.1 to The Toronto-Dominion Banks Form 40-F filed on November 29,
2007, File No. 001-14446). |
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4.2
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The consolidated audited financial statements for the fiscal year ended October 31, 2007
with comparative consolidated financial statements for the fiscal year ended October 31,
2006, 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 November 29, 2007, File No. 001-14446). |
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4.3
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Reconciliation of Canadian and U.S. Generally Accepted Accounting Principles for the
fiscal year ended October 31, 2007 (incorporated by reference to Exhibit 99.4 to The
Toronto-Dominion Banks Form 40-F filed on November 29, 2007, File No. 001-14446). |
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4.4
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Management Proxy Circular of the Registrant dated January 24, 2008 (incorporated by
reference to The Toronto-Dominion Banks Form 6-K filed on February 21, 2008, File No.
001-14446). |
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4.5
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The Third Quarter Report to Shareholders for the three and nine months ended July 31,
2008, 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 August 28, 2008, File No. 001-14446). |
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5.1
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Consent of Ernst & Young LLP. |
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5.2
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Consent of Ernst & Young LLP addressed to the Canadian securities regulatory authorities. |
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6.
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Powers of Attorney (included on page III-3 of the registration statement). |
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7.1
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Trust Indenture, dated as of November 1, 2005 between the Registrant and Computershare
Trust Company of Canada, as trustee, relating to the Debt Securities registered hereby
(incorporated by reference to The Toronto-Dominion Banks Registration Statement on Form
F-10 filed on February 1, 2007, File No. 333-140383). |
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 SEC staff, and to furnish promptly, when requested to do so by the
SEC staff, information relating to the securities registered pursuant to this Form F-10 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 pursuant to this
Form F-10 have each filed with the SEC 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-10 and has duly caused this 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 30th day of September, 2008.
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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
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints Christopher A. Montague or, failing him, Colleen Johnston his or her true and lawful
attorneys-in-fact and agents, each acting alone, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any and all capacities,
to do any and all things and execute any and all instruments that such attorney may deem necessary
or advisable under the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the U.S. Securities and Exchange Commission (the Commission) in connection with
the registration under the Securities Act of 1933, as amended, of the securities of the Registrant
as contemplated by the resolutions of the Board of Directors of the Registrant adopted on August
28, 2008, including specifically, but without limiting the generality of the foregoing, the power
and authority to sign his or her name in his or her respective capacity as a member of the Board of
Directors or officer of the Registrant, a registration statement on Form F-10 (or any other form
deemed appropriate by such attorney, or one or more amendments to an existing registration
statement of the Registrant) and/or such other form or forms as may be appropriate to be filed with
the Commission as any of them deem appropriate in respect of the securities of the Registrant, to
any and all amendments, including post-effective amendments, to such registration statement(s), and
to any and all instruments and documents filed as part of or in connection with such registration
statement(s) and any and all amendments thereto, including post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed below by or on behalf of the following persons in the capacities and on
the dates indicated:
III-3
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Name |
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Title |
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Date |
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/s/ W. Edmund Clark
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President, Chief Executive Officer and Director
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September 30, 2008 |
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W. Edmund Clark
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(Principal Executive Officer) |
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/s/ Colleen M. Johnston
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Group Head, Finance and Chief Financial Officer
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September 30, 2008 |
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Colleen M. Johnston
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(Principal Financial Officer) |
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/s/ Kelvin Tran
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Senior Vice President and Chief Accountant
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September 30, 2008 |
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Kelvin Tran
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(Principal Accounting Officer) |
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/s/ John M. Thompson
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Chairman of the Board
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September 30, 2008 |
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John M. Thompson |
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/s/ William E. Bennett
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Director
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September 30, 2008 |
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William E. Bennett |
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/s/ Hugh J. Bolton
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Director
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September 30, 2008 |
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Hugh J. Bolton |
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/s/ John L. Bragg
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Director
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September 30, 2008 |
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John L. Bragg |
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/s/ Wendy K. Dobson
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Director
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September 30, 2008 |
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Wendy K. Dobson |
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/s/ Donna M. Hayes
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Director
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September 30, 2008 |
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Donna M. Hayes |
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/s/ Henry H. Ketcham
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Director
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September 30, 2008 |
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Henry H. Ketcham |
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/s/ Pierre H. Lessard
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Director
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September 30, 2008 |
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Pierre H. Lessard |
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/s/ Harold H. MacKay
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Director
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September 30, 2008 |
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Harold H. MacKay |
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/s/ Brian F. MacNeill
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Director
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September 30, 2008 |
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Brian F. MacNeill |
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/s/ Irene R. Miller
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Director
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September 30, 2008 |
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Irene R. Miller |
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/s/ Nadir H. Mohamed
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Director
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September 30, 2008 |
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Nadir H. Mohamed |
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/s/ Roger Phillips
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Director
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September 30, 2008 |
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Roger Phillips |
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/s/ Wilbur J. Prezzano
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Director
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September 30, 2008 |
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Wilbur J. Prezzano |
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III-4
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Name |
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Title |
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Date |
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/s/ William J. Ryan
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Director
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September 30, 2008 |
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William J. Ryan |
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/s/ Helen K. Sinclair
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Director
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September 30, 2008 |
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Helen K. Sinclair |
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/s/ Brendan OHalloran
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Authorized Representative in the United States
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September 30, 2008 |
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Brendan OHalloran |
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III-5
EXHIBITS
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Exhibit No. |
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Description |
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4.1
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Annual Information Form of the Registrant dated November 29, 2007 (incorporated by
reference to Exhibit 99.1 to The Toronto-Dominion Banks Form 40-F filed on November 29,
2007, File No. 001-14446). |
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4.2
|
|
The consolidated audited financial statements for the fiscal year ended October 31, 2007
with comparative consolidated financial statements for the fiscal year ended October 31,
2006, 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 November 29, 2007, File No. 001-14446). |
|
|
|
4.3
|
|
Reconciliation of Canadian and U.S. Generally Accepted Accounting Principles for the
fiscal year ended October 31, 2007 (incorporated by reference to Exhibit 99.4 to The
Toronto-Dominion Banks Form 40-F filed on November 29, 2007, File No. 001-14446). |
|
|
|
4.4
|
|
Management Proxy Circular of the Registrant dated January 24, 2008 (incorporated by
reference to The Toronto-Dominion Banks Form 6-K filed on February 21, 2008, File No.
001-14446). |
|
|
|
4.5
|
|
The Third Quarter Report to Shareholders for the three and nine months ended July 31,
2008, 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 August 28, 2008, File No. 001-14446). |
|
|
|
5.1
|
|
Consent of Ernst & Young LLP. |
|
|
|
5.2
|
|
Consent of Ernst & Young LLP addressed to the Canadian securities regulatory authorities. |
|
|
|
6.
|
|
Powers of Attorney (included on page III-3 of the registration statement). |
|
|
|
7.1
|
|
Trust Indenture, dated as of November 1, 2005 between the Registrant and Computershare
Trust Company of Canada, as trustee, relating to the Debt Securities registered hereby
(incorporated by reference to The Toronto-Dominion Banks Registration Statement on Form
F-10 filed on February 1, 2007, File No. 333-140383). |
III-6