fv10
As filed with the Securities and Exchange Commission on October 26, 2010
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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
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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., 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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A. |
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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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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). |
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2. |
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pursuant to Rule 467(b) on October 27, 2010 at 12 p.m. (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 October 26, 2010. |
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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). |
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.$356,500 |
(4) |
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(1) |
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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 (i) U.S.$36,000 was paid in connection with U.S.$5,000,000,000 of unissued
securities registered by the Registrant under Registration Statement No. 333-153735 initially filed
on September 30, 2008, (ii) U.S. $47,940 was paid 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, (iii) U.S. $94,160 was paid in connection with U.S. $800,000,000 of unissued
securities registered by the Registrant under Registration Statement 333-121856 initially filed on
January 5, 2005, (iv) U.S. $18,400 was paid in connection with U.S. $200,000,000 of unissued
securities registered by the Registrant under Registration Statement 333-101862 initially filed on
December 16, 2002, and each 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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October 26, 2010 |
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)
during the 25 month period that this Prospectus, including any amendments thereto, remains valid.
All currency amounts in this Prospectus are stated in 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 and New York stock exchanges and
the outstanding Preferred Shares Series M, N, O, P, Q, R, S, Y, AA, AC, AE, AG, AI and AK are
listed on the Toronto Stock Exchange.
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.
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 we are 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 our assets and the assets 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 OR ANY STATE SECURITIES
REGULATOR 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
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EX-5.1 |
EX-5.2 |
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 the Banks
objectives and priorities for 2010 and beyond and strategies to achieve them, and the Banks
anticipated financial performance. The economic assumptions for each of its business segments are
set out in the Banks 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 financial, economic and regulatory environment, 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 the Banks Annual
Report and in other regulatory filings made in Canada and with the U.S. Securities and Exchange
Commission (SEC). Additional risk factors include the impact of recent U.S. legislative
developments, as discussed under Significant Events in 2010 in the How We Performed section of
the Banks Third Quarter 2010 Report to Shareholders; 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 the Bank or its affiliates relating to the care and control of information; and the
use of new technologies in unprecedented ways to defraud the Bank or its customers and the
organized efforts of increasingly sophisticated parties who direct their attempts to defraud the
Bank or its customers through many channels. 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, as well as other
uncertainties and potential events, and the inherent uncertainty of forward-looking statements,
when making decisions with respect to the Bank, and undue reliance should not be placed on the
Banks forward-looking statements.
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Any forward-looking statements contained in this Prospectus represent the views of management only
as of the date of this Prospectus and are presented for the purpose of assisting the Banks
securityholders in understanding the Banks 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. 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:
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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 Banks Annual Report to Shareholders (the
Annual Report) for the year ended October 31, 2009; and |
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the Banks Third Quarter Report to Shareholders for the three and nine months
ended July 31, 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 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
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
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without charge from the Corporate Secretary, The Toronto-Dominion Bank, Toronto-Dominion Centre,
Toronto, Ontario, M5K 1A2 (telephone: (416) 308-6963), or
electronically 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 FOR U.S. PURCHASERS
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 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 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, 20 Broad
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.
Additional Information Relating to Certain Prior Disclosures of The Bank
The discussion set forth under Capital Structure Ratings in the Annual Information Form filed
as Exhibit 99.1 to the Banks Annual Report on Form 40-F for the year ended October 31, 2009 filed
with the SEC on December 3, 2009 (the 2009 Form 40-F) and Liquidity Risk Funding in the
Managements Discussion and Analysis attached as Exhibit 99.2 to the Banks 2009 Form 40-F, which
report is incorporated by reference into the Banks Form F-10 referred to above, is amended by
supplementing such discussion with the following additional information:
Credit ratings are important to the Banks borrowing costs and ability to raise funds. A ratings
downgrade could potentially result in higher financing costs and reduce access to capital markets.
A lowering of credit ratings may also affect the Banks ability to enter into normal course
derivative or hedging transactions and impact the costs associated with such transactions. The Bank
regularly reviews the level of increased collateral its trading counterparties would require in the
event of a downgrade of the Banks credit rating. The Bank believes that the impact of a one notch
downgrade would be minimal and could be readily managed in the normal course of business, but more
severe downgrades could have a more significant impact by increasing the Banks cost of borrowing
and/or requiring the Bank to post additional collateral for the benefit of its trading
counterparties. Credit ratings and outlooks provided by the ratings agencies reflect their views
and are subject to change from time to time, based on a number of factors, including the Banks
financial strength, competitive position and liquidity as well as factors not entirely within the
Banks control, including the methodologies used by the rating agencies and conditions affecting
the financial services industry generally.
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The information contained in the Annual Information Form with respect to the description of ratings
categories of various ratings agencies is issuer-related disclosure required by applicable law and
was based solely on public statements by the respective ratings agencies available on their
respective public websites.
THE TORONTO-DOMINION BANK
General
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 more than 18 million
customers in four key businesses operating in a number of locations in key 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 online
financial services firms, with more than 6 million online customers. TD Bank Financial Group had
$603 billion in assets as of July 31, 2010. The Bank trades on the Toronto and New York Stock
Exchanges under the symbol TD. 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.
RECENT DEVELOPMENTS
On October 1, 2010, the Bank announced that it had closed the previously announced acquisition of
100% of the outstanding common shares of The South Financial Group, Inc. (South Financial). In
addition, immediately prior to completion of the transaction, the United States Department of the
Treasury sold its South Financial preferred stock and the associated warrant acquired under the
Treasurys Capital Purchase Program to the Bank and discharged all accrued but unpaid dividends on
that stock.
CHANGES TO CAPITAL OF THE BANK
On September 30, 2010, the Bank issued 717,055 Common Shares in connection with the acquisition of
South Financial.
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.
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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 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, certificated form or uncertificated 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 favourable votes of the holders of not less than 66-2/3% 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,
7
or as a resolution contained in one or more instruments in writing signed by the holders of not
less than 66-2/3% 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 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 or an uncertificated
Security 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 874,083,022 were outstanding as at July 31, 2010. 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, 10,000,000 Preferred Shares, Series AA, 8,800,000 Preferred
Shares, Series AC, 12,000,000 Preferred Shares, Series AE, 15,000,000 Preferred Shares, Series AG,
11,000,000 Preferred Shares, Series AI and 14,000,000 Preferred Shares, Series AK outstanding.
8
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.
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
9
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.
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 or will cause the Securities
to be issued or authenticated in uncertificated format, as applicable. 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.
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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 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 or will cause the
Securities to be issued or authenticated in uncertificated format, as applicable. Purchasers of
such Securities may only hold interests in the global certificates or uncertificated Securities
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
certificate or uncertificated 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
11
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 certificate or uncertificated
Security to DTC as the registered owner and holder of the global certificate or uncertificated
Security representing those Securities. DTC has advised the Bank that upon receipt of any payment
on a global certificate or uncertificated 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 interests in a global certificate or
uncertificated 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 certificate or uncertificated 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 certificate or uncertificated
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 certificate or
uncertificated 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.
12
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 $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.
The Bank Act also prohibits the registration of a transfer or issue of any share of the Bank to,
and the exercise, in person or by proxy, of any voting rights attached to any share of the Bank
that is beneficially owned by, 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 II, TD
Capital Trust III or TD Capital Trust IV (each a subsidiary of the Bank) fails to pay semi-annual
distributions or interest in cash, as applicable, in full to holders of TD Capital Trust II
Securities, TD Capital Trust III Securities, or TD Capital Trust IV Notes, 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 dividend requirements on all its outstanding preferred shares adjusted to a before-tax
equivalent using an effective tax rate of 7.6% for the 12 months ended October 31, 2009 and 18.1%
for the 12 months ended July 31, 2010 amounted to $205.9 million for the 12 months ended October
31, 2009 and $232.2 million for the 12 months ended July 31, 2010. 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 $982.6 million for the 12 months ended July
31, 2010. The Banks reported net income, before interest on subordinated debt and liabilities for
preferred shares and capital trust securities and income taxes was $4,177 million for the 12 months
ended October 31, 2009, which was 3.4 times the Banks aggregate dividend and interest requirement
for this period. The Banks reported net income, before interest on subordinated debt and
liabilities for preferred shares and capital trust securities and income taxes was $6,495 million
for the 12 months ended July 31, 2010, which was 5.3 times the Banks aggregate dividend and
interest requirement for this period.
13
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 5.3 times its aggregate dividend and interest requirement
for this period. 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 July 31, 2010 was $7,396 million, which was 6.1 times its aggregate 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 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 Third Quarter Report to Shareholders for a reconciliation
between the Banks reported and adjusted results.
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.
14
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, market (including equity, commodity, foreign
exchange and interest rate), liquidity, operational, reputational, insurance, strategic, regulatory
and legal risks.
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 corporate
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 sheet of the Bank as
at October 31, 2009 and 2008 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, 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 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 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). |
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4.2
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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 (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). |
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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, 2009 (incorporated by reference to Exhibit 99.4 to The
Toronto-Dominion Banks Form 40-F filed on December 3, 2009, File No. 001-14446). |
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4.4
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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). |
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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,
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 September 2, 2010, 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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6.1
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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 25th day of October, 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
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 September
23, 2010, 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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President, Chief Executive Officer and Director
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October 25, 2010 |
W. Edmund Clark
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(Principal Executive Officer) |
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Group Head, Finance and Chief Financial Officer
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October 25, 2010 |
Colleen M. Johnston
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(Principal Financial Officer) |
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Senior Vice President and Chief Accountant
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October 25, 2010 |
Kelvin Tran
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(Principal Accounting Officer) |
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Chairman of the Board
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October 25, 2010 |
John M. Thompson |
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Director
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October 25, 2010 |
William E. Bennett |
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Director
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October 25, 2010 |
Hugh J. Bolton |
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Director
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October 25, 2010 |
John L. Bragg |
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Director
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October 25, 2010 |
Wendy K. Dobson |
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Director
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October 25, 2010 |
Henry H. Ketcham |
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Director
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October 25, 2010 |
Pierre H. Lessard |
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Director
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October 25, 2010 |
Brian M. Levitt |
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Director
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October 25, 2010 |
Harold H. MacKay |
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Director
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October 25, 2010 |
Irene R. Miller |
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Director
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October 25, 2010 |
Nadir H. Mohamed |
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Director
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October 25, 2010 |
Wilbur J. Prezzano |
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Director
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October 25, 2010 |
Helen K. Sinclair |
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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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Director
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October 25, 2010 |
Carole S. Taylor |
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Authorized Representative in the United States
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October 25, 2010 |
Brendan OHalloran |
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III-5
EXHIBITS
|
|
|
Exhibit No. |
|
Description |
|
|
|
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
|
|
Reconciliation of Canadian and U.S. Generally Accepted Accounting Principles for the
fiscal year ended October 31, 2009 (incorporated by reference to Exhibit 99.4 to The
Toronto-Dominion Banks Form 40-F filed on December 3, 2009, File No. 001-14446). |
|
|
|
4.4
|
|
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). |
|
|
|
4.5
|
|
The Third Quarter Report to Shareholders for the three and nine months ended July 31,
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 September 2, 2010, 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. |
|
|
|
6.1
|
|
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