fv9za
As filed with
the Securities and Exchange Commission on June 15,
2011
Registration
No. 333-167637
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, DC 20549
Amendment No. 2
To
Form F-9
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
The Toronto-Dominion
Bank
(Exact name of Registrant as
specified in its charter)
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Canada
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6029
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13-5640479
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(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.)
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Toronto Dominion Bank
Tower
Toronto Dominion
Centre
Toronto, Ontario M5K 1A2,
Canada
(416) 982-8222
(Address and telephone number of
Registrants principal executive offices)
Brendan
OHalloran
The Toronto-Dominion
Bank
31 West 52nd
Street
New York, New York
10019-6101
(212) 827-7000
(Name, address and telephone
number of agent for service in the United States)
Copies to:
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Christopher A. Montague, Esq.
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Lee Meyerson, Esq.
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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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Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
(212) 455-2000
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Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
Registration Statement.
Province of Ontario,
Canada
(Principal jurisdiction
regulating this offering)
It is proposed that this filing shall become effective (check
appropriate box below):
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A. o |
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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B. o |
at some future date (check appropriate box below)
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1. þ
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pursuant to Rule 467(b) on June 22, 2011 at
10 a.m. (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
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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).
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If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to the home
jurisdictions shelf prospectus offering procedures, check
the following box.
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registration Statement shall become effective as
provided in Rule 467 under the Securities Act of 1933 or on
such date as the Commission, acting pursuant to
Section 8(a) of the Act, may determine.
PART I
INFORMATION
TO BE DELIVERED TO OFFEREES OR PURCHASERS
This short form prospectus is
referred to as a base shelf prospectus and has been filed under
legislation in the Province of Ontario that permits certain
information about these securities to be determined after this
prospectus has become final and that permits the omission from
this prospectus of that information. The legislation requires
the delivery to purchasers of a prospectus supplement containing
the omitted information within a specified period of time after
agreeing to purchase any of these securities.
This short form base shelf prospectus and each document
deemed to be incorporated by reference herein, constitutes a
public offering of these securities only in those jurisdictions
where they may be lawfully offered for sale and therein only by
persons permitted to sell such securities. No securities
regulatory authority has expressed an opinion about these
securities and it is an offense to claim otherwise.
Information has been incorporated by reference in this
short form base shelf prospectus from documents filed with the
securities commission or similar authorities in Canada.
Copies of the documents incorporated herein by
reference may be obtained on request without charge from the
Corporate Secretary of The Toronto-Dominion Bank at the
following address: Toronto Dominion Bank Tower, Toronto-Dominion
Centre, Toronto, Ontario, Canada, M5K 1A2 (telephone:
(416) 308-6963)
and are also available electronically at www.sedar.com.
New
Issue
Short Form Base Shelf Prospectus
July 7,
2010
The Toronto-Dominion Bank
(a Canadian chartered bank)
U.S. $15,000,000,000
Senior Debt Securities
We intend to offer from time to time senior debt securities
(which we refer to in this prospectus as the debt
securities) in one or more series with a total offering
price not to exceed U.S. $15,000,000,000 (or the
U.S. dollar equivalent thereof if any of the debt
securities are denominated in a currency or a currency unit
other than U.S. dollars) during the
25-month
period that this prospectus, including any amendments thereto,
remains valid.
All shelf information omitted from this short form base shelf
prospectus will be contained in one or more prospectus
supplements that will be delivered to purchasers together with
this prospectus. You should read this prospectus and the
applicable supplement carefully before you invest.
We may sell the debt securities to or through one or more
underwriters, dealers or agents. The names of the underwriters,
dealers or agents will be set forth in supplements to this
prospectus.
The debt securities will constitute our unsecured and
unsubordinated contractual obligations and will constitute
deposit liabilities which will rank pari passu in right
of payment with all of our deposit liabilities, except for
obligations preferred by mandatory provisions of law. The debt
securities will not be insured under the Canada Deposit
Insurance Corporation Act or by the U.S. Federal Deposit
Insurance Corporation or any other Canadian or
U.S. government agency or instrumentality.
We are permitted, under a multi-jurisdictional disclosure
system adopted by the United States, to prepare this prospectus
in accordance with the disclosure requirements of Canada.
Prospective investors should be aware that such requirements are
different from those of the United States. Financial statements
included or incorporated herein have been prepared in accordance
with Canadian generally accepted accounting principles, and may
be subject to Canadian auditing and auditor independence
standards, and thus may not be comparable to financial
statements of United States companies.
Prospective investors should be aware that the acquisition of
the debt securities described herein may have tax consequences
both in the United States and in Canada. Such consequences for
investors who are resident in, or citizens of, the United States
may not be described fully herein.
The enforcement by investors of civil liabilities under the
United States federal securities laws may be affected adversely
by the fact that we are organized under the laws of Canada, that
most of our officers and directors, and some of the underwriters
or experts named in this prospectus, may be residents of Canada
and that all or a substantial portion of our assets and the
assets of said persons may be located outside the United
States.
THESE DEBT SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION (THE SEC)
OR ANY STATE SECURITIES REGULATOR NOR HAS THE SEC OR ANY STATE
SECURITIES REGULATOR PASSED UPON THE ACCURACY OR ADEQUECY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This prospectus does not qualify for issuance debt securities in
respect of which the payment of principal
and/or
interest may be determined, in whole or in part, by reference to
one or more underlying interests, including, for example, an
equity or debt security, a statistical measure of economic or
financial performance including, but not limited to, any
currency, consumer price or mortgage index, or the price or
value of one or more commodities, indices or other items, or any
other item or formula, or any combination or basket of the
foregoing items. For greater certainty, this prospectus may
qualify for issuance debt securities in respect of which the
payment of principal
and/or
interest may be determined, in whole or in part, by reference to
published rates of a central banking authority or one or more
financial institutions, such as a prime rate or a bankers
acceptance rate, or to recognized market benchmark interest
rates such as LIBOR.
Certain of our affiliates may use this prospectus in the initial
sale of any debt securities or in a market-making transaction in
any debt securities after their initial sale. See Plan of
Distribution.
There is no market through which the debt securities may be sold
and purchasers may not be able to resell debt securities
purchased under this prospectus. This may affect the pricing of
the debt securities in the secondary market, the transparency
and availability of trading prices, the liquidity of the debt
securities, and the extent of issuer regulation. See Plan
of Distribution.
TABLE OF
CONTENTS
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EX-5.1 |
EX-24.2 |
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 our objectives and priorities for 2010 and
beyond and strategies to achieve them, and our anticipated
financial performance. The forward-looking information contained
in this prospectus, including those documents incorporated by
reference, is presented for the purpose of assisting our
securityholders in understanding our financial position as at
and for the periods ended on the dates presented and our
strategic priorities and objectives, and may not be appropriate
for other purposes. The economic assumptions for each of our
business segments are set out in our Annual Report as updated in
the subsequently filed Quarterly Reports to Shareholders.
Forward-looking statements are typically identified by words
such as will, should,
believe, expect, anticipate,
intend, estimate, plan,
may and could.
By their very nature, these statements require us to make
assumptions and are subject to inherent risks and uncertainties,
general and specific. Especially in light of the uncertainty
related to the current financial, economic and regulatory
environments, such risks and uncertainties many of
which are beyond our control and the effects of which can be
difficult to predict may cause actual results to
differ materially from the expectations expressed in the
forward-looking statements. Risk factors that could cause such
differences include: credit, market (including equity,
commodity, foreign exchange and interest rate), liquidity,
operational, reputational, insurance, strategic, regulatory,
legal and other risks, all of which are discussed in our Annual
Report and in other regulatory filings made in Canada and with
the SEC. Additional risk factors include changes to and new
interpretations of risk-based capital guidelines and reporting
instructions; increased funding costs for credit due to market
illiquidity and competition for funding; the failure of third
parties to comply with their obligations to us or our affiliates
relating to the care and control of information; and the use of
new technologies in unprecedented ways to defraud us or our
customers and the organized efforts of increasingly
sophisticated parties who direct their attempts to defraud us or
our customers through many channels.
We caution that the preceding list is not exhaustive of all
possible risk factors and other factors could also adversely
affect our results. For more information, see our Annual Report.
All such factors should be considered
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carefully when making decisions with respect to us, and undue
reliance should not be placed on our forward-looking statements
as they may not be suitable for other purposes.
Any forward-looking statements contained in this short form base
shelf prospectus represent the views of management only as of
the date hereof and are presented for the purpose of assisting
our securityholders and analysts in understanding our financial
position, objectives and priorities and anticipated financial
performance as at and for the periods ended on the dates
presented, and may not be appropriate for other purposes. We do
not undertake to update any forward-looking statements, whether
written or oral, that may be made from time to time by or on our
behalf, except as required under applicable securities
legislation. See Risk Factors
DOCUMENTS
INCORPORATED BY REFERENCE
The following documents with respect to The Toronto-Dominion
Bank (which we refer to in the prospectus as the
Bank), filed with the various securities commissions
or similar authorities in each of the provinces and territories
of Canada, are specifically incorporated by reference in and
form an integral part of this prospectus:
(a) the Management Proxy Circular dated as of
January 28, 2010;
(b) the Annual Information Form dated December 2, 2009;
(c) the consolidated audited financial statements for the
fiscal year ended October 31, 2009 with comparative
consolidated financial statements for the fiscal year ended
October 31, 2008, together with the auditors report
thereon and Managements Discussion and Analysis as
contained in the Annual Report to Shareholders for the fiscal
year ended October 31, 2009; and
(d) the Second Quarter Report to Shareholders for the three
and six months ended April 30, 2010, which includes
comparative consolidated interim financial statements
(unaudited) and Managements Discussion and Analysis.
Any documents of the type referred to above and any material
change reports (excluding confidential material change reports)
or business acquisition reports, all as filed by the Bank with
the various securities commissions or similar authorities in
Canada pursuant to the requirements of applicable securities
legislation after the date of this prospectus and prior to the
termination of the offering of debt securities under any
prospectus supplement to this prospectus, shall be deemed to be
incorporated by reference into this prospectus. In addition, any
similar documents filed on
Form 40-F
or on
Form 6-K,
if and to the extent expressly provided in such reports on
Form 6-K,
by us with the SEC, after the date of this prospectus and prior
to the termination of the offering of debt securities under any
prospectus supplement to this prospectus, shall be deemed to be
incorporated by reference into this prospectus.
Any statement contained in this prospectus or in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for the purposes of
this prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or
supersedes such statement. The modifying or superseding
statement need not state that it has modified or superseded a
prior statement or include any other information set forth in
the document that it modifies or supersedes. The making of a
modifying or superseding statement is not to be deemed an
admission for any purposes that the modified or superseded
statement, when made, constituted a misrepresentation, an untrue
statement of a material fact or an omission to state a material
fact that is required to be stated or that is necessary to make
a statement not misleading in light of the circumstances in
which it was made. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to
constitute a part of this prospectus. Copies of the documents
incorporated by reference herein may be obtained on request
without charge from the Corporate Secretary of The
Toronto-Dominion Bank, Toronto Dominion Bank Tower,
Toronto-Dominion Centre, Toronto, Ontario, M5K 1A2 (telephone:
(416) 308-6963),
or through the Internet on the Canadian Securities
Administrators System for Electronic Document Analysis and
Retrieval (SEDAR) at www.sedar.com.
A prospectus supplement containing the specific terms of an
offering of debt securities will be delivered to purchasers of
such securities together with this prospectus and will be deemed
to be incorporated into this prospectus as of the date of the
prospectus supplement solely for the purposes of the offering of
the debt securities covered by that prospectus supplement unless
otherwise expressly provided therein.
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Upon a new Management Proxy Circular, Annual Information Form or
new interim or annual financial statements, together with the
auditors report thereon and managements discussion
and analysis contained therein, being filed by us with the
applicable securities regulatory authorities during the currency
of this prospectus, the previous Annual Information Form,
Management Proxy Circular, interim or annual financial
statements and all material change reports, and information
circulars filed prior to the commencement of our financial year
in which the new Management Proxy Circular, Annual Information
Form or interim or annual financial statements are filed shall
be deemed no longer to be incorporated into this prospectus for
purposes of future offers and sales of debt securities hereunder.
AVAILABLE
INFORMATION
In addition to the continuous disclosure obligations under the
securities laws of the provinces and territories of Canada, we
are subject to the informational reporting requirements of the
U.S. Securities Exchange Act of 1934, as amended, and in
accordance therewith file reports and other information with the
SEC. Such reports and other information filed by us may be
inspected and copied at the public reference facilities
maintained by the SEC at 100 F Street, N.E.,
Washington, D.C. 20549. Prospective investors may call the
SEC at
1-800-SEC-0330
for further information regarding the public reference
facilities. The SEC also maintains a website, at
www.sec.gov, that contains reports and other information
filed by us with the SEC. Our common shares are listed on the
New York Stock Exchange and reports and other information
concerning us may be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, NY 10005.
We are filing with the SEC a registration statement on
Form F-9
under the U.S. Securities Act of 1933, as amended, with
respect to the debt securities. This prospectus does not contain
all of the information set forth in the registration statement,
certain parts of which are omitted in accordance with the rules
and regulations of the SEC. For further information with respect
to us and the debt securities, reference is made to the
registration statement and the exhibits thereto, which will be
publicly available as described in the preceding paragraph.
THE
TORONTO-DOMINION BANK
The Bank is a Canadian chartered bank subject to the provisions
of the Bank Act and was formed on February 1, 1955 through
the amalgamation of The Bank of Toronto (established in
1855) and The Dominion Bank (established in 1869). The Bank
and its subsidiaries are collectively known as TD Bank Financial
Group. TD Bank Financial Group is the sixth largest bank in
North America by branches and serves approximately
18 million customers in four key businesses operating in a
number of locations in financial centres around the globe:
Canadian Personal and Commercial Banking, including TD Canada
Trust and TD Insurance; Wealth Management, including TD
Waterhouse and an investment in TD Ameritrade;
U.S. Personal and Commercial Banking, including TD Bank,
Americas Most Convenient Bank; and Wholesale Banking,
including TD Securities. TD Bank Financial Group also ranks
among the worlds leading on-line financial services firms
with more than 6 million on-line customers.
The Banks head office and registered office are located in
the Toronto Dominion Bank Tower,
Toronto-Dominion
Centre, Toronto, Ontario, M5K 1A2.
Additional information regarding the Bank is incorporated by
reference into this prospectus. See Documents Incorporated
by Reference.
CHANGES
TO CAPITAL OF THE BANK
On June 15, 2010, the Bank issued 3,525,000 common shares
for aggregate gross proceeds of $250 million. The common
shares issued qualify as Tier 1 regulatory capital of the
Bank.
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RISK
FACTORS
An investment in the debt securities is subject to various
risks. From time to time, the market experiences significant
price and volume volatility that may affect the market price of
our debt securities for reasons unrelated to our performance.
Also, the financial markets are generally characterized by
extensive interconnections among financial institutions. As
such, defaults by other financial institutions in Canada, the
United States or other countries could adversely affect us and
the market price of the debt securities. Additionally, the debt
securities are subject to market value fluctuations based upon
factors which influence our operations, such as legislative or
regulatory developments, competition, technological change and
global capital market activity.
Before deciding whether to invest in any debt securities,
investors should consider carefully the risks set out herein and
incorporated by reference in this prospectus (including
subsequently filed documents incorporated by reference) and, if
applicable, those described in a prospectus supplement relating
to a specific offering of debt securities. Prospective investors
should consider the categories of risks identified and discussed
in the Annual Information Form and Managements Discussion
and Analysis of the Bank incorporated herein by reference
including credit risk, market risk, liquidity risk, operational
risk, reputational risk, insurance risk, strategic risk,
regulatory risk, and legal risk.
USE OF
PROCEEDS
Unless otherwise specified in a prospectus supplement, the net
proceeds to us from the sale of the debt securities will be
added to our general funds and utilized for general corporate
purposes.
DESCRIPTION
OF THE DEBT SECURITIES
We have summarized below the material provisions of the
indenture and the debt securities, or indicated which material
provisions will be described in the related prospectus
supplement. These descriptions are only summaries, and each
investor should refer to the indenture, which describes
completely the terms and definitions summarized below and
contains additional information regarding the debt securities.
Any reference to provisions or defined terms of the indenture in
any statement under this heading qualifies the entire statement
and incorporates by reference the applicable section or
definition into that statement.
General
We will issue the debt securities under an indenture between us
and The Bank of New York Mellon (as successor in interest to The
Bank of New York), as trustee. A copy of the indenture is filed
as an exhibit to the registration statement and is also
available at www.sedar.com. We may issue debt securities under
the indenture from time to time in one or more series. The
indenture does not limit the aggregate principal amount of the
debt securities which we can issue under such indenture. We will
authorize the aggregate amount from time to time for each series.
Unless otherwise specified in the applicable prospectus
supplement, the debt securities will be unsecured and
unsubordinated deposit liability obligations of the Bank and
will rank on a parity in right of payment with all of the
Banks deposit liabilities, except for obligations
preferred by mandatory provisions of law. The debt securities
will not be insured under the Canada Deposit Insurance
Corporation Act or by the U.S. Federal Deposit Insurance
Corporation or any other Canadian or U.S. governmental
agency or instrumentality. In the case of the insolvency of the
Bank, the Bank Act (Canada) provides that priorities among
payments of deposit liabilities of the Bank (including payments
in respect of the debt securities) and payments of all other
liabilities are to be determined in accordance with the laws
governing priorities and, where applicable, by the terms of the
indebtedness and liabilities.
We may issue debt securities from time to time in one or more
series. The provisions of the indenture allow us to
reopen a previous issue of a series of debt
securities and issue additional debt securities of that series.
The debt securities in each series may be denominated and
payable in U.S. dollars or foreign currencies.
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The debt securities may bear interest at a floating rate or a
fixed rate. A floating rate is determined by reference to an
interest rate formula which may be adjusted by adding or
subtracting the spread or multiplying the spread multiplier.
Terms
Specified in Prospectus Supplement
The prospectus supplement will contain, where applicable, the
following terms of and other information relating to any series
of offered debt securities:
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the specific title;
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the aggregate principal amount, purchase price and denomination;
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any limit upon the aggregate principal amount of the securities
of such series;
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the currency in which the debt securities are denominated
and/or in
which principal, and premium, if any,
and/or
interest, if any, is payable;
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the date or dates on which the principal is payable;
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the interest rate or rates or the method by which the
calculation agent (to be designated in the applicable prospectus
supplement) will determine the interest rate or rates, if any;
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the interest payment dates, if any;
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the place or places for payment of the principal of and any
premium
and/or
interest on or other amounts due under the debt securities;
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any repayment, redemption, prepayment or sinking fund
provisions, including any notice provisions;
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whether we will issue the debt securities in global form and
under what terms and conditions;
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terms and conditions, if any, upon which the debt securities may
or shall be convertible into or exchangeable or exercisable for
or payable in, among other things, other securities (whether or
not issued by us), instruments, contracts, currencies,
commodities or other forms of property, rights or interests or
any combination of the foregoing;
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any agents for the debt securities, including trustees,
depositories, authenticating or paying agents, transfer agents
or registrars;
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any applicable United States federal income tax and Canadian
federal income tax consequences, including, but not limited to:
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(1) whether and under what circumstances we will pay
additional amounts on debt securities for any tax, assessment or
governmental charge withheld or deducted and, if so, whether we
will have the option to redeem those debt securities rather than
pay the additional amounts;
(2) tax considerations applicable to any discounted debt
securities or to debt securities issued at par that are treated
as having original issue discount for United States federal
income tax purposes; and
(3) tax considerations applicable to any debt securities
denominated and payable in foreign currencies;
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any other specific terms of the debt securities, including any
additional events of default or covenants, and any terms
required by or advisable under applicable laws or regulations.
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We may sell the debt securities at a substantial discount below
their stated principal amount. We will describe special United
States federal income tax and Canadian federal income tax
considerations, if any, applicable to debt securities sold at an
original issue discount in the prospectus supplement. An
original issue discount security is any debt
security that provides for an amount less than the principal
amount to be due and payable upon the declaration of
acceleration of the maturity in accordance with the terms of the
applicable indenture. The prospectus supplement relating to any
original issue discount securities will describe the particular
provisions relating to acceleration of the maturity upon the
occurrence of an event of default.
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Registration
and Transfer of Debt Securities
Registered holders may present debt securities for exchange or
registration of transfer. We will provide these services without
charge except for any tax or other governmental charge payable
in connection with these services and subject to any limitations
provided in the indenture.
The procedures for transfer of interests in the debt securities
in global form will depend upon the procedures of the depository
for such global securities. See Form of the Debt
Securities.
Merger,
Consolidation, Sale, Lease or Conveyance
The indenture provides that we may merge or consolidate with any
other person or sell, lease or convey all or substantially all
of our assets to any other person, only if certain conditions,
including the following, are met:
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we will be the continuing corporation or the successor
corporation, or person which acquires all or substantially all
of our assets shall either (a) be one or more direct or
indirect affiliates which we control or which are under common
control with us or (b) will expressly assume or guaranty
all of our obligations under the indenture; and
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immediately after such merger, consolidation, sale, lease or
conveyance, we, or any such successor that has assumed our
obligations, will not be in default in the performance of the
covenants and conditions of the indenture applicable to us.
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Absence of Protections against All Potential Actions of the
Bank. There are no covenants or other provisions
in the indenture that would afford holders of debt securities
additional protection in the event of a recapitalization
transaction, a change of control of the Bank or a highly
leveraged transaction. The merger covenant described above would
only apply if the recapitalization transaction, change of
control or highly leveraged transaction were structured to
include a merger or consolidation of the Bank or a sale, lease
or conveyance of all or substantially all of our assets.
Events of
Default
The indenture provides holders of debt securities with remedies
if we fail to perform specific obligations, such as making
payments on the debt securities, or if we become bankrupt.
Holders should review these provisions and understand which of
our actions would trigger an event of default and which actions
would not. The indenture permits the issuance of debt securities
in one or more series, and, in many cases, whether an event of
default has occurred is determined on a series by series basis.
An event of default is defined under the indenture, with respect
to any series of debt securities issued under the indenture, as
being:
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default in payment of any principal of the debt securities of
that series, either at maturity or upon any redemption, by
declaration or otherwise and continuance of such default for a
period of 7 days;
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default in payment of any interest on any debt securities of
that series and continuance of such default for a period of
30 days;
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certain events of bankruptcy, insolvency or
reorganization; or
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any other event of default provided in the applicable board
resolution, in the supplemental indenture under which that
series of debt securities is issued or in the form of security
for such series.
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Acceleration of Debt Securities Upon an Event of
Default. The indenture provides that:
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if an event of default due to the default in payment of
principal of, or any premium or interest on, any series of debt
securities issued under the indenture, or due to the default in
the performance or breach of any other covenant or warranty of
the Bank applicable to the debt securities of that series but
not applicable to all outstanding debt securities issued under
the indenture occurs and is continuing, either the trustee or
the holders of not less than 25% in aggregate principal amount
of the outstanding debt securities of each affected series,
voting as one class, by notice in writing to the Bank, may
declare the principal of (or such other
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I-8
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amount as may be specified) all debt securities of each affected
series and interest accrued thereon to be due and payable
immediately; and
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if an event of default due to a default in the performance of
any of the covenants or agreements in the indenture applicable
to all outstanding debt securities issued under the indenture or
due to specified events of bankruptcy, insolvency or
reorganization of the Bank, occurs and is continuing, either the
trustee or the holders of not less than 25% in aggregate
principal amount of all outstanding debt securities issued under
the indenture, voting as one class, by notice in writing to the
Bank may declare the principal of (or such other amount as may
be specified) all those debt securities and interest accrued
thereon to be due and payable immediately.
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Annulment of Acceleration and Waiver of
Defaults. In some circumstances, if any and all
events of default under the indenture, other than the
non-payment of the principal of the securities that has become
due as a result of an acceleration, have been cured, waived or
otherwise remedied, then the holders of a majority in aggregate
principal amount of all series of outstanding debt securities
affected, voting as one class, may annul past declarations of
acceleration of or waive past defaults of the debt securities.
Indemnification of Trustee for Actions Taken on Your
Behalf. The indenture contains a provision
entitling the trustee, subject to the duty of the trustee during
a default to act with the required standard of care, to be
indemnified to its satisfaction by the holders of debt
securities before proceeding to exercise any right or power at
the request, order or direction of the holders. Subject to these
provisions and some other limitations, the holders of a majority
in aggregate principal amount of each series of outstanding debt
securities of each affected series, voting as one class, may
direct the time, method and place of conducting any proceeding
for any remedy available to the trustee, or exercising any trust
or power conferred on the trustee.
Limitation on Actions by You as an Individual
Holder. The indenture provides that no individual
holder of debt securities may institute any action or proceeding
under the indenture, except actions for payment of overdue
principal and interest, unless the following actions have
occurred:
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the holder must have previously given written notice to the
trustee of the continuing default;
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the holders of not less than 25% in aggregate principal amount
of the outstanding debt securities of each affected series,
treated as one class, must have (1) requested the trustee
to institute that action and (2) offered the trustee
reasonable indemnity satisfactory to it;
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the trustee must have failed to institute that action within
60 days after receipt of the request referred to
above; and
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the holders of a majority in principal amount of the outstanding
debt securities of each affected series, voting as one class,
must not have given directions to the trustee inconsistent with
those of the holders referred to above.
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The indenture contains a covenant that we will file annually
with the trustee a certificate of no default or a certificate
specifying any default that exists.
Discharge,
Defeasance and Covenant Defeasance
We have the ability to eliminate most or all of our obligations
on any series of debt securities prior to maturity if we comply
with the following provisions.
Discharge of Indenture. We may discharge all
of our obligations, other than certain obligations including
those as to transfers and exchanges, under the indenture after
we have:
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paid or caused to be paid the principal of, interest on and any
other amounts due under all of the outstanding debt securities
in accordance with their terms;
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delivered to the trustee for cancellation all of the outstanding
debt securities; or
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irrevocably deposited or caused to be deposited with the trustee
cash or, in the case of a series of debt securities payable only
in U.S. dollars, U.S. government obligations in trust
for the benefit of the holders of
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I-9
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any series of debt securities issued under the indenture that
have either become due and payable, or are by their terms due
and payable, or are scheduled for redemption, within one year,
in an amount certified to be sufficient to pay on each date that
they become due and payable, the principal of, interest and
other amounts on, and any mandatory sinking fund payments for,
those debt securities, except that the deposit of cash or
U.S. government obligations for the benefit of holders of a
series of debt securities that are due and payable, or are
scheduled for redemption within one year will discharge
obligations under the indenture relating only to that series of
debt securities.
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Defeasance of a Series of Securities at Any
Time. We may also discharge all of our
obligations, other than certain obligations including those as
to transfers and exchanges, under any series of debt securities
at any time, which we refer to as defeasance.
We may be released with respect to any outstanding series of
debt securities from the obligations imposed by
Section 9.01 of the indenture which contains the covenants
described above limiting consolidations, mergers, asset sales
and leases, and elect not to comply with those sections without
creating an event of default. Discharge under those procedures
is called covenant defeasance.
Defeasance or covenant defeasance may be effected only if, among
other things:
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we irrevocably deposit with the trustee cash or, in the case of
debt securities payable only in U.S. dollars,
U.S. government obligations, as trust funds in an amount
certified to be sufficient to pay on each date that they become
due and payable, the principal, interest and other amounts due
on, and any mandatory sinking fund payments for, all outstanding
debt securities of the series being defeased;
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such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which
we are a party or to which we are bound; and
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we deliver to the trustee an opinion of counsel to the effect
that:
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the holders of the series of debt securities being defeased will
not recognize income, gain or loss for United States federal
income tax purposes as a result of the defeasance or covenant
defeasance;
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such holders will be subject to United States federal income tax
on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance or covenant
defeasance had not occurred; and
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in the case of a defeasance (but not a covenant defeasance),
this opinion must be based on a ruling of relevant tax
authorities or a change in United States tax laws occurring
after the date of the indenture.
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Modification
of the Indenture
Modification without Consent of Holders. We
and the trustee may enter into supplemental indentures without
the consent of the holders of debt securities issued under the
indenture to, among other things:
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secure any debt securities subject to the requirements of the
Bank Act;
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evidence the assumption by a successor corporation of our
obligations;
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add covenants or events of default for the protection of the
holders of debt securities;
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cure any ambiguity or correct any defect or inconsistency or
make any other provisions with respect to matters arising under
the indenture as we may deem desirable, provided that no such
action shall adversely affect the holders in any material
respect;
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establish the forms or terms of debt securities of any series;
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evidence the acceptance of appointment by a successor trustee;
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add to, change or eliminate provisions of the indenture that do
not (i) apply to any series of debt securities created
prior to such supplemental indenture and (ii) modify the
rights of any holder of such series of debt securities with
respect to such provision;
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I-10
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add to, change or eliminate provisions of the indenture with
respect to a new series of debt securities; or
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to increase the minimum denomination of debt securities of any
series as may be permitted by the terms of such series.
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Modification with Consent of Holders. We and
the trustee, with the consent of the holders of not less than a
majority in aggregate principal amount of each affected series
of outstanding debt securities, voting as one class, may add any
provisions to, or change in any manner or eliminate any of the
provisions of, the indenture or modify in any manner the rights
of the holders of those debt securities. However, we and the
trustee may not make any of the following changes to any
outstanding debt security without the consent of each affected
holder to, among other things:
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extend the stated maturity of any debt security;
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reduce the principal amount;
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reduce the rate or extend the time of payment of interest or
other amounts due;
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reduce any amount payable on redemption;
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change the currency in which the principal, including any amount
of original issue discount, premium, or interest thereon is
payable;
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modify or amend the provisions for conversion of any currency
into another currency;
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reduce the amount of any original issue discount security
payable upon acceleration or provable in bankruptcy;
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modify or amend the provisions so as to adversely affect the
terms or conditions upon which the debt securities are
convertible into or exchangeable or exercisable for or payable
in other securities, instruments, contracts, currencies,
commodities or other forms of property, rights or interests;
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impair or affect the right of any holder to institute suit for
the enforcement of any payment on any debt security when
due; or
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reduce the percentage of debt securities the consent of whose
holders is required for modification of the indenture or for
waiver of certain defaults.
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Payment
of Additional Amounts
Unless otherwise indicated in the applicable prospectus
supplement, we will, subject to certain exceptions and
limitations set forth below, pay such additional amounts to the
beneficial owner of any debt security who is resident in the
United States (for purposes of The Canada-United States Income
Tax Convention (1980)) as may be necessary in order that every
net payment of the principal of and interest on such security
and any other amounts payable on the debt security, after
withholding for or on account of any present or future tax,
assessment or governmental charge imposed upon such payment by
Canada or any political subdivision or taxing authority thereof
or therein (the Taxing Jurisdiction), will not be
less than the amount provided for in such debt security to be
then due and payable. We will not, however, be required to make
any payment of additional amounts to any beneficial owner for or
on account of:
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any such tax, assessment or other governmental charge that would
not have been so imposed but for a present or former connection
(including, without limitation, carrying on business in Canada
or a province or territory of Canada or having a permanent
establishment or fixed base in Canada or a province or territory
of Canada) between such owner or the beneficial owner of a debt
security (or between a fiduciary, settlor, beneficiary, member
or shareholder of, or possessor of power over, such owner or
beneficial owner, if such owner or beneficial owner is an
estate, trust, partnership, limited liability company or
corporation) and Canada or a political subdivision or taxing
authority of or in Canada, other than merely holding such debt
security or receiving payments with respect to such debt
security;
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I-11
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any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental
charge with respect to such debt security;
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any tax, assessment or other governmental charge imposed by
reason that such owner or beneficial owner of a debt security
does not deal at arms length within the meaning of the
Income Tax Act (Canada) with us;
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any tax, assessment or other governmental charge that is levied
or collected otherwise than by withholding from payments on or
in respect of any such debt security;
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any tax, assessment or other governmental charge required to be
withheld by any paying agent from any payment of principal of,
or interest on, any such debt security, if such payment can be
made without such withholding by at least one other paying agent;
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any tax, assessment or other governmental charge that would not
have been imposed but for the failure of an owner or beneficial
owner of a debt security to comply with certification,
information or other reporting requirements, if such compliance
is required by Canada or any political subdivision or taxing
authority of or in Canada as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
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any tax, assessment or other governmental charge which would not
have been imposed but for the presentation of a debt security
(where presentation is required) for payment on a date more than
30 days after (i) the date on which such payment
became due and payable or (ii) the date on which payment
thereof is duly provided for, whichever occurs later; or
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any combination of the items listed above;
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nor shall additional amounts be paid with respect to any payment
on a debt security to a holder or beneficial owner who is a
fiduciary or partnership or other than the sole beneficial owner
of such payment to the extent a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a
beneficial owner would not have been entitled to the additional
amounts had such beneficiary, settlor, member or beneficial
owner held its interest in the debt security directly.
Tax
Redemption
Unless otherwise indicated in the applicable prospectus
supplement, we have the right to redeem, in whole but not in
part, any of the debt securities at our option at any time prior
to maturity, upon the giving of a notice of redemption as
described below (i) we have or will become obligated to pay
additional amounts with respect to any such debt securities as
described above under Payment of Additional
Amounts as a result of any change in or amendment
(including any announced prospective change) to the laws or
treaties of the relevant Taxing Jurisdiction or any rules or
regulations or administrative pronouncements thereunder or any
change in position regarding the application, administration or
interpretation of such laws, treaties, rules, regulations or
administrative pronouncements (including a holding, judgment or
order by a court of competent jurisdiction), which change or
amendment was announced or became effective on or after the date
of the prospectus supplement relating to the applicable debt
securities, and (ii) we have determined that the obligation
to pay such additional amounts cannot be avoided by taking
reasonable measures available to us. For the avoidance of doubt,
reasonable measures do not include a change in the terms of the
debt securities or a substitution of the debtor. If we exercise
this right, the redemption price of the debt securities will be
determined in the manner described in the applicable prospectus
supplement. Prior to the giving of any notice of redemption
pursuant to this paragraph, we will deliver to the trustee:
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a certificate stating that we are entitled to effect such
redemption and setting forth a statement of facts showing that
the conditions precedent to our right to so redeem have
occurred; and
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an opinion of independent counsel or written advice of a
qualified tax expert, such counsel or expert being reasonably
acceptable to the trustee, to such effect based on such
statement of facts;
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provided that no such notice of redemption shall be given
earlier than 60 days prior to the earliest date on which we
would be obligated to pay such additional amounts if a payment
in respect of such debt securities were then due. Notice of
redemption will be given not less than 30 nor more than
60 days prior to the date fixed for redemption, which date
and the applicable redemption price will be specified in the
notice.
I-12
FORMS OF
THE DEBT SECURITIES
Except as provided in an applicable prospectus supplement, each
debt security will generally be represented by one or more
global securities representing the entire issuance of
securities. We will issue debt securities evidenced by
certificates in definitive form to a particular investor only in
limited circumstances. Both certificated securities in
definitive form and global securities will be issued in
registered form, where our obligation runs to the holder of the
security named on the face of the security. Definitive
securities name you or your nominee as the owner of the
security, and in order to transfer or exchange these securities
or to receive payments other than interest or other interim
payments, you or your nominee must physically deliver the
securities to the trustee, registrar, paying agent or other
agent, as applicable. Global securities name a depository or its
nominee as the owner of the debt securities. The depositary
maintains a computerized system that will reflect each
investors beneficial ownership of the securities through
an account maintained by the investor with its broker/dealer,
bank, trust company or other representative. See
Book-Entry Procedures and Settlement.
BOOK-ENTRY
PROCEDURES AND SETTLEMENT
Most offered debt securities will be book-entry (global)
securities. Upon issuance, all book-entry securities will be
represented by one or more fully registered global securities,
without coupons. Each global security will be deposited with, or
on behalf of, The Depository Trust Company
(DTC), or a successor thereto, a securities
depository, and will be registered in the name of DTC or a
successor or nominee of DTC. DTC will thus be the only
registered holder of these debt securities.
DTC has advised us that it is a limited-purpose trust company
organized under the New York Banking Law, a banking
organization within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a clearing
corporation within the meaning of the New York Uniform
Commercial Code, and a clearing agency registered
pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934.
Purchasers of debt securities may only hold interests in the
global securities through DTC if they are participants in the
DTC system. Participants include both U.S. and
non-U.S. securities
brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations. Access to the DTC
system is also available to others such as both U.S. and
non-U.S. securities
brokers and dealers, banks, trust companies, and clearing
corporations that clear through or maintain a custodial
relationship with a participant, either directly or indirectly.
DTC will maintain accounts showing the security holdings of its
participants, and these participants will in turn maintain
accounts showing the security holdings of their customers. Some
of these customers may themselves be securities intermediaries
holding securities for their customers. Thus, each beneficial
owner of a book-entry security will hold that security
indirectly through various intermediaries.
The debt securities of each beneficial owner of a book-entry
security will be evidenced solely by entries on the books of the
beneficial owners securities intermediary. The actual
purchaser of the debt securities will generally not be entitled
to have the debt securities represented by the global securities
registered in its name and will not be considered the owner
under the terms of the debt securities and their governing
documents. That means that we and any trustee, issuing and
paying agent, registrar or other agent of ours for the debt
securities will be entitled to treat the registered holder, DTC,
as the holder of the debt securities for all purposes. In most
cases, a beneficial owner will also not be able to obtain a
paper certificate evidencing the holders ownership of debt
securities. The book-entry system for holding securities
eliminates the need for physical movement of certificates and is
the system through which most publicly traded securities are
held in the United States. However, the laws of some
jurisdictions require some purchasers of securities to take
physical delivery of their securities in definitive form. These
laws may impair the ability to own, transfer or pledge
beneficial interests in book-entry securities.
A beneficial owner of book-entry securities represented by a
global security may exchange the securities for definitive
(paper) securities only if:
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DTC is unwilling or unable to continue as depository for such
global security and we do not appoint a qualified replacement
for DTC within 90 days; or
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I-13
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we in our sole discretion decide to allow some or all book-entry
securities to be exchangeable for definitive securities in
registered form.
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Unless we indicate otherwise, any global security that is so
exchangeable will be exchangeable in whole for definitive
securities in registered form, with the same terms and of an
equal aggregate amount. Definitive securities will be registered
in the name or names of the person or persons specified by DTC
in a written instruction to the registrar of the debt
securities. DTC may base its written instruction upon directions
that it receives from its participants.
In this prospectus, for book-entry securities, references to
actions taken by security holders will mean actions taken by DTC
upon instructions from its participants, and references to
payments and notices of redemption to security holders will mean
payments and notices of redemption to DTC as the registered
holder of the debt securities for distribution to participants
in accordance with DTCs procedures. Each sale of a
book-entry security will settle in immediately available funds
through DTC unless otherwise stated.
We will not have any responsibility or liability for any aspect
of the records relating to, or payments made on account of,
beneficial ownership interest in the book-entry securities or
for maintaining, supervising or reviewing any records relating
to the beneficial ownership interests.
The information in this section concerning DTC and DTCs
book-entry system has been obtained from sources that we believe
to be reliable, but we take no responsibility for the accuracy
thereof.
Clearstream
and Euroclear
Links have been established among DTC, Clearstream Banking,
Société Anonyme (Clearstream) and
Euroclear Bank S.A./N.V., as operator of Euroclear System
(Euroclear) (two international clearing systems that
perform functions similar to those that DTC performs in the
U.S.), to facilitate the initial issuance of book-entry
securities and cross-market transfers of book-entry securities
associated with secondary market trading.
Although DTC, Clearstream and Euroclear have agreed to the
procedures provided below in order to facilitate transfers, they
are under no obligation to perform such procedures, and the
procedures may be modified or discontinued at any time.
Clearstream and Euroclear will record the ownership interests of
their participants in much the same way as DTC, and DTC will
record the aggregate ownership of each of the U.S. agents
of Clearstream and Euroclear, as participants in DTC.
When book-entry securities are to be transferred from the
account of a DTC participant to the account of a Clearstream
participant or a Euroclear participant, the purchaser must send
instructions to Clearstream or Euroclear through a participant
at least one business day prior to settlement. Clearstream or
Euroclear, as the case may be, will instruct its U.S. agent
to receive book-entry securities against payment. After
settlement, Clearstream or Euroclear will credit its
participants account. Credit for the book-entry securities
will appear on the next day (European time).
Because settlement is taking place during New York business
hours, DTC participants can employ their usual procedures for
sending book-entry securities to the relevant U.S. agent
acting for the benefit of Clearstream or Euroclear participants.
The sale proceeds will be available to the DTC seller on the
settlement date. Thus, to the DTC participant, a cross-market
transaction will settle no differently than a trade between two
DTC participants.
When a Clearstream or Euroclear participant wishes to transfer
book-entry securities to a DTC participant, the seller must send
instructions to Clearstream or Euroclear through a participant
at least one business day prior to settlement. In these cases,
Clearstream or Euroclear will instruct its U.S. agent to
transfer the book-entry securities against payment. The payment
will then be reflected in the account of the Clearstream or
Euroclear participant the following day, with the proceeds
back-valued to the value date (which would be the preceding day,
when settlement occurs in New York). If settlement is not
completed on the intended value date (i.e., the trade fails),
proceeds credited to the Clearstream or Euroclear
participants account would instead be valued as of the
actual settlement date.
I-14
EARNINGS
COVERAGE
The following earnings coverage ratios do not reflect the
issuance of any debt securities under this prospectus.
The Banks interest requirements on all subordinated notes
and debentures, and liabilities for preferred shares and capital
trust securities after adjustment for new issues and retirement,
amounted to $1,017.4 million for the 12 months ended
October 31, 2009 and $997.0 million for the
12 months ended April 30, 2010. The Bank reported a
net income, before interest on subordinated debt and liabilities
for preferred shares and capital trust securities and income
taxes of $4,177 million for the 12 months ended
October 31, 2009, which was 4.1 times the Banks
interest requirements. The Bank reported a net income, before
interest on subordinated debt and liabilities for preferred
shares and capital trust securities and income taxes of
$6,138 million for the 12 months ended April 30,
2010, which was 6.2 times the Banks interest requirements.
On an adjusted basis, the Banks net income before interest
on subordinated debt and liabilities for preferred shares and
capital trust securities and income taxes for the 12 months
ended October 31, 2009 was $6,457 million, which was
6.3 times its interest requirements. On an adjusted basis, the
Banks net income before interest on subordinated debt and
liabilities for preferred shares and capital trust securities
and income taxes for the 12 months ended April 30,
2010 was $7,379 million, which was 7.4 times its interest
requirements. The Banks financial results are prepared in
accordance with Canadian generally accepted accounting
principles (GAAP). The Bank refers to results
prepared in accordance with GAAP as reported
results. The Bank also utilizes non-GAAP financial measures
referred to as adjusted results to assess each of
its businesses and to measure overall Bank performance. To
arrive at adjusted results, the Bank removes items of
note, net of income taxes, from reported results. The
items of note relate to items which management does not believe
are indicative of underlying business performance. The Bank
believes that adjusted results provide the reader with a better
understanding of how management views the Banks
performance. As explained, adjusted results are different from
reported results determined in accordance with GAAP. Adjusted
results, items of note and related terms are not defined terms
under GAAP, and therefore may not be comparable to similar terms
used by other issuers. Please see the Managements
Discussion and Analysis Financial Results
Overview How the Bank Reports section of the
Banks 2009 Annual Report to Shareholders and the
Managements Discussion and Analysis of Operating
Performance How we Performed How the
Bank Reports section of the Banks Second Quarter
Report to Shareholders for a reconciliation between the
Banks reported and adjusted results.
PLAN OF
DISTRIBUTION (CONFLICTS OF INTEREST)
We may sell the debt securities being offered by this prospectus
in four ways: (1) through agents, (2) through
underwriters, (3) through dealers
and/or
(4) directly to one or more purchasers (where permitted by
applicable law). Any of these agents, underwriters or dealers
may include our affiliates.
We may designate agents from time to time to solicit offers to
purchase these securities. We will name any such agent, who may
be deemed to be an underwriter as that term is defined in the
Securities Act, and state any commissions we are to pay to that
agent in the applicable prospectus supplement. That agent will
be acting on a reasonable efforts basis for the period of its
appointment or, if indicated in the applicable prospectus
supplement, on a firm commitment basis.
If we use a dealer to offer and sell these debt securities, we
will sell the debt securities to the dealer, as principal, and
will name the dealer in the applicable prospectus supplement.
The dealer may then resell the debt securities to the public at
varying prices to be determined by that dealer at the time of
resale.
There is no market through which the debt securities may be sold
and purchasers may not be able to resell debt securities
purchased under this prospectus. This may affect the pricing of
the debt securities in the secondary market, the transparency
and availability of trading prices, the liquidity of the debt
securities, and the extent of issuer regulation.
If so indicated in the applicable prospectus supplement, one or
more firms, which we refer to as remarketing firms,
acting as principals for their own accounts or as agents for us,
may offer and sell these debt securities as part of a
remarketing upon their purchase, in accordance with their terms.
We will identify any remarketing firm, the terms of its
agreement, if any, with us and its compensation in the
applicable prospectus supplement.
I-15
Remarketing firms, agents, underwriters and dealers may be
entitled under agreements with us to indemnification by us
against some civil liabilities, including liabilities under the
Securities Act, and may be customers of, engage in transactions
with or perform services for us in the ordinary course of
business.
If so indicated in the applicable prospectus supplement, we will
authorize agents, underwriters or dealers to solicit offers by
some purchasers to purchase debt securities from us at the
public offering price stated in the applicable prospectus
supplement under delayed delivery contracts providing for
payment and delivery on a specified date in the future. These
contracts will be subject to only those conditions described in
the applicable prospectus supplement, and the applicable
prospectus supplement will state the commission payable for
solicitation of these offers.
This prospectus may be used by certain of our affiliates in
connection with offers and sales of the debt securities in
market-making transactions. In a market-making transaction, our
affiliates may resell a security it acquires from other holders,
after the original offering and sale of the security. Resales of
this kind may occur in the open market or may be privately
negotiated, at prevailing market prices at the time of the
resale or at related or negotiated prices. In these
transactions, our affiliates may act as principal or agent,
including as agent for the counterparty in a transaction in
which our affiliates act as principal. Our affiliates may
receive compensation in the form of discounts and commissions,
including from both counterparties in some cases.
We do not expect to receive any proceeds from market-making
transactions. We do not expect that any of our affiliates that
engage in these transactions will pay any proceeds from its
market-making resales to us.
Information about the trade and settlement dates, as well as the
purchase price, for a market-making transaction will be provided
to the purchaser in a separate confirmation of sale. Unless we
or an agent informs you in your confirmation of sale that your
security is being purchased on its original offering and sale,
you may assume that you are purchasing your security in a
market-making transaction.
In this prospectus, the term this offering means the
initial offering of debt securities made in connection with
their original issuance. This term does not refer to any
subsequent resales of debt securities in market-making
transactions.
Conflicts
of Interest
To the extent an initial offering of the debt securities will be
distributed by an affiliate of the Bank, each such offering of
debt securities will be conducted in compliance with the
requirements of Rule 2720 of the Financial Industry
Regulatory Authority, which is commonly referred to as FINRA,
regarding a FINRA member firms distribution of securities
of an affiliate. Following the initial distribution of any of
these debt securities, affiliates of the Bank may offer and sell
these debt securities in the course of their businesses as
broker-dealers. Such affiliates may act as principals or agents
in these transactions and may make any sales at varying prices
related to prevailing market prices at the time of sale or
otherwise. Such affiliates may also use this prospectus in
connection with these transactions. None of our affiliates is
obligated to make a market in any of these debt securities and
may discontinue any market-making activities at any time without
notice. To the extent an initial offering of the debt securities
will be distributed by an affiliate of the Bank, such affiliate
will not confirm sales to accounts over which it exercises
discretionary authority without the prior specific written
approval of its customer.
In the event that any FINRA member participates in a public
offering of these debt securities the underwriting discounts and
commissions on debt securities sold in the initial distribution
will not exceed 8% of the offering proceeds.
INTERESTS
OF EXPERTS
Ernst & Young LLP, Chartered Accountants, Toronto,
Ontario, is the external auditor who prepared the Auditors
Report to Shareholders with respect to the consolidated balance
sheet of the Bank as at October 31, 2009 and the
consolidated statements of income, changes in shareholders
equity and comprehensive income and cash flows for the year then
ended. Ernst & Young LLP is independent with respect
to the Bank within the meaning of the Rules of Professional
Conduct of the Institute of
Chartered Accountants of Ontario, and the Public Company
Accounting Oversight Board, United States.
I-16
LEGAL
MATTERS
Unless otherwise specified in the prospectus supplement, certain
legal matters relating to the debt securities offered by a
prospectus supplement will be passed upon, on behalf of the
Bank, by McCarthy Tétrault LLP, Toronto, Ontario and
Simpson Thacher & Bartlett LLP, New York, New York.
LIMITATIONS
ON ENFORCEMENT OF U.S. LAWS AGAINST THE BANK,
OUR MANAGEMENT AND OTHERS
We are a Canadian chartered bank. Many of our directors and
executive officers, including many of the persons who signed the
Registration Statement on
Form F-9,
of which this prospectus is a part, and some of the experts
named in this document, are resident outside the United States,
and a substantial portion of our assets and all or a substantial
portion of the assets of such persons are located outside the
United States. As a result, it may be difficult for you to
effect service of process within the United States upon such
persons to enforce against them judgments of the courts of the
United States predicated upon, among other things, the civil
liability provisions of the federal securities laws of the
United States. In addition, it may be difficult for you to
enforce, in original actions brought in courts in jurisdictions
located outside the United States, among other things, civil
liabilities predicated upon such securities laws.
We have been advised by our Canadian counsel, McCarthy
Tétrault LLP, that a judgment of a United States court may
be enforceable in Canada if: (a) there is a real and
substantial connection between the events, persons and
circumstances and the United States proceedings such that the
United States court properly assumed jurisdiction; (b) the
United States judgment is final and conclusive; (c) the
defendant was properly served with originating process from the
United States court; and (d) the United States law that led
to the judgment is not contrary to Canadian public policy, as
that term would be applied by a Canadian court. We are advised
that in normal circumstances, only civil judgments and not other
rights arising from United States securities legislation (for
example, penal or similar awards made by a court in a regulatory
prosecution or proceeding) are enforceable in Canada. The
enforceability of a United States judgment in Canada will be
subject to the requirements that: (i) an action to enforce
the United States judgment must be commenced in the Ontario
Court within any applicable limitation period; (ii) the
Ontario Court has discretion to stay or decline to hear an
action on the United States judgment if the United States
judgment is under appeal or there is another subsisting judgment
in any jurisdiction relating to the same cause of action;
(iii) the Ontario Court will render judgment only in
Canadian dollars; and (iv) an action in the Ontario Court
on the United States judgment may be affected by bankruptcy,
insolvency or other laws of general application limiting the
enforcement of creditors rights generally. The
enforceability of a United States judgment in Canada will be
subject to the following defenses: (i) the United States
judgment was obtained by fraud or in a manner contrary to the
principles of natural justice; (ii) the United States
judgment is for a claim which under Ontario law would be
characterized as based on a foreign revenue, expropriatory,
penal or other public law; (iii) the United States judgment
is contrary to Ontario public policy or to an order made by the
Attorney General of Canada under the Foreign Extraterritorial
Measures Act (Canada) or by the Competition Tribunal under
the Competition Act (Canada) in respect of certain
judgments referred to in these statutes; and (iv) the
United States judgment has been satisfied or is void or voidable
under United States law.
DOCUMENTS
FILED AS PART OF
THE REGISTRATION STATEMENT
The following documents have been filed with the SEC as part of
the registration statement of which this prospectus forms a
part: the documents listed in (a) (d) under
Documents Incorporated by Reference; the Indenture;
the Statement of Eligibility of Trustee; consents of
Ernst & Young LLP; consent of McCarthy Tétrault
LLP; Powers of Attorney; and Certified Resolution of the Board
of Directors.
I-17
PART II
INFORMATION
NOT REQUIRED TO BE DELIVERED
TO
OFFEREES OR PURCHASERS
Indemnification
of Directors and Officers
Under the Bank Act, the Bank may not, by contract, resolution or
by-law, limit the liability of its directors for breaches of
their fiduciary duties. However, except in respect of an action
by or on behalf of the Bank to procure a judgment in its favor,
the Bank may indemnify a director or officer, a former director
or officer or a person who acts or acted at the Banks
request as a director or officer of or in a similar capacity for
another entity, and his or her heirs and legal representatives,
against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably
incurred by him or her because of any civil, criminal,
administrative, investigative or other proceeding to which he or
she is involved by reason of being or having been associated
with the Bank or the entity, if:
(1) that person acted honestly and in good faith with a
view to the best interests of the Bank or the other entity, as
the case may be, and
(2) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, that person
had reasonable grounds for believing that his or her conduct was
lawful.
These individuals are entitled to an indemnity from the Bank if
the person was not judged by the court or other competent
authority to have committed any fault or omitted to do anything
that they ought to have done and fulfilled the conditions set
out in (1) and (2) above. The Bank may also advance
amounts to the director, officer or other person for the costs,
charges and expenses of a proceeding referred to above, provided
such amounts are repaid if the conditions set out in
(1) and (2) above are not satisfied. The Bank may,
with the approval of a court, also indemnify or advance funds to
that person regarding an action by or on behalf of the Bank to
procure a judgment in its favor, to which the person is made a
party by reason of being or having been a director or officer of
the company or entity, if he or she fulfills the conditions set
out in (1) and (2) above.
The Banks by-laws provide that subject to the limitations
contained in the Bank Act, but without limit to the right of the
Bank to indemnify or advance funds to any person under the Bank
Act or otherwise, the Bank will indemnify a director or officer
or a former director or officer, or a person who acts or acted
at the Banks request as a director or officer or in a
similar capacity of a body corporate, and such persons
heirs and legal representatives, against all costs, charges and
expenses, including an amount paid to settle an action or
satisfy a judgment reasonably incurred by such person in respect
of any civil, criminal, administrative, investigative or other
proceeding to which such person is made a party by reason of
being or having been a director or officer of the Bank or such
body corporate if: (i) such person acted honestly and in
good faith with a view to the best interests of the Bank or the
other entity, as the case may be; and (ii) in the case of a
criminal or administrative action or proceeding that is enforced
by a monetary penalty, such person had reasonable grounds for
believing that such persons conduct was lawful. These
indemnification provisions could be construed to permit or
require indemnification for certain liabilities arising out of
U.S. federal securities laws. Insofar as indemnification
for liabilities arising under the Securities Act of 1933, as
amended (the Securities Act) may be permitted to
directors, officers or persons controlling the Bank pursuant to
the foregoing provisions, the Bank has been informed that in the
opinion of the SEC such indemnification is against public policy
as expressed in the Securities Act and is therefore
unenforceable.
The Bank maintains directors and officers liability
insurance policies providing for the insurance on behalf of any
person who is or was a director or officer of the Bank and
subsidiary companies against any liability incurred by him or
her in any such capacity or arising out of his or her status as
such.
II-1
Exhibits
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4
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.1
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Annual Information Form of the Registrant dated December 1, 2010
(incorporated by reference to Exhibit 99.1 to The
Toronto-Dominion Banks Form 40-F filed on December 2,
2010, File No.
00-14446).
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4
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.2
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The consolidated audited financial statements for the fiscal
year ended October 31, 2010 with comparative consolidated
financial statements for the fiscal year ended October 31, 2009,
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 2, 2010, File No.
001-14446).
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4
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.3
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Management Proxy Circular of the Registrant dated as of January
27, 2011 (incorporated by reference to The Toronto Dominion
Banks Form 6-K filed on February 23, 2011, File No.
001-14446).
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4
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.4
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The Second Quarter Report to Shareholders for the three and six
months ended April 30, 2011, which includes comparative
consolidated interim financial statements (unaudited) and
Managements Discussion and Analysis (incorporated by
reference to The Toronto-Dominion Banks Form 6-K filed on
May 26, 2011, File No. 001-14446).
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5
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.1
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Consent of Ernst & Young LLP.
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5
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.2
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Consent of Ernst & Young LLP addressed to the Canadian
securities regulatory authorities.*
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5
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.3
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Consent of McCarthy Tétrault LLP.*
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7
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.1
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Indenture between The Toronto-Dominion Bank and The Bank of New
York Mellon (as successor in interest to The Bank of New York)
dated June 30, 2006 (incorporated by reference to Exhibit 7.1 to
The Toronto-Dominion Banks Registration Statement on form
F-9 filed on May 29, 2008 (File No. 333-151254)).
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7
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.2
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Statement of Eligibility of Trustee.*
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24
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.1
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Powers of Attorney of W. Edmund Clark, Colleen M. Johnston,
Brian M. Levitt, William E. Bennett, Hugh J. Bolton,
John L. Bragg, Wendy K. Dobson, Henry H. Ketcham, Pierre
H. Lessard, Harold H. MacKay, Irene R. Miller,
Nadir H. Mohamed, Wilbur J. Prezzano, Helen K.
Sinclair, Carole S. Taylor, John M. Thompson and
Brendan OHalloran.*
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24
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.2
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Power of Attorney of Xihao Hu.
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24
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.3
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Certified Resolution of the Board of Directors.*
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II-2
PART III
UNDERTAKING
AND CONSENT TO SERVICE OF PROCESS
The Registrant undertakes to make available, in person or by
telephone, representatives to respond to inquiries made by the
Commission staff, and to furnish promptly, when requested to do
so by the Commission staff, information relating to the
securities registered pursuant to this
Form F-9
or to transactions in said securities.
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Item 2.
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Consent
to Service of Process.
|
The Registrant and the Trustee with respect to the debt
securities registered hereby have each filed with the Commission
an Appointment of Agent for Service of Process and Undertaking
on
Form F-X
with the original filing of this Registration Statement.
III-1
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form F-9
and has duly caused this Amendment No. 2 to the
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Toronto,
Province of Ontario, country of Canada, on this 15th day of
June 2011.
THE TORONTO-DOMINION BANK
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By:
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/s/ Christopher
A. Montague
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Name: Christopher A. Montague
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Title:
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Executive Vice President and General Counsel
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Pursuant to the requirements of the Securities Act of 1933, as
amended, this Amendment No. 2 to the Registration Statement
has been signed below by or on behalf of the following persons
in the capacities and on the dates indicated:
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Name
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Title
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Date
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*
W.
Edmund Clark
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Group President, Chief Executive Officer and Director (Principal
Executive Officer)
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June 15, 2011
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*
Colleen
M. Johnston
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Group Head, Finance and Chief Financial Officer
(Principal Financial Officer)
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June 15, 2011
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/s/ Xihao
Hu
Xihao
Hu
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Senior Vice President, Finance
(Principal Accounting Officer)
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June 15, 2011
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*
Brian
M. Levitt
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Chairman of the Board
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June 15, 2011
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*
William
E. Bennett
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Director
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June 15, 2011
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*
Hugh
J. Bolton
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Director
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June 15, 2011
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*
John
L. Bragg
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Director
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June 15, 2011
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*
Wendy
K. Dobson
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Director
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June 15, 2011
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*
Henry
H. Ketcham
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Director
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June 15, 2011
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*
Pierre
H. Lessard
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Director
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June 15, 2011
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III-2
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Name
|
|
Title
|
|
Date
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|
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*
Harold
H. MacKay
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Director
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June 15, 2011
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*
Irene
R. Miller
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Director
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June 15, 2011
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|
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*
Nadir
H. Mohamed
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Director
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June 15, 2011
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|
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*
Wilbur
J. Prezzano
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Director
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June 15, 2011
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|
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*
Helen
K. Sinclair
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Director
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June 15, 2011
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|
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*
Carole
S. Taylor
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Director
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June 15, 2011
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|
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*
John
M. Thompson
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Director
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June 15, 2011
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|
|
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*
Brendan
OHalloran
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Authorized Representative in the United States
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June 15, 2011
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*By:
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/s/ Christopher
A. Montague
Christopher
A. Montague
Attorney-in-Fact
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III-3
Exhibits
|
|
|
|
|
|
4
|
.1
|
|
Annual Information Form of the Registrant dated December 1, 2010
(incorporated by reference to Exhibit 99.1 to The
Toronto-Dominion Banks Form 40-F filed on December 2,
2010, File No.
001-14446).
|
|
4
|
.2
|
|
The consolidated audited financial statements for the fiscal
year ended October 31, 2010 with comparative consolidated
financial statements for the fiscal year ended October 31, 2009,
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 2, 2010, File No.
001-14446).
|
|
4
|
.3
|
|
Management Proxy Circular of the Registrant dated as of January
27, 2011 (incorporated by reference to The Toronto Dominion
Banks Form 6-K filed on February 23, 2011, File No.
001-14446).
|
|
4
|
.4
|
|
The Second Quarter Report to Shareholders for the three and six
months ended April 30, 2011, which includes comparative
consolidated interim financial statements (unaudited) and
Managements Discussion and Analysis (incorporated by
reference to The Toronto-Dominion Banks Form 6-K filed on
May 26, 2011, 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.*
|
|
5
|
.3
|
|
Consent of McCarthy Tétrault LLP.*
|
|
7
|
.1
|
|
Indenture between The Toronto-Dominion Bank and The Bank of New
York Mellon (as successor in interest to The Bank of New York)
dated June 30, 2006 (incorporated by reference to Exhibit 7.1 to
The Toronto-Dominion Banks Registration Statement on form
F-9 filed on May 29, 2008 (File No. 333-151254)).
|
|
7
|
.2
|
|
Statement of Eligibility of Trustee.*
|
|
24
|
.1
|
|
Powers of Attorney of W. Edmund Clark, Colleen M. Johnston,
Brian M. Levitt, William E. Bennett, Hugh J. Bolton,
John L. Bragg, Wendy K. Dobson, Henry H. Ketcham, Pierre
H. Lessard, Harold H. MacKay, Irene R. Miller,
Nadir H. Mohamed, Wilbur J. Prezzano, Helen K.
Sinclair, Carole S. Taylor, John M. Thompson and
Brendan OHalloran.*
|
|
24
|
.2
|
|
Power of Attorney of Xihao Hu.
|
|
24
|
.3
|
|
Certified Resolution of the Board of Directors.*
|
III-4