suppl
Filed pursuant to General Instruction II.K. of Form F-9
File No. 333-164300
Prospectus Supplement
(to the Short Form Base
Shelf Prospectus Dated January 11, 2010)
US$2,500,000,000
THE BANK OF NOVA
SCOTIA
US$1,000,000,000 2.250% Senior
Notes due 2013
US$1,500,000,000 3.400% Senior
Notes due 2015
The US$1,000,000,000 2.250% Senior Notes due 2013 (the
2013 Notes) offered by this prospectus supplement
(this Prospectus Supplement) will bear interest at a
rate of 2.250% per year from January 22, 2010 and will
mature on January 22, 2013. The US$1,500,000,000 3.400%
Senior Notes due 2015 (the 2015 Notes and, together
with the 2013 Notes, the Notes) offered by this
Prospectus Supplement will bear interest at a rate of 3.400% per
year from January 22, 2010 and will mature on
January 22, 2015. Interest on the Notes will be payable in
arrears on January 22 and July 22 of each year,
commencing July 22, 2010 and continuing until
January 22, 2013, in the case of the 2013 Notes, and
January 22, 2015, in the case of the 2015 Notes. The Notes
will be unsecured and unsubordinated obligations of The Bank of
Nova Scotia (the Bank) and will constitute deposit
liabilities of the Bank for purposes of the Bank Act
(Canada) (the Bank Act).
Investing in the Notes involves risks. See the Risk
Factors sections of the accompanying short form base shelf
prospectus of the Bank dated January 11, 2010 (the
Prospectus) and this Prospectus Supplement.
The Bank is permitted, under a multi-jurisdictional
disclosure system adopted by the United States and Canada, to
prepare this Prospectus Supplement and the accompanying
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. The
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 Notes 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, Canada or the United States may
not be described fully herein.
The enforcement by investors of civil liabilities under the
United States federal securities laws may be affected adversely
by the fact that the Bank is a Canadian bank, that many of its
officers and directors, and some of the experts named in this
Prospectus Supplement, may be residents of Canada and that all
or a substantial portion of the assets of the Bank and such
persons may be located outside the United States.
Neither the U.S. Securities and Exchange Commission (the
SEC) nor any state securities regulator has approved
or disapproved of the Notes, or determined if this Prospectus
Supplement or the accompanying Prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
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Price to the Public
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Underwriters Fees
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Net Proceeds to the
Bank(1)(2)
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Per 2013 Note
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99.890%
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0.250%
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99.640%
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Total
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US$
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998,900,000
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US$
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2,500,000
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US$
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996,400,000
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Per 2015 Note
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99.872%
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0.350%
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99.522%
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Total
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US$
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1,498,080,000
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US$
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5,250,000
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US$
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1,492,830,000
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(1)
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Plus accrued interest, if any, from January 22, 2010 to the
date of delivery.
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(2)
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Before deduction of expenses of issue estimated at US$1,000,000.
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The underwriters, as principals, conditionally offer the Notes,
subject to prior sale, if, as and when issued by the Bank, and
accepted by the underwriters in accordance with the conditions
contained in the underwriting agreement referred to under
Plan of Distribution in this Prospectus Supplement.
The underwriters may sell Notes for less than the initial
offering price in circumstances described under Plan of
Distribution. In addition, the underwriters may over-allot
or effect transactions which stabilize or maintain the market
price of the Notes at levels other than those that might
otherwise prevail in the open market. Such transactions, if
commenced, may be discontinued at any time. See Plan of
Distribution.
There is no market through which the Notes may be sold and
purchasers may not be able to resell the Notes purchased under
this Prospectus Supplement. This may affect the pricing of the
Notes in the secondary market, the transparency and availability
of their trading prices, the liquidity of the Notes and the
extent of issuer regulation. See the Risk Factors
section in this Prospectus Supplement.
The Notes offered hereby have not been qualified for sale
under the securities laws of any province or territory of Canada
(other than the Province of Ontario) and will not be offered or
sold, directly or indirectly, in Canada or to any resident of
Canada without the consent of the Bank. See Plan of
Distribution.
The Notes will not constitute deposits that are insured under
the Canada Deposit Insurance Corporation Act
(Canada) or by the United States Federal Deposit Insurance
Corporation or any other Canadian or U.S. government agency or
instrumentality.
Unless otherwise indicated, all dollar amounts appearing in
this Prospectus Supplement are stated in Canadian dollars.
The head office of the Bank is located at 1709 Hollis Street,
Halifax, Nova Scotia, B3J 3B7 and its executive offices are
at Scotia Plaza, 44 King Street West, Toronto, Ontario,
M5H 1H1.
The Notes will be ready for delivery through the book-entry
facilities of The Depository Trust Company and its direct
and indirect participants, including Euroclear Bank, S.A./N.V.
and Clearstream Banking, société anonyme, on or about
January 22, 2010.
Joint
Book-Running Managers
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Morgan
Stanley |
BofA Merrill Lynch |
Citi |
Joint Lead Manager
Scotia Capital
Co-Managers
January 19, 2010
TABLE OF
CONTENTS
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PAGE
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Prospectus Supplement
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S-3
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S-9
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S-10
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S-11
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S-14
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S-14
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S-14
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S-14
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S-2
ABOUT
THIS PROSPECTUS SUPPLEMENT
This document consists of two parts, the first part is this
Prospectus Supplement, which describes the specific terms of
this offering. The second part, the accompanying Prospectus,
gives more general information, some of which may not apply to
this offering. If information in this Prospectus Supplement is
inconsistent with the accompanying Prospectus, investors should
rely on the information in this Prospectus Supplement. This
Prospectus Supplement, the accompanying Prospectus and the
documents incorporated by reference into each of them include
important information about the Bank, the Notes being offered
and other information investors should know before investing in
the Notes.
FORWARD-LOOKING
STATEMENTS
The Banks public communications often include oral or
written forward-looking statements. Statements of this type are
included in this document, and may be included in other filings
with Canadian securities regulators or the SEC, or in other
communications. All such statements are made pursuant to the
safe harbour provisions of the United States Private
Securities Litigation Reform Act of 1995 and any applicable
Canadian securities legislation. Forward-looking statements may
include comments with respect to the Banks objectives,
strategies to achieve those objectives, expected financial
results (including those in the area of risk management), and
the outlook for the Banks businesses and for the Canadian,
United States and global economies. Such statements are
typically identified by words or phrases such as
believe, expect, anticipate,
intent, estimate, plan,
may increase, may fluctuate, and similar
expressions of future or conditional verbs, such as
will, should, would and
could.
By their very nature, forward-looking statements involve
numerous assumptions, inherent risks and uncertainties, both
general and specific, and the risk that predictions and other
forward-looking statements will not prove to be accurate. Do not
unduly rely on forward-looking statements, as a number of
important factors, many of which are beyond the Banks
control, could cause actual results to differ materially from
the estimates and intentions expressed in such forward-looking
statements. These factors include, but are not limited to: the
economic and financial conditions in Canada and globally;
fluctuations in interest rates and currency values; liquidity;
significant market volatility and interruptions; the failure of
third parties to comply with their obligations to the Bank and
its affiliates; the effect of changes in monetary policy;
legislative and regulatory developments in Canada and elsewhere,
including changes in tax laws; the effect of changes to the
Banks credit ratings; amendments to, and interpretations
of, risk-based capital guidelines and reporting instructions and
liquidity regulatory guidance; operational and reputational
risks; the risk that the Banks risk management models may
not take into account all relevant factors; the accuracy and
completeness of information the Bank receives on customers and
counterparties; the timely development and introduction of new
products and services in receptive markets; the Banks
ability to expand existing distribution channels and to develop
and realize revenues from new distribution channels; the
Banks ability to complete and integrate acquisitions and
its other growth strategies; changes in accounting policies and
methods the Bank uses to report its financial condition and the
results of its operations, including uncertainties associated
with critical accounting assumptions and estimates; the effect
of applying future accounting changes; global capital markets
activity; the Banks ability to attract and retain key
executives; reliance on third parties to provide components of
the Banks business infrastructure; unexpected changes in
consumer spending and saving habits; technological developments;
fraud by internal or external parties, including the use of new
technologies in unprecedented ways to defraud the Bank or its
customers; consolidation in the Canadian financial services
sector; competition, both from new entrants and established
competitors; judicial and regulatory proceedings; acts of God,
such as earthquakes and hurricanes; the possible impact of
international conflicts and other developments, including
terrorist acts and war on terrorism; the effects of disease or
illness on local, national or international economies;
disruptions to public infrastructure, including transportation,
communication, power and water; and the Banks anticipation
of and success in managing the risks implied by the foregoing. A
substantial amount of the Banks business involves making
loans or otherwise committing resources to specific companies,
industries or countries. Unforeseen events affecting such
borrowers, industries or countries could have a material adverse
effect on the Banks financial results, businesses,
financial condition or liquidity. These and other factors may
cause the Banks actual performance to differ materially
from that contemplated by forward-looking statements. For more
information, see the discussion in the Banks Annual
MD&A (as defined below), which is incorporated by reference
herein and which outlines in detail certain key factors that may
affect the Banks future results.
The preceding list of important factors is not exhaustive. When
relying on forward-looking statements to make decisions with
respect to the Bank and its securities, investors and others
should carefully consider the preceding factors, other
uncertainties and potential events. The Bank does not undertake
to update any forward-looking statements, whether written or
oral, that may be made from time to time by or on its behalf.
S-3
AVAILABLE
INFORMATION
In addition to the continuous disclosure obligations under the
securities laws of the provinces and territories of Canada, the
Bank is subject to the informational reporting requirements of
the U.S. Securities Exchange Act of 1934, as amended (the
Exchange Act), and in accordance therewith files
reports and other information with the SEC. Under a
multi-jurisdictional disclosure system adopted by the United
States and Canada, such reports and other information may be
prepared in accordance with the disclosure requirements of the
provincial and territorial securities regulatory authorities of
Canada, which requirements are different from those of the
United States. As a foreign private issuer, the Bank is exempt
from the rules under the Exchange Act prescribing the furnishing
and content of proxy statements, and the Banks officers
and directors are exempt from the reporting and short swing
profit recovery provisions contained in Section 16 of the
Exchange Act. The Banks reports and other information
filed with or furnished to the SEC since November 2000 are
available, and reports and other information filed or furnished
in the future with or to the SEC will be available, from the
SECs Electronic Document Gathering and Retrieval System
(http://www.sec.gov),
which is commonly known by the acronym EDGAR, as
well as from commercial document retrieval services. Any
document the Bank files with or furnishes to the SEC may be
inspected and, by paying a fee, 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 Banks common shares are listed on the New
York Stock Exchange and reports and other information concerning
the Bank may be inspected at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
DOCUMENTS
INCORPORATED BY REFERENCE
This Prospectus Supplement is deemed to be incorporated by
reference into the accompanying Prospectus, solely for the
purpose of the Notes offered by this Prospectus Supplement.
Other documents are also incorporated or deemed to be
incorporated by reference into the accompanying Prospectus and
reference should be made to the Prospectus for full particulars.
The following documents have been filed with the Ontario
Securities Commission and filed with or furnished to the SEC and
are specifically incorporated by reference into, and form an
integral part of, this Prospectus Supplement:
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(a)
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the Banks annual information form (the Annual
Information Form) dated December 8, 2009, for the
year ended October 31, 2009;
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(b)
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the Banks management proxy circular attached to the Notice
of Meeting dated January 12, 2009, prepared in connection
with the Banks annual meeting of shareholders held on
March 3, 2009;
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(c)
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the Banks consolidated financial statements for the years
ended October 31, 2009 and 2008, together with the
auditors report thereon; and
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(d)
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the Banks managements discussion and analysis of
financial condition and results of operations for the year ended
October 31, 2009 (the Annual MD&A).
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Any statement contained in a document incorporated or deemed
to be incorporated by reference in this Prospectus Supplement or
the accompanying Prospectus or contemplated in this Prospectus
Supplement or the accompanying Prospectus will be deemed to be
modified or superseded for the purposes of this Prospectus
Supplement 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 will not be deemed to be an admission for any purpose
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 will not be
deemed, except as so modified or superseded, to constitute a
part of this Prospectus Supplement.
PRESENTATION
OF FINANCIAL INFORMATION
The Bank prepares its consolidated financial statements in
accordance with Canadian generally accepted accounting
principles (GAAP), which differ in certain respects
from U.S. GAAP. For a discussion of significant differences
between Canadian and U.S. GAAP and a reconciliation of the
consolidated balance sheet and statement of income, you should
read the section titled Note 29: Reconciliation of
Canadian and United States Generally Accepted Accounting
Principles (GAAP) in the Banks Annual MD&A on
Form 40-F
for the fiscal year ended October 31, 2009.
S-4
Additionally, the Bank publishes its consolidated financial
statements in Canadian dollars. In this Prospectus Supplement,
currency amounts are stated in Canadian dollars, unless
specified otherwise. References to $,
Cdn$ and dollars are to Canadian
dollars, and references to US$ are to U.S. dollars.
RISK
FACTORS
An investment in Notes of the Bank is subject to certain risks.
Before deciding whether to invest in the Notes, investors should
carefully consider the risks set out herein and incorporated by
reference in this Prospectus Supplement (including subsequently
filed documents incorporated by reference herein).
The value of the Notes will be affected by the general
creditworthiness of the Bank. Prospective investors should
consider the categories of risks identified and discussed in the
Banks Annual Information Form and the Annual MD&A,
each of which is incorporated herein by reference, including
credit risk, market risk, liquidity risk, operational risk,
reputational risk and environmental risk.
The Notes will be unsecured and unsubordinated obligations of
the Bank and will rank on a parity with all of the Banks
other senior unsecured debt including deposit liabilities, other
than certain governmental claims in accordance with applicable
law. Except to the extent regulatory requirements affect the
Banks decisions to issue more senior debt, there is no
limit on the Banks ability to incur additional senior debt.
Real or anticipated changes in credit ratings on the Banks
deposit liabilities may affect the market value of the Notes. In
addition, real or anticipated changes in credit ratings can
affect the cost at which the Bank can transact or obtain
funding, and thereby affect the Banks liquidity, business,
financial condition or results of operations and, therefore, the
Banks ability to make payments on the Notes could be
adversely affected.
The value of the Notes may be affected by market value
fluctuations resulting from factors which influence the
Banks operations, including regulatory developments,
competition and global market activity.
Prevailing interest rates will affect the market value of the
Notes. Assuming all other factors remain unchanged, the market
value of the Notes will decline as prevailing interest rates for
similar debt instruments rise, and increase as prevailing
interest rates for comparable debt instruments decline.
The Notes are new issues of securities and there may be no
market through which the Notes may be sold and purchasers may
therefore be unable to resell such Notes. In addition, the Bank
does not intend to apply for listing or quotation of the Notes
on any securities exchange or automated quotation system. These
factors may affect the pricing of the Notes in any secondary
market, the transparency and availability of trading prices, the
liquidity of the Notes and the extent of issuer regulation.
Reference is made to Risk Management Liquidity
Risk in the Annual MD&A for a discussion of the
Banks liquidity risk.
There can be no assurance that an active trading market will
develop for either series of Notes after the offering, or if
developed, that such a market will be sustained at the offering
price of such series of Notes. While certain of the underwriters
intend to make a market in each series of Notes, the
underwriters will not be obligated to do so and may stop their
market-making at any time. In addition, any market-making
activities will be subject to limits of the U.S. Securities Act
of 1933, as amended (the Securities Act), and the
Exchange Act.
If any of the Notes are traded after their initial issuance,
they may trade at a discount from their initial offering price.
Future trading prices of the Notes will depend on many factors,
including prevailing interest rates, the market for similar
securities, general economic conditions and our financial
condition, performance, prospects and other factors.
Accordingly, you may be required to bear the financial risk of
an investment in the Notes for an indefinite period of time.
The senior debt indenture governing the Notes does not contain
any financial covenants and contains only limited restrictive
covenants. In addition, the senior debt indenture will not limit
the Banks or its subsidiaries ability to incur
additional indebtedness, issue or repurchase securities, pay
dividends or engage in transactions with affiliates. The
Banks ability to incur additional indebtedness and use its
funds for any purpose in the Banks discretion may increase
the risk that the Bank will be unable to service its debt,
including paying its obligations under the Notes.
The Notes and the related senior debt indenture will be governed
by, and construed in accordance with, the laws of the State of
New York (other than certain limited provisions that will be
governed by the law of the Province of Ontario and applicable
laws of Canada). Generally, in an action commenced in a Canadian
court for the enforcement of the senior debt indenture or the
Notes, a plaintiff will be required to prove those non-Canadian
laws as a matter of fact by the evidence of persons who are
experts in those laws.
S-5
DETAILS
OF THE OFFERING
The following description of the terms of the Notes supplements,
and to the extent inconsistent therewith replaces, the
description set forth under the heading Description of the
Debt Securities in the Prospectus and should be read in
conjunction with such description. As used in this description,
the terms the Bank, we, us
and our refer only to The Bank of Nova Scotia and
not to any of its subsidiaries. All capitalized terms used under
this heading Details of the Offering that are not
defined herein have the meanings ascribed thereto in the
Prospectus.
General
The following is a description of the terms of the
US$1,000,000,000 2.250% Senior Notes due 2013 (the 2013
Notes) and the US$1,500,000,000 3.400% Senior Notes due
2015 (the 2015 Notes) offered by this Prospectus
Supplement (which are referred to in this Prospectus Supplement
collectively as the Notes and in the Prospectus as
Debt Securities). The Notes are part of the Debt
Securities registered by us with the SEC and qualified for
distribution in the Province of Ontario and which are to be
issued on terms that will be determined at the time of sale. The
Notes will constitute our unsecured and unsubordinated
obligations and will constitute deposit liabilities of the Bank
for purposes of the Bank Act and will rank on a parity with all
of our other senior unsecured debt including deposit
liabilities, other than certain governmental claims in
accordance with applicable law, and prior to all of our
subordinated debt. The Notes are to be issued as two series of
senior debt securities under a senior debt indenture among us,
Computershare Trust Company, N.A., as United States
trustee, and Computershare Trust Company of Canada, as
Canadian trustee, which is more fully described in the
Prospectus under the heading Description of the Debt
Securities.
Payment of the principal and interest on the Notes will be made
is U.S. dollars. We will pay interest, principal and any other
money due on the Notes at the corporate trust office of
Computershare Trust Company, N.A., 350 Indiana St.,
Suite 750, Golden, Colorado 80401, or such other office as
may be agreed upon. Holders of Notes must make arrangements to
have their payments picked up at or wired from that office or
such other office as may be agreed upon. We may also choose to
pay interest by mailing checks.
The Notes are not entitled to the benefits of any sinking fund.
The provisions of the senior debt indenture relating to
defeasance and covenant defeasance (described under the heading
Description of the Debt Securities
Defeasance in the Prospectus) will apply to each series of
Notes.
The Notes will be issued in denominations of US$2,000 and
integral multiples of US$1,000 in excess of such amount. Upon
issuance, each series of Notes will be represented by one or
more fully registered global notes. Each global note will be
deposited with, or on behalf of, The Depository
Trust Company, as depositary. You may elect to hold
interests in the global notes through either the depositary (in
the United States), Clearstream or Euroclear, or indirectly
through organizations that are participants in such systems. See
Legal Ownership and Book-Entry Issuance in the
Prospectus.
Maturity
The 2013 Notes will mature on January 22, 2013 and the 2015
Notes will mature on January 22, 2015.
Interest
The 2013 Notes will bear interest from and including
January 22, 2010 at a rate of 2.250% per year and the 2015
Notes will bear interest from and including January 22,
2010 at a rate of 3.400% per year. We will pay interest in
arrears on January 22 and July 22 of each year,
beginning July 22, 2010 (each, an Interest Payment
Date), and on the maturity date. Interest will be payable
on each Interest Payment Date to the persons in whose name the
Notes are registered at the close of business on the preceding
January 7 or July 7, whether or not a business day.
However, we will pay interest on the maturity date to the same
persons to whom the principal will be payable. If any Interest
Payment Date or the maturity date falls on a day that is not a
business day, we will postpone the making of such interest
payment to the next succeeding business day (and no interest
will be paid in respect of the delay). A business
day means any day other than a Saturday or Sunday that is
neither a legal holiday nor a day on which banking institutions
are authorized or required by law or regulation to close in The
City of New York, New York or Toronto, Ontario.
S-6
Interest on the Notes will accrue from and including
January 22, 2010 to but excluding the first Interest
Payment Date and then from and including each Interest Payment
Date to which interest has been paid or duly provided for to,
but excluding, the next Interest Payment Date or the maturity
date, as the case may be.
Interest on the Notes will be computed on the basis of a 360-day
year consisting of twelve 30-day months.
Payment
of Additional Amounts
All payments made by or on behalf of the Bank under or with
respect to the Notes will be made free and clear of and without
withholding or deduction for or on account of any present or
future tax, duty, levy, impost, assessment or other governmental
charge (including penalties, interest and other liabilities
related thereto) imposed or levied by or on behalf of the
Government of Canada or any province or territory thereof or by
any authority or agency therein or thereof having power to tax
(hereafter Canadian taxes), unless the Bank is
required to withhold or deduct Canadian taxes by law or by the
interpretation or administration thereof. If the Bank is so
required to withhold or deduct any amount for or on account of
Canadian taxes from any payment made under or with respect to
the Notes, we will pay to each holder of Notes as additional
interest such additional amounts (additional
amounts) as may be necessary so that the net amount
received by each such holder after such withholding or deduction
(and after deducting any Canadian taxes on such additional
amounts) will not be less than the amount such holder would have
received if such Canadian taxes had not been withheld or
deducted, except as described below. However, no additional
amounts will be payable with respect to a payment made to a
holder (such holder, an excluded holder) in respect
of the beneficial owner thereof:
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with which the Bank does not deal at arms length (for the
purposes of the Income Tax Act (Canada)) at the time of
the making of such payment;
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which is subject to such Canadian taxes by reason of the holder
being a resident, domiciliary or national of, engaged in
business or maintaining a permanent establishment or other
physical presence in or otherwise having some connection with
Canada or any province or territory thereof otherwise than by
the mere holding of the Notes or the receipt of payments
thereunder;
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which is subject to such Canadian taxes by reason of the
holders failure to comply with any certification,
identification, documentation or other reporting requirements if
compliance is required by law, regulation, administrative
practice or an applicable treaty as a precondition to exemption
from, or a reduction in the rate of deduction or withholding of,
such Canadian taxes (provided that the Bank advises the Trustees
and the holders of the Notes then outstanding of any change in
such requirements);
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with respect to any estate, inheritance, gift, sale, transfer,
personal property or similar tax or other governmental charge; or
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which is a fiduciary or partnership or person other than the
sole beneficial owner of such payment to the extent that the
Canadian taxes would not have been imposed on such payment had
such holder been the sole beneficial owner of such Notes.
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The Bank will also:
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make such withholding or deduction; and
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remit the full amount deducted or withheld to the relevant
authority in accordance with applicable law.
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The Bank will furnish to the holders of the Notes, within
60 days after the date the payment of any Canadian taxes is
due pursuant to applicable law, certified copies of tax receipts
or other documents evidencing such payment by such person.
The Bank will indemnify and hold harmless each holder of Notes
(other than an excluded holder) from and against, and upon
written request reimburse each such holder for the amount
(excluding any additional amounts that have previously been paid
by the Bank with respect thereto) of:
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any Canadian taxes so levied or imposed and paid by such holder
as a result of payments made by or on behalf of the Bank under
or with respect to the Notes;
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any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto; and
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any Canadian taxes imposed with respect to any reimbursement
under the preceding two bullet points, but excluding any such
Canadian taxes on such holders net income.
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S-7
In any event, no additional amounts or indemnity amounts will be
payable under the provisions described above in respect of any
Note in excess of the additional amounts and the indemnity
amounts which would be required if, at all relevant times, the
holder of such Note were a resident of the United States for
purposes of and was entitled to the benefits of the Canada-U.S.
Income Tax Convention (1980), as amended, including any
protocols thereto. As a result of the limitation on the payment
of additional amounts and indemnity amounts discussed in the
preceding sentence, the additional amounts or indemnity amounts
received by certain holders of Notes may be less than the amount
of Canadian taxes withheld or deducted or the amount of Canadian
taxes (and related amounts) levied or imposed giving rise to the
obligation to pay the indemnity amounts, as the case may be,
and, accordingly, the net amount received by such holders of
Notes will be less than the amount such holders would have
received had there been no such withholding or deduction in
respect of Canadian taxes or had such Canadian taxes (and
related amounts) not been levied or imposed.
Wherever in the senior debt indenture governing the terms of the
Notes there is mentioned, in any context, the payment of
principal, interest, if any, or any other amount payable under
or with respect to a Note, such mention shall be deemed to
include mention of the payment of additional amounts to the
extent that, in such context, additional amounts are, were or
would be payable in respect thereof.
In the event of the occurrence of any transaction or event
resulting in a successor to the Bank, all references to Canada
in the preceding paragraphs of this subsection shall be deemed
to be references to the jurisdiction of organization of the
successor entity.
Tax
Redemption
The Bank (or its successor) may redeem each series of Notes, in
whole but not in part, at a redemption price equal to the
principal amount thereof together with accrued and unpaid
interest to the date fixed for redemption, upon the giving of a
notice as described below, if:
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as a result of any change (including any announced prospective
change) in or amendment to the laws (or any regulations or
rulings promulgated thereunder) of Canada (or the jurisdiction
of organization of the successor to the Bank) or of any
political subdivision or taxing authority thereof or therein
affecting taxation, or any change in official position regarding
the application or interpretation of such laws, regulations or
rulings (including a holding by a court of competent
jurisdiction), which change or amendment is announced or becomes
effective on or after the date of this Prospectus Supplement
(or, in the case of a successor to the Bank, after the date of
succession), and which in the written opinion to the Bank (or
its successor) of legal counsel of recognized standing has
resulted or will result (assuming, in the case of any announced
prospective change, that such announced change will become
effective as of the date specified in such announcement and in
the form announced) in the Bank (or its successor) becoming
obligated to pay, on the next succeeding date on which interest
is due, additional amounts with respect to that series of Notes
as described under Payment of Additional
Amounts; or
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on or after the date of this Prospectus Supplement (or, in the
case of a successor to the Bank, after the date of succession),
any action has been taken by any taxing authority of, or any
decision has been rendered by a court of competent jurisdiction
in, Canada (or the jurisdiction of organization of the successor
to the Bank) or any political subdivision or taxing authority
thereof or therein, including any of those actions specified in
the paragraph immediately above, whether or not such action was
taken or decision was rendered with respect to the Bank (or its
successor), or any change, amendment, application or
interpretation shall be officially proposed, which, in any such
case, in the written opinion to the Bank (or its successor) of
legal counsel of recognized standing, will result (assuming, in
the case of any announced prospective change, that such
announced change will become effective as of the date specified
in such announcement and in the form announced) in the Bank (or
its successor) becoming obligated to pay, on the next succeeding
date on which interest is due, additional amounts with respect
to that series of Notes;
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and, in any such case, the Bank (or its successor), in its
business judgment, determines that such obligation cannot be
avoided by the use of reasonable measures available to it (or
its successor).
In the event the Bank elects to redeem the Notes of a series
pursuant to the provisions set forth in the preceding paragraph,
it shall deliver to the Trustees a certificate, signed by an
authorized officer, stating (i) that the Bank is entitled
to redeem such Notes pursuant to their terms and (ii) the
principal amount of the Notes to be redeemed.
Notice of intention to redeem such Notes will be given to
holders of the Notes not more than 45 nor less than 30 days
prior to the date fixed for redemption and such notice will
specify, among other things, the date fixed for redemption and
the redemption price.
S-8
Further
Issues
We may from time to time, without notice to or the consent of
the registered holders of the Notes, create and issue further
notes ranking pari passu with the Notes in all respects
(or in all respects except for the payment of interest accruing
prior to the issue date of such further notes or except for the
first payment of interest following the issue date of such
further notes) and so that such further notes may be
consolidated and form a single series with either series of
Notes, as applicable, and have the same terms as to status or
otherwise as either series of Notes, as applicable.
CREDIT
RATINGS
The following ratings have been assigned to the senior long-term
debt and deposit liabilities of the Bank: Aa1 by
Moodys Investors Service, Inc.; AA− by
Standard & Poors Ratings Services, a division of
The McGraw-Hill Companies (Canada) Corporation;
AA− by Fitch Ratings; and AA by
DBRS Limited.
Credit ratings are not recommendations to purchase, sell or hold
a security as they do not comment on market price or suitability
for a particular investor. Ratings may not reflect the potential
impact of all risks on the value of securities. In addition,
real or anticipated changes in the rating assigned to a security
will generally affect the market value of that security. Ratings
are subject to revision or withdrawal at any time by the rating
agencies. Prospective purchasers of Notes should consult the
relevant rating organization with respect to the interpretation
and implications of the foregoing ratings.
CERTAIN
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following summary describes certain U.S. federal income tax
considerations applicable to the purchase, ownership and
disposition of the Notes by a U.S. Holder (as defined below)
that purchases Notes in this offering and that holds Notes as
capital assets within the meaning of Section 1221 of the
U.S. Internal Revenue Code of 1986, as amended (the
Code). This discussion does not purport to deal with
all aspects of U.S. federal income taxation that may be
applicable to particular U.S. Holders in light of their
particular circumstances, nor does it deal with U.S. Holders
that are subject to special tax rules, such as dealers in
securities or currencies, financial institutions, insurance
companies, tax-exempt organizations, persons holding Notes as a
part of a straddle, hedge, or conversion transaction or a
synthetic security or other integrated transaction, U.S.
expatriates, persons subject to the alternative minimum tax
provisions of the Code and persons whose functional
currency is not the U.S. dollar. This discussion does not
cover any state, local, or
non-U.S. tax
consequences. This discussion is based upon the provisions of
the Code and U.S. Treasury regulations, rulings and judicial
decisions under the Code, all as currently in effect as of the
date hereof, all of which may be repealed, revoked or modified
(possibly with retroactive effect) so as to result in U.S.
federal income tax consequences that are different from those
discussed below. This summary is not binding on the U.S.
Internal Revenue Service (the IRS) or the courts.
For purposes of this discussion, a U.S. Holder is a
beneficial owner of a Note that is (i) an individual
citizen or resident of the United States for U.S. federal income
tax purposes, (ii) a corporation (or other entity treated
as a corporation for U.S. federal income tax purposes) created
or organized in or under the laws of the United States or any
political subdivision thereof or therein, (iii) an estate
the income of which is subject to U.S. federal income taxation
regardless of its source or (iv) a trust (A) if it is
subject to the primary supervision of a court within the United
States and one or more U.S. persons have the authority to
control all substantial decisions of the trust or (B) has
made a valid election under applicable U.S. Treasury regulations
to be treated as a U.S. person.
If a partnership (including any entity treated as a partnership
for U.S. federal income tax purposes) holds a Note, the U.S.
federal income tax treatment of a partner in the partnership
generally will depend on the status of the partner and the
activities of the partnership. A partnership or a partner of a
partnership holding a Note should consult its own tax advisors
regarding the U.S. federal income tax consequences of the
purchase, ownership and disposition of the Notes.
This summary is for general information purposes only, and is
not intended to be, and should not be construed to be, legal or
tax advice to any particular holder. Prospective purchasers of
the Notes are urged to consult their own tax advisors with
regard to the application of the U.S. federal income tax laws,
and the application of the laws of any state, local or
non-U.S.
taxing jurisdiction, as well as any non-income tax laws, to
their particular situations.
Interest
on the Notes
Interest on a Note generally will be includable in income by a
U.S. Holder as ordinary income at the time the interest is paid
or accrued in accordance with such U.S. Holders regular
method of accounting for U.S. federal income tax purposes. For
U.S. foreign tax credit purposes, interest income on a Note will
constitute foreign source income and will be
S-9
considered passive category income or, in certain circumstances,
general category income. The rules governing the
U.S. foreign tax credit are complex and U.S. Holders are
urged to consult their own tax advisors regarding the
availability of U.S. foreign tax credits under their particular
circumstances.
Sale,
Exchange or Other Disposition of the Notes
Upon the sale, exchange or other disposition of a Note, a U.S.
Holder generally will recognize gain or loss equal to the
difference between the amount realized on such sale, exchange or
other disposition (reduced by any amounts attributable to
accrued but unpaid interest, which will be taxable as described
above under Interest on the Notes) and
the U.S. Holders adjusted tax basis in the Note. A U.S.
Holders tax basis in a Note generally will be its cost.
Such gain or loss will constitute a long-term capital gain or
loss if the Note has been held by the U.S. Holder for more than
one year. Long-term capital gains of non-corporate taxpayers
(including individuals) may be eligible for reduced rates of
taxation. The deductibility of capital losses is subject to
limitations. For U.S. foreign tax credit purposes, such gain or
loss will constitute U.S. source income.
Information
Reporting and Backup Withholding
In general, information reporting requirements may apply to a
U.S. Holder with respect to payments of principal and interest
on a Note and to payments of the proceeds of a sale or other
disposition, unless such a U.S. Holder is an exempt recipient
(such as a corporation). Backup withholding may apply to such
payments if a U.S. Holder fails to provide an accurate taxpayer
identification number or otherwise fails to comply with the
applicable requirements of the backup withholding rules. Any
amounts withheld under the backup withholding rules may be
allowed as a refund or credit against the U.S. Holders
U.S. federal income tax liability, provided that the required
information is furnished to the IRS in a timely manner.
CERTAIN
CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the principal Canadian federal
income tax considerations generally applicable to a purchaser
who, at all relevant times, for purposes of the application of
the Income Tax Act (Canada) and the Income Tax
Regulations (collectively, the Act) is not, and is
not deemed to be, resident in Canada, deals at arms length
with the Bank and with any transferee resident (or deemed to be
resident) in Canada to whom the purchaser disposes of the Notes
and does not use or hold, and is not deemed to use or hold, the
Notes in a business carried on in Canada (a Non-Resident
Holder). Special rules, which are not discussed in this
summary, may apply to a Non-Resident Holder that is an insurer
that carries on an insurance business in Canada and elsewhere.
This summary is based upon the current provisions of the Act and
an understanding of the current administrative practices and
assessing policies published in writing by the Canada Revenue
Agency prior to the date hereof. This summary takes into account
all specific proposals to amend the Act publicly announced by or
on behalf of the Minister of Finance prior to the date hereof
(the Proposals) and assumes that all Proposals will
be enacted in the form proposed. However, no assurance can be
given that the Proposals will be enacted as proposed or at all.
This summary does not otherwise take into account any changes in
law or in administrative practices or assessing policies,
whether by legislative, administrative or judicial action, nor
does it take into account any provincial, territorial or foreign
income tax considerations, which may differ from those discussed
herein.
This summary is of a general nature only and is not intended
to be, legal or tax advice to any particular purchaser. This
summary is not exhaustive of all Canadian federal income tax
considerations. Accordingly, prospective purchasers should
consult their own tax advisors with respect to their particular
circumstances.
No Canadian withholding tax will apply to interest or principal
paid or credited to a Non-Resident Holder by the Bank or to
proceeds received by a Non-Resident Holder on the disposition of
a Debenture, including on a redemption, payment on maturity,
repurchase or purchase for cancellation.
No other tax on income or gains will be payable by a
Non-Resident Holder on interest or principal, or on proceeds
received by a holder on the disposition of a Debenture,
including on a redemption, payment on maturity, repurchase or
purchase for cancellation.
S-10
PLAN OF
DISTRIBUTION
Under the terms and subject to the conditions contained in an
underwriting agreement dated the date of this Prospectus
Supplement, the underwriters listed in the table below have
severally agreed to purchase, and we have agreed to sell to
them, the principal amount of the Notes set forth opposite each
underwriters name below.
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Principal Amount
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Principal Amount
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Underwriter
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of 2013 Notes
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of 2015 Notes
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Morgan Stanley & Co. Incorporated
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US$
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350,000,000
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US$
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525,000,000
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Banc of America Securities LLC
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250,000,000
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375,000,000
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Citigroup Global Markets Inc.
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250,000,000
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375,000,000
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Scotia Capital (USA) Inc.
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50,000,000
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75,000,000
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Barclays Capital Inc.
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50,000,000
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75,000,000
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HSBC Securities (USA) Inc.
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50,000,000
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75,000,000
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Total
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US$
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1,000,000,000
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US$
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1,500,000,000
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The Notes are being offered by the underwriters subject to
approval of legal matters by counsel for the underwriters and
other conditions. The underwriting agreement provides that the
underwriters are obligated to purchase all of the Notes if any
are purchased. The underwriting agreement also provides that if
an underwriter defaults, the purchase commitments of the
non-defaulting underwriters may also be increased or the
offering may be terminated.
The underwriters propose initially to offer the Notes to the
public at the public offering prices on the cover page of this
Prospectus Supplement and may offer the Notes to dealers at
those prices less a concession not in excess of 0.15% of the
principal amount per 2013 Note and 0.20% of the principal amount
per 2015 Note. The underwriters may allow, and the dealers may
reallow, a discount not in excess of 0.075% of the principal
amount of the 2013 Notes and 0.10% of the principal amount of
the 2015 Notes to other dealers. After the initial public
offering of the Notes, the underwriters may change the public
offering price and discount to broker/dealers.
The expenses of the offering, not including the underwriting
fees, are estimated to be US$1,000,000 and are payable by the
Bank.
Each series of Notes is a new issue of securities with no
established trading market. The underwriters intend to make a
secondary market for each series of Notes. However, they are not
obligated to do so and may discontinue making a secondary market
for either series of Notes at any time without notice. If a
trading market develops, no assurance can be given as to how
liquid that trading market for each series of Notes will be.
The Bank has agreed to indemnify the underwriters against
liabilities under the Securities Act, or contribute to payments
that the underwriters may be required to make in that respect.
In connection with the offering, the underwriters may engage in
stabilizing transactions, over-allotment transactions, syndicate
covering transactions and penalty bids in accordance with
Regulation M under the Exchange Act. Stabilizing
transactions permit bids to purchase the underlying security so
long as the stabilizing bids do not exceed a specified maximum.
Over-allotment involves sales by the underwriters of Notes in
excess of the principal amount of the Notes the underwriters are
obligated to purchase, which creates a syndicate short position.
Syndicate covering transactions involve purchases of the Notes
in the open market after the distribution has been completed in
order to cover syndicate short positions. A short position is
more likely to be created if the underwriters are concerned that
there may be downward pressure on the price of the Notes in the
open market after pricing that could adversely affect investors
who purchase in the offering. Penalty bids permit the
underwriters to reclaim a selling concession from a
broker/dealer when the Notes originally sold by such
broker/dealer are purchased in a stabilizing or covering
transaction to cover short positions.
These stabilizing transactions, syndicate covering transactions
and penalty bids may have the effect of raising or maintaining
the market price of the Notes or preventing or retarding a
decline in the market price of the Notes. As a result, the price
of the Notes may be higher than the price that might otherwise
exist in the open market. These transactions, if commenced, may
be discontinued at any time.
In compliance with the guidelines of the Financial Industry
Regulatory Authority (FINRA), the maximum commission
or discount to be received by any FINRA member or independent
broker-dealer may not exceed 8% of the aggregate principal
amount of the Notes offered pursuant to this Prospectus
Supplement. It is anticipated that the maximum commission or
discount to be received in any particular offering of Notes will
be significantly less than this amount.
S-11
In the ordinary course of business, the underwriters and their
affiliates have provided financial advisory, investment banking
and general financing and banking services for the Bank for
customary fees. The underwriters and/or their affiliates may
provide such services to the Bank in the future.
Conflicts
of Interest
Because Scotia Capital (USA) Inc. is an affiliate of the Bank
and is participating in the distribution of the Notes in this
offering as an underwriter, Scotia Capital (USA) Inc. has a
conflict of interest as defined in NASD Conduct
Rule 2720, as administered by FINRA. Consequently, this
offering is being conducted in compliance with NASD Conduct
Rule 2720, as administered by FINRA. Pursuant to that rule,
the appointment of a qualified independent underwriter is not
necessary in connection with this offering, as the offering is
of a class of securities rated Baa or better by Moodys
rating service or BBB or better by Standard &
Poors rating service or rated in a comparable category by
another rating service acceptable to FINRA. Scotia Capital (USA)
Inc. is not permitted to sell Notes in this offering to accounts
over which discretionary control is exercised without the prior
specific written authority of the accountholder.
Offering
Restrictions
This Prospectus Supplement does not constitute an offer of the
Notes, directly or indirectly, in Canada or to residents of
Canada. Each underwriter has represented and agreed that it has
not offered or sold, directly or indirectly, and that it will
not, directly or indirectly, offer, sell or deliver, any of the
Notes in or from Canada or to any resident of Canada without the
consent of the Bank. Each underwriter has also agreed that it
will include a comparable provision in any
sub-underwriting,
banking group or selling group agreement or similar arrangement
with respect to the Notes that may be entered into by such
underwriter. The Notes offered under this Prospectus Supplement
to purchasers outside of Canada are being qualified under the
securities laws of the Province of Ontario. The Notes will not
be qualified for sale under the securities laws of any province
or territory of Canada (other than the Province of Ontario).
European
Economic Area
In relation to each member state of the European Economic Area
that has implemented the Prospectus Directive (each, a
Relevant Member State), each underwriter has
represented and agreed that with effect from and including the
date on which the Prospectus Directive is implemented in that
Relevant Member State, it has not made and will not make an
offer of Notes which are the subject of the offering
contemplated by this Prospectus Supplement to the public other
than:
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to any legal entity that is authorized or regulated to operate
in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
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to any legal entity that has two or more of (1) an average
of at least 250 employees during the last financial year;
(2) a total balance sheet of more than 43,000,000 and
(3) an annual net turnover of more than 50,000,000,
as shown in its last annual or consolidated accounts;
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to fewer than 100 natural or legal persons (other than qualified
investors as defined below) subject to obtaining the prior
consent of the representatives for any such offer; or
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in any other circumstances that do not require the publication
of a prospectus pursuant to Article 3 of the Prospectus
Directive.
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Each purchaser of Notes described in this Prospectus Supplement
located within a Relevant Member State will be deemed to have
represented, acknowledged and agreed that it is a
qualified investor within the meaning of
Article 2(1)(e) of the Prospectus Directive.
For purposes of this provision, the expression an offer to
the public in any Relevant Member State means the
communication in any form and by any means of sufficient
information on the terms of the offer and the Notes to be
offered so as to enable an investor to decide to purchase or
subscribe the Notes, as the expression may be varied in that
member state by any measure implementing the Prospectus
Directive in that member state, and the expression
Prospectus Directive means Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant
Member State.
S-12
United
Kingdom
This Prospectus Supplement and the accompanying Prospectus are
only being distributed to, and are only directed at, persons in
the United Kingdom that are qualified investors within the
meaning of Article 2(1)(e) of the Prospectus Directive that
are also (i) investment professionals falling within
Article 19(5) of the Financial Services and Markets Act
2000 (Financial Promotion) Order 2005 (the Order) or
(ii) high net worth entities, and other persons to whom it
may lawfully be communicated, falling within
Article 49(2)(a) to (d) of the Order (each such person
being referred to as a Relevant Person). This
Prospectus Supplement and the accompanying Prospectus and its
contents are confidential and should not be distributed,
published or reproduced (in whole or in part) or disclosed by
recipients to any other persons in the United Kingdom. Any
person in the United Kingdom that is not a Relevant Person
should not act or rely on this document or any of its contents.
Hong
Kong
The Notes may not be offered or sold in Hong Kong by means of
any document other than (i) in circumstances which do not
constitute an offer to the public within the meaning of the
Companies Ordinance (Cap. 32, Laws of Hong Kong), or
(ii) to professional investors within the
meaning of the Securities and Futures Ordinance (Cap. 571, Laws
of Hong Kong) and any rules made thereunder, or
(iii) in other circumstances which do not result in the
document being a prospectus within the meaning of
the Companies Ordinance (Cap. 32, Laws of Hong Kong) and no
advertisement, invitation or document relating to the Notes may
be issued or may be in the possession of any person for the
purpose of issue (in each case whether in Hong Kong or
elsewhere), which is directed at, or the contents of which are
likely to be accessed or read by, the public in Hong Kong
(except if permitted to do so under the laws of Hong Kong) other
than with respect to Notes which are or are intended to be
disposed of only to persons outside Hong Kong or only to
professional investors within the meaning of the
Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong)
and any rules made thereunder.
Japan
The Notes offered in this Prospectus Supplement have not been
registered under the Securities and Exchange Law of Japan. The
Notes have not been offered or sold and will not be offered or
sold, directly or indirectly, in Japan or to or for the account
of any resident of Japan, except (i) pursuant to an
exemption from the registration requirements of the Securities
and Exchange Law and (ii) in compliance with any other
applicable requirements of Japanese law.
Singapore
This Prospectus Supplement and the accompanying Prospectus have
not been registered as a Prospectus with the Monetary Authority
of Singapore. Accordingly, this Prospectus Supplement, the
accompanying Prospectus, and any other document or material in
connection with the offer or sale, or invitation for
subscription or purchase, of the Notes may not be circulated or
distributed, nor may the Notes be offered or sold, or be made
the subject of an invitation for subscription or purchase,
whether directly or indirectly, to persons in Singapore other
than (i) to an institutional investor under
Section 274 of the Securities and Futures Act,
Chapter 289 of Singapore (the SFA),
(ii) to a relevant person pursuant to Section 275(1),
or any person pursuant to Section 275(1A), and in
accordance with the conditions specified in Section 275 of
the SFA or (iii) otherwise pursuant to, and in accordance
with the conditions of, any other applicable provision of the
SFA, in each case subject to compliance with conditions set
forth in the SFA.
Where the Notes are subscribed or purchased under
Section 275 of the SFA by a relevant person which is:
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a corporation (which is not an accredited investor (as defined
in Section 4A of the SFA)) the sole business of which is to
hold investments and the entire share capital of which is owned
by one or more individuals, each of whom is an accredited
investor; or
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a trust (where the trustee is not an accredited investor) whose
sole purpose is to hold investments and each beneficiary of the
trust is an individual who is an accredited investor,
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S-13
shares, debentures and units of shares and debentures of that
corporation or the beneficiaries rights and interest
(howsoever described) in that trust shall not be transferred
within six months after that corporation or that trust has
acquired the Notes pursuant to an offer made under
Section 275 of the SFA except:
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to an institutional investor (for corporations, under
Section 274 of the SFA) or to a relevant person defined in
Section 275(2) of the SFA, or to any person pursuant to an
offer that is made on terms that such shares, debentures and
units of shares and debentures of that corporation or such
rights and interest in that trust are acquired at a
consideration of not less than S$200,000 (or its equivalent in a
foreign currency) for each transaction, whether such amount is
to be paid for in cash or by exchange of securities or other
assets, and further for corporations, in accordance with the
conditions specified in Section 275 of the SFA;
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where no consideration is or will be given for the transfer; or
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where the transfer is by operation of law.
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USE OF
PROCEEDS
The net proceeds to the Bank from the sale of the Notes, after
deducting the estimated expenses of the issue and the
underwriters commissions, will amount to approximately
US$2,488,230,000. Such net proceeds will be added to the
Banks funds and will be used for general business purposes.
TRADING
PRICE AND VOLUME OF THE BANKS SECURITIES
The following table sets out the price range and trading volume
of the Banks securities on the Toronto Stock Exchange (as
reported by Bloomberg) for the period indicated.
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Preferred Shares
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Common
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
|
Shares
|
|
|
12
|
|
|
13
|
|
|
14
|
|
|
15
|
|
|
16
|
|
|
17
|
|
|
18
|
|
|
20
|
|
|
22
|
|
|
24(1)
|
|
|
26
|
|
|
28
|
|
|
January 2010 (to January 18, 2010)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
|
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-High Price ($)
|
|
|
49.53
|
|
|
|
24.19
|
|
|
|
22.12
|
|
|
|
20.97
|
|
|
|
20.83
|
|
|
|
24.10
|
|
|
|
25.00
|
|
|
|
26.61
|
|
|
|
26.92
|
|
|
|
26.73
|
|
|
|
|
|
|
|
28.12
|
|
|
|
28.00
|
|
-Low Price ($)
|
|
|
45.91
|
|
|
|
23.70
|
|
|
|
21.72
|
|
|
|
20.33
|
|
|
|
20.33
|
|
|
|
23.60
|
|
|
|
24.60
|
|
|
|
26.05
|
|
|
|
26.16
|
|
|
|
26.13
|
|
|
|
|
|
|
|
27.66
|
|
|
|
27.67
|
|
-Volume (000)
|
|
|
29,569
|
|
|
|
148
|
|
|
|
52
|
|
|
|
244
|
|
|
|
164
|
|
|
|
151
|
|
|
|
107
|
|
|
|
218
|
|
|
|
216
|
|
|
|
212
|
|
|
|
|
|
|
|
112
|
|
|
|
102
|
|
|
|
1 |
The Preferred Shares, Series 24 were issued on
December 12, 2008 by the Bank to Sun Life Financial Inc. as
partial consideration for the acquisition by the Bank of trust
units of CI Financial Income Fund (now CI Financial Corp.).
|
LEGAL
MATTERS
Certain legal matters in connection with the offering of the
Notes will be passed upon, on behalf of the Bank, by Osler,
Hoskin & Harcourt LLP, the Banks Canadian
counsel, and Shearman & Sterling LLP, the Banks
U.S. counsel. Certain legal matters will be passed upon for the
underwriters by Sullivan & Cromwell LLP, the
underwriters U.S. counsel. As of the date of this
Prospectus Supplement, the partners, associates and counsel of
Osler, Hoskin & Harcourt LLP beneficially owned,
directly or indirectly, less than 1% of the issued and
outstanding securities of any class of the Bank or of any
associate or affiliate of the Bank.
INDEPENDENT
AUDITORS
KPMG LLP, Chartered Accountants, Toronto, Ontario, is the
external auditor who prepared the Auditors Report to
Shareholders with respect to the consolidated balance sheet of
the Bank as at October 31, 2009 and 2008 and the
consolidated statements of income, changes in shareholders
equity, comprehensive income and cash flows for the years then
ended. KPMG 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 within the
meaning of the U.S. Securities Act of 1933, as amended, and the
applicable rules and regulations thereunder. The audited
consolidated financial statements of the Bank for each of the
two years in the period ended October 31, 2009 incorporated
by reference in this Prospectus Supplement have been so
incorporated in reliance on the report of KPMG LLP, independent
accountants.
S-14
This short form base shelf prospectus 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.
|
|
New
Issue |
January 11,
2010
|
Short
Form Base Shelf Prospectus
The Bank
of Nova Scotia
US$12,000,000,000
Senior Debt Securities
Subordinated Debt Securities (subordinated
indebtedness)
The Bank of Nova Scotia (the Bank) may from time to
time offer and issue the following securities:
(i) unsecured unsubordinated notes (the Senior Debt
Securities) which would constitute deposit liabilities of
the Bank for purposes of the Bank Act (Canada) (the
Bank Act); and (ii) unsecured subordinated
notes (the Subordinated Debt Securities) which would
constitute subordinated indebtedness of the Bank for purposes of
the Bank Act.
The Bank is 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. The
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 (as defined below) 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,
Canada or the United States may not be described fully herein or
in any applicable Prospectus Supplement.
The enforcement by investors of civil liabilities under the
United States federal securities laws may be affected adversely
by the fact that the Bank is a Canadian bank, that many of its
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 the assets of the Bank and such
persons may be located outside the United States.
Neither the U.S. Securities and Exchange Commission (the
SEC) nor any state securities regulator has approved
or disapproved these Debt Securities, or determined if this
Prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
The Senior Debt Securities and the Subordinated Debt Securities
(collectively, the Debt Securities) offered hereby
may be offered separately or together, in amounts, at prices and
on terms to be set forth in an accompanying shelf prospectus
supplement (a Prospectus Supplement). Information as
to a particular offering that is omitted from this short form
base shelf prospectus (this Prospectus) will be
contained in one or more Prospectus Supplements that will be
delivered to purchasers together with this Prospectus. The Bank
may sell up to US$12,000,000,000 in aggregate initial offering
price of the Debt Securities (or the U.S. dollar equivalent
thereof if any of the Debt Securities are denominated in a
currency or currency unit other than U.S. dollars) during the
25 month period that this Prospectus, including any
amendments thereto, remains valid. The specific terms of the
Debt Securities in respect of which this Prospectus is being
delivered will be set forth in the applicable Prospectus
Supplement and may include, where applicable, the specific
designation, aggregate principal amount, the currency or the
currency unit for which the Debt Securities may be purchased,
maturity, interest provisions, authorized denominations,
offering price, any terms for redemption at the option of the
Bank or the holder, any exchange or conversion terms and any
other specific terms.
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 combination
or basket of such items. For greater certainty, this Prospectus
may qualify for issuance Debt Securities in
respect of which the payment of principal and/or interest may be
determined, in whole or in part, by reference to published rates
of a central banking authority or one or more financial
institutions, such as a prime rate or a bankers acceptance
rate, or to recognized market benchmark interest rates such as
LIBOR.
The Debt Securities offered hereby have not been qualified
for sale under the securities laws of any province or territory
of Canada (other than the Province of Ontario) and, unless
otherwise provided in the Prospectus Supplement relating to a
particular issue of Debt Securities, will not be offered or
sold, directly or indirectly, in Canada or to any resident of
Canada except in the Province of Ontario.
The Debt Securities may be sold through underwriters or dealers
purchasing as principals, through agents designated by the Bank
(such underwriters, dealers and agents are collectively referred
to in this Prospectus as Investment Dealers and
individually as an Investment Dealer) or by the Bank
directly pursuant to applicable statutory exemptions, from time
to time. See Plan of Distribution. Each Prospectus
Supplement will identify each Investment Dealer engaged in
connection with the offering and sale of those Debt Securities
to which the Prospectus Supplement relates, and will also set
forth the terms of the offering of such Debt Securities,
including the net proceeds to the Bank and, to the extent
applicable, any fees payable to the Investment Dealers. The
offerings are subject to approval of certain legal matters by
the Banks counsel.
The head office of the Bank is located at 1709 Hollis Street,
Halifax, Nova Scotia, B3J 3B7 and its executive offices are
located at Scotia Plaza, 44 King Street West, Toronto, Ontario,
M5H 1H1.
Unless otherwise indicated, all dollar amounts appearing in
this Prospectus are stated in Canadian dollars.
There is currently no market through which the Debt
Securities offered hereunder may be sold and purchasers may not
be able to resell such Debt Securities purchased under this
Prospectus. This may affect the pricing of such Debt Securities
in the secondary market, the transparency and availability of
trading prices, the liquidity of such Debt Securities, and the
extent of issuer regulation. See the Risk Factors
sections of this Prospectus and the applicable Prospectus
Supplement.
The Debt Securities will not constitute deposits that are
insured under the Canada Deposit Insurance Corporation Act
(Canada) or by the United States Federal Deposit Insurance
Corporation or any other Canadian or U.S. government agency or
instrumentality.
TABLE OF
CONTENTS
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5
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15
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19
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21
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22
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22
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22
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23
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FORWARD-LOOKING
STATEMENTS
The Banks public communications often include oral or
written forward-looking statements. Statements of this type are
included in this document, and may be included in other filings
with Canadian securities regulators or the SEC, or in other
communications. All such statements are made pursuant to the
safe harbour provisions of the United States Private
Securities Litigation Reform Act of 1995 and any applicable
Canadian securities legislation. Forward-looking statements may
include comments with respect to the Banks objectives,
strategies to achieve those objectives, expected financial
results (including those in the area of risk management), and
the outlook for the Banks businesses and for the Canadian,
United States and global economies. Such statements are
typically identified by words or phrases such as
believe, expect, anticipate,
intent, estimate, plan,
may increase, may fluctuate, and similar
expressions of future or conditional verbs, such as
will, should, would and
could.
By their very nature, forward-looking statements involve
numerous assumptions, inherent risks and uncertainties, both
general and specific, and the risk that predictions and other
forward-looking statements will not prove to be accurate. Do not
unduly rely on forward-looking statements, as a number of
important factors, many of which are beyond the Banks
control, could cause actual results to differ materially from
the estimates and intentions expressed in such forward-looking
statements. These factors include, but are not limited to: the
economic and financial conditions in Canada and globally;
fluctuations in interest rates and currency values; liquidity;
significant market volatility and interruptions; the failure of
third parties to comply with their obligations to the Bank and
its affiliates; the effect of changes in monetary policy;
legislative and regulatory developments in Canada and elsewhere,
including changes in tax laws; the effect of changes to the
Banks credit ratings; amendments to, and interpretations
of, risk-based capital guidelines and reporting instructions and
liquidity regulatory guidance; operational and reputational
risks; the risk that the Banks risk management models may
not take into account all relevant factors; the accuracy and
completeness of information the Bank receives on customers and
counterparties; the timely development and introduction of new
products and services in receptive markets; the Banks
ability to expand existing distribution channels and to develop
and realize revenues from new distribution channels; the
Banks ability to complete and integrate acquisitions and
its other growth strategies; changes in accounting policies and
methods the Bank uses to report its financial condition and the
results of its operations, including uncertainties associated
with critical accounting assumptions and estimates; the effect
of applying future accounting changes; global capital markets
activity; the Banks ability to attract and retain key
executives; reliance on third parties to provide components of
the Banks business infrastructure; unexpected changes in
consumer spending and saving habits; technological developments;
fraud by internal or external parties, including the use of new
technologies in unprecedented ways to defraud the Bank or its
customers; consolidation in the Canadian financial services
sector; competition, both from new entrants and established
competitors; judicial and regulatory proceedings; acts of God,
such
2
as earthquakes and hurricanes; the possible impact of
international conflicts and other developments, including
terrorist acts and war on terrorism; the effects of disease or
illness on local, national or international economies;
disruptions to public infrastructure, including transportation,
communication, power and water; and the Banks anticipation
of and success in managing the risks implied by the foregoing. A
substantial amount of the Banks business involves making
loans or otherwise committing resources to specific companies,
industries or countries. Unforeseen events affecting such
borrowers, industries or countries could have a material adverse
effect on the Banks financial results, businesses,
financial condition or liquidity. These and other factors may
cause the Banks actual performance to differ materially
from that contemplated by forward-looking statements. For more
information, see the discussion in the Banks Annual
MD&A (as defined below), which is incorporated by reference
herein and which outlines in detail certain key factors that may
affect the Banks future results.
The preceding list of important factors is not exhaustive. When
relying on forward-looking statements to make decisions with
respect to the Bank and its securities, investors and others
should carefully consider the preceding factors, other
uncertainties and potential events. The Bank does not undertake
to update any forward-looking statements, whether written or
oral, that may be made from time to time by or on its behalf.
AVAILABLE
INFORMATION
In addition to the continuous disclosure obligations under the
securities laws of the provinces and territories of Canada, the
Bank is subject to the informational reporting requirements of
the U.S. Securities Exchange Act of 1934, as amended (the
Exchange Act), and in accordance therewith files
reports and other information with the SEC. Under a
multi-jurisdictional disclosure system adopted by the United
States and Canada, such reports and other information may be
prepared in accordance with the disclosure requirements of the
provincial and territorial securities regulatory authorities of
Canada, which requirements are different from those of the
United States. As a foreign private issuer, the Bank is exempt
from the rules under the Exchange Act prescribing the furnishing
and content of proxy statements, and the Banks officers
and directors are exempt from the reporting and short swing
profit recovery provisions contained in Section 16 of the
Exchange Act. The Banks reports and other information
filed with or furnished to the SEC since November 2000 are
available, and reports and other information filed or furnished
in the future with or to the SEC will be available, from the
SECs Electronic Document Gathering and Retrieval System
(http://www.sec.gov),
which is commonly known by the acronym EDGAR, as
well as from commercial document retrieval services. Any
document the Bank files with or furnishes to the SEC may be
inspected and, by paying a fee, 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 Banks common shares are listed on the New
York Stock Exchange and reports and other information concerning
the Bank may be inspected at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
The Bank has filed with the SEC, under the U.S. Securities Act
of 1933, as amended (the U.S. Securities Act), a
registration statement on
Form F-9
with respect to the Debt Securities and of which this Prospectus
forms a part. This Prospectus does not contain all of the
information that is set forth in the registration statement,
certain parts of which are omitted in accordance with the rules
and regulations of the SEC. Statements made in this Prospectus
as to the contents of any contract, agreement or other document
referred to are not necessarily complete, and in each instance,
reference is made to an exhibit, if applicable, for a more
complete description of the matter, each such statement being
qualified in its entirety by such reference. For further
information with respect to the Bank 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.
DOCUMENTS
INCORPORATED BY REFERENCE
The following documents have been filed with the Ontario
Securities Commission and filed with or furnished to the SEC and
are specifically incorporated by reference into, and form an
integral part of, this Prospectus:
|
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(a)
|
the Banks annual information form (the Annual
Information Form) dated December 8, 2009, for the
year ended October 31, 2009;
|
|
|
(b)
|
the Banks management proxy circular attached to the Notice
of Meeting dated January 12, 2009, prepared in connection
with the Banks annual meeting of shareholders held on
March 3, 2009;
|
|
|
|
|
(c)
|
the Banks consolidated financial statements for the years
ended October 31, 2009 and 2008, together with the
auditors report thereon; and
|
3
|
|
|
|
(d)
|
the Banks managements discussion and analysis of
financial condition and results of operations for the year ended
October 31, 2009 (the Annual MD&A).
|
Any documents of the type referred to in the preceding paragraph
(excluding confidential material change reports) and any
unaudited interim financial statements for the three, six or
nine month financial periods filed by the Bank with the Ontario
Securities Commission after the date of this Prospectus and
prior to the completion or withdrawal of any offering hereunder,
shall be deemed to be incorporated by reference in this
Prospectus. In addition, any documents filed on
Form 40-F
or furnished on
Form 6-K
by the Bank with the SEC, after the date of this Prospectus and
prior to the completion or withdrawal of any offering hereunder,
shall be deemed to be incorporated by reference in this
Prospectus and the registration statement of which this
Prospectus forms a part.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein or contemplated in this
Prospectus will be deemed to be modified or superseded for
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 information set
forth in the document that it modifies or supersedes. The making
of a modifying or superseding statement will not be deemed an
admission for any purpose that the modified or superseded
statement, when made, constituted a misrepresentation, an untrue
statement of a material fact or 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 will
not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
A Prospectus Supplement containing the specific terms of an
offering of Debt Securities will be delivered to purchasers of
such Debt Securities together with this Prospectus and will be
deemed to be incorporated by reference 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.
Upon a new management proxy circular, annual information form or
new annual financial statements, together with the
auditors report thereon and managements discussion
and analysis contained therein, being filed by the Bank with the
Ontario Securities Commission during the currency of this
Prospectus, the previous annual information form, management
proxy circular, or annual financial statements, as applicable
and all interim financial statements, material change reports,
and information circulars, as applicable filed prior to the
commencement of the Banks financial year in which the new
management proxy circular, annual information form or annual
financial statements are filed shall be deemed no longer to be
incorporated into this Prospectus for purposes of future offers
and sales of Debt Securities hereunder.
Copies of the documents incorporated by reference (other than
exhibits to such documents, unless such exhibits are
specifically incorporated by reference in such document) may be
obtained on request without charge, by writing to or telephoning
the Bank at the following address:
The Bank of Nova Scotia
Scotia Plaza
44 King Street West
Toronto, Ontario
Canada M5H 1H1
Attention: Secretary
Telephone:
(416) 866-3672
PRESENTATION
OF FINANCIAL INFORMATION
The Bank prepares its consolidated financial statements in
accordance with Canadian generally accepted accounting
principles (GAAP), which differ in certain respects
from U.S. GAAP. For a discussion of significant differences
between Canadian and U.S. GAAP and a reconciliation of the
consolidated balance sheet and statement of income, you should
read the section titled Note 29: Reconciliation of
Canadian and United States Generally Accepted Accounting
Principles (GAAP) in the Banks Annual MD&A on
Form 40-F
for the fiscal year ended October 31, 2009.
4
Additionally, the Bank publishes its consolidated financial
statements in Canadian dollars. In this Prospectus and any
applicable Prospectus Supplement, currency amounts are stated in
Canadian dollars, unless specified otherwise. References to
$, Cdn$ and dollars are to
Canadian dollars, and references to US$ are to U.S.
dollars.
BUSINESS
OF THE BANK
The Bank is a Canadian chartered bank under the Bank Act. The
Bank Act is the charter of the Bank and governs its operations.
The Bank is one of North Americas premier financial
institutions and Canadas most international bank. Through
its team of close to 68,000 employees, the Bank and its
affiliates offer a broad range of products and services,
including retail, commercial, corporate and investment banking
to almost 14.6 million customers in some 50 countries
around the world.
A list of the principal subsidiaries directly or indirectly
owned or controlled by the Bank as at October 31, 2009 is
incorporated by reference from the Banks Annual
Information Form dated December 8, 2009.
EARNINGS
COVERAGE
The following earnings coverage ratios reflect the repurchase by
the Bank, on December 15, 2009, of its floating rate
subordinated debentures due August 2085 in an aggregate
principal amount of US$10.05 million, but do not reflect
the issuance of any Debt Securities under this Prospectus.
The Banks interest requirements for subordinated
debentures, capital instrument liabilities and those instruments
that were reclassified as deposits from capital instrument
liabilities in accordance with the pronouncements issued by the
Canadian Institute of Chartered Accountants amounted to
$603 million for the 12 months ended October 31,
2009. The Banks earnings before interest and income tax
for the 12 months ended October 31, 2009 were
$5,246 million, which was 8.7 times the Banks
aggregate interest requirements for this period.
All amounts appearing under this heading, Earnings
Coverage, are derived from the Banks consolidated
financial statements which have been audited and which are
incorporated herein by reference.
DESCRIPTION
OF THE DEBT SECURITIES
References to the Bank, us,
we or our in this section mean The Bank
of Nova Scotia, and do not include the subsidiaries of The Bank
of Nova Scotia. Also, in this section, references to
holders mean those who own Debt Securities
registered in their own names, on the books that we or the
applicable trustees maintain for this purpose, and not those who
own beneficial interests in Debt Securities registered in street
name or in Debt Securities issued in book-entry form through one
or more depositaries. When we refer to you in this
Prospectus, we mean all purchasers of the Debt Securities being
offered by this Prospectus, whether they are the holders or only
indirect owners of those Debt Securities. Owners of beneficial
interests in the Debt Securities should read the section below
entitled Legal Ownership and Book-Entry Issuance.
The following description sets forth certain general terms and
provisions of the Debt Securities. We will provide particular
terms and provisions of a series of Debt Securities and a
description of how the general terms and provisions described
below may apply to that series in a Prospectus Supplement.
Prospective investors should rely on information in the
applicable Prospectus Supplement if it is different from the
following information.
Securities
May Be Senior or Subordinated
We may issue Debt Securities which may be senior or subordinated
in right of payment. Neither the Senior Debt Securities nor the
Subordinated Debt Securities will be secured by any of our
property or assets or the property or assets of our
subsidiaries. Thus, by owning a Debt Security, you are one of
our unsecured creditors.
The Senior Debt Securities will be issued under our senior debt
indenture described below and will be unsubordinated obligations
that rank equally with all of our other unsecured and
unsubordinated debt, including deposit liabilities, other than
certain governmental claims in accordance with applicable law.
The Subordinated Debt Securities will be issued under our
subordinated debt indenture described below and will be
subordinate in right of payment to all of our senior
indebtedness, as defined in the subordinated debt
indenture. Neither indenture limits our ability to incur
additional indebtedness.
5
In the event we become insolvent, our governing legislation
provides that priorities among payments of our deposit
liabilities (including payments in respect of the Senior Debt
Securities) and payments of all of our other liabilities
(including payments in respect of the Subordinated Debt
Securities) are to be determined in accordance with the laws
governing priorities and, where applicable, by the terms of the
indebtedness and liabilities. In addition, our right to
participate in any distribution of the assets of our banking or
non-banking subsidiaries, upon a subsidiarys dissolution,
winding-up,
liquidation or reorganization or otherwise, and thus your
ability to benefit indirectly from such distribution, is subject
to the prior claims of creditors of that subsidiary, except to
the extent that we may be a creditor of that subsidiary and our
claims are recognized. There are legal limitations on the extent
to which some of our subsidiaries may extend credit, pay
dividends or otherwise supply funds to, or engage in
transactions with, us or some of our other subsidiaries.
Accordingly, the Debt Securities will be structurally
subordinated to all existing and future liabilities of our
subsidiaries, and holders of Debt Securities should look only to
our assets for payments on the Debt Securities.
Neither the Senior Debt Securities nor the Subordinated Debt
Securities will constitute deposits insured under the Canada
Deposit Insurance Corporation Act (Canada) or by the United
States Federal Deposit Insurance Corporation or any other
Canadian or United States governmental agency or
instrumentality.
When we refer to Debt Securities or Debt
Security in this section, we mean both the Senior Debt
Securities and the Subordinated Debt Securities.
The
Senior and Subordinated Debt Indentures
The Senior Debt Securities and the Subordinated Debt Securities
are each governed by an indenture the senior debt
indenture, in the case of the Senior Debt Securities, and the
subordinated debt indenture, in the case of the Subordinated
Debt Securities. When we refer to the indentures, we
mean both the senior debt indenture and the subordinated debt
indenture, and when we refer to the indenture, we
mean either the senior debt indenture or the subordinated debt
indenture, as applicable. Each indenture is a contract between
us, Computershare Trust Company, N.A., as U.S. trustee, and
Computershare Trust Company of Canada, as Canadian trustee,
which act as trustees. When we refer to the
trustees, we mean both the U.S. trustee and the
Canadian trustee, and when we refer to the trustee,
we mean either the U.S. trustee or the Canadian trustee, as
applicable. The indentures are subject to and governed by the
U.S. Trust Indenture Act of 1939, as amended, and
applicable Canadian trust indenture legislation. The indentures
are substantially identical, except for the provisions relating
to:
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the events of default, which are more limited in the
subordinated debt indenture; and
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subordination, which are included only in the subordinated debt
indenture.
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Reference to the indenture or the trustees, with respect to any
Debt Securities, means the indenture under which those Debt
Securities are issued and the trustees under that indenture.
The trustees have two main roles:
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The trustees can enforce the rights of holders against us if we
default on our obligations under the terms of the indenture or
the Debt Securities. There are some limitations on the extent to
which the trustees act on behalf of holders, described below
under Events of Default Remedies If an
Event of Default Occurs.
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The trustees perform administrative duties for us, such as
sending interest payments and notices to holders and
transferring a holders Debt Securities to a new buyer if a
holder sells.
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The indentures and their associated documents contain the full
legal text of the matters described in this section. The
indentures and the Debt Securities will be governed by New York
law, except that the subordination provisions in the
subordinated debt indenture and certain provisions relating to
the status of the Senior Debt Securities under Canadian law in
the senior debt indenture will be governed by the laws of the
Province of Ontario and the laws of Canada applicable therein. A
copy of each of the senior debt indenture and the subordinated
debt indenture is an exhibit to the registration statement of
which this Prospectus forms a part. See Available
Information above for information on how to obtain a copy.
General
We may issue as many distinct series of Debt Securities under
either indenture as we wish. The provisions of the senior debt
indenture and the subordinated debt indenture allow us not only
to issue Debt Securities with terms different from those
previously issued under the applicable indenture, but also to
re-open a previous issue of a series of Debt
Securities and issue additional Debt Securities of that series.
We may issue Debt Securities in amounts that exceed the
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total amount specified on the cover of your applicable
Prospectus Supplement at any time without your consent and
without notifying you. In addition, we may issue additional Debt
Securities of any series at any time without your consent and
without notifying you. We may also issue other securities at any
time without your consent and without notifying you. The
indentures do not limit our ability to incur other indebtedness
or to issue other securities, and we are not subject to
financial or similar restrictions under the indentures.
This section summarizes the material terms of the Debt
Securities that are common to all series, subject to any
modifications contained in an applicable Prospectus Supplement.
Most of the specific terms of your series will be described in
the applicable Prospectus Supplements accompanying this
Prospectus. As you read this section, please remember that the
specific terms of your Debt Security as described in the
applicable Prospectus Supplements will supplement and, if
applicable, may modify or replace the general terms described in
this section. If there are any differences between the
information in the applicable Prospectus Supplements and this
Prospectus, the information in the most recent applicable
Prospectus Supplement will control. Accordingly, the statements
we make in this section may not apply to your Debt Securities.
Because this section is a summary, it does not describe every
aspect of the Debt Securities. This summary is subject to and
qualified in its entirety by reference to all the provisions of
the indentures and the applicable series of Debt Securities,
including definitions of certain terms used in the indentures
and the applicable series of Debt Securities. In this summary,
we describe the meaning of only some of the more important
terms. You must look to the indentures or the applicable series
of Debt Securities for the most complete description of what we
describe in summary form in this Prospectus.
We may issue the Debt Securities as original issue discount
securities, which will be offered and sold at a substantial
discount below their stated principal amount. An applicable
Prospectus Supplement relating to the original issue discount
securities will describe U.S. federal income tax consequences
and other special considerations applicable to them. An
applicable Prospectus Supplement relating to specific Debt
Securities will also describe any special considerations and any
material tax considerations applicable to such Debt Securities.
When we refer to a series of Debt Securities, we mean a series
issued under the indenture pursuant to which the Debt Securities
will be issued. Each series is a single distinct series under
the indenture pursuant to which they will be issued and we may
issue Debt Securities of each series in such amounts, at such
times and on such terms as we wish. The Debt Securities of each
series will differ from one another, and from any other series,
in their terms, but all Debt Securities of a series together
will constitute a single series for all purposes under the
indenture pursuant to which they will be issued.
We may issue Debt Securities up to an aggregate principal amount
as we may authorize from time to time. The applicable Prospectus
Supplements will describe the terms of any Debt Securities being
offered, including:
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the title of the series of Debt Securities;
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whether it is a series of Senior Debt Securities or a series of
Subordinated Debt Securities;
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any limit on the aggregate principal amount of the series of
Debt Securities;
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the person to whom interest on a Debt Security is payable, if
other than the holder on the regular record date;
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the date or dates on which the series of Debt Securities will
mature;
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the rate or rates (which may be fixed or variable) per annum, at
which the series of Debt Securities will bear interest, if any,
and the date or dates from which that interest, if any, will
accrue;
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the dates on which such interest, if any, will be payable and
the regular record dates for such interest payment dates;
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the place or places where the principal of, premium, if any, and
interest on the Debt Securities is payable;
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any mandatory or optional sinking funds or similar provisions or
provisions for redemption at our option or the option of the
holder;
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if applicable, the date after which, the price at which, the
periods within which and the terms and conditions upon which the
Debt Securities may, pursuant to any optional or mandatory
redemption provisions, be redeemed and other detailed terms and
provisions of those optional or mandatory redemption provisions,
if any;
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if applicable, the terms and conditions upon which the Debt
Securities may be repayable prior to final maturity at the
option of the holder thereof (which option may be conditional);
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the portion of the principal amount of the Debt Securities, if
other than the entire principal amount thereof, payable upon
acceleration of maturity thereof;
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if the Debt Securities may be converted into or exercised or
exchanged for other of our securities, the terms on which
conversion, exercise or exchange may occur, including whether
conversion, exercise or exchange is mandatory, at the option of
the holder or at our option, the period during which conversion,
exercise or exchange may occur, the initial conversion, exercise
or exchange price or rate and the circumstances or manner in
which the amount of our securities issuable upon conversion,
exercise or exchange may be adjusted;
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if other than denominations of US$2,000 and integral multiples
of US$1,000 in excess thereof, the denominations in which the
series of Debt Securities will be issuable;
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the currency of payment of principal, premium, if any, and
interest on the series of Debt Securities;
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if the currency of payment for principal, premium, if any, and
interest on the series of Debt Securities is subject to our
election or that of a holder, the currency or currencies in
which payment can be made and the period within which, and the
terms and conditions upon which, the election can be made;
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the applicability of the provisions described under
Defeasance below;
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any event of default under the series of Debt Securities if
different from those described under Events of
Default below;
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if the series of Debt Securities will be issuable only in the
form of a global Debt Security, the depositary or its nominee
with respect to the series of Debt Securities and the
circumstances under which the global Debt Security may be
registered for transfer or exchange in the name of a person
other than the depositary or the nominee; and
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any other special feature of the series of Debt Securities.
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Market-Making
Transactions
One or more of our subsidiaries may purchase and resell Debt
Securities in market-making transactions after their initial
issuance. We may also, subject to applicable law and any
required regulatory approval, purchase Debt Securities in the
open market or in private transactions to be held by us or
cancelled.
Covenants
Except as described in this
sub-section
or as otherwise provided in an applicable Prospectus Supplement
with respect to any series of Debt Securities, we are not
restricted by the indentures from incurring, assuming or
becoming liable for any type of debt or other obligations, from
paying dividends or making distributions on our capital stock or
purchasing or redeeming our capital stock. The indentures do not
require the maintenance of any financial ratios or specified
levels of net worth or liquidity, nor do they contain any
covenants or other provisions that would limit our or our
subsidiaries right to incur additional indebtedness, enter
into any sale and leaseback transaction or grant liens on our or
our subsidiaries assets. The indentures do not contain any
provisions that would require us to repurchase or redeem or
otherwise modify the terms of any of the Debt Securities upon a
change in control or other events that may adversely affect the
creditworthiness of the Debt Securities, for example, a highly
leveraged transaction, except as otherwise specified in this
Prospectus or any applicable Prospectus Supplement.
Mergers
and Similar Events
Each of the indentures provide that we are permitted to merge,
amalgamate, consolidate or otherwise combine with another
entity, or to sell or lease substantially all of our assets to
another entity, as long as the following conditions are met:
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When we merge, amalgamate, consolidate or otherwise are combined
with another entity, or sell or lease substantially all of our
assets, the surviving, resulting or acquiring entity is a duly
organized entity and is legally responsible for and assumes,
either by agreement, operation of law or otherwise, our
obligations under such indenture and the Debt Securities issued
thereunder.
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The merger, amalgamation, consolidation, other combination, or
sale or lease of assets, must not result in an event of default
under such indenture. A default for this purpose would include
any event that would be an event of default if the requirements
for giving us default notice or our default having to exist for
a specified period of time were disregarded.
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If the conditions described above are satisfied, we will not
need to obtain the consent of the holders of the Debt Securities
in order to merge, amalgamate, consolidate or otherwise combine
with another entity or to sell or lease substantially all of our
assets.
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We will not need to satisfy the conditions described above if we
enter into other types of transactions, including:
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any transaction in which we acquire the stock or assets of
another entity but in which we do not merge, amalgamate,
consolidate or otherwise combine;
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any transaction that involves a change of control but in which
we do not merge, amalgamate, consolidate or otherwise combine;
and
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any transaction in which we sell less than substantially all of
our assets.
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It is possible that this type of transaction may result in a
reduction in our credit rating, may reduce our operating results
or may impair our financial condition. Holders of Debt
Securities, however, will have no approval right with respect to
any transaction of this type.
Modification
and Waiver of the Debt Securities
There are four types of changes we can make to the indenture and
the Debt Securities issued under that indenture.
Changes Requiring Consent of All
Holders. First, there are changes that cannot be
made to the indenture or the Debt Securities without the consent
of each holder of a series of Debt Securities affected in any
material respect by the change under a particular indenture.
Following is a list of those types of changes:
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change the stated maturity of the principal or reduce the
interest on a Debt Security;
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reduce any amounts due on a Debt Security;
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reduce the amount of principal payable upon acceleration of the
maturity of a Debt Security (including the amount payable on an
original issue discount security) following a default;
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change the currency of payment on a Debt Security;
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change the place of payment for a Debt Security;
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impair a holders right to sue for payment;
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impair a holders right to require repurchase on the
original terms of those Debt Securities that provide a right of
repurchase;
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reduce the percentage of holders of Debt Securities whose
consent is needed to modify or amend the indenture;
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reduce the percentage of holders of Debt Securities whose
consent is needed to waive compliance with certain provisions of
the indenture or to waive certain defaults; or
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modify any other aspect of the provisions dealing with
modification and waiver of the indenture.
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Changes Requiring a Majority Consent. The
second type of change to the indenture and the Debt Securities
is the kind that requires the consent of holders of Debt
Securities owning not less than a majority of the principal
amount of the particular series affected. Most changes fall into
this category, except for clarifying changes and certain other
changes that would not adversely affect in any material respect
holders of the Debt Securities. We may also obtain a waiver of a
past default from the holders of Debt Securities owning a
majority of the principal amount of the particular series
affected. However, we cannot obtain a waiver of a payment
default or any other aspect of the indenture or the Debt
Securities listed in the first category described above under
Changes Requiring Consent of All Holders
unless we obtain the individual consent of each holder to the
waiver.
Changes Not Requiring Consent. The third type
of change to the indenture and the Debt Securities does not
require the consent by holders of Debt Securities. This type is
limited to the issuance of new series of Debt Securities under
the indenture, clarifications and certain other changes that
would not adversely affect in any material respect the interests
of the holders of the Debt Securities of any series.
We may also make changes or obtain waivers that do not adversely
affect in any material respect a particular Debt Security, even
if they affect other Debt Securities. In those cases, we do not
need to obtain the consent of the holder of the unaffected Debt
Security; we need only obtain any required approvals from the
holders of the affected Debt Securities.
Modification of Subordination Provisions. The
fourth type of change to the indenture and the Debt Securities
is the kind that requires the consent of the holders of a
majority of the principal amount of all affected series of
Subordinated Debt Securities, voting together as one class. We
may not modify the subordination provisions of the subordinated
debt indenture in a manner that would adversely affect in any
material respect the outstanding Subordinated Debt Securities of
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any one or more series without the consent of the holders of a
majority of the principal amount of all affected series of
Subordinated Debt Securities, voting together as one class.
Further Details Concerning Voting. When
seeking consent, we will use the following rules to decide how
much principal amount to attribute to a Debt Security:
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For original issue discount securities, we will use the
principal amount that would be due and payable on the voting
date if the maturity of the Debt Securities were accelerated to
that date because of a default.
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For Debt Securities whose principal amount is not known, we will
use a special rule for that Debt Security described in the
applicable Prospectus Supplement.
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For Debt Securities denominated in one or more
non-U.S.
currencies or currency units, we will use the U.S. dollar
equivalent.
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Debt Securities will not be considered outstanding, and
therefore not eligible to vote or take other action under the
applicable indenture, if we have given a notice of redemption
and deposited or set aside in trust for the holders money for
the payment or redemption of those Debt Securities. Debt
Securities will also not be considered outstanding, and
therefore not eligible to vote or take other action under the
applicable indenture, if they have been fully defeased as
described below under Defeasance Full
Defeasance or if we or one of our affiliates is the
beneficial owner of the Debt Securities.
We will generally be entitled to set any day as a record date
for the purpose of determining the holders of outstanding Debt
Securities that are entitled to vote or take other action under
the applicable indenture. In certain limited circumstances, the
trustees will be entitled to set a record date for action by
holders. If the trustees or we set a record date for a vote or
other action to be taken by holders of a particular series, that
vote or action may be taken only by persons who are holders of
outstanding Debt Securities of that series on the record date.
We or the trustees, as applicable, may shorten or lengthen this
period from time to time. This period, however, may not extend
beyond the 180th day after the record date for the action.
Book-entry and other indirect holders should consult their
banks, brokers or other financial institutions for information
on how approval may be granted or denied if we seek to change
the indenture or the Debt Securities or request a waiver.
Special
Provisions Related to the Subordinated Debt Securities
The Subordinated Debt Securities issued under the subordinated
debt indenture will be our direct unsecured obligations
constituting subordinated indebtedness for the purpose of the
Bank Act and will therefore rank subordinate to our deposits.
Holders of Subordinated Debt Securities should recognize that
contractual provisions in the subordinated debt indenture may
prohibit us from making payments on these Debt Securities.
If we become insolvent or are
wound-up,
the Subordinated Debt Securities issued and outstanding under
the subordinated debt indenture will rank equally with, but not
prior to, all other subordinated indebtedness and subordinate in
right of payment to the prior payment in full of all other
indebtedness of the Bank then outstanding, other than
liabilities which, by their terms, rank in right of payment
equally with or subordinate to the subordinated indebtedness,
and in accordance with the terms of such liabilities or such
other indebtedness under certain circumstances.
For these purposes, indebtedness at any time means:
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the deposit liabilities of the Bank at such time; and
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all other liabilities and obligations of the Bank which in
accordance with the accounting rules established for Canadian
chartered banks issued under the authority of the Superintendent
of Financial Institutions (Canada) or with generally accepted
accounting principles (the primary source of which is the
Handbook of the Canadian Institute of Chartered Accountants), as
the case may be, would be included in determining the total
liabilities of the Bank, other than liabilities for
paid-up
capital, contributed surplus, retained earnings and general
reserves of the Bank.
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Subordinated indebtedness at any time means:
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the liability of the Bank in respect of the principal of and
premium, if any, and interest on its outstanding subordinated
indebtedness outlined above;
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any indebtedness which ranks equally with and not prior to the
outstanding subordinated indebtedness, in right of payment in
the event of the insolvency or
winding-up
of the Bank and which, pursuant to the terms of the
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instrument evidencing or creating the same, is expressed to be
subordinate in right of payment to all indebtedness to which the
outstanding subordinated indebtedness is subordinate in right of
payment to at least the same extent as the outstanding
subordinated indebtedness is subordinated thereto pursuant to
the terms of the instrument evidencing or creating the same;
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any indebtedness which ranks subordinate to and not equally with
or prior to the outstanding subordinated indebtedness, in right
of payment in the event of the insolvency or
winding-up
of the Bank and which, pursuant to the terms of the instrument
evidencing or creating the same, is expressed to be subordinate
in right of payment to all indebtedness to which the outstanding
subordinated indebtedness is subordinate in right of payment to
at least the same extent as the outstanding subordinated
indebtedness is subordinate pursuant to the terms of the
instrument evidencing or creating the same; and
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the Subordinated Debt Securities, which will rank equally to the
Banks outstanding subordinated indebtedness.
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The subordination provisions of the subordinated debt indenture
are governed by the laws of the Province of Ontario and the
federal laws of Canada applicable therein.
Conversion
or Exchange of Debt Securities
If and to the extent mentioned in the applicable Prospectus
Supplements, any Debt Securities may be optionally or
mandatorily convertible or exchangeable for other securities of
the Bank, into the cash value therefor or into any combination
of the above. The specific terms on which any Debt Securities
may be so converted or exchanged will be described in the
applicable Prospectus Supplements. These terms may include
provisions for conversion or exchange, either mandatory, at the
holders option or at our option, in which case the amount
or number of securities the holders of the Debt Securities would
receive would be calculated at the time and manner described in
the applicable Prospectus Supplements.
Defeasance
The following discussion of full defeasance and covenant
defeasance will be applicable to each series of Debt Securities
that is denominated in U.S. dollars and has a fixed rate of
interest and will apply to other series of Debt Securities if we
so specify in the applicable Prospectus Supplements.
Full Defeasance. If there is a change in U.S.
federal income tax law, as described below, we can legally
release ourselves from any payment or other obligations on the
Debt Securities of a series, called full defeasance, if we put
in place the following other arrangements for holders to be
repaid:
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We must deposit in trust for the benefit of all holders of the
Debt Securities of that series a combination of money and notes
or bonds of (i) the U.S. government or (ii) a U.S.
government agency or U.S. government-sponsored entity, the
obligations of which, in each case, are backed by the full faith
and credit of the U.S. government, that will generate enough
cash to make interest, principal and any other payments on the
Debt Securities of that series on their various due dates.
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There must be a change in current U.S. federal income tax law or
a ruling by the United States Internal Revenue Service that lets
us make the above deposit without causing the holders to be
taxed on the Debt Securities of that series any differently than
if we did not make the deposit and just repaid the Debt
Securities of that series ourselves. (Under current U.S. federal
income tax law, the deposit and our legal release from the
obligations pursuant to the Debt Securities would be treated as
though we took back your Debt Securities and gave you your share
of the cash and notes or bonds deposited in trust. In that
event, you could recognize gain or loss on the Debt Securities
you give back to us.)
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We must deliver to the trustees a legal opinion of our counsel
confirming the tax-law change described above and that the
holders of the Debt Securities of that series will not recognize
income, gain or loss for U.S. federal income tax purposes as a
result of such deposit, defeasance and discharge and will be
subject to U.S. federal income tax on the same amounts and in
the same manner and at the same times as would be the case if
such deposit, defeasance and discharge had not occurred.
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In the case of the Subordinated Debt Securities, the following
requirement must also be met:
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No event or condition may exist that, under the provisions
described under Special Provisions Related to the
Subordinated Debt Securities above, would prevent us from
making payments of principal, premium or interest
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on those Subordinated Debt Securities on the date of the deposit
referred to above or during the 90 days after that date.
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If we ever did accomplish full defeasance, as described above,
you would have to rely solely on the trust deposit for repayment
on the Debt Securities. You could not look to us for repayment
in the event of any shortfall.
Covenant Defeasance. Even without a change in
current U.S. federal income tax law, we can make the same type
of deposit as described above, and we will be released from the
restrictive covenants under the Debt Securities of a series that
may be described in the applicable Prospectus Supplements. This
is called covenant defeasance. In that event, you would lose the
protection of these covenants but would gain the protection of
having money and U.S. government, U.S. government agency or U.S.
government-sponsored entity notes or bonds set aside in trust to
repay the Debt Securities. In order to achieve covenant
defeasance, we must do the following:
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Deposit in trust for the benefit of all holders of the Debt
Securities of that series a combination of money and notes or
bonds of (i) the U.S. government or (ii) a U.S.
government agency or U.S. government-sponsored entity, the
obligations of which, in each case, are backed by the full faith
and credit of the U.S. government, that will generate enough
cash to make interest, principal and any other payments on the
Debt Securities of that series on their various due dates.
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Deliver to the trustees a legal opinion of our counsel
confirming that the holders of the Debt Securities of that
series will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such deposit and covenant
defeasance and will be subject to U.S. federal income tax on the
same amounts and in the same manner and at the same times as
would be the case if such deposit and covenant defeasance had
not occurred.
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If we accomplish covenant defeasance, certain provisions of the
indentures and the Debt Securities would no longer apply:
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Covenants applicable to the series of Debt Securities and
described in the applicable Prospectus Supplements.
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Any events of default relating to breach of those covenants.
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If we accomplish covenant defeasance, you can still look to us
for repayment of the Debt Securities if there were a shortfall
in the trust deposit. In fact, if one of the remaining events of
default occurs (such as a bankruptcy) and the Debt Securities
become immediately due and payable, there may be such a
shortfall.
Events of
Default
You will have special rights if an event of default
occurs and is not cured, as described later in this subsection.
What is
an Event of Default?
Under the senior debt indenture, the term event of
default means in respect of any series of Debt Securities
any of the following:
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We do not pay the principal of or any premium on a Debt Security
of that series within five days of its due date.
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We do not pay interest on a Debt Security of that series for
more than 30 days after its due date.
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We file for bankruptcy or certain other events of bankruptcy,
insolvency or reorganization occur.
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Any other event of default described in an applicable Prospectus
Supplement occurs.
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Under the subordinated debt indenture, the term event of
default in respect of any series of Debt Securities means
any of the following:
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We file for bankruptcy or certain other events of bankruptcy,
insolvency or reorganization occur.
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Any other event of default described in an applicable Prospectus
Supplement occurs.
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Remedies If an Event of Default Occurs. If an
event of default occurs, the trustees will have special duties.
In that situation, the trustees will be obligated to use those
of their rights and powers under the applicable indenture, and
to use the same degree of care and skill in doing so, that a
prudent person would use in that situation in conducting his or
her own affairs. If an event of default has occurred and has not
been cured, the trustees or the holders of at least 25% in
principal amount of the Debt Securities of the affected series
may declare the entire principal amount of (or, in the case of
original issue discount securities, the portion of the principal
amount that is specified in the terms of the affected Debt
Security) and interest on all of the Debt Securities of that
series to be due and immediately payable. This is called a
declaration of acceleration of maturity. The declaration of
acceleration of maturity is not, however, an automatic right
upon the
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occurrence of an event of default, and for such acceleration to
be effective, the trustees must take the aforementioned action
or the holders must direct the trustees to act as described in
this section below. Furthermore, a declaration of acceleration
of maturity may be cancelled, but only before a judgment or
decree based on the acceleration has been obtained, by the
holders of at least a majority in principal amount of the Debt
Securities of the affected series. If you are the holder of a
Subordinated Debt Security, the principal amount of the
Subordinated Debt Security will not be paid and may not be
required to be paid at any time prior to the relevant maturity
date, except in the event of our insolvency or
winding-up.
If any provisions of applicable Canadian banking law prohibit
the payment of any amounts due under the Debt Securities before
a specified time, then the Banks ability to make such
payment could be adversely affected.
You should read carefully the applicable Prospectus Supplements
relating to any series of Debt Securities which are original
issue discount securities for the particular provisions relating
to acceleration of the maturity of a portion of the principal
amount of original issue discount securities upon the occurrence
of an event of default and its continuation.
Except in cases of default in which the trustees have the
special duties described above, the trustees are not required to
take any action under the indenture at the request of any
holders unless the holders offer the trustees reasonable
protection from expenses and liability called an indemnity
reasonably satisfactory to the trustees. If such an indemnity is
provided, the holders of a majority in principal amount of the
outstanding Debt Securities of the relevant series may direct
the time, method and place of conducting any lawsuit or other
formal legal action seeking any remedy available to the
trustees. These majority holders may also direct the trustees in
performing any other action under the applicable indenture with
respect to the Debt Securities of that series.
Before you bypass the trustees and bring your own lawsuit or
other formal legal action or take other steps to enforce your
rights or protect your interests relating to the Debt Securities
the following must occur:
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the holder of the Debt Security must give the trustees written
notice that an event of default has occurred and remains uncured;
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the holders of not less than 25% in principal amount of all
outstanding Debt Securities of the relevant series must make a
written request that the trustees take action because of such
event of default;
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such holder or holders must offer reasonable indemnity to the
trustees against the cost and other liabilities of taking that
action;
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the trustees must have not taken action for 90 days after
receipt of the above notice and offer of indemnity; and
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the trustees have not received any direction from a majority in
principal amount of all outstanding Debt Securities that is
inconsistent with such written request during such
90-day
period.
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However, you are entitled at any time to bring a lawsuit for the
payment of money due on your Debt Security on or after its due
date.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR
BANKS, BROKERS OR OTHER FINANCIAL INSTITUTIONS FOR INFORMATION
ON HOW TO GIVE NOTICE OR DIRECTION TO OR MAKE A REQUEST OF THE
TRUSTEES AND TO MAKE OR CANCEL A DECLARATION OF ACCELERATION.
We will give to the trustees every year a written statement of
certain of our officers certifying that to their knowledge we
are in compliance with the applicable indenture and the Debt
Securities issued under it, or else specifying any default.
Form,
Exchange and Transfer
Unless we specify otherwise in an applicable Prospectus
Supplement, the Debt Securities will be issued:
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only in fully-registered form;
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without interest coupons; and
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in denominations of US$2,000 and integral multiples of US$1,000
in excess thereof.
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If a Debt Security is issued as a registered global Debt
Security, only the depositary such as DTC, Euroclear
and Clearstream, each as defined below under Legal
Ownership and Book-Entry Issuance will be
entitled to transfer and exchange the Debt Security as described
in this subsection because the depositary will be the sole
registered holder of the Debt Security and is referred to below
as the holder. Those who own beneficial interests in
a global Debt Security do so through participants in the
depositarys securities clearance system, and the rights of
these indirect owners will be
13
governed by the applicable procedures of the depositary and its
participants. We describe book-entry procedures below under
Legal Ownership and Book-Entry Issuance.
Holders of Debt Securities issued in fully-registered form may
have their Debt Securities broken into more Debt Securities of
smaller denominations of not less than US$2,000, or combined
into fewer Debt Securities of larger denominations, as long as
the total principal amount is not changed. This is called an
exchange.
Holders may exchange or register the transfer of Debt Securities
at the office of the applicable trustee. Debt Securities may be
transferred by endorsement. Holders may also replace lost,
stolen or mutilated Debt Securities at that office. The trustees
act as our agents for registering Debt Securities in the names
of holders and registering the transfer of Debt Securities. We
may change this appointment to another entity or perform it
ourselves. The entity performing the role of maintaining the
list of registered holders is called the security registrar. It
will also record transfers. The applicable trustee may require
an indemnity before replacing any Debt Securities.
Holders will not be required to pay a service charge to register
the transfer or exchange of Debt Securities, but holders may be
required to pay for any tax or other governmental charge
associated with the exchange or transfer. The registration of a
transfer or exchange will only be made if the security registrar
is satisfied with your proof of ownership.
If we designate additional agents, they will be named in the
applicable Prospectus Supplements. We may cancel the designation
of any particular agent. We may also approve a change in the
office through which any agent acts.
If the Debt Securities are redeemable and we redeem less than
all of the Debt Securities of a particular series, we may block
the registration of transfer or exchange of Debt Securities
during the period beginning 15 days before the day we mail
the notice of redemption and ending on the day of that mailing,
in order to freeze the list of holders entitled to receive the
mailing. We may also refuse to register transfers or exchanges
of Debt Securities selected for redemption, except that we will
continue to permit registration of transfers and exchanges of
the unredeemed portion of any Debt Security being partially
redeemed.
The
Trustees
Computershare Trust Company, N.A. and Computershare
Trust Company of Canada serve as the trustees for our
Senior Debt Securities. Computershare Trust Company, N.A.
and Computershare Trust Company of Canada also serve as the
trustees for the Subordinated Debt Securities.
The trustees make no representation or warranty, whether express
or implied, with respect to the Bank or the Debt Securities and
other matters described in this Prospectus. The trustees have
not prepared or reviewed any of the information included in this
Prospectus, except the trustees have consented to the use of
their names. Such approval does not constitute a representation
or approval by the trustees of the accuracy or sufficiency of
any information contained in this Prospectus.
Payment
and Paying Agents
We will pay interest to the person listed in the trustees
records at the close of business on a particular day in advance
of each due date for interest, even if that person no longer
owns the Debt Security on the interest due date. That particular
day, usually about two weeks in advance of the interest due
date, is called the regular record date and will be stated in an
applicable Prospectus Supplement. Holders buying and selling
Debt Securities must work out between them how to compensate for
the fact that we will pay all the interest for an interest
period to the one who is the registered holder on the regular
record date. The most common manner is to adjust the sale price
of the Debt Securities to prorate interest fairly between buyer
and seller. This prorated interest amount is called accrued
interest.
We will pay interest, principal and any other money due on the
Debt Securities at the corporate trust office of Computershare
Trust Company, N.A. or such other office as may be agreed
upon. Holders must make arrangements to have their payments
picked up at or wired from that office or such other office as
may be agreed upon. We may also choose to pay interest by
mailing checks.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR
BANKS, BROKERS OR OTHER FINANCIAL INSTITUTIONS FOR INFORMATION
ON HOW THEY WILL RECEIVE PAYMENTS.
We may also arrange for additional payment offices and may
cancel or change these offices, including our use of the
trustees corporate trust offices. These offices are called
paying agents. We may also choose to act as our own paying agent
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or choose one of our subsidiaries to do so. We must notify
holders of changes in the paying agents for any particular
series of Debt Securities.
Notices
We and the trustees will send notices regarding the Debt
Securities only to registered holders, using their addresses as
listed in the trustees records. With respect to who is a
registered holder for this purpose, see Legal
Ownership and Book-Entry Issuance.
Regardless of who acts as paying agent, all money paid by us to
a paying agent that remains unclaimed at the end of two years
after the amount is due to holders will be repaid to us. After
that two-year period, holders may look to us for payment and not
to the trustees or any other paying agent.
LEGAL
OWNERSHIP AND BOOK-ENTRY ISSUANCE
In this section, we describe special considerations that will
apply to registered Debt Securities issued in global
i.e., book-entry, form. First we describe the difference
between registered ownership and indirect ownership of
registered Debt Securities. Then we describe special provisions
that apply to global Debt Securities.
Who is
the Legal Owner of a Registered Security?
Each Debt Security will be represented either by a certificate
issued in definitive form to a particular investor or by one or
more global Debt Securities representing Debt Securities. We
refer to those who have Debt Securities registered in their own
names, on the books that we or the trustees maintain for this
purpose, as the registered holders of those Debt
Securities. Subject to limited exceptions, we and the trustees
are entitled to treat the registered holder of a Debt Security
as the person exclusively entitled to vote, to receive notices,
to receive any interest or other payment in respect of the Debt
Security and to exercise all the rights and power as an owner of
the Debt Security. We refer to those who own beneficial
interests in Debt Securities that are not registered in their
own names as indirect owners of those Debt Securities. As we
discuss below, indirect owners are not registered holders, and
investors in Debt Securities issued in book-entry form or in
street name will be indirect owners.
Book-Entry Owners. Unless otherwise noted in an
applicable Prospectus Supplement, we will issue each Debt
Security in book-entry form only. This means Debt Securities
will be represented by one or more global Debt Securities
registered in the name of a financial institution that holds
them as depositary on behalf of other financial institutions
that participate in the depositarys book-entry system.
These participating institutions, in turn, hold beneficial
interests in the Debt Securities on behalf of themselves or
their customers.
Under each indenture (and the Bank Act in the case of
subordinated indebtedness), subject to limited exceptions and
applicable law, only the person in whose name a Debt Security is
registered is recognized as the holder of that Debt Security.
Consequently, for Debt Securities issued in global form, we will
recognize only the depositary as the holder of the Debt
Securities and we will make all payments on the Debt Securities,
including deliveries of any property other than cash, to the
depositary. The depositary passes along the payments it receives
to its participants, which in turn pass the payments along to
their customers who are the beneficial owners. The depositary
and its participants do so under agreements they have made with
one another or with their customers; they are not obligated to
do so under the terms of the Debt Securities.
As a result, investors will not own Debt Securities directly.
Instead, they will own beneficial interests in a global Debt
Security, through a bank, broker or other financial institution
that participates in the depositarys book-entry system or
holds an interest through a participant. As long as the Debt
Securities are issued in global form, investors will be indirect
owners, and not registered holders, of the Debt Securities.
Street Name Owners. We may issue Debt
Securities initially in non-global form or we may terminate an
existing global Debt Security, as described below under
Holders Option to Obtain a Non-Global
Security; Special Situations When a Global Security Will Be
Terminated. In these cases, investors may choose to hold
their Debt Securities in their own names or in street name. Debt
Securities held by an investor in street name would be
registered in the name of a bank, broker or other financial
institution that the investor chooses, and the investor would
hold only a beneficial interest in those Debt Securities through
an account he or she maintains at that institution.
For Debt Securities held in street name, we will, subject to
limited exceptions and applicable law, recognize only the
intermediary banks, brokers and other financial institutions in
whose names the Debt Securities are registered as the holders of
those Debt Securities, and we will make all payments on those
Debt Securities, including deliveries of any
15
property other than cash, to them. These institutions pass along
the payments they receive to their customers who are the
beneficial owners, but only because they agree to do so in their
customer agreements or because they are legally required to do
so. Investors who hold Debt Securities in street name will be
indirect owners, not registered holders, of those Debt
Securities.
Registered Holders. Subject to limited
exceptions, our obligations, as well as the obligations of the
trustees under any indenture and the obligations, if any, of any
other third parties employed by us, run only to the registered
holders of the Debt Securities. We do not have obligations to
investors who hold beneficial interests in global Debt
Securities, in street name or by any other indirect means. This
will be the case whether an investor chooses to be an indirect
owner of a Debt Security or has no choice because we are issuing
the Debt Securities only in global form.
For example, once we make a payment or give a notice to the
registered holder, we have no further responsibility for that
payment or notice even if that holder is required, under
agreements with depositary participants or customers or by law,
to pass it along to the indirect owners but does not do so.
Similarly, if we want to obtain the approval of the holders for
any purpose for example, to amend the indenture for
a series of Debt Securities or to relieve us of the consequences
of a default or of our obligation to comply with a particular
provision of an indenture we would seek the approval
only from the registered holders, and not the indirect owners,
of the relevant Debt Securities. Whether and how the registered
holders contact the indirect owners is up to the registered
holders.
When we refer to you in this Prospectus, we mean all
purchasers of the Debt Securities being offered by this
Prospectus and the applicable Prospectus Supplements, whether
they are the registered holders or only indirect owners of those
Debt Securities. When we refer to your Debt
Securities in this Prospectus, we mean the Debt Securities
in which you will hold a direct or indirect interest.
Special Considerations for Indirect Owners. If
you hold Debt Securities through a bank, broker or other
financial institution, either in book-entry form or in street
name, you should check with your own institution to find out:
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how it handles securities payments and notices;
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whether it imposes fees or charges;
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how it would handle a request for the holders consent, if
ever required;
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how it would exercise rights under the Debt Securities if there
were a default or other event triggering the need for holders to
act to protect their interests; and
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if the Debt Securities are in book-entry form, how the
depositarys rules and procedures will affect these matters.
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What is a
Global Security?
Unless otherwise noted in the applicable Prospectus Supplement,
we will issue each Debt Security in book-entry form only. Each
Debt Security issued in book-entry form will be represented by a
global Debt Security that we deposit with and register in the
name of one or more financial institutions or clearing systems,
or their nominees, which we select. A financial institution or
clearing system that we select for any Debt Security for this
purpose is called the depositary for that Debt
Security. A Debt Security will usually have only one depositary
but it may have more. Each series of Debt Securities will have
one or more of the following as the depositaries:
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The Depository Trust Company, New York, New York, which is
known as DTC;
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Euroclear Bank S.A./N.V., as operator of the Euroclear System,
which is known as Euroclear;
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Clearstream Banking, société anonyme, which is known
as Clearstream; or
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any other clearing system or financial institution named in the
applicable Prospectus Supplements.
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The depositaries named above may also be participants in one
anothers systems. Thus, for example, if DTC is the
depositary for a global Debt Security, investors may hold
beneficial interests in that Debt Security through Euroclear or
Clearstream, as DTC participants. The depositary or depositaries
for your Debt Securities will be named in the applicable
Prospectus Supplements; if none is named, the depositary will be
DTC.
A global Debt Security may represent one or any other number of
individual Debt Securities. Generally, all Debt Securities
represented by the same global Debt Security will have the same
terms. We may, however, issue a global Debt Security that
represents multiple Debt Securities of the same kind, such as
debt securities that have different terms and are issued at
different times. We call this kind of global Debt Security a
master global Debt Security. The applicable Prospectus
Supplements will not indicate whether your Debt Securities are
represented by a master global Debt Security.
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A global Debt Security may not be transferred to or registered
in the name of anyone other than the depositary or its nominee,
unless special termination situations arise. We describe those
situations below under Holders Option to
Obtain a Non-Global Security; Special Situations When a Global
Security Will Be Terminated. As a result of these
arrangements, the depositary, or its nominee, will be the sole
registered owner and holder of all Debt Securities represented
by a global Debt Security, and investors will be permitted to
own only indirect interests in a global Debt Security. Indirect
interests must be held by means of an account with a broker,
bank or other financial institution that in turn has an account
with the depositary or with another institution that does. Thus,
an investor whose Debt Security is represented by a global Debt
Security will not be a holder of the Debt Security, but only an
indirect owner of an interest in the global Debt Security.
If an applicable Prospectus Supplement for a particular Debt
Security indicates that the Debt Security will be issued in
global form only, then the Debt Security will be represented by
a global Debt Security at all times unless and until the global
Debt Security is terminated. We describe the situations in which
this can occur below under Holders Option to
Obtain a Non-Global Security; Special Situations When a Global
Security Will Be Terminated. If termination occurs, we may
issue the Debt Securities through another book-entry clearing
system or decide that the Debt Securities may no longer be held
through any book-entry clearing system.
Special Considerations for Global
Securities. As an indirect owner, an
investors rights relating to a global Debt Security will
be governed by the account rules of the depositary and those of
the investors bank, broker, financial institution or other
intermediary through which it holds its interest (such as
Euroclear or Clearstream, if DTC is the depositary), as well as
general laws relating to securities transfers. We do not
recognize this type of investor or any intermediary as a holder
of Debt Securities and instead deal only with the depositary
that holds the global Debt Security.
If Debt Securities are issued only in the form of a global Debt
Security, an investor should be aware of the following:
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an investor cannot cause the Debt Securities to be registered in
his or her own name, and cannot obtain non-global certificates
for his or her interest in the Debt Securities, except in the
special situations we describe below;
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an investor will be an indirect holder and must look to his or
her own bank, broker or other financial institution for payments
on the Debt Securities and protection of his or her legal rights
relating to the Debt Securities, as we describe above under
Who is the Legal Owner of a Registered
Security?;
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an investor may not be able to sell interests in the Debt
Securities to some insurance companies and other institutions
that are required by law to own their Debt Securities in
non-book-entry form;
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an investor may not be able to pledge his or her interest in a
global Debt Security in circumstances in which certificates
representing the Debt Securities must be delivered to the lender
or other beneficiary of the pledge in order for the pledge to be
effective;
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the depositarys policies will govern payments, deliveries,
transfers, exchanges, notices and other matters relating to an
investors interest in a global Debt Security, and those
policies may change from time to time. We and the trustees will
have no responsibility for any aspect of the depositarys
policies, actions or records of ownership interests in a global
Debt Security. We and the trustees also do not supervise the
depositary in any way;
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the depositary may require that those who purchase and sell
interests in a global Debt Security within its book-entry system
use immediately available funds and your bank, broker or other
financial institution may require you to do so as well; and
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financial institutions that participate in the depositarys
book-entry system and through which an investor holds its
interest in the global Debt Securities, directly or indirectly,
may also have their own policies affecting payments, deliveries,
transfers, exchanges, notices and other matters relating to the
Debt Securities, and those policies may change from time to
time. For example, if you hold an interest in a global Debt
Security through Euroclear or Clearstream, when DTC is the
depositary, Euroclear or Clearstream, as applicable, may require
those who purchase and sell interests in that Debt Security
through them to use immediately available funds and comply with
other policies and procedures, including deadlines for giving
instructions as to transactions that are to be effected on a
particular day. There may be more than one financial
intermediary in the chain of ownership for an investor. We and
the trustees do not monitor and are not responsible for the
policies or actions or records of ownership interests of any of
those intermediaries.
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Holders Option to Obtain a Non-Global Security; Special
Situations When a Global Security Will Be
Terminated. If we issue any series of Debt
Securities in book-entry form but we choose to give the
beneficial owners of that series the
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right to obtain non-global Debt Securities, any beneficial owner
entitled to obtain non-global Debt Securities may do so by
following the applicable procedures of the depositary, any
transfer agent or registrar for that series and that
owners bank, broker or other financial institution through
which that owner holds its beneficial interest in the Debt
Securities. If you are entitled to request a non-global
certificate and wish to do so, you will need to allow sufficient
lead time to enable us or our agent to prepare the requested
certificate.
In addition, in a few special situations described below, a
global Debt Security will be terminated and interests in it will
be exchanged for certificates in non-global form representing
the Debt Securities it represented. After that exchange, the
choice of whether to hold the Debt Securities directly or in
street name will be up to the investor. Investors must consult
their own banks, brokers or other financial institutions, to
find out how to have their interests in a global Debt Security
transferred on termination to their own names, so that they will
be holders. We have described the rights of holders and street
name investors above under Who is the Legal Owner
of a Registered Security?
The special situations for termination of a global Debt Security
are as follows:
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if the depositary notifies us that it is unwilling, unable or no
longer qualified to continue as depositary for that global Debt
Security and we do not appoint another institution to act as
depositary within 60 days;
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if we notify the trustees that we wish to terminate that global
Debt Security; or
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if an event of default has occurred with regard to these Debt
Securities and has not been cured or waived.
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If a global Debt Security is terminated, only the depositary,
and neither we nor the trustees for any Debt Securities, is
responsible for deciding the names of the institutions in whose
names the Debt Securities represented by the global Debt
Security will be registered and, therefore, who will be the
registered holders of those Debt Securities.
Considerations
Relating to DTC
DTC has informed 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 Exchange
Act. DTC holds securities that DTC participants deposit with
DTC. DTC also facilitates the settlement among DTC participants
of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry
changes in DTC participants accounts, thereby eliminating
the need for physical movement of certificates. DTC participants
include securities brokers and dealers, banks, trust companies
and clearing corporations, and may include other organizations.
DTC is owned by a number of its direct participants and by the
New York Stock Exchange, Inc. and the Financial Industry
Regulatory Authority, Inc. Indirect access to the DTC system
also is available to others such as banks, brokers, dealers and
trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly.
The rules applicable to DTC and DTC participants are on file
with the SEC.
Purchases of Debt Securities within the DTC system must be made
by or through DTC participants, who will receive a credit for
the Debt Securities on DTCs records. Transfers of
ownership interests in the Debt Securities are accomplished by
entries made on the books of participants acting on behalf of
beneficial owners.
Redemption notices will be sent to DTCs nominee,
Cede & Co., as the registered holder of the Debt
Securities. If less than all of the Debt Securities are being
redeemed, DTC will determine the amount of the interest of each
direct participant to be redeemed in accordance with its
then-current procedures.
In instances in which a vote is required, neither DTC nor
Cede & Co. will itself consent or vote with respect to
the Debt Securities. Under its usual procedures, DTC would mail
an omnibus proxy to the relevant trustee as soon as possible
after the record date. The omnibus proxy assigns
Cede & Co.s consenting or voting rights to those
direct participants to whose accounts such Debt Securities are
credited on the record date (identified in a listing attached to
the omnibus proxy).
Distribution payments on the Debt Securities will be made by the
relevant trustee to DTC. DTCs usual practice is to credit
direct participants accounts on the relevant payment date
in accordance with their respective holdings shown on DTCs
records unless DTC has reason to believe that it will not
receive payments on such payment date. Payments by participants
to beneficial owners will be governed by standing instructions
and customary practices and will be the responsibility of such
participants and not of DTC, the relevant trustee or us, subject
to any statutory or regulatory requirements as may be in effect
from time to time. Payment of distributions to DTC is the
responsibility of the relevant trustee, and disbursements of
such payments to the beneficial owners are the responsibility of
direct and indirect participants.
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The information in this section concerning DTC and DTCs
book-entry system has been obtained from sources that we believe
to be accurate, but we assume no responsibility for the accuracy
thereof. We do not have any responsibility for the performance
by DTC or its participants of their respective obligations as
described herein or under the rules and procedures governing
their respective operations.
Considerations
Relating to Clearstream and Euroclear
Clearstream and Euroclear are securities clearance systems in
Europe. Clearstream and Euroclear have respectively informed us
that Clearstream and Euroclear each hold securities for their
customers and facilitate the clearance and settlement of
securities transactions by electronic book-entry transfer
between their respective account holders. Clearstream and
Euroclear provide various services including safekeeping,
administration, clearance and settlement of internationally
traded securities and securities lending and borrowing.
Clearstream and Euroclear also deal with domestic securities
markets in several countries through established depositary and
custodial relationships. Clearstream and Euroclear have
established an electronic bridge between their two systems
across which their respective participants may settle trades
with each other. Clearstream and Euroclear customers are
world-wide financial institutions including underwriters,
securities brokers and dealers, banks, trust companies and
clearing corporations. Indirect access to Clearstream and
Euroclear is available to other institutions that clear through
or maintain a custodial relationship with an account holder of
either system.
Euroclear and Clearstream may be depositaries for a global Debt
Security. In addition, if DTC is the depositary for a global
Debt Security, Euroclear and Clearstream may hold interests in
the global Debt Security as participants in DTC.
As long as any global Debt Security is held by Euroclear or
Clearstream, as depositary, you may hold an interest in the
global Debt Security only through an organization that
participates, directly or indirectly, in Euroclear or
Clearstream. If Euroclear or Clearstream is the depositary for a
global Debt Security and there is no depositary in the United
States, you will not be able to hold interests in that global
Debt Security through any securities clearance system in the
United States.
Payments, deliveries, transfers, exchanges, notices and other
matters relating to the Debt Securities made through Euroclear
or Clearstream must comply with the rules and procedures of
those systems. Those systems could change their rules and
procedures at any time. We have no control over those systems or
their participants and we take no responsibility for their
activities. Transactions between participants in Euroclear or
Clearstream, on one hand, and participants in DTC, on the other
hand, when DTC is the depositary, would also be subject to
DTCs rules and procedures.
Special Timing Considerations Relating to Transactions in
Euroclear and Clearstream. Investors will be able
to make and receive through Euroclear and Clearstream payments,
deliveries, transfers, exchanges, notices and other transactions
involving any Debt Securities held through those systems only on
days when those systems are open for business. Those systems may
not be open for business on days when banks, brokers and other
financial institutions are open for business in the United
States.
In addition, because of time-zone differences, U.S. investors
who hold their interests in the Debt Securities through these
systems and wish to transfer their interests, or to receive or
make a payment or delivery or exercise any other right with
respect to their interests, on a particular day may find that
the transaction will not be effected until the next business day
in Luxembourg or Brussels, as applicable. Thus, investors who
wish to exercise rights that expire on a particular day may need
to act before the expiration date. In addition, investors who
hold their interests through both DTC and Euroclear or
Clearstream may need to make special arrangements to finance any
purchases or sales of their interests between the U.S. and
European clearing systems, and those transactions may settle
later than would be the case for transactions within one
clearing system.
PLAN OF
DISTRIBUTION
The Bank may sell Debt Securities to or through underwriters or
dealers purchasing as principal, and also may sell Debt
Securities to one or more purchasers directly or through agents.
Debt Securities may be sold from time to time in one or more
transactions at a fixed price or prices which may be changed, at
market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at prices to be negotiated
with purchasers.
A Prospectus Supplement will set forth the terms of any offering
of Debt Securities, including the name or names of any
Investment Dealers, the initial public offering price, the
proceeds to the Bank, any underwriting discount or commission to
be paid to any Investment Dealers and any discounts, concessions
or commissions allowed or re-allowed or paid by any Investment
Dealers to other Investment Dealers.
19
The Debt Securities may be sold directly by the Bank at such
prices and upon such terms as agreed to by the Bank and the
purchaser or through agents designated by the Bank from time to
time. Any agent involved in the offering and sale of the Debt
Securities in respect of which this Prospectus is delivered will
be named, and any commissions payable by the Bank to such agent
will be set forth, in the applicable Prospectus Supplement.
Unless otherwise indicated in the applicable Prospectus
Supplement, any agent is acting on a best efforts basis for the
period of its appointment.
If underwriters are used in the sale, the Debt Securities will
be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale, at market prices
prevailing at the time of sale or at prices related to such
prevailing market prices. The obligations of the underwriters to
purchase such Debt Securities will be subject to certain
conditions precedent, and the underwriters will be obligated to
purchase all the Debt Securities offered by the Prospectus
Supplement if any of such Debt Securities are purchased.
In compliance with guidelines of the Financial Industry
Regulatory Authority (FINRA), the maximum commission
or discount to be received by any FINRA member or independent
broker-dealer may not exceed 8% of the aggregate amount of the
Debt Securities offered by this prospectus; however, it is
anticipated that the maximum commission or discount to be
received in any particular offering of securities will be
significantly less than this amount.
Any public offering price and any discounts or concessions
allowed or re-allowed or paid to Investment Dealers may be
changed from time to time. The Bank may agree to pay the
Investment Dealers a commission for various services relating to
the issue and sale of any Debt Securities offered hereby. Any
such commission will be paid out of the general corporate funds
of the Bank. Investment Dealers who participate in the
distribution of the Debt Securities may be entitled under
agreements to be entered into with the Bank to indemnification
by the Bank against certain liabilities, including liabilities
under Canadian and U.S. securities legislation, or to
contribution with respect to payments which such Investment
Dealers may be required to make in respect thereof.
In connection with any offering of the Debt Securities (unless
otherwise specified in a Prospectus Supplement), the Investment
Dealers may over-allot or effect transactions which stabilize or
maintain the market price of the Debt Securities offered at a
higher level than that which might exist in the open market.
These transactions may be commenced, interrupted or discontinued
at any time.
The Debt Securities offered under this Prospectus have not been
qualified for sale under the securities laws of any province or
territory of Canada (other than the Province of Ontario) and,
unless otherwise provided in the Prospectus Supplement relating
to a particular issue of Debt Securities, will not be offered or
sold, directly or indirectly, in Canada or to any resident of
Canada except in the Province of Ontario.
Conflicts
of Interest
Our affiliates, Scotia Capital Inc. and Scotia Capital (USA)
Inc., may participate in the distribution of the debt Securities
as an underwriter, dealer or agent. Any offering of Debt
Securities in which Scotia Capital Inc. or Scotia Capital (USA)
Inc. participates will be conducted in compliance with the
applicable requirements of NASD Rule 2720, a rule of FINRA,
and applicable Canadian securities laws. None of Scotia Capital
Inc., Scotia Capital (USA) Inc., or any other FINRA member
participating in an offering of these Debt Securities that has a
conflict of interest will confirm initial sales to any
discretionary accounts over which it has authority without prior
specific written approval of the customer.
20
TRADING
PRICE AND VOLUME OF BANKS SECURITIES
The following table sets out the price range and trading volume
of the Banks securities on the Toronto Stock Exchange (as
reported by Bloomberg) for the periods indicated.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred Shares
|
|
|
|
Common
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
Series
|
|
|
|
Shares
|
|
|
12
|
|
|
13
|
|
|
14
|
|
|
15
|
|
|
16
|
|
|
17
|
|
|
18
|
|
|
20
|
|
|
22
|
|
|
24(1)
|
|
|
26(2)
|
|
|
28(3)
|
|
|
January 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-High Price ($)
|
|
|
34.00
|
|
|
|
20.61
|
|
|
|
19.53
|
|
|
|
18.40
|
|
|
|
17.85
|
|
|
|
20.98
|
|
|
|
22.00
|
|
|
|
23.90
|
|
|
|
22.75
|
|
|
|
23.24
|
|
|
|
|
|
|
|
25.35
|
|
|
|
25.00
|
|
-Low Price ($)
|
|
|
27.35
|
|
|
|
19.43
|
|
|
|
17.53
|
|
|
|
17.06
|
|
|
|
16.57
|
|
|
|
19.60
|
|
|
|
20.35
|
|
|
|
22.00
|
|
|
|
20.80
|
|
|
|
21.15
|
|
|
|
|
|
|
|
24.90
|
|
|
|
24.80
|
|
-Volume (000)
|
|
|
80,310
|
|
|
|
162
|
|
|
|
299
|
|
|
|
260
|
|
|
|
301
|
|
|
|
180
|
|
|
|
243
|
|
|
|
371
|
|
|
|
179
|
|
|
|
195
|
|
|
|
|
|
|
|
1,489
|
|
|
|
496
|
|
February 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-High Price ($)
|
|
|
31.55
|
|
|
|
20.40
|
|
|
|
18.90
|
|
|
|
18.47
|
|
|
|
17.98
|
|
|
|
20.30
|
|
|
|
21.87
|
|
|
|
23.00
|
|
|
|
23.00
|
|
|
|
22.74
|
|
|
|
|
|
|
|
25.40
|
|
|
|
25.44
|
|
-Low Price ($)
|
|
|
23.99
|
|
|
|
19.55
|
|
|
|
17.73
|
|
|
|
17.20
|
|
|
|
16.45
|
|
|
|
19.32
|
|
|
|
20.41
|
|
|
|
22.00
|
|
|
|
21.00
|
|
|
|
21.15
|
|
|
|
|
|
|
|
24.80
|
|
|
|
24.75
|
|
-Volume (000)
|
|
|
73,869
|
|
|
|
138
|
|
|
|
122
|
|
|
|
213
|
|
|
|
186
|
|
|
|
144
|
|
|
|
151
|
|
|
|
200
|
|
|
|
109
|
|
|
|
103
|
|
|
|
|
|
|
|
597
|
|
|
|
1,516
|
|
March 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-High Price ($)
|
|
|
33.18
|
|
|
|
20.00
|
|
|
|
18.37
|
|
|
|
17.47
|
|
|
|
17.00
|
|
|
|
20.05
|
|
|
|
21.74
|
|
|
|
23.64
|
|
|
|
22.35
|
|
|
|
22.00
|
|
|
|
|
|
|
|
25.59
|
|
|
|
25.74
|
|
-Low Price ($)
|
|
|
25.28
|
|
|
|
18.82
|
|
|
|
17.26
|
|
|
|
16.05
|
|
|
|
15.81
|
|
|
|
18.13
|
|
|
|
19.85
|
|
|
|
22.00
|
|
|
|
19.20
|
|
|
|
19.60
|
|
|
|
|
|
|
|
25.00
|
|
|
|
25.07
|
|
-Volume (000)
|
|
|
97,572
|
|
|
|
164
|
|
|
|
199
|
|
|
|
263
|
|
|
|
348
|
|
|
|
180
|
|
|
|
105
|
|
|
|
184
|
|
|
|
228
|
|
|
|
138
|
|
|
|
|
|
|
|
763
|
|
|
|
778
|
|
April 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-High Price ($)
|
|
|
35.85
|
|
|
|
21.18
|
|
|
|
19.05
|
|
|
|
18.00
|
|
|
|
17.92
|
|
|
|
21.45
|
|
|
|
22.28
|
|
|
|
24.10
|
|
|
|
24.43
|
|
|
|
23.70
|
|
|
|
|
|
|
|
26.96
|
|
|
|
27.40
|
|
-Low Price ($)
|
|
|
30.30
|
|
|
|
19.41
|
|
|
|
17.57
|
|
|
|
16.66
|
|
|
|
16.61
|
|
|
|
19.25
|
|
|
|
20.95
|
|
|
|
22.83
|
|
|
|
21.75
|
|
|
|
22.00
|
|
|
|
|
|
|
|
25.33
|
|
|
|
25.48
|
|
-Volume (000)
|
|
|
103,382
|
|
|
|
120
|
|
|
|
151
|
|
|
|
188
|
|
|
|
457
|
|
|
|
189
|
|
|
|
130
|
|
|
|
291
|
|
|
|
235
|
|
|
|
175
|
|
|
|
|
|
|
|
680
|
|
|
|
665
|
|
May 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-High Price ($)
|
|
|
39.00
|
|
|
|
21.96
|
|
|
|
19.90
|
|
|
|
18.71
|
|
|
|
18.91
|
|
|
|
22.29
|
|
|
|
23.99
|
|
|
|
25.00
|
|
|
|
24.70
|
|
|
|
24.75
|
|
|
|
|
|
|
|
26.99
|
|
|
|
27.31
|
|
-Low Price ($)
|
|
|
25.09
|
|
|
|
21.00
|
|
|
|
19.06
|
|
|
|
17.81
|
|
|
|
17.80
|
|
|
|
21.37
|
|
|
|
22.32
|
|
|
|
23.91
|
|
|
|
23.90
|
|
|
|
23.70
|
|
|
|
|
|
|
|
26.35
|
|
|
|
26.29
|
|
-Volume (000)
|
|
|
77,234
|
|
|
|
241
|
|
|
|
204
|
|
|
|
350
|
|
|
|
253
|
|
|
|
339
|
|
|
|
117
|
|
|
|
605
|
|
|
|
314
|
|
|
|
381
|
|
|
|
|
|
|
|
392
|
|
|
|
327
|
|
June 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-High Price ($)
|
|
|
44.51
|
|
|
|
22.15
|
|
|
|
20.24
|
|
|
|
19.45
|
|
|
|
19.26
|
|
|
|
21.95
|
|
|
|
23.69
|
|
|
|
25.70
|
|
|
|
25.28
|
|
|
|
25.45
|
|
|
|
|
|
|
|
27.50
|
|
|
|
27.99
|
|
-Low Price ($)
|
|
|
38.61
|
|
|
|
21.50
|
|
|
|
19.53
|
|
|
|
18.52
|
|
|
|
18.49
|
|
|
|
21.01
|
|
|
|
22.97
|
|
|
|
24.90
|
|
|
|
24.40
|
|
|
|
24.41
|
|
|
|
|
|
|
|
26.80
|
|
|
|
26.66
|
|
-Volume (000)
|
|
|
75,551
|
|
|
|
202
|
|
|
|
211
|
|
|
|
196
|
|
|
|
330
|
|
|
|
316
|
|
|
|
183
|
|
|
|
494
|
|
|
|
506
|
|
|
|
331
|
|
|
|
|
|
|
|
422
|
|
|
|
339
|
|
July 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-High Price ($)
|
|
|
46.51
|
|
|
|
22.97
|
|
|
|
21.23
|
|
|
|
19.85
|
|
|
|
19.93
|
|
|
|
22.68
|
|
|
|
24.20
|
|
|
|
26.20
|
|
|
|
26.00
|
|
|
|
26.19
|
|
|
|
|
|
|
|
28.00
|
|
|
|
28.00
|
|
-Low Price ($)
|
|
|
39.60
|
|
|
|
21.53
|
|
|
|
19.80
|
|
|
|
18.60
|
|
|
|
18.52
|
|
|
|
21.16
|
|
|
|
23.13
|
|
|
|
25.08
|
|
|
|
24.90
|
|
|
|
25.08
|
|
|
|
|
|
|
|
27.20
|
|
|
|
27.00
|
|
-Volume (000)
|
|
|
71,182
|
|
|
|
222
|
|
|
|
232
|
|
|
|
228
|
|
|
|
235
|
|
|
|
720
|
|
|
|
152
|
|
|
|
698
|
|
|
|
411
|
|
|
|
323
|
|
|
|
|
|
|
|
456
|
|
|
|
339
|
|
August 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-High Price ($)
|
|
|
48.62
|
|
|
|
24.36
|
|
|
|
22.31
|
|
|
|
21.20
|
|
|
|
21.16
|
|
|
|
24.23
|
|
|
|
25.40
|
|
|
|
26.15
|
|
|
|
26.00
|
|
|
|
26.00
|
|
|
|
|
|
|
|
27.82
|
|
|
|
28.07
|
|
-Low Price ($)
|
|
|
43.16
|
|
|
|
22.66
|
|
|
|
20.80
|
|
|
|
19.76
|
|
|
|
19.76
|
|
|
|
22.50
|
|
|
|
24.31
|
|
|
|
25.84
|
|
|
|
25.56
|
|
|
|
25.59
|
|
|
|
|
|
|
|
27.40
|
|
|
|
27.47
|
|
-Volume (000)
|
|
|
74,645
|
|
|
|
151
|
|
|
|
562
|
|
|
|
306
|
|
|
|
289
|
|
|
|
319
|
|
|
|
299
|
|
|
|
265
|
|
|
|
478
|
|
|
|
270
|
|
|
|
|
|
|
|
692
|
|
|
|
243
|
|
September 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-High Price ($)
|
|
|
49.19
|
|
|
|
24.45
|
|
|
|
21.99
|
|
|
|
20.79
|
|
|
|
20.85
|
|
|
|
23.97
|
|
|
|
25.30
|
|
|
|
26.39
|
|
|
|
26.15
|
|
|
|
26.21
|
|
|
|
|
|
|
|
28.18
|
|
|
|
28.14
|
|
-Low Price ($)
|
|
|
42.95
|
|
|
|
23.44
|
|
|
|
21.46
|
|
|
|
20.42
|
|
|
|
20.40
|
|
|
|
23.50
|
|
|
|
24.92
|
|
|
|
26.00
|
|
|
|
25.76
|
|
|
|
25.66
|
|
|
|
|
|
|
|
27.71
|
|
|
|
27.66
|
|
-Volume (000)
|
|
|
84,570
|
|
|
|
121
|
|
|
|
188
|
|
|
|
334
|
|
|
|
473
|
|
|
|
265
|
|
|
|
336
|
|
|
|
405
|
|
|
|
317
|
|
|
|
283
|
|
|
|
|
|
|
|
537
|
|
|
|
426
|
|
October 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-High Price ($)
|
|
|
49.14
|
|
|
|
24.25
|
|
|
|
21.99
|
|
|
|
20.60
|
|
|
|
20.63
|
|
|
|
23.91
|
|
|
|
25.19
|
|
|
|
26.28
|
|
|
|
26.18
|
|
|
|
25.98
|
|
|
|
|
|
|
|
28.00
|
|
|
|
28.09
|
|
-Low Price ($)
|
|
|
43.48
|
|
|
|
22.78
|
|
|
|
20.66
|
|
|
|
19.30
|
|
|
|
19.40
|
|
|
|
22.57
|
|
|
|
23.71
|
|
|
|
25.60
|
|
|
|
25.28
|
|
|
|
25.20
|
|
|
|
|
|
|
|
27.10
|
|
|
|
27.02
|
|
-Volume (000)
|
|
|
64,995
|
|
|
|
167
|
|
|
|
221
|
|
|
|
316
|
|
|
|
307
|
|
|
|
203
|
|
|
|
156
|
|
|
|
215
|
|
|
|
282
|
|
|
|
431
|
|
|
|
|
|
|
|
444
|
|
|
|
544
|
|
November 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-High Price ($)
|
|
|
49.00
|
|
|
|
23.77
|
|
|
|
21.83
|
|
|
|
20.44
|
|
|
|
20.39
|
|
|
|
23.60
|
|
|
|
24.90
|
|
|
|
26.44
|
|
|
|
26.35
|
|
|
|
26.38
|
|
|
|
|
|
|
|
27.95
|
|
|
|
27.98
|
|
-Low Price ($)
|
|
|
44.84
|
|
|
|
22.81
|
|
|
|
20.70
|
|
|
|
19.50
|
|
|
|
19.50
|
|
|
|
22.76
|
|
|
|
24.38
|
|
|
|
25.72
|
|
|
|
25.65
|
|
|
|
25.67
|
|
|
|
|
|
|
|
27.14
|
|
|
|
27.28
|
|
-Volume (000)
|
|
|
57,660
|
|
|
|
190
|
|
|
|
148
|
|
|
|
254
|
|
|
|
213
|
|
|
|
262
|
|
|
|
173
|
|
|
|
426
|
|
|
|
303
|
|
|
|
252
|
|
|
|
|
|
|
|
360
|
|
|
|
309
|
|
December 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-High Price ($)
|
|
|
49.93
|
|
|
|
24.10
|
|
|
|
22.34
|
|
|
|
21.12
|
|
|
|
20.79
|
|
|
|
24.11
|
|
|
|
25.39
|
|
|
|
26.75
|
|
|
|
26.83
|
|
|
|
26.72
|
|
|
|
|
|
|
|
28.25
|
|
|
|
28.33
|
|
-Low Price ($)
|
|
|
46.55
|
|
|
|
23.54
|
|
|
|
21.60
|
|
|
|
20.05
|
|
|
|
20.10
|
|
|
|
23.50
|
|
|
|
24.54
|
|
|
|
26.35
|
|
|
|
26.04
|
|
|
|
26.10
|
|
|
|
|
|
|
|
27.50
|
|
|
|
27.88
|
|
-Volume (000)
|
|
|
69,768
|
|
|
|
174
|
|
|
|
218
|
|
|
|
363
|
|
|
|
361
|
|
|
|
185
|
|
|
|
122
|
|
|
|
157
|
|
|
|
121
|
|
|
|
217
|
|
|
|
|
|
|
|
345
|
|
|
|
168
|
|
January 2010 (to January 8, 2010)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-High Price ($)
|
|
|
49.53
|
|
|
|
23.96
|
|
|
|
21.99
|
|
|
|
20.83
|
|
|
|
20.70
|
|
|
|
23.99
|
|
|
|
24.96
|
|
|
|
26.61
|
|
|
|
26.92
|
|
|
|
26.68
|
|
|
|
|
|
|
|
28.05
|
|
|
|
27.99
|
|
-Low Price ($)
|
|
|
48.81
|
|
|
|
23.70
|
|
|
|
21.72
|
|
|
|
20.33
|
|
|
|
20.33
|
|
|
|
23.61
|
|
|
|
24.60
|
|
|
|
26.05
|
|
|
|
26.31
|
|
|
|
26.30
|
|
|
|
|
|
|
|
27.66
|
|
|
|
27.67
|
|
-Volume (000)
|
|
|
15,999
|
|
|
|
96
|
|
|
|
17
|
|
|
|
173
|
|
|
|
71
|
|
|
|
82
|
|
|
|
86
|
|
|
|
63
|
|
|
|
40
|
|
|
|
96
|
|
|
|
|
|
|
|
58
|
|
|
|
61
|
|
|
|
1
|
The Preferred Shares, Series 24 were issued on
December 12, 2008 by the Bank to Sun Life Financial Inc. as
partial consideration for the acquisition by the Bank of trust
units of CI Financial Income Fund (now CI Financial Corp.).
|
|
2
|
The Preferred Shares, Series 26 were issued on
January 21, 2009.
|
|
3
|
The Preferred Shares, Series 28 were issued on
January 30, 2009.
|
21
PRIOR
SALES
In the
12-month
period ending on January 11, 2010, the Bank issued the
following debt securities which are not listed on any exchange
or quoted in any marketplace:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issue Price to
|
|
|
|
|
|
|
|
|
|
Public per $1,000
|
|
|
Number of Securities
|
|
Security
|
|
Date Issued
|
|
|
Principal Amount
|
|
|
Issued
|
|
|
$1.0 Billion 6.65% Debentures due 2021
|
|
|
January 22, 2009
|
|
|
$
|
999.83
|
|
|
|
1,000,000
|
|
$1.0 Billion 4.94% Debentures due 2019
|
|
|
April 15, 2009
|
|
|
$
|
999.69
|
|
|
|
1,000,000
|
|
RISK
FACTORS
Investment in the Debt Securities is subject to various risks
including those risks inherent in conducting the business of a
diversified financial institution. Before deciding whether to
invest in any 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 Banks
Annual Information Form and the Annual MD&A, each of which
is incorporated herein by reference, including credit risk,
market risk, liquidity risk, operational risk, reputational risk
and environmental risk.
USE OF
PROCEEDS
Unless otherwise specified in a Prospectus Supplement, the net
proceeds to the Bank from the sale of the Debt Securities will
be added to the general funds of the Bank and utilized for
general banking purposes. The application of the proceeds will
depend upon the funding requirements of the Bank at the time.
LIMITATIONS
ON ENFORCEMENT OF U.S. LAWS AGAINST
THE BANK, ITS MANAGEMENT AND OTHERS
The Bank is incorporated under the laws of Canada pursuant to
the Bank Act. Many of its directors and executive officers,
including many of the persons who will sign the registration
statement on
Form F-9,
of which this Prospectus forms a part, and some of the experts
named in this Prospectus, reside outside the United States, and
a substantial portion of the Banks 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
United States investors to effect service of process within the
United States upon those directors, officers or experts who are
not residents of the United States, or to realize in the United
States upon judgments of courts of the United States predicated
upon civil liability of such directors, officers or experts
under United States federal securities laws.
The Bank has been advised by Osler, Hoskin & Harcourt
LLP, its Canadian counsel, that a judgment of a U.S. court
predicated solely upon civil liability under such laws would
probably be enforceable in Canada if the U.S. court in which the
judgment was obtained had a basis for jurisdiction in the matter
that was recognized by a Canadian court for such purposes. The
Bank has also been advised by such counsel, however, that there
is substantial doubt whether an action could be brought in
Canada in the first instance on the basis of liability
predicated solely upon such laws.
INDEPENDENT
AUDITORS
KPMG LLP, Chartered Accountants, Toronto, Ontario, is the
external auditor who prepared the Auditors Report to
Shareholders with respect to the consolidated balance sheet of
the Bank as at October 31, 2009 and 2008 and the
consolidated statements of income, changes in shareholders
equity, comprehensive income and cash flows for the years then
ended. KPMG 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 within the
meaning of the U.S. Securities Act of 1933, as amended, and the
applicable rules and regulations thereunder. The audited
consolidated financial statements of the Bank for each of the
two years in the period ended October 31, 2009 incorporated
by reference in this Prospectus have been so incorporated in
reliance on the report of KPMG LLP, independent accountants.
22
DOCUMENTS
FILED AS PART OF THE REGISTRATION STATEMENT
The following documents have been filed with the SEC either
separately or as exhibits to the registration statement of which
this Prospectus forms a part: the documents referred to under
Documents Incorporated by Reference; the consent of
KPMG LLP; the consent of Osler, Hoskin & Harcourt LLP;
powers of attorney from directors and officers of the Bank; the
forms of indentures relating to the Debt Securities; and the
statement of eligibility of the trustee on
Form T-1.
23
US$2,500,000,000
The Bank of Nova
Scotia
US$1,000,000,000
2.250% Senior Notes due 2013
US$1,500,000,000 3.400% Senior Notes due 2015
PROSPECTUS SUPPLEMENT
January 19, 2010
Morgan
Stanley