CERTIFICATE OF INCORPORATION

OF

TD BANKNORTH INC.

      FIRST. The name of the corporation is TD Banknorth Inc. (the “Corporation”).

      SECOND. The address of its registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.

      THIRD. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).

      FOURTH. The Corporation is authorized to issue three classes of stock to be designated, respectively, “Common Stock”, “Class B Common Stock” and “Preferred Stock.” The total number of shares that the Corporation is authorized to issue is 405,000,001 shares. 400,000,000 shares shall be Common Stock, $0.01 par value per share (the “Common Stock”). One (1) share shall be Class B Common Stock, $0.01 par value per share (the “Class B Common Stock”). 5,000,000 shares shall be Preferred Stock, $0.01 par value per share (the “Preferred Stock”).

      A. The Common Stock.

      Voting. Except as may otherwise be required by law or this Certificate of Incorporation, each holder of the Common Stock shall have one vote in respect of each share of the Common Stock held by such holder on each matter voted upon by the stockholders; provided, however, that the holders of the Common Stock shall not be entitled to vote in the election of the Class B Directors; and provided, further, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) that relates solely to the terms of the Class B Common Stock or one or more outstanding series of Preferred Stock if the holders of such affected series or class are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) or pursuant to the DGCL.

      B. The Class B Common Stock.

      (1) Voting Rights Generally. Except (i) for the nomination and election of directors as provided in subparagraph (2) of this paragraph (B), (ii) voting rights with respect to amendment, alteration or repeal (including by merger, consolidation or otherwise by operation of law) of this Certificate of Incorporation as provided in subparagraph (3) of this paragraph (B), or (iii) as may otherwise be required by law or this Certificate of Incorporation, the holder of the Class B Common Stock shall have no right to vote on any matters in respect of which the holders of the Common Stock are entitled to vote.

      (2) Class B Directors. The holder of the Class B Common Stock shall have the right, voting separately as a class, at each meeting of the holder of the Class B Common Stock held for the purpose of electing Class B Directors (as hereinafter defined) to nominate and elect a number of directors of the Corporation as set forth below (the directors elected by the holder of the Class B Common Stock are hereinafter referred to as the “Class B Directors”). No stockholders of the Corporation other than the holder of the Class B Common Stock shall be entitled to vote with respect to the election or the removal without cause of the Class B Directors.


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      a. At any time other than during a Suspension or following the occurrence of a Permanent Suspension, the holder of the Class B Common Stock shall have the right, voting separately as a separate class, at each meeting of the holder of the Class B Common Stock held for the purpose of electing Class B Directors to nominate and elect a number of Class B Directors as the holder shall designate from time to time, provided that the number of Class B Directors shall not exceed the sum of (x) one plus (y) the total number of directors then in office, other than Class B Directors (the “Class A Directors”).

 

 

 

      b. During a Suspension or following the occurrence of a Permanent Suspension, the holder of the Class B Common Stock shall have the right, voting separately as a class, at each meeting of the holder of the Class B Common Stock held for the purpose of electing Class B Directors to nominate and elect that number of Class B Directors, rounded to the nearest whole number, as would represent the same percentage of the total number of authorized directors then constituting the entire Board of Directors (after giving effect to the election of such Class B Directors) as the percentage of the Total Voting Power represented by the Voting Securities Beneficially Owned by TD and its Affiliates as of the record date for such election; provided that in no event shall the number of Class B Directors nominated and elected by the holder of the Class B Common Stock pursuant to this provision constitute (x) 50% or more of the total number of directors then in office or (y) less than one director.

 

 

 

      c. At any meeting held for the purpose of electing directors, the presence in person or by proxy of the holder of the outstanding share of Class B Common Stock shall be required and be sufficient to constitute a quorum of such class for the election of Class B Directors by such class. At any such meeting or adjournment thereof, the absence of a quorum of the holder of Class B Common Stock shall not prevent the election of directors other than Class B Directors and the absence of a quorum or quorums of the holders of capital stock of the Corporation entitled to elect such other directors shall not prevent the election of Class B Directors.

 

 

 

      d. In case of any newly created directorships that result from an increase in the total number of authorized Class B Directors and any vacancy occurring among the Class B Directors, such vacancy shall only be filled by a majority of the remaining Class B Directors or the sole remaining Class B Director (as the case may be) or by the holder of the outstanding Class B Common Stock, voting separately as a class, and the successor so appointed shall hold office for the unexpired term of the Class B Director whose place shall be vacant. If at any time the offices of all Class B Directors shall be vacant, then the holder of the outstanding Class B Common Stock, voting separately as a class, may elect successors to hold office for the unexpired terms of the Class B Directors whose places shall be vacant.

      (3) Consent Required for Amendment of Certificate of Incorporation. The affirmative vote of the holder of the outstanding Class B Common Stock shall be required for any amendment, alteration or repeal (including by merger, consolidation or otherwise by operation of law) of any provisions of this Certificate of Incorporation or the By-Laws that would adversely affect the powers, preferences, privileges or rights of the Class B Common Stock or of the holder thereof in such capacity.

      (4) Cancellation upon Termination Event. Notwithstanding subparagraph (5) of this paragraph (B), upon the occurrence of a Termination Event, the share of Class B Common Stock shall be redeemed by the Corporation for payment by the Corporation to the holder thereof of $1.00, subject to the availability of lawful funds therefor, and upon such redemption shall be cancelled and retired and may not be reissued.

      (5) Transfers. The Class B Common Stock may be Beneficially Owned only by TD and its Affiliates and shall not otherwise be Transferred. Any attempted Transfer in violation of this subparagraph (5) of paragraph (B) of Article FOURTH shall be of no effect and null and void, regardless of whether the purported transferee has any actual or constructive knowledge of the Transfer restrictions set forth herein, and shall not be recorded on the stock transfer books of the Corporation.

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      (6) Dividends and Distributions. Except as required by applicable law, the holder of the Class B Common Stock shall not be entitled to receive dividends or distributions of the Corporation, whether payable in cash, property or in shares of capital stock of the Corporation.

      (7) Liquidation. In the event of any liquidation, dissolution or winding up of the Corporation, the holder of the Class B Common Stock shall not be entitled to receive any assets of the Corporation available for distribution to its stockholders.

      C. The Preferred Stock. The Preferred Stock may be issued from time to time in one or more series. The Board of Directors is expressly authorized, in the resolution or resolutions providing for the issuance of any wholly unissued series of Preferred Stock, to fix, state and express the powers, rights, designations and preferences, and the qualifications, limitations and restrictions thereof, of the shares of each such series, including without limitation: the rate of dividends upon which and the times at which dividends on shares of such series shall be payable and the preference, if any, which such dividends shall have relative to dividends on shares of any other class or classes or any other series of stock of the Corporation; whether such dividends shall be cumulative or noncumulative, and if cumulative, the date or dates from which dividends on shares of such series shall be cumulative; the voting rights, if any, to be provided for shares of such series; the rights, if any, which the holders of shares of such series shall have in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation; the rights, if any, which the holders of shares of such series shall have to convert such shares into or exchange such shares for shares of stock of the Corporation, and the terms and conditions, including price and rate of exchange, of such conversion or exchange; the redemption rights (including sinking fund provisions), if any, for shares of such series; and such other powers, rights, designations and preferences, and the qualifications, limitations and restrictions thereof, with respect to the shares of such series, as the Board of Directors may desire to so fix. The Board of Directors is also expressly authorized to fix the number of shares constituting such series and to increase or decrease the number of shares of any series prior to the issuance of shares of that series and to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series, but not to decrease such number below the number of shares of such series then outstanding. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series.

      FIFTH. In furtherance and not in limitation of the powers conferred by statute, subject to subparagraph (3) of paragraph (B) of Article FOURTH, the Board of Directors is authorized to make, alter or repeal any or all of the By-Laws of the Corporation. In addition, subject to subparagraph (3) of paragraph (B) of Article FOURTH, new By-Laws may be adopted or the By-Laws may be amended or repealed by the affirmative vote of the holders of at least a majority in voting power of the then-outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.

      SIXTH. A. Action by Written Consent. Prior to the occurrence of a Termination Event or a Permanent Suspension, any action required or permitted to be taken by the holders of any class or series of the Company Common Stock may be effected at a duly called annual or special meeting of the holders of such class or series or by written consent of the holders of such class or series in lieu of a meeting (in each case whether or not the holders of any other class or series of the Company Common Stock are then meeting or acting by written consent in lieu of a meeting, unless otherwise required by law or this Certificate of Incorporation). From and after the occurrence of a Termination Event or a Permanent Suspension, any action required or permitted to be taken by the holders of the Common Stock can only be effected at a duly called annual or special meeting of such holders and may not be effected by written consent of such holders in lieu of a meeting. Notwithstanding the immediately preceding sentence, until such time as the share of Class B Common Stock shall have been redeemed pursuant to this Certificate of Incorporation, any action required or permitted to be taken by the holder of the Class B Common

Stock may be effected at a duly called annual or special meeting of such holder or by written consent of such holder in lieu of a meeting.

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      B. Special Meetings of Stockholders. Special meetings of stockholders of the Corporation may be called only by the (i) Chairman of the Board of Directors, (ii) the President, (iii) the Chairman or the Secretary at the written request of the Board of Directors (in accordance with paragraph (B) of Article SEVENTH) or (iv) the holders of at least a majority of the then-outstanding shares of Common Stock. Notwithstanding the immediately preceding sentence, special meetings of the holder of Class B Common Stock may be called only by the holder of the then-outstanding share of Class B Common Stock. Any request for the calling of a special meeting of stockholders shall be sent to the Chairman and the Secretary of the Corporation and shall state the purpose or purposes of the proposed meeting. Business transacted at special meetings shall be confined to the purpose or purposes stated in the notice of meeting.

      SEVENTH. A. Composition of the Board. (1) Prior to the occurrence of a Termination Event or a Permanent Suspension, the total number of authorized directors constituting the entire Board of Directors shall be fixed by the Board of Directors in the manner specified below, provided that such total number of authorized directors shall include the number of Class B Directors as shall be determined from time to time in accordance with paragraph (B) of Article FOURTH and provided further that such total number of authorized directors shall be no less than 9. Following the occurrence of a Termination Event or a Permanent Suspension, the total number of authorized directors constituting the entire Board of Directors shall be no more than 20 and no less than 9. Except as provided in this paragraph A, the total number of authorized directors constituting the entire Board of Directors may be fixed and changed from time to time within the then-applicable limits by a resolution adopted in accordance with paragraph B of this Article SEVENTH.

      (2) Directors of the Corporation shall be elected by the stockholders entitled to vote thereon at each annual meeting of stockholders and shall hold office until the next annual meeting of stockholders and until each of their successors shall have been elected and qualified or until each of their earlier resignation or removal.

      (3) Subject to the rights of the holders of any series of Preferred Stock then outstanding, prior to the occurrence of a Termination Event or a Permanent Suspension and other than during a Suspension:

 

 

 

      (i) newly created directorships in the Board of Directors that result from an increase in the total number of authorized Class A Directors and any vacancy occurring in the Board of Directors resulting from the resignation, retirement or other removal from office of any Class A Director (other than a Designated Independent Director) shall only be filled by the affirmative vote of (x) a majority of the directors then in office and (y) a majority of the Class B Directors then in office, although less than a quorum, or by a sole remaining director (provided that at least one Class B Director must then be in office); and the Class A Directors so chosen shall hold office for the unexpired term of the Class A Director whose place shall be vacant; and

 

 

 

      (ii) notwithstanding clause (i) above, any vacancy occurring in the Board of Directors resulting from the resignation, retirement or other removal from office of any Designated Independent Director and any nomination for election or re-election of a Class A Director to be designated as a Designated Independent Director in connection with any meeting held for the purpose of electing Class A Directors shall only be filled upon the approval thereof by the remaining Designated Independent Directors (or, if no Designated Independent Directors are then in office, a majority of the Independent Directors), subject in each case to the consent of a majority of the directors then serving on the Nominating Committee.

      b. Subject to the rights of the holders of any series of Preferred Stock then outstanding, following the occurrence of a Termination Event or a Permanent Suspension, or during a Suspension:

 

 

 

      (i) newly created directorships in the Board of Directors that result from an increase in the total number of authorized Class A Directors and any vacancy occurring in the Board of Directors resulting from the resignation, retirement or other removal from office of any Class A Director (other than a Designated Independent Director) may only be filled upon the approval thereof by a majority of the directors then in office, although less than a quorum, or by a sole remaining director; and the Class A

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Director so chosen shall hold office for the unexpired term of the Class A Director whose place shall be vacant; and

 

 

 

      (ii) any vacancy occurring in the Board of Directors resulting from the resignation, retirement or other removal from office of any Designated Independent Director shall only be filled upon approval thereof by a majority of the directors then serving on the Nominating Committee.

      B. Action by the Board. In addition to any other vote of the directors of the Corporation required by law, this Certificate of Incorporation or the By-Laws of the Corporation, at any time prior to the occurrence of a Termination Event or a Permanent Suspension and other than during a Suspension, any determination or other action of or by the Board of Directors (other than action by unanimous written consent in lieu of a meeting) shall require the affirmative vote or consent, at a meeting at which a quorum is present, of a majority of the directors present at such meeting, including a majority of the Class B Directors present at such meeting.

      C. Committees. (1) All decisions of each committee of the Board of Directors shall require the affirmative vote of a majority of the directors then serving on such committee.

      (2) (a) Prior to the occurrence of a Termination Event or a Permanent Suspension and other than during a Suspension, to the extent permitted by applicable laws, rules and regulations (including any requirements under the Exchange Act or the rules of the New York Stock Exchange or any other applicable securities exchange on which the Common Stock is then listed) and except as otherwise determined by the Board of Directors and except for the Designated Independent Director Committee (as hereinafter defined), each committee of the Board of Directors shall consist of a majority of Class B Directors and not fewer than two Class A Directors.

      (b) Prior to the occurrence of a Termination Event and during a Suspension or following the occurrence of a Permanent Suspension, to the extent permitted by applicable laws, rules and regulations (including any requirements under the Exchange Act or the rules of the New York Stock Exchange or any other applicable securities exchange on which the Common Stock is then listed), the holder of the Class B Common Stock may designate, and the Board of Directors shall appoint, such Class B Directors to serve on each committee of the Board of Directors so that after such appointment(s), the ratio of such designated Class B Directors who are members of such committee to the total number of directors constituting such committee is not less than the ratio of the number of Class B Directors entitled to be designated by the holder of the Class B Common Stock pursuant to paragraph (B)(2)(b) of Article FOURTH to the total number of authorized directors then constituting the entire Board of Directors, provided that in no event shall the number of directors that the holder of the Class B Common Stock is so entitled to designate for such committee appointment be (i) 50% or more of the total number of directors then serving on such committee or (ii) less than one.

      (3) To the extent that no Class B Director is permitted to serve on a particular committee under applicable laws, rules and regulations (including any requirements under the Exchange Act or the rules of the New York Stock Exchange or any other applicable securities exchange on which the Common Stock is then listed), the Corporation shall take all necessary action to permit at least one Class B Director to attend each meeting of such committee as a non-voting observer, in each case to the extent permitted by such applicable laws, rules and regulations.

      (4) Prior to the occurrence of a Termination Event or a Permanent Suspension and other than during a Suspension, the Nominating Committee of the Board of Directors shall consist of four Class B Directors and three of the Designated Independent Directors (selected by majority vote of all the Designated Independent Directors from among their number), each of whom shall meet the requirements of any applicable laws, rules and regulations (including any requirements under the Exchange Act or the rules of the New York Stock Exchange or any other applicable securities exchange on which the Common Stock is then listed). All decisions of the Nominating Committee shall require the affirmative vote of a majority of the directors then serving on such committee.

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      (5) Prior to the occurrence of a Termination Event, the Board of Directors shall maintain a committee of the Board of Directors comprised solely of all of the Designated Independent Directors (the “Designated Independent Director Committee”). Notwithstanding anything herein to the contrary, the Designated Independent Director Committee shall be authorized to exercise the authority otherwise solely vested in the Designated Independent Directors pursuant to the Stockholders Agreement, the Merger Agreement (as defined in the Stockholders Agreement) and this Certificate of Incorporation.

      D. Quorum. In addition to the requirements under applicable law and the By-Laws of the Corporation, at any time prior to a Termination Event and other than during a Suspension or following a Permanent Suspension, a quorum for transaction of business at any meeting of the Board of Directors shall require the presence of (i) a majority of the total number of authorized directors then constituting the entire Board of Directors and (ii) a majority of the Class B Directors then in office.

      EIGHTH. Subject to the requirements of this Certificate of Incorporation and the DGCL, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred on stockholders herein are granted subject to this reservation.

      NINTH. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) under Section 174 of the DGCL, or (4) for any transaction from which the director derived any improper personal benefit. If the DGCL is hereafter amended to authorize, with the approval of a corporation’s stockholders, further reductions in the liability of a corporation’s directors for breach of fiduciary duty, then a director of the Corporation shall not be liable for any such breach to the fullest extent permitted by the DGCL as so amended. Any repeal or modification of the foregoing provisions of this Article NINTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.

      TENTH. For purposes of this Certificate of Incorporation:

      A. “Affiliate” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such specified Person; provided, however, that for purposes of this Certificate of Incorporation, notwithstanding anything to the contrary set forth herein, neither the Corporation nor any of its Subsidiaries shall be deemed to be a Subsidiary or Affiliate of TD solely by virtue of TD’s ownership of the Company Common Stock, the election of Class B Directors nominated by it to the Board, the election of any other directors nominated by the Nominating Committee of the Board or any other action taken by TD or its Affiliates which is permitted under the Stockholders Agreement which may be deemed to constitute control of the Corporation, in each case in accordance with the terms and conditions of, and subject to the limitations and restrictions set forth in, the Stockholders Agreement (and irrespective of the characteristics of the aforesaid relationships and actions under applicable law or accounting principles).

      B. “Beneficial Ownership” by a Person of any securities includes ownership by any Person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares (A) voting power which includes the power to vote, or to direct the voting of, such security; and/or (B) investment power which includes the power to dispose, or to direct the disposition, of such security; and shall otherwise be interpreted in accordance with the term “beneficial ownership” as defined in Rule 13d-3 under the Exchange Act; provided that for purposes of determining Beneficial Ownership, a Person shall be deemed to be the Beneficial Owner of any securities which may be acquired by such Person pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise (irrespective of whether the right to acquire such securities is exercisable immediately or only after the passage of time, including the passage of time in excess of 60 days, the satisfaction of any conditions, the occurrence of any event or any combination of the foregoing), except that in no event will TD or any of its Affiliates be deemed to Beneficially Own any

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securities which it has the right to acquire pursuant to Sections 2.3 or 2.4 of the Stockholders Agreement unless, and then only to the extent that, TD or such Affiliate shall have actually exercised such right. For purposes of this Certificate of Incorporation, a Person shall be deemed to Beneficially Own any securities Beneficially Owned by its Affiliates or any Group of which such Person or any such Affiliate is or becomes a member; provided, however, that shares of Common Stock subject to options granted under the Corporation’s benefit plans or shares of Common Stock (including derivative interests therein) otherwise issued under the Corporation’s benefit plans to any Person who, at the time of the grant or issuance, was an officer or director of the Corporation or any of its Subsidiaries shall not solely for that reason be deemed to be Beneficially Owned by TD or any of its Affiliates; and provided, further, that securities Beneficially Owned by TD and its Affiliates shall not include, for any purpose under this Certificate of Incorporation, any Voting Securities or other securities held: by TD and its Subsidiaries in trust, managed, brokerage, custodial, nominee or other customer accounts; in mutual funds, open or closed end investment funds or other pooled investment vehicles sponsored, managed and/or advised or subadvised by TD or its Affiliates; or by Affiliates of TD (or any division thereof) which are broker-dealers or otherwise engaged in the securities business, provided that in each case, such securities were acquired in the ordinary course of business of their respective banking, investment management and securities business and not with the intent or purpose on the part of TD or its Affiliates of influencing control of the Corporation or avoiding the provisions of this Certificate of Incorporation. The term “Beneficially Own” shall have a correlative meaning.

      C. “Company Common Stock” means the Common Stock and the Class B Common Stock.

      D. “Control” (including the terms “controlled by” and “under common control with”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee or executor, by contract or any other means, or otherwise to control such Person within the meaning of such term as used in Section 2(e) of Regulation Y (12 C.F.R. Part 225) or any successor regulation, as promulgated by the Board of Governors of the Federal Reserve System under the Bank Holding Company Act.

      E. “Designated Independent Director” means each of the four Independent Directors designated by the Board of Directors on the effective date of this Certificate of Incorporation and their respective successors who are nominated and designated as such in accordance with paragraph (A)(3) of Article SEVENTH and who are then serving in such capacity.

      F. “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

      G. “Group” shall have the meaning assigned to it in Section 13(d)(3) of the Exchange Act.

      H. “Independent Directors” means any director who (i) is or would be an “independent director” with respect to the Corporation and with respect to TD pursuant to Section 303A.02 of the New York Stock Exchange Listed Company Manual and Section 10A of the Exchange Act (or any successor provisions) and (ii) is not a Class B Director or an Affiliate or a past or present officer, director or employee of, and was not nominated by, TD or any of its Affiliates.

      I. “Measurement Date” means (i) the date on which the Voting Securities Beneficially Owned by TD and its Affiliates first represent less than 50% of the Total Voting Power as a result of dilution or other actions or events other than Transfer Events, and (ii) any subsequent date on which another event occurs (other than any Transfer of Voting Securities by TD or an Affiliate of TD) that further decreases such Beneficial Ownership by at least 2% of Total Voting Power since the immediately preceding Measurement Date.

      J. “Permanent Suspension” means the occurrence and continuation of a Suspension for 12 consecutive months.

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      K. “Person” means any individual, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, unincorporated organization, other entity, government or any agency or political subdivision thereof or any Group comprised of two or more of the foregoing.

      L. “Shortfall Amount” means, as of any Measurement Date, the difference between (i) 50% and (ii) the Total Voting Power (expressed as a percentage) represented by the Voting Securities Beneficially Owned by TD and its Affiliates as of such Measurement Date.

      M. “Stockholders Agreement” means the Stockholders Agreement, dated as of August 25, 2004, among the Corporation, Banknorth Group, Inc. (the Corporation’s predecessor) and TD, as such agreement may be amended, supplemented or modified from time to time.

      N. “Subsidiary” means, with respect to any Person, any corporation or other organization, whether incorporated or unincorporated, (i) of which such Person or any other Subsidiary of such Person is a general partner (excluding partnerships, the general partnership interests of which held by such Person or any Subsidiary of such Person do not have a majority of the voting interests in such partnership), or (ii) at least a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the Board of Directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries.

      O. “Suspension” means the period of time during which certain designated rights of the holder of the Class B Common Stock under this Certificate of Incorporation and the Stockholders Agreement are temporarily suspended. A Suspension will occur in the event that TD and its Affiliates Beneficially Own Voting Securities representing in the aggregate less than 50% of the Total Voting Power as a result of (i) Transfers of Voting Securities by TD and its Affiliates (“Transfer Events”) and such minority ownership position continues for at least 30 consecutive days or (ii) dilution or other actions or events other than Transfer Events, provided that no Suspension shall occur as a result of this clause (ii) if TD and its Affiliates (x) do not at any time Beneficially Own Voting Securities representing in the aggregate less than 35% of the Total Voting Power and do not after ceasing to Beneficially Own Voting Securities representing at least 50% of the Total Voting Power Transfer any Voting Securities other than to an Affiliate unless within 30 days thereafter TD and its Affiliates repurchase an amount of Voting Securities at least equal to the amount so Transferred, (y) reacquire, at any time prior to the first anniversary of a Measurement Date, Beneficial Ownership of Voting Securities representing at least 50% of the Shortfall Amount as of such Measurement Date, and (z) prior to the second anniversary of the most recent Measurement Date, regain Beneficial Ownership of Voting Securities representing at least a majority of the Total Voting Power. Unless a Permanent Suspension shall have occurred, if at any time during a Suspension, TD and its Affiliates Beneficially Own Voting Securities representing in the aggregate 50% or more of the Total Voting Power, such Suspension shall automatically terminate and the applicable designated rights shall automatically be reinstated. A subsequent decrease in TD’s and its Affiliates’ Beneficial Ownership of Voting Securities below 50% of the Total Voting Power shall again trigger the provisions of this definition of “Suspension”, in which event new measurement periods pursuant to clauses (i) and (ii)(y) and (z) of this definition and of the definition of “Permanent Suspension” shall commence; provided that if within six months following any such termination of a Suspension that had resulted from Transfer Events, another Suspension resulting from Transfer Events occurs, such new measurement periods with respect to such subsequent Suspension shall not commence and such subsequent Suspension shall be deemed, for purposes of the definition of Permanent Suspension, to be a continuation of the prior Suspension.

      P. “TD” means The Toronto-Dominion Bank, a Canadian chartered bank, and any successor thereto (whether by operation of law in a merger or amalgamation or otherwise).

      Q. “Termination Event” means TD and its Affiliates Beneficially Owning either (1) Voting Securities representing less than 15% of the Total Voting Power, or (2) 90% or more of each class of capital stock of

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the Corporation the ownership of which would be required in order to effect a merger pursuant to Section 253 of the DGCL (acquired in compliance with the terms of the Stockholders Agreement).

      R. “Total Voting Power” means the total number of votes entitled to be cast by the holders of the outstanding Common Stock and any other securities entitled, in the ordinary course, to vote on matters put before the holders of the Common Stock generally.

      S. “Transfer” means, directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of (by operation of law or otherwise), either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of (by operation of law or otherwise), any Voting Securities or any interest in any Voting Securities; provided, however, that a merger, amalgamation, plan of arrangement or consolidation or similar business combination transaction in which TD is a constituent corporation (or otherwise a party including, for the avoidance of doubt, a transaction pursuant to which a Person acquires all or a portion of TD’s outstanding Capital Stock, whether by tender or exchange offer, by share exchange, or otherwise) shall not be deemed to be the Transfer of any Voting Securities Beneficially Owned by TD or any of its Subsidiaries, provided that the primary purpose of any such transaction is not to avoid the provisions of this Certificate of Incorporation and that the successor or surviving person to such a merger, amalgamation, plan of arrangement or consolidation or similar business combination transaction, if not TD, expressly assumes all obligations of TD under the Stockholders Agreement. For purposes of this Certificate of Incorporation, the term Transfer shall include the sale of an Affiliate of TD or TD’s interest in an Affiliate which Beneficially Owns Voting Securities unless such Transfer is in connection with a merger, amalgamation, plan of arrangement or consolidation or similar business combination transaction referred to in the first proviso of the previous sentence. Solely for purposes of subparagraph (B)(5) of Article FOURTH the term “Transfer” shall also refer to the Class B Common Stock.

      T. “Voting Securities” means at any time shares of any class of capital stock or other securities of the Corporation, other than the Class B Common Stock, which are then entitled to vote generally in the election of directors and not solely upon the occurrence and during the continuation of certain specified events, and any securities convertible into or exercisable or exchangeable for such shares of capital stock.

      U. For purposes of this Certificate of Incorporation, all determinations of the amount of outstanding Voting Securities shall be based on information set forth in the most recent quarterly or annual report, and any current report subsequent thereto, filed by the Corporation with the Securities and Exchange Commission, unless the Corporation shall have updated such information by delivery of written notice to TD. If at any time or from time to time the Corporation becomes aware of any event that has caused, or which could reasonably be expected to cause, TD’s Beneficial Ownership of Voting Securities to decrease below a majority of the Total Voting Power, such as receipt of an option holder’s notice to exercise such option(s), the Corporation shall promptly (but in no event more than five business days thereafter) notify TD thereof.

      ELEVENTH. A. In recognition of the fact that the Corporation and TD currently engage in, and may in the future engage in, the same or similar activities or lines of business and have an interest in the same areas and types of corporate opportunities (subject, in each case, to the provisions of Section 4.10 of the Stockholders Agreement), and in recognition of the benefits to be derived by the Corporation through its continued contractual, corporate and business relations with TD (including possible service of officers and directors of TD as officers and directors of the Corporation), the provisions of this Article ELEVENTH are set forth to regulate and define the conduct of certain affairs of the Corporation as they may involve TD and its officers and directors, and the powers, rights, duties and liabilities of the Corporation and its officers, directors and stockholders in connection therewith. In furtherance of the foregoing (but without limiting the provisions of Section 4.10 of the Stockholders Agreement), the Corporation renounces any interest or expectancy in, or in being offered the opportunity to participate in, any corporate opportunity not allocated to it pursuant to this Article ELEVENTH to the fullest extent permitted by Section 122(17) of the DGCL (or any successor provision), and TD renounces any interest

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or expectancy in, or in being offered the opportunity to participate in, any corporate opportunity presented to a director or officer of TD and allocated to the Corporation pursuant to Article ELEVENTH to the fullest extent permitted by applicable law.

      B. TD shall have no duty to refrain from engaging in the same or similar activities or lines of business as the Corporation (except as may otherwise be expressly provided in Section 4.10 of the Stockholders Agreement), and neither TD nor any officer or director thereof shall be liable to the Corporation or its stockholders for breach of any fiduciary duty by reason of any such activities of TD. In the event that TD acquires knowledge of a potential transaction or matter which may be a corporate opportunity for both TD and the Corporation, TD shall have no duty to communicate or offer such corporate opportunity to the Corporation and shall not be liable to the Corporation or its stockholders for breach of any fiduciary duty as a stockholder of the Corporation by reason of the fact that TD pursues or acquires such corporate opportunity for itself, directs such corporate opportunity to another Person, or does not communicate information regarding such corporate opportunity to the Corporation, and the Corporation hereby renounces any interest or expectancy in such corporate opportunity.

      C. In the event that a director or officer of the Corporation who is also a director or officer of TD acquires knowledge of a potential transaction or matter which may be a corporate opportunity for both the Corporation and TD, such director or officer of the Corporation shall have fully satisfied and fulfilled the fiduciary duty of such director or officer to the Corporation and its stockholders with respect to such corporate opportunity if such director or officer acts in a manner consistent with the following policy:

 

 

 

      (1) A corporate opportunity offered to any Person who is an officer of the Corporation, and who is also a director but not an officer of TD, shall belong to the Corporation;

 

 

 

      (2) A corporate opportunity offered to any Person who is a director but not an officer of the Corporation, and who is also a director or officer of TD, shall belong to the Corporation if such opportunity is expressly offered to such Person in writing solely in his or her capacity as a director of the Corporation, and otherwise shall belong to TD; and

 

 

 

      (3) A corporate opportunity offered to any Person who is an officer of both the Corporation and TD (other than the Chief Executive Officer of the Corporation if at the relevant time he is also an officer of TD, with respect to whom opportunities shall be subject to paragraph C(1) above except if such opportunity is expressly offered to such individual in writing solely in his or her capacity as an officer of TD) shall belong to the Corporation if such opportunity is expressly offered to such Person in writing solely in his or her capacity as an officer of the Corporation, and otherwise shall belong to TD.

      D. For purposes of this Article ELEVENTH only:

 

 

 

      (1) A director of the Corporation who is Chairman of the Board of Directors of the Corporation or of a committee thereof shall not be deemed to be an officer of the Corporation by reason of holding such position (without regard to whether such position is deemed an office of the Corporation under the By-Laws of the Corporation), unless such Person is a full-time employee of the Corporation; and

 

 

 

      (2) (A) The term “Corporation” shall mean the Corporation and its Subsidiaries, and (B) the term “TD” shall mean TD and its Subsidiaries (other than the Corporation and its Subsidiaries).

      E. Notwithstanding anything in this Certificate of Incorporation to the contrary, the foregoing provisions of this Article ELEVENTH shall expire on the first date on which TD and its Affiliates Beneficially Own Voting Securities representing less than 15% of the Total Voting Power. Neither the alteration, amendment or repeal of this Article ELEVENTH nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Article ELEVENTH shall eliminate or reduce the effect of this Article ELEVENTH in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article ELEVENTH, would accrue or arise, prior to such alteration, amendment, repeal or adoption.

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      TWELFTH. The Corporation elects not to be governed by Section 203 of the DGCL.

      THIRTEENTH. Prior to the occurrence of a Termination Event, the Corporation shall not adopt a stockholders’ rights plan or other similar antitakeover measure unless such plan or measure expressly excludes TD and its Affiliates from its operation in all respects, and does not impair in any respect the rights of TD or any of its Affiliates under the Stockholders Agreement, including their rights under Section 3.2 thereof.