exv10w4



 




Exhibit 10.4






FIRST AMENDMENT TO

AMENDED AND RESTATED PARTICIPATION AGREEMENT

UNDER THE TD BANKNORTH, INC. 2005 PERFORMANCE

BASED RESTRICTED SHARE UNIT PLAN




     First Amendment, dated as of January 31, 2006 (the “Amendment”), to the Amended and Restated
Participation Agreement, dated as of May 24, 2005 (the “Participation Agreement”), under the TD
Banknorth, Inc. 2005 Performance Based Restricted Share Unit Plan (the “RSU Plan”), between TD
Banknorth Inc. (the “Company”) and David J. Ott (the “Executive”). Capitalized terms which are not
defined herein shall have the same meaning as set forth in the RSU Plan.



W I T N E S S E T H:




     WHEREAS, on March 1, 2005 the Company and the Executive entered into the Participation
Agreement, which evidences the grant to the Executive of 49,044 Units, with an initial value of
$2,000,000, subject to the terms of the RSU Plan and the Participation Agreement;



     WHEREAS, the Participation Agreement was previously amended and restated as of May 24, 2005;
and



     WHEREAS, the Company and the Executive desire to amend the Participation Agreement and the
Plan as it relates to the Executive;



     NOW, THEREFORE, in consideration of the premises, the mutual agreements herein set forth and
such other consideration the sufficiency of which is hereby acknowledged, the Company and the
Executive hereby agree as follows:



     Section 1. Redemption Value. Notwithstanding the terms of the Participation
Agreement or the RSU Plan, the Company and the Executive agree that the Redemption Value of the
Units subject to the Participation Agreement shall be $2,100,000 and that the Company shall pay
such Redemption Value to the Executive, subject to the Executive’s continued compliance with
Sections 9(a), 9(b) and 10 of the Retention Agreement, dated as of August 24, 2005, between the
Company and the Executive, as amended as of the date hereof, on March 1, 2008.



     Section 2. Effectiveness. This Amendment shall be deemed effective as of the date
first above written, as if executed on such date. Except as expressly set forth herein, this
Amendment shall not by implication or otherwise alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in the Participation
Agreement, all of which are ratified and affirmed in all respects and shall continue in full force
and effect and shall be otherwise unaffected.



     Section 3. Governing Law. This Amendment and the rights and obligations hereunder
shall be governed by and construed in accordance with the laws of the State of Maine.



 









 





     Section 4. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall for all purposes be deemed an original, and all of which together
shall constitute but one and the same instrument.



     IN WITNESS WHEREOF, the Company and the Executive have duly executed this Amendment as of the
day and year first above written.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	TD BANKNORTH INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Attest:
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ Carol L. Mitchell	 	By:	 	/s/ William J. Ryan	 	 
	 	 	 	 	 	 	 
	Name:

	 	Carol L. Mitchell
	 	 	 	Name:
	 	William J. Ryan	 	 
	Title:

		 Senior Executive Vice President,
General Counsel and Secretary

	 	 		Title:
	 	Chairman, President
and Chief Executive Officer
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Attest:
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ Carol L. Mitchell	 	 	 	/s/ David J. Ott	 	 
	 	 	 	 	 	 	 
	Name: Carol L. Mitchell	 	 	 	David J. Ott	 	 







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