AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 8, 2006
REGISTRATION NO. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM F-9
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_____________
ENCANA CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CANADA
(PROVINCE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
1311
(PRIMARY STANDARD INDUSTRIAL
CLASSIFICATION CODE NUMBER)
NOT APPLICABLE
(I.R.S. EMPLOYER IDENTIFICATION NO., IF
APPLICABLE)
1800, 855 - 2ND STREET S.W.
CALGARY, ALBERTA, CANADA T2P 2S5
(403) 645-2000
ATTENTION: CORPORATE SECRETARY
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CT CORPORATION SYSTEM
111 8TH AVENUE, 13TH FLOOR
NEW YORK, NEW YORK 10011
(212) 894-8940
(NAME, ADDRESS AND TELEPHONE NUMBER (INCLUDING AREA CODE)
OF AGENT FOR SERVICE IN THE UNITED STATES)
COPIES TO:
KERRY DYTE ANDREW J. FOLEY KEVIN E. JOHNSON
ENCANA CORPORATION EDWIN S. MAYNARD MACLEOD DIXON LLP
1800, 855 - 2ND STREET S.W. PAUL, WEISS, RIFKIND, 3700 CANTERRA TOWER
CALGARY, ALBERTA, CANADA WHARTON & GARRISON LLP 400 - 3RD AVENUE S.W.
T2P 2S5 1285 AVENUE OF THE AMERICAS CALGARY, ALBERTA, CANADA
(403) 645-2000 NEW YORK, N.Y. 10019-6064 T2P 4H2
(212) 373-3000 (403) 267-8222
_____________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement.
PROVINCE OF ALBERTA, CANADA
(PRINCIPAL JURISDICTION REGULATING THIS OFFERING)
It is proposed that this filing shall become effective (check appropriate box
below):
A. [_] upon filing with the Commission, pursuant to Rule 467(a) (if in
connection with an offering being made contemporaneously in the
United States and Canada).
B. [X] at some future date (check appropriate box below)
1. [_] pursuant to Rule 467(b) on (___) at (___) (designate a time not
sooner than 7 calendar days after filing).
2. [_] pursuant to Rule 467(b) on (___) at (___) (designate a time 7
calendar days or sooner after filing) because the securities
regulatory authority in the review jurisdiction has issued a
receipt or notification of clearance on (___).
3. [_] pursuant to Rule 467(b) as soon as practicable after
notification of the Commission by the Registrant or the
Canadian securities regulatory authority of the review
jurisdiction that a receipt or notification of clearance has
been issued with respect hereto.
4. [X] after the filing of the next amendment to this Form (if
preliminary material is being filed).
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to the home jurisdiction's shelf
prospectus offering procedures, check the following box.[X]
----------------------
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM OFFERING AGGREGATE OFFERING PRICE AMOUNT OF
REGISTERED REGISTERED PRICE PER SECURITY (1) (1) REGISTRATION FEE (2)
-------------------------------------------------------------------------------------------------------------------------------
Debt Securities........... U.S.$2,000,000,000 100% U.S.$2,000,000,000 U.S.$214,000
-------------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of determining the registration fee.
(2) An aggregate of U.S. $253,400 of the amount of the registration fee was
previously paid in connection with U.S.$2,000,000,000 of unissued
securities registered under our F-9 shelf registration statement (File No.
333-118737) initially filed on September 1, 2004 and declared effective on
September 20, 2004, which unsold securities are hereby deregistered.
Accordingly, pursuant to Rule 457(p) of the General Rules and Regulations
under the Securities Act of 1933, as amended, U.S. $253,400 is being
offset against the total registration fee due for this Registration
Statement.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE AS PROVIDED IN RULE 467 UNDER THE SECURITIES
ACT OF 1933 OR ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A)
OF THE ACT, MAY DETERMINE.
===============================================================================
INFORMATION REQUIRED TO BE
DELIVERED TO OFFEREES OR PURCHASERS
I-1
NEW ISSUE PRELIMINARY SHORT FORM PROSPECTUS DATED SEPTEMBER 8, 2006
[GRAPHIC OMITTED]
[LOGO - ENCANA CORPORATION]
US$2,000,000,000
DEBT SECURITIES
_____________
We may from time to time offer and sell up to US$2,000,000,000 (or the
equivalent in other currencies) aggregate principal amount of our debt
securities. These debt securities may be offered and sold in Canada, the United
States and elsewhere where permitted by law. These debt securities may consist
of debentures, notes or other types of debt and may be issuable in series. We
will provide the specific terms of these securities in supplements to this
prospectus that will be delivered to purchasers together with this prospectus.
Unless otherwise provided in a prospectus supplement relating to a series of
debt securities, the debt securities will be our direct, unsecured and
unsubordinated obligations and will be issued under a trust indenture. You
should read this prospectus and any prospectus supplement carefully before you
invest.
_____________
NEITHER THE U.S. SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENCE.
WE ARE PERMITTED, UNDER A MULTIJURISDICTIONAL DISCLOSURE SYSTEM ADOPTED
BY THE UNITED STATES, TO PREPARE THIS PROSPECTUS IN ACCORDANCE WITH CANADIAN
DISCLOSURE REQUIREMENTS, WHICH ARE DIFFERENT FROM THOSE OF THE UNITED STATES.
WE PREPARE OUR FINANCIAL STATEMENTS IN ACCORDANCE WITH CANADIAN GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES, AND THEY ARE SUBJECT TO CANADIAN AUDITING AND
AUDITOR INDEPENDENCE STANDARDS. THEY MAY NOT BE COMPARABLE TO FINANCIAL
STATEMENTS OF UNITED STATES COMPANIES.
OWNING THE DEBT SECURITIES MAY SUBJECT YOU TO TAX CONSEQUENCES BOTH IN
THE UNITED STATES AND CANADA. THIS PROSPECTUS OR ANY APPLICABLE PROSPECTUS
SUPPLEMENT MAY NOT DESCRIBE THESE TAX CONSEQUENCES FULLY. YOU SHOULD READ THE
TAX DISCUSSION IN ANY APPLICABLE PROSPECTUS SUPPLEMENT.
YOUR ABILITY TO ENFORCE CIVIL LIABILITIES UNDER THE UNITED STATES
FEDERAL SECURITIES LAWS MAY BE AFFECTED ADVERSELY BECAUSE WE ARE INCORPORATED
IN CANADA, MOST OF OUR OFFICERS AND DIRECTORS AND SOME OF THE EXPERTS NAMED IN
THIS PROSPECTUS ARE CANADIAN RESIDENTS, AND MOST OF OUR ASSETS OR THE ASSETS OF
OUR DIRECTORS AND OFFICERS AND THE EXPERTS ARE LOCATED OUTSIDE THE UNITED
STATES.
THERE IS NO MARKET THROUGH WHICH THESE SECURITIES MAY BE SOLD AND
PURCHASERS MAY NOT BE ABLE TO RESELL SECURITIES PURCHASED UNDER THIS
PROSPECTUS. THIS MAY AFFECT THE PRICING OF THE SECURITIES IN THE SECONDARY
MARKET, THE TRANSPARENCY AND AVAILABILITY OF TRADING PRICES, THE LIQUIDITY OF
THE SECURITIES, AND THE EXTENT OF THE ISSUER REGULATION. SEE "RISK FACTORS".
_____________
September __, 2006
TABLE OF CONTENTS
About this Prospectus.........................................................2
Where You Can Find More Information...........................................2
Forward-Looking Statements....................................................4
EnCana Corporation............................................................6
Use of Proceeds...............................................................6
Description of Debt Securities................................................6
Risk Factors.................................................................21
Certain Income Tax Considerations............................................22
Plan of Distribution.........................................................22
Interest Coverage............................................................23
Legal Matters................................................................23
Experts......................................................................23
Documents Filed as Part of the Registration Statement........................24
ABOUT THIS PROSPECTUS
Except as set forth under "Description of Debt Securities", and unless
the context otherwise requires, all references in this prospectus and any
prospectus supplement to "EnCana", "we", "us" and "our" mean EnCana Corporation
and its consolidated subsidiaries and partnerships.
In this prospectus and in any prospectus supplement, unless otherwise
specified or the context otherwise requires, all dollar amounts are expressed
in United States dollars, references to "dollars", "$" or "US$" are to United
States dollars and all references to "C$" are to Canadian dollars. Unless
otherwise indicated, all financial information included and incorporated by
reference in this prospectus or included in any prospectus supplement is
determined using Canadian generally accepted accounting principles, referred to
as "Canadian GAAP".
We may, from time to time, sell any combination of the debt securities
described in this prospectus in one or more offerings up to an aggregate
principal amount of US$2,000,000,000. This prospectus provides you with a
general description of the debt securities that we may offer. Each time we sell
debt securities under this prospectus, we will provide a prospectus supplement
that will contain specific information about the terms of that offering of debt
securities. The prospectus supplement may also add, update or change
information contained in this prospectus. Before you invest, you should read
both this prospectus and any applicable prospectus supplement together with
additional information described under the heading "Where You Can Find More
Information". This prospectus does not contain all of the information set forth
in the registration statement, certain parts of which are omitted in accordance
with the rules and regulations of the United States Securities and Exchange
Commission (the "SEC"). You may refer to the registration statement and the
exhibits to the registration statement for further information with respect to
us and the debt securities.
WHERE YOU CAN FIND MORE INFORMATION
INFORMATION HAS BEEN INCORPORATED BY REFERENCE IN THIS PROSPECTUS FROM
DOCUMENTS FILED WITH SECURITIES COMMISSIONS OR SIMILAR AUTHORITIES IN CANADA.
Copies of the documents incorporated herein by reference may be obtained on
request without charge from the Corporate Secretary of EnCana Corporation,
1800, 855 -- 2nd Street S.W., P.O. Box 2850, Calgary, Alberta T2P 2S5, Canada,
telephone: (403) 645-2000. For the purpose of the Province of Quebec, this
simplified prospectus contains information to be completed by consulting the
permanent information record. A copy of the permanent information record may be
obtained from the Corporate Secretary of EnCana Corporation at the
above-mentioned address and telephone number. These documents are also
available through the internet via the System for Electronic Document Analysis
and Retrieval (SEDAR), which can be accessed at www.sedar.com.
We file with the securities commission or authority in each of the
provinces and territories of Canada, annual and quarterly reports, material
change reports and other information. We are subject to the informational
requirements of the United States Securities Exchange Act of 1934, as amended
(the "Exchange Act") and, in accordance with the Exchange Act, we also file
reports with and furnish other information to the SEC. Under the
multijurisdictional disclosure system adopted by the United States, these
reports and other information (including financial information) may be prepared
2
in accordance with the disclosure requirements of Canada, which differ from
those in the United States. You may read any document we furnish to the SEC at
the SEC's public reference room at Room 1580, 100 F Street, N.E., Washington,
D.C. 20549. You may also obtain copies of the same documents from the public
reference room of the SEC at 100 F Street, N.E., Washington D.C. 20549 by
paying a fee. Please call the SEC at 1-800-SEC-0330 or contact them at
www.sec.gov for further information on the public reference rooms. Our filings
since November 2002 are also electronically available from the SEC's Electronic
Document Gathering and Retrieval System, which is commonly known by the acronym
EDGAR and which may be accessed at www.sec.gov, as well as from commercial
document retrieval services.
Under applicable securities laws in Canada and the United States, the
Canadian securities commissions and the SEC allow us to incorporate by
reference certain information that we file with them, which means that we can
disclose important information to you by referring you to those documents.
Information that is incorporated by reference is an important part of this
prospectus. We incorporate by reference the documents listed below, which were
filed with the Canadian securities commissions under Canadian securities
legislation:
(a) our Annual Information Form dated February 17, 2006;
(b) our audited comparative consolidated financial statements for
the year ended December 31, 2005, including the auditors'
report thereon;
(c) our Management's Discussion and Analysis for the year ended
December 31, 2005;
(d) our Information Circular (amended) dated February 28, 2006
relating to the annual meeting of our shareholders held on
April 26, 2006;
(e) our unaudited comparative interim consolidated financial
statements for the six months ended June 30, 2006; and
(f) our Management's Discussion and Analysis for the six months
ended June 30, 2006.
Any annual information form, audited annual consolidated financial
statements (together with the auditors' report thereon), information circular,
unaudited interim consolidated financial statements, management's discussion
and analysis or material change reports (excluding confidential material change
reports) subsequently filed by us with securities commissions or similar
authorities in the relevant provinces and territories of Canada after the date
of this prospectus and prior to the termination of the offering of debt
securities under any prospectus supplement shall be deemed to be incorporated
by reference into this prospectus. These documents are available through the
internet on SEDAR. To the extent that any document or information incorporated
by reference into this prospectus is included in a report that is filed with or
furnished to the SEC on Form 40-F, 20-F, 10-K, 10-Q, 8-K or 6-K (or any
respective successor form), such document or information shall also be deemed
to be incorporated by reference as an exhibit to the registration statement
relating to the debt securities of which this prospectus forms a part.
ANY STATEMENT CONTAINED IN THIS PROSPECTUS OR IN A DOCUMENT (OR PART
THEREOF) INCORPORATED BY REFERENCE, OR DEEMED TO BE INCORPORATED BY REFERENCE,
IN THIS PROSPECTUS SHALL BE DEEMED TO BE MODIFIED OR SUPERSEDED, FOR PURPOSES
OF THIS PROSPECTUS, TO THE EXTENT THAT A STATEMENT CONTAINED IN THE PROSPECTUS
OR IN ANY SUBSEQUENTLY FILED DOCUMENT (OR PART THEREOF) THAT ALSO IS, OR IS
DEEMED TO BE, INCORPORATED BY REFERENCE IN THIS PROSPECTUS MODIFIES OR REPLACES
SUCH STATEMENT. ANY STATEMENT SO MODIFIED OR SUPERSEDED SHALL NOT BE DEEMED,
EXCEPT AS SO MODIFIED OR SUPERSEDED, TO CONSTITUTE PART OF THIS PROSPECTUS. 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 WHICH IT MODIFIES OR SUPERSEDES.
We will file updated interest coverage ratios quarterly with the
applicable securities regulatory authorities, including the SEC, either as
prospectus supplements or exhibits to our unaudited interim consolidated
financial statements and audited annual consolidated financial statements which
will be deemed to be incorporated by reference in this prospectus for the
purpose of the offering of the debt securities.
3
Upon a new annual information form and related annual consolidated
financial statements and management's discussion and analysis being filed by us
with, and where required, accepted by, the applicable securities regulatory
authorities during the duration of this prospectus, the previous annual
information form, the previous annual consolidated financial statements and all
interim consolidated financial statements and the accompanying management's
discussion and analysis, information circulars (other than an information
circular relating to an annual meeting of shareholders) and material change
reports filed prior to the commencement of our financial year in which the new
annual information form is filed shall be deemed no longer to be incorporated
into this prospectus for purposes of future offers and sales of debt securities
under this prospectus. Upon interim consolidated financial statements and the
accompanying management's discussion and analysis being filed by us with the
applicable securities regulatory authorities during the duration of this
prospectus, all interim consolidated financial statements and the accompanying
management's discussion and analysis filed prior to the new interim
consolidated financial statements shall be deemed no longer to be incorporated
into this prospectus for purposes of future offers and sales of debt securities
under this prospectus.
A prospectus supplement or prospectus supplements containing the
specific terms for an issue 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 such
prospectus supplement but only for the purposes of the debt securities issued
thereunder.
You may obtain a copy of our Annual Information Form and other
information identified above by writing or calling us at the following address
and telephone number:
EnCana Corporation
1800, 855 - 2nd Street S.W.
Calgary, Alberta T2P 2S5
(403) 645-2000
Attention: Corporate Secretary
FORWARD-LOOKING STATEMENTS
Certain statements included in this prospectus and the documents
incorporated by reference herein constitute forward-looking statements or
information (collectively referred to as "forward-looking statements") within
the meaning of applicable securities legislation, including the United States
Private Securities Litigation Reform Act of 1995, relating to, but not limited
to, our operations, anticipated financial performance, business prospects and
strategies. Forward-looking statements typically contain statements with words
such as "projected", "anticipate", "believe", "expect", "plan", "intend" or
similar words suggesting future outcomes or statements regarding an outlook.
Forward-looking statements in or incorporated by reference into this prospectus
include, but are not limited to, statements with respect to: oilsands strategy
and the effect of this strategy, timing and completion of the sale of the
Ecuador assets, the Chinook heavy oil discovery and the natural gas storage
business, plans to import diluent, capital investment levels and the allocation
thereof, drilling plans and the timing and location thereof, production
capacity and levels and the timing of achieving such capacity and levels,
pipeline capacity, the timing of pipeline and new plant construction, the
timing of completion of the environmental assessment on the Suffield Block, the
timing of completion of the Foster Creek and Christina Lake expansions, the
completion of waterflood implementation at Pelican Lake, government royalty
rates, the results of the U.S. Bureau of Land Management decision regarding the
Jonah area, the potential for natural gas resource play development on the Foix
permit lands, reserves estimates, storage capacity, the level of expenditures
for compliance with environmental regulations, site restoration costs including
abandonment and reclamation costs, pending litigation, exploration plans,
acquisition and disposition plans, including farmout plans, the timing of
acquisitions, net cash flows, expected proportion of total production and cash
flows contributed by natural gas, anticipated success of our market risk
mitigation strategy and its impact on cash flow, upside potential and downside
protection, anticipated purchases pursuant to our normal course issuer bid, the
potential demand for natural gas, future industry activity and the impact
thereof on costs, anticipated prices for crude oil and natural gas,
geographical expansion and plans for seismic surveys.
You are cautioned not to place undue reliance on forward-looking
statements, as there can be no assurance that the plans, intentions or
expectations upon which they are based will occur. By their nature,
forward-looking statements involve numerous assumptions, known and unknown
risks and uncertainties, both general and specific, that contribute to the
possibility that the predictions, forecasts, projections and other things
4
contemplated by the forward-looking statements will not occur. Although we
believe that the expectations represented by such forward-looking statements
are reasonable, there can be no assurance that such expectations will prove to
be correct. Some of the risks and other factors which could cause results to
differ materially from those expressed in the forward-looking statements
contained in this prospectus and the documents incorporated by reference herein
include, but are not limited to: volatility of and assumptions regarding oil
and natural gas prices, assumptions based upon our current guidance,
fluctuations in currency and interest rates, product supply and demand, market
competition, risks inherent in our North American and foreign oil and natural
gas and midstream operations, risks of war, hostilities, civil insurrection and
instability affecting countries in which we and our subsidiaries operate and
terrorist threats, risks inherent in our and our subsidiaries' marketing
operations, including credit risk, imprecision of reserves estimates and
estimates of recoverable quantities of oil, natural gas and liquids from
resource plays and other sources not currently classified as proved reserves,
our and our subsidiaries' ability to replace and expand oil and natural gas
reserves, risks associated with technology, our ability to generate sufficient
cash flow from operations to meet our current and future obligations, our
ability to access external sources of debt and equity capital, general economic
and business conditions, our ability to enter into or renew leases, the timing
and costs of gas storage facility, well and pipeline construction, our ability
to make capital investments and the amounts of capital investments, imprecision
in estimating the timing, costs and levels of production and drilling, the
results of exploration, development and drilling, imprecision in estimates of
future production capacity, our and our subsidiaries' ability to secure
adequate product transportation, uncertainty in the amounts of timing of
royalty payments, imprecision in estimates of product sales, changes in
environmental and other regulations or the interpretation of such regulations,
risks associated with existing and potential future lawsuits and regulatory
actions against us and our subsidiaries, political and economic conditions in
the countries in which we and our subsidiaries operate, difficulty in obtaining
necessary regulatory approvals and such other risks and uncertainties described
from time to time in our reports and filings with the Canadian securities
authorities and the SEC. Statements relating to "reserves" are deemed to be
forward-looking statements, as they involve the implied assessment, based on
certain estimates and assumptions, that the reserves described exist in the
quantities predicted or estimated, and can be profitably produced in the
future.
We caution that the foregoing list of important factors is not
exhaustive. Events or circumstances could cause our actual results to differ
materially from those estimated or projected and expressed in, or implied by,
these forward-looking statements. You should also carefully consider the
matters discussed under "Risk Factors" in this prospectus, in any applicable
prospectus supplement and in the documents incorporated herein by reference.
Except as required by law, we undertake no obligation to update publicly or
otherwise revise any forward looking statements, whether as a result of new
information, future events or otherwise, or the foregoing list of factors
affecting this information.
5
ENCANA CORPORATION
We are one of North America's leading natural gas producers, are among
the largest holders of natural gas and oil resource lands onshore North America
and are a technical and cost leader in the in-situ recovery of oilsands
bitumen. We pursue growth from our portfolio of long-life resource plays
situated in Canada and the United States. Contained in unconventional
reservoirs, resource plays are large contiguous accumulations of hydrocarbons,
located in thick or a really extensive deposits, that typically have lower
geological and commercial development risk, lower average long-term decline
rates and very long producing lives compared to conventional plays. We are also
engaged in select exploration and production activities internationally.
We continually pursue opportunities to develop and expand our business,
which may include significant corporate or asset acquisitions. We may finance
such acquisitions with debt or equity, or a combination of both.
Our principal executive and registered offices are located at 1800, 855
- 2nd Street S.W., Calgary, Alberta T2P 2S5, Canada.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement
relating to a series of debt securities, we will use the net proceeds we
receive from the sale of the debt securities for general corporate purposes.
Those general corporate purposes may include capital expenditures, the
repayment of indebtedness and the financing of acquisitions. The amount of net
proceeds to be used for any such purpose will be described in an applicable
prospectus supplement. We may invest funds that we do not immediately use in
short-term marketable securities.
DESCRIPTION OF DEBT SECURITIES
In this section only, "we", "us", "our" or "EnCana" refer only to
EnCana Corporation without any of its subsidiaries or partnerships through
which it operates. The following description describes certain general terms
and provisions of the debt securities. We will provide the 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 supplement
to this prospectus.
The debt securities will be issued under an indenture (hereinafter
referred to as the "Indenture") to be entered into between us and The Bank of
New York, as "Trustee". The Indenture will be subject to and governed by the
U.S. Trust Indenture Act of 1939, as amended. The following is a summary of the
Indenture which describes certain general terms and provisions of the debt
securities and is not intended to be complete; these statements are qualified
in their entirety by, and subject to, the provisions of the Indenture,
including the definition of capitalized terms used under this caption. We urge
you to read the Indenture carefully, because it is the Indenture, and not this
summary, that governs your rights as a holder of our debt securities. See
"Where You Can Find More Information" in this prospectus. Prospective investors
should rely on information in the applicable prospectus supplement, which may
provide information that is different from this prospectus.
We may, from time to time, issue debt instruments and incur additional
indebtedness other than through the issuance of debt securities pursuant to
this prospectus.
GENERAL
The Indenture does not limit the aggregate principal amount of debt
securities (which may include debentures, notes and other unsecured evidences
of indebtedness) that we may issue under the Indenture. It provides that debt
securities may be issued from time to time in one or more series and may be
denominated and payable in U.S. dollars or any foreign currency. Special
Canadian and U.S. federal income tax considerations applicable to any of our
debt securities denominated in a foreign currency will be described in the
prospectus supplement relating to any offering of debt securities denominated
in a foreign currency. The debt securities offered pursuant to this prospectus
6
will be issued in an aggregate principal amount of up to US$2,000,000,000, or
if any debt securities are offered at original issue discount, such greater
amount as shall result in an aggregate offering price of up to
US$2,000,000,000, or the equivalent in other currencies. The Indenture also
permits us to increase the principal amount of any series of our debt
securities previously issued and to issue that increased principal amount. The
applicable prospectus supplement will set forth the following terms relating to
the debt securities being offered by us:
o the specific designation and the aggregate principal amount of
the debt securities of such series;
o the extent and manner, if any, to which payment on or in
respect of our debt securities of such series will be senior or
will be subordinated to the prior payment of our other
liabilities and obligations;
o the percentage or percentages of principal amount at which our
debt securities of such series will be issued;
o the date or dates on which the principal of (and premium, if
any, on) our debt securities of such series will be payable and
the portion (if less than the principal amount) of the debt
securities of such series to be payable upon a declaration of
acceleration of maturity and/or the method by which such date
or dates shall be determined or extended;
o the rate or rates (whether fixed or variable) at which our debt
securities of such series will bear interest, if any, and the
date or dates from which such interest will accrue;
o the dates on which any interest will be payable and the regular
record dates for the payment of interest on our debt securities
of such series in registered form;
o the place or places where the principal of (and premium, if
any, and interest, if any, on) our debt securities will be
payable, and each office or agency where our debt securities of
such series may be presented for registration of transfer or
exchange;
o if other than U.S. dollars, the currency in which our debt
securities of such series are denominated or in which currency
payment of the principal of (and premium, if any, and interest,
if any, on) such debt securities of such series will be
payable;
o whether our debt securities of such series will be issuable in
the form of one or more global securities and, if so, the
identity of the depositary for the global securities;
o any mandatory or optional redemption or sinking fund
provisions;
o the period or periods, if any, within which, the price or
prices at which, the currency in which and the terms and
conditions upon which our debt securities of such series may be
redeemed or purchased by us;
o the terms and conditions, if any, upon which you may redeem our
debt securities of such series prior to maturity and the price
or prices at which and the currency in which our debt
securities of such series are payable;
o any index used to determine the amount of payments of principal
of (and premium, if any, or interest, if any, on) our debt
securities of such series;
o the terms, if any, on which our debt securities may be
converted or exchanged for other of our debt securities or debt
securities of other entities;
o any other terms of our debt securities of such series,
including covenants and events of default which apply solely to
a particular series of our debt securities being offered which
do not apply generally to other debt securities, or any
covenants or events of default generally applicable to our debt
securities of such series which do not apply to a particular
series of our debt securities;
7
o if other than The Depository Trust Company, the person
designated as the depositary for the debt securities of such
series;
o any applicable material Canadian and U.S. federal income tax
consequences;
o whether and under what circumstances we will pay Additional
Amounts (defined below under "Payment of Additional Amounts")
on the debt securities of such series in respect of certain
taxes (and the terms of any such payment) and, if so, whether
we will have the option to redeem the debt securities of such
series rather than pay the Additional Amounts (and the terms of
any such option);
o whether the payment of our debt securities will be guaranteed
by any other person;
o whether the series of our debt securities are to be registered
securities, bearer securities (with or without coupons) or
both; and
o if other than denominations of US$1,000 and any integral
multiple thereof, the denominations in which any registered
securities of the series shall be issuable and, if other than
the denomination of US$5,000, the denomination or denominations
in which any bearer securities of the series shall be issuable.
Unless otherwise indicated in the applicable prospectus supplement, the
Indenture does not afford holders of our debt securities the right to tender
such debt securities to us in the event that we have a change in control.
Our debt securities may be issued under the Indenture bearing no
interest or at a discount below their stated principal amount. The Canadian and
U.S. federal income tax consequences and other special considerations
applicable to any such discounted debt securities or other debt securities
offered and sold at par which are treated as having been issued at a discount
for Canadian and/or U.S. federal income tax purposes will be described in the
prospectus supplement relating to the debt securities.
RANKING
Unless otherwise indicated in an applicable prospectus supplement, the
debt securities will be unsecured and unsubordinated obligations and will rank
equally with all of our other unsecured and unsubordinated indebtedness
outstanding from time to time. We conduct a substantial portion of our business
through corporate and partnership subsidiaries. The debt securities will be
structurally subordinated to all existing and future indebtedness and
liabilities, including trade payables, of any of our corporate or partnership
subsidiaries.
DEBT SECURITIES IN GLOBAL FORM
THE DEPOSITARY, BOOK-ENTRY AND SETTLEMENT
A series of our debt securities may be issued in whole or in part in
global form as a "global security" and will be registered in the name of and be
deposited with a depositary, or its nominee, each of which will be identified
in the prospectus supplement relating to that series. Unless and until
exchanged, in whole or in part, for our debt securities in definitive
registered form, a global security may not be transferred except as a whole by
the depositary for such global security to a nominee of the depositary, by a
nominee of the depositary to the depositary or another nominee of the
depositary or by the depositary or any such nominee to a successor of the
depositary or a nominee of the successor.
The specific terms of the depositary arrangement with respect to any
portion of a particular series of our debt securities to be represented by a
global security will be described in a prospectus supplement relating to such
series. We anticipate that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a global security, the depositary therefor or its
nominee will credit, on its book entry and registration system, the respective
principal amounts of our debt securities represented by the global security to
the accounts of such persons, designated as "participants", having accounts
with such depositary or its nominee. Such accounts shall be designated by the
underwriters, dealers or agents participating in the distribution of our debt
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securities or by us if such debt securities are offered and sold directly by
us. Ownership of beneficial interests in a global security will be limited to
participants or persons that may hold beneficial interests through
participants. Ownership of beneficial interests in a global security will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the depositary therefor or its nominee (with respect to
interests of participants) or by participants or persons that hold through
participants (with respect to interests of persons other than participants).
The laws of some states in the United States may require that certain
purchasers of securities have the ability to take physical delivery of such
securities in definitive form.
So long as the depositary for a global security, or its nominee, is the
registered owner of the global security, such depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the debt
securities represented by the global security for all purposes under the
Indenture. Except as provided below, owners of beneficial interests in a global
security will not be entitled to have a series of our debt securities
represented by the global security registered in their names, will not receive
or be entitled to receive physical delivery of such series of our debt
securities in definitive form and will not be considered the owners or holders
thereof under the Indenture.
PAYMENTS OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST
Any payments of principal, premium, if any, and interest on global
securities registered in the name of a depositary or its nominee will be made
to the depositary or its nominee, as the case may be, as the registered owner
of the global security representing such debt securities. None of us, the
Trustee or any paying agent for our debt securities represented by the global
securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the global security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
We expect that the depositary for a global security or its nominee,
upon receipt of any payment of principal, premium, if any, or interest, will
credit participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of the global security
as shown on the records of such depositary or its nominee. We also expect that
payments by participants to owners of beneficial interests in a global security
held through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers registered in "street name", and will be the responsibility of
such participants.
DISCONTINUANCE OF DEPOSITARY'S SERVICES
If a depositary for a global security representing a particular series
of our debt securities is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by us within 90 days, we
will issue such series of our debt securities in definitive form in exchange
for a global security representing such series of our debt securities. In
addition, we may at any time and in our sole discretion determine not to have a
series of our debt securities represented by a global security and, in such
event, will issue a series of our debt securities in definitive form in
exchange for all of the global securities representing the series of debt
securities.
DEBT SECURITIES IN DEFINITIVE FORM
A series of our debt securities may be issued solely as registered
securities, solely as bearer securities or as both registered securities and
bearer securities. Registered securities will be issuable in denominations of
US$1,000 and integral multiples of US$1,000 and bearer securities will be
issuable in denominations of US$5,000 or, in each case, in such other
denominations as may be set out in the terms of the debt securities of any
particular series. Unless otherwise indicated in the applicable prospectus
supplement, bearer securities will have interest coupons attached.
A prospectus supplement may indicate the places to register a transfer
of our debt securities. Except for certain restrictions set forth in the
Indenture, no service charge will be made for any registration of transfer or
exchange of our debt securities, but we may, in certain instances, require a
sum sufficient to cover any tax or other governmental charges payable in
connection with these transactions.
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We shall not be required to:
o issue, register the transfer of or exchange any series of our
debt securities during a period beginning at the opening of
business 15 days before any selection of that series of our
debt securities to be redeemed and ending at the close of
business on (i) if the series of our debt securities are
issuable only as registered securities, the day of mailing of
the relevant notice of redemption and (ii) if the series of our
debt securities are issuable as bearer securities, the day of
the first publication of the relevant notice of redemption or,
if the series of our debt securities are also issuable as
registered securities and there is no publication, the mailing
of the relevant notice of redemption;
o register the transfer of or exchange any registered security,
or portion thereof, called for redemption, except the
unredeemed portion of any registered security being redeemed in
part;
o exchange any bearer security selected for redemption, except
that, to the extent provided with respect to such bearer
security, such bearer security may be exchanged for a
registered security of that series and like tenor, PROVIDED
that such registered security shall be immediately surrendered
for redemption with written instruction for payment consistent
with the provisions of the Indenture; or
o issue, register the transfer of or exchange any of our debt
securities which have been surrendered for repayment at the
option of the holder, except the portion, if any, thereof not
to be so repaid.
Unless otherwise indicated in the applicable prospectus supplement,
payment of any interest will be made to the persons in whose name our debt
securities are registered at the close of business on the day or days specified
by us.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in
the Indenture. We urge you to read the Indenture for the full definition of all
such terms.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of assets of
any person on a consolidated basis (less applicable reserves and other properly
deductible items) after deducting therefrom:
o all current liabilities (excluding any indebtedness classified
as a current liability and any current liabilities which are by
their terms extendible or renewable at the option of the
obligor thereon to a time more than 12 months after the time as
of which the amount thereof is being computed);
o all goodwill, trade names, trademarks, patents, unamortized
debt discounts and expenses and other like intangibles; and
o appropriate adjustments on account of minority interests of
other persons holding shares of the Subsidiaries of such
person,
in each case, as shown on the most recent annual audited or quarterly unaudited
consolidated balance sheet of such person computed in accordance with GAAP.
"CURRENT ASSETS" means assets which in the ordinary course of business
are expected to be realized in cash or sold or consumed within 12 months.
"FACILITIES" means any drilling equipment, production equipment and
platforms or mining equipment; pipelines, pumping stations and other pipeline
facilities; terminals, warehouses and storage facilities; bulk plants;
production, separation, dehydration, extraction, treating and processing
facilities; gasification or natural gas liquefying facilities, flares, stacks
and burning towers; floatation mills, crushers and ore handling facilities;
tank cars, tankers, barges, ships, trucks, automobiles, airplanes and other
marine, automotive, aeronautical and other similar moveable facilities or
equipment; computer systems and associated programs or office equipment; roads,
airports, docks (including drydocks); reservoirs and waste disposal facilities;
sewers; generating plants (including power plants) and electric lines;
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telephone and telegraph lines, radio and other communications facilities;
townsites, housing facilities, recreation halls, stores and other related
facilities; and similar facilities and equipment of or associated with any of
the foregoing.
"FINANCIAL INSTRUMENT OBLIGATIONS" means obligations arising under:
o interest rate swap agreements, forward rate agreements, floor,
cap or collar agreements, futures or options, insurance or
other similar agreements or arrangements, or any combination
thereof, entered into by a person relating to interest rates or
pursuant to which the price, value or amount payable thereunder
is dependent or based upon interest rates in effect from time
to time or fluctuations in interest rates occurring from time
to time;
o currency swap agreements, cross-currency agreements, forward
agreements, floor, cap or collar agreements, futures or
options, insurance or other similar agreements or arrangements,
or any combination thereof, entered into by a person relating
to currency exchange rates or pursuant to which the price,
value or amount payable thereunder is dependent or based upon
currency exchange rates in effect from time to time or
fluctuations in currency exchange rates occurring from time to
time; and
o commodity swap or hedging agreements, floor, cap or collar
agreements, commodity futures or options or other similar
agreements or arrangements, or any combination thereof, entered
into by a person relating to one or more commodities or
pursuant to which the price, value or amount payable thereunder
is dependent or based upon the price of one or more commodities
in effect from time to time or fluctuations in the price of one
or more commodities occurring from time to time.
"GAAP" means generally accepted accounting principles in Canada which
are in effect from time to time, unless the person's most recent audited or
quarterly financial statements are not prepared in accordance with generally
accepted accounting principles in Canada, in which case GAAP shall mean
generally accepted accounting principles in the United States in effect from
time to time.
"LIEN" means, with respect to any properties or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien,
charge, encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with respect to
such properties or assets (including, without limitation, any conditional sale
or other title retention agreement having substantially the same economic
effect as any of the foregoing).
"NON-RECOURSE DEBT" means indebtedness to finance the creation,
development, construction or acquisition of properties or assets and any
increases in or extensions, renewals or refinancings of such indebtedness,
PROVIDED that the recourse of the lender thereof (including any agent, trustee,
receiver or other person acting on behalf of such entity) in respect of such
indebtedness is limited in all circumstances to the properties or assets
created, developed, constructed or acquired in respect of which such
indebtedness has been incurred and to the receivables, inventory, equipment,
chattels payable, contracts, intangibles and other assets, rights or collateral
connected with the properties or assets created, developed, constructed or
acquired and to which such lender has recourse.
"PERMITTED LIENS" of any person at any particular time means:
o Liens existing as of the date of the Indenture, or arising
thereafter pursuant to contractual commitments entered into
prior to such date;
o Liens on Current Assets given in the ordinary course of
business to any financial institution or others to secure any
indebtedness payable on demand or maturing (including any right
of extension or renewal) within 12 months or less from the date
such indebtedness is incurred;
o Liens in connection with indebtedness, which, by its terms, is
Non-Recourse Debt to us or any of our Subsidiaries;
11
o Liens existing on property or assets at the time of acquisition
(including by way of lease) by such person, PROVIDED that such
Liens were not incurred in anticipation of such acquisition;
o Liens or obligations to incur Liens (including under
indentures, trust deeds and similar instruments) on property or
assets of another person existing at the time such other person
becomes a Subsidiary of such person, or is liquidated or merged
into, or amalgamated or consolidated with, such person or
Subsidiary of such person or at the time of the sale, lease or
other disposition to such person or Subsidiary of such person
of all or substantially all of the properties and assets of
such other person, PROVIDED that such Liens were not incurred
in anticipation of such other person becoming a Subsidiary of
such person;
o Liens upon property or assets of whatsoever nature other than
Restricted Property;
o Liens upon property or facilities used in connection with, or
necessarily incidental to, the purchase, sale, storage,
transportation or distribution of oil or gas or the products
derived from oil or gas;
o Liens arising under partnership agreements, oil and natural gas
leases, overriding royalty agreements, net profits agreements,
production payment agreements, royalty trust agreements, master
limited partnership agreements, farm-out agreements, division
orders, contracts for the sale, purchase, exchange, storage,
transportation, distribution, gathering or processing of
Restricted Property, unitizations and pooling designations,
declarations, orders and agreements, development agreements,
operating agreements, production sales contracts (including
security in respect of take or pay or similar obligations
thereunder), area of mutual interest agreements, natural gas
balancing or deferred production agreements, injection,
repressuring and recycling agreements, salt water or other
disposal agreements, seismic or geophysical permits or
agreements, which in each of the foregoing cases is customary
in the oil and natural gas business, and other agreements which
are customary in the oil and natural gas business, provided in
all instances that such Lien is limited to the property or
assets that are the subject of the relevant agreement;
o Liens on assets or property (including oil sands property)
securing: (i) all or any portion of the cost of acquisition
(directly or indirectly), surveying, exploration, drilling,
development, extraction, operation, production, construction,
alteration, repair or improvement of all or any part of such
assets or property, the plugging and abandonment of wells and
the decommissioning or removal of structures or facilities
located thereon, and the reclamation and clean-up of such
properties, facilities and interests and surrounding lands
whether or not owned by us or our Restricted Subsidiaries, (ii)
all or any portion of the cost of acquiring (directly or
indirectly), developing, constructing, altering, improving,
operating or repairing any assets or property (or improvements
on such assets or property) used or to be used in connection
with such assets or property, whether or not located (or
located from time to time) at or on such assets or property,
(iii) indebtedness incurred by us or any of our Subsidiaries to
provide funds for the activities set forth in clauses (i) and
(ii) above, provided such indebtedness is incurred prior to,
during or within two years after the completion of acquisition,
construction or such other activities referred to in clauses
(i) and (ii) above, and (iv) indebtedness incurred by us or any
of our Subsidiaries to refinance indebtedness incurred for the
purposes set forth in clauses (i) and (ii) above. Without
limiting the generality of the foregoing, costs incurred after
the date hereof with respect to clauses (i) or (ii) above shall
include costs incurred for all facilities relating to such
assets or property, or to projects, ventures or other
arrangements of which such assets or property form a part or
which relate to such assets or property, which facilities shall
include, without limitation, Facilities, whether or not in
whole or in part located (or from time to time located) at or
on such assets or property;
o Liens granted in the ordinary course of business in connection
with Financial Instrument Obligations;
o Purchase Money Mortgages;
o Liens in favor of us or any of our Subsidiaries to secure
indebtedness owed to us or any of our Subsidiaries; and
12
o any extension, renewal, alteration, refinancing, replacement,
exchange or refunding (or successive extensions, renewals,
alterations, refinancings, replacements, exchanges or
refundings) of all or part of any Lien referred to in the
foregoing clauses; PROVIDED, HOWEVER, that (i) such new Lien
shall be limited to all or part of the property or assets which
was secured by the prior Lien plus improvements on such
property or assets and (ii) the indebtedness, if any, secured
by the new Lien is not increased from the amount of the
indebtedness secured by the prior Lien then existing at the
time of such extension, renewal, alteration, refinancing,
replacement, exchange or refunding, plus an amount necessary to
pay fees and expenses, including premiums, related to such
extensions, renewals, alterations, refinancings, replacements,
exchanges or refundings.
"PURCHASE MONEY MORTGAGE" of any person means any Lien created upon any
property or assets of such person to secure or securing the whole or any part
of the purchase price of such property or assets or the whole or any part of
the cost of constructing or installing fixed improvements thereon or to secure
or securing the repayment of money borrowed to pay the whole or any part of
such purchase price or cost of any vendor's privilege or Lien on such property
or assets securing all or any part of such purchase price or cost including
title retention agreements and leases in the nature of title retention
agreements; PROVIDED that (i) the principal amount of money borrowed which is
secured by such Lien does not exceed 100% of such purchase price or cost and
any fees incurred in connection therewith, and (ii) such Lien does not extend
to or cover any other property other than such item of property and any
improvements on such item.
"RESTRICTED PROPERTY" means any oil, gas or mineral property of a
primary nature located in the United States or Canada, and any facilities
located in the United States or Canada directly related to the mining,
processing or manufacture of hydrocarbons or minerals, or any of the
constituents thereof and includes Voting Shares or other interests of a
corporation or other person which owns such property or facilities, but does
not include (i) any property or facilities used in connection with or
necessarily incidental to the purchase, sale, storage, transportation or
distribution of Restricted Property, (ii) any property which, in the opinion of
our board of directors, is not materially important to the total business
conducted by us and our Subsidiaries as an entirety or (iii) any portion of a
particular property which, in the opinion of our board of directors, is not
materially important to the use or operation of such property.
"RESTRICTED SUBSIDIARY" means, on any date, any Subsidiary of ours
which owns at the time Restricted Property; PROVIDED, HOWEVER, such term shall
not include a Subsidiary of ours if the amount of our share of Shareholders'
Equity of such Subsidiary constitutes, at the time of determination, less than
2% of our Consolidated Net Tangible Assets.
"SHAREHOLDERS' EQUITY" means the aggregate amount of shareholders'
equity (including but not limited to share capital, contributed surplus and
retained earnings) of a person as shown on the most recent annual audited or
unaudited interim consolidated balance sheet of such person and computed in
accordance with GAAP.
"SUBSIDIARY" of any person means, on any date, any corporation or other
person of which Voting Shares or other interests carrying more than 50% of the
voting rights attached to all outstanding Voting Shares or other interests are
owned, directly or indirectly, by or for such person or one or more
Subsidiaries thereof.
"UNRESTRICTED SUBSIDIARY" means a Subsidiary which is not or which has
ceased to be a Restricted Subsidiary.
"VOTING SHARES" means shares of any class of any corporation carrying
voting rights under all circumstances, PROVIDED that, for the purposes of this
definition, shares which only carry the right to vote conditionally on the
happening of any event shall not be considered Voting Shares, nor shall any
shares be deemed to cease to be Voting Shares solely by reason of a right to
vote accruing to shares of another class or classes by reason of the happening
of such an event, or solely because the right to vote may not be exercisable
under the charter of the corporation.
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COVENANTS
LIMITATION ON LIENS
The Indenture provides that so long as any of our debt securities are
outstanding and subject to the provisions of the Indenture, we will not, and
will not permit any of our Restricted Subsidiaries to, create, incur, assume or
otherwise have outstanding any Lien securing any indebtedness for borrowed
money or interest thereon (or any liability of ours or such Restricted
Subsidiaries under any guarantee or endorsement or other instrument under which
we or such Restricted Subsidiaries are contingently liable, either directly or
indirectly, for borrowed money or interest thereon), other than Permitted
Liens, without also simultaneously or prior thereto securing, or causing such
Restricted Subsidiaries to secure, indebtedness under the Indenture so that our
debt securities are secured equally and ratably with or prior to such other
indebtedness, except that we and our Restricted Subsidiaries may incur a Lien
to secure indebtedness for borrowed money without securing our debt securities
if, after giving effect thereto, the principal amount of indebtedness for
borrowed money secured by Liens created, incurred or assumed after the date of
the Indenture and otherwise prohibited by the Indenture does not exceed 10% of
our Consolidated Net Tangible Assets.
Notwithstanding the foregoing, transactions such as the sale (including
any forward sale) or other transfer of (i) oil, gas, minerals or other
resources of a primary nature, whether in place or when produced, for a period
of time until, or in an amount such that, the purchaser will realize therefrom
a specified amount of money or a specified rate of return (however determined),
or a specified amount of such oil, gas, minerals, or other resources of a
primary nature, or (ii) any other interest in property of the character
commonly referred to as a "production payment", will not constitute a Lien and
will not result in us or a Restricted Subsidiary of ours being required to
secure the debt securities.
CONSOLIDATION, AMALGAMATION, MERGER AND SALE OF ASSETS
We may not consolidate or amalgamate with or merge into or enter into
any statutory arrangement with any other corporation, or convey, transfer or
lease all or substantially all our properties and assets to any person, unless:
o the entity formed by or continuing from such consolidation or
amalgamation or into which we are merged or with which we enter
into such statutory arrangement or the person which acquires or
leases all or substantially all of our properties and assets is
organized and existing under the laws of the United States, any
state thereof or the District of Columbia or the laws of Canada
or any province or territory thereof, or, if such
consolidation, amalgamation, merger, statutory arrangement or
other transaction would not impair the rights of the holders of
our debt securities, in any other country, PROVIDED that if
such successor entity is organized under the laws of a
jurisdiction other than the United States, any state thereof or
the District of Columbia, or the laws of Canada or any province
or territory thereof, the successor entity assumes our
obligations under the debt securities and the Indenture to pay
Additional Amounts, with the name of such successor
jurisdiction being included in addition to Canada in each place
that Canada appears in "-- Payment of Additional Amounts"
below;
o the successor entity expressly assumes or assumes by operation
of law all of our obligations under our debt securities and
under the Indenture;
o immediately before and after giving effect to such transaction,
no event of default, and no event which, after notice or lapse
of time or both, would become an event of default, shall have
happened and be continuing; and
o certain other conditions are met.
If, as a result of any such transaction, any of our or our Restricted
Subsidiaries' Restricted Properties become subject to a Lien, then, unless such
Lien could be created pursuant to the Indenture provisions described under the
"LIMITATION ON LIENS" covenant above without equally and ratably securing our
debt securities, we, simultaneously with or prior to such transaction, will
secure, or cause the applicable Restricted Subsidiary to secure, our debt
securities to be secured equally and ratably with or prior to the indebtedness
secured by such Lien.
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PAYMENT OF ADDITIONAL AMOUNTS
Unless otherwise specified in the applicable prospectus supplement, all
payments made by or on behalf of us under or with respect to any series of our
debt securities 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 (hereinafter "Canadian
Taxes"), unless we are required to withhold or deduct Canadian Taxes by law or
by the interpretation or administration thereof. If we are 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 debt securities, we will pay to each
holder of such debt securities 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. However, no Additional Amounts will be payable with respect to a
payment made to a debt securities holder (such holder, an "Excluded Holder") in
respect of the beneficial owner thereof:
o with which we do not deal at arm's length (for the purposes of
the Income Tax Act (Canada)) at the time of the making of such
payment;
o which is subject to such Canadian Taxes by reason of the debt
securities holder being a resident, domicile or national of, or
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 debt securities or the receipt of
payments thereunder; or
o which is subject to such Canadian Taxes by reason of the debt
securities holder's 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.
We will also:
o make such withholding or deduction; and
o remit the full amount deducted or withheld to the relevant
authority in accordance with applicable law.
We will furnish to the holders of the debt securities, 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 us.
We will indemnify and hold harmless each holder of debt securities
(other than an Excluded Holder) and upon written request reimburse each such
holder for the amount (excluding any Additional Amounts that have previously
been paid by us with respect thereto) of:
o the payment of any Canadian Tax, together with any interest,
penalties and reasonable expenses in connection therewith; and
o any Canadian Taxes imposed with respect to any reimbursement
under the preceding clause, but excluding any such Canadian
Taxes on such holder's net income.
In any event, no Additional Amounts or indemnity amounts will be
payable in excess of Additional Amounts or the indemnity amounts which would be
required if the holder of debt securities was a resident of the United States
for purposes of the Canada-U.S. Income Tax Convention (1980), as amended.
Wherever in the Indenture there is mentioned, in any context, the
payment of principal (and premium, if any), interest, if any, or any other
amount payable under or with respect to a debt security, such mention shall be
15
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.
TAX REDEMPTION
Unless otherwise specified in the applicable prospectus supplement, a
series of our debt securities will be subject to redemption at any time, 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:
o as a result of any change in or amendment to the laws (or any
regulations or rulings promulgated thereunder) of Canada 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 specified in the
applicable prospectus supplement, we have or will become
obligated to pay, on the next succeeding date on which interest
is due, Additional Amounts with respect to any debt security of
such series as described under "-- Payment of Additional
Amounts"; or
o on or after the date specified in the applicable prospectus
supplement, 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 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
us, or any change, amendment, application or interpretation
shall be officially proposed, which, in any such case, in the
written opinion to us of legal counsel of recognized standing,
will result in our becoming obligated to pay, on the next
succeeding date on which interest is due, Additional Amounts
with respect to any debt security of such series ;
and, in any such case, we, in our business judgment, determine that such
obligation cannot be avoided by the use of reasonable measures available to us.
In the event that we elect to redeem a series of our debt securities
pursuant to the provisions set forth in the preceding paragraph, we shall
deliver to the Trustee a certificate, signed by an authorized officer, stating
that we are entitled to redeem such series of our debt securities pursuant to
their terms.
Notice of intention to redeem such series of our debt securities will
be given not more than 60 nor less than 30 days prior to the date fixed for
redemption and will specify the date fixed for redemption.
PROVISION OF FINANCIAL INFORMATION
We will file with the Trustee, within 15 days after we file them with
the SEC, copies, which may be in electronic format, of our annual report and of
the information, documents and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) which we
are required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act.
Notwithstanding that we may not be required to remain subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise
report on an annual and quarterly basis on forms provided for such annual and
quarterly reporting pursuant to rules and regulations promulgated by the SEC,
we will continue to provide the Trustee:
o within 140 days after the end of each fiscal year, the
information required to be contained in annual reports on Form
20-F, Form 40-F or Form 10-K as applicable (or any successor
form); and
o within 65 days after the end of each of the first three fiscal
quarters of each fiscal year, the information required to be
contained in reports on Form 6-K (or any successor form) which,
regardless of applicable requirements shall, at a minimum,
contain such information required to be provided in quarterly
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reports under the laws of Canada or any province thereof to
security holders of a corporation with securities listed on the
Toronto Stock Exchange, whether or not we have any of our
securities listed on such exchange. Such information will be
prepared in accordance with Canadian disclosure requirements
and GAAP; PROVIDED, HOWEVER, that we shall not be obligated to
file such report with the SEC if the SEC does not permit such
filings.
EVENTS OF DEFAULT
The following are summaries of events of default under the Indenture
with respect to any series of our debt securities:
o default in the payment of any interest on any debt security of
that series when it becomes due and payable, and continuance of
such default for a period of 30 days;
o default in the payment of the principal of (or premium, if any,
on), any debt security of that series when it becomes due and
payable;
o default in the performance, or breach, of any of our covenants
or warranties in the Indenture in respect of our debt
securities of that series (other than a covenant or warranty a
default in the performance of which or the breach of which is
specifically dealt with elsewhere in the Indenture), and
continuance of such default or breach for a period of 60 days
after receipt by us of written notice to us, specifying such
default or breach, by the Trustee or by the holders of at least
25% in principal amount of all outstanding debt securities of
any series affected thereby;
o if an event of default (as defined in any indenture or
instrument under which we or one of our Restricted Subsidiaries
has at the time of the Indenture or shall thereafter have
outstanding any indebtedness for borrowed money) shall happen
and be continuing, or we or any Restricted Subsidiary shall
have failed to pay principal amounts with respect to such
indebtedness at maturity and such event of default or failure
to pay shall result in such indebtedness being declared due and
payable or otherwise being accelerated, in either event so that
an amount in excess of the greater of US$75,000,000 and 2% of
our Shareholders' Equity shall be or become due and payable
upon such declaration or otherwise accelerated prior to the
date on which the same would otherwise have become due and
payable (the "accelerated indebtedness"), and such acceleration
shall not be rescinded or annulled, or such event of default or
failure to pay under such indenture or instrument shall not be
remedied or cured, whether by payment or otherwise, or waived
by the holders of such accelerated indebtedness, then (i) if
the accelerated indebtedness shall be as a result of an event
of default which is not related to the failure to pay principal
or interest on the terms, at the times, and on the conditions
set out in any such indenture or instrument, it shall not be
considered an event of default for purposes of the Indenture
until 30 days after such indebtedness has been accelerated, or
(ii) if the accelerated indebtedness shall occur as a result of
such failure to pay principal or interest or as a result of an
event of default which is related to the failure to pay
principal or interest on the terms, at the times, and on the
conditions set out in any such indenture or instrument, then
(A) if such accelerated indebtedness is, by its terms,
Non-Recourse Debt to us or our Restricted Subsidiaries, it
shall not be considered an event of default for purposes of the
Indenture; or (B) if such accelerated indebtedness is recourse
to us or our Restricted Subsidiaries, any requirement in
connection with such failure to pay or event of default for the
giving of notice or the lapse of time or the happening of any
further condition, event or act under such other indenture or
instrument in connection with such failure to pay principal or
an event of default shall be applicable together with an
additional seven days before being considered an event of
default for purposes of the Indenture;
o the entry of decree or order by a court having jurisdiction in
the premises adjudging us a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of us
under the Bankruptcy and Insolvency Act (Canada), the
Companies' Creditors Arrangement Act (Canada) or any other
applicable insolvency law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or similar
official) of us or of any substantial part of our property, or
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ordering the winding up or liquidation of our the affairs, and
the continuance of any such decree or order unstayed and in
effect for a period of 90 consecutive days;
o the institution by us of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by us to the institution
of bankruptcy or insolvency proceedings against us, or the
filing by us of a petition or answer or consent seeking
reorganization or relief under the Bankruptcy and Insolvency
Act (Canada), the Companies' Creditors Arrangement Act (Canada)
or any other applicable insolvency law, or the consent by us to
the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of us or of any substantial part of our
property, or the making by us of an assignment for the benefit
of creditors, or the admission by it in writing of our
inability to pay our debts generally as they become due; or
o any other events of default provided with respect to debt
securities of that series.
If an event of default under the Indenture occurs and is continuing
with respect to any series of our debt securities, then and in every such case
the Trustee or the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of such affected series may, subject to any
subordination provisions thereof, declare the entire principal amount (or, if
the debt securities of that series are original issue discount debt securities,
such portion of the principal amount as may be specified in the terms of that
series) of all debt securities of such series and all accrued and unpaid
interest thereon to be immediately due and payable. However, at any time after
a declaration of acceleration with respect to any series of our debt securities
has been made, but before a judgment or decree for payment of the money due has
been obtained, the holders of a majority in principal amount of the outstanding
debt securities of that series, by written notice to us and the Trustee under
certain circumstances, may rescind and annul such acceleration.
Reference is made to the applicable prospectus supplement or
supplements relating to each series of our debt securities which are original
issue discount debt securities for the particular provisions relating to
acceleration of the maturity of a portion of the principal amount of such
original issue discount securities upon the occurrence of any event of default
and the continuation thereof.
Subject to certain limitations set forth in the Indenture, the holders
of a majority in principal amount of the outstanding debt securities of all
series affected by an event of default shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the debt securities of all series affected by such event of default.
No holder of a debt security of any series will have any right to
institute any proceeding with respect to the Indenture, or for the appointment
of a receiver or a Trustee, or for any other remedy thereunder, unless:
o such holder has previously given to the Trustee written notice
of a continuing event of default with respect to the debt
securities of such series affected by such event of default;
o the holders of at least 25% in aggregate principal amount of
the outstanding debt securities of such series (voting as one
class) affected by such event of default have made written
request, and such holder or holders have offered reasonable
indemnity, to the Trustee to institute such proceeding as
Trustee; and
o the Trustee has failed to institute such proceeding, and has
not received from the holders of a majority in aggregate
principal amount of the outstanding debt securities of such
series affected by such event of default a direction
inconsistent with such request, within 60 days after such
notice, request and offer.
However, such above-mentioned limitations do not apply to a suit
instituted by the holder of a debt security for the enforcement of payment of
the principal of or any premium or interest on such debt security on or after
the applicable due date specified in such debt security.
We will annually furnish to the Trustee a statement by certain of our
officers as to whether or not we, to the best of their knowledge, are in
compliance with all conditions and covenants of the Indenture and, if not,
specifying all such known defaults.
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DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise specified in the applicable prospectus supplement, the
Indenture provides that, at our option, we will be discharged from any and all
obligations in respect of the outstanding debt securities of any series upon
irrevocable deposit with the Trustee, in trust, of money and/or government
securities which will provide money in an amount sufficient in the opinion of a
nationally recognized firm of independent chartered accountants (as evidenced
by an officer's certificate delivered to the Trustee) to pay the principal of
(and premium, if any, and each installment of interest, if any, on) the
outstanding debt securities of such series (hereinafter referred to as a
"defeasance") (except with respect to the authentication, transfer, exchange or
replacement of our debt securities or the maintenance of a place of payment and
certain other obligations set forth in the Indenture). Such trust may only be
established if among other things:
o we have delivered to the Trustee an opinion of counsel in the
United States stating that (i) we have received from, or there
has been published by, the Internal Revenue Service a ruling,
or (ii) since the date of execution of the Indenture, there has
been a change in the applicable U.S. federal income tax law, in
either case to the effect that the holders of the outstanding
debt securities of such series will not recognize income, gain
or loss for U.S. federal income tax purposes as a result of
such defeasance and will be subject to U.S. federal income tax
on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not
occurred;
o we have delivered to the Trustee an opinion of counsel in
Canada or a ruling from the Canada Revenue Agency to the effect
that the holders of the outstanding debt securities of such
series will not recognize income, gain or loss for Canadian
federal or provincial income or other tax purposes as a result
of such Defeasance and will be subject to Canadian federal or
provincial income and other tax on the same amounts, in the
same manner and at the same times as would have been the case
had such defeasance not occurred (and for the purposes of such
opinion, such Canadian counsel shall assume that holders of the
outstanding debt securities of such series include holders who
are not resident in Canada);
o no event of default or event that, with the passing of time or
the giving of notice, or both, shall constitute an event of
default shall have occurred and be continuing on the date of
such deposit; and
o we are not an "insolvent person" within the meaning of the
Bankruptcy and Insolvency Act (Canada) on the date of such
deposit or at any time during the period ending on the 91st day
following such deposit.
We may exercise our defeasance option notwithstanding our prior
exercise of our Covenant Defeasance option described in the following paragraph
if we meet the conditions described in the preceding sentence at the time we
exercise the defeasance option.
The Indenture provides that, at our option, unless and until we have
exercised our Defeasance option described in the preceding paragraph, we may
omit to comply with the "Limitation on Liens" covenant, certain aspects of the
"Consolidation, Amalgamation, Merger and Sale of Assets" covenant and certain
other covenants and such omission shall not be deemed to be an event of default
under the Indenture and our outstanding debt securities upon irrevocable
deposit with the Trustee, in trust, of money and/or government securities which
will provide money in an amount sufficient in the opinion of a nationally
recognized firm of independent chartered accountants (as evidenced by an
officer's certificate delivered to the Trustee) to pay the principal of (and
premium, if any, and each installment of interest, if any, on) the outstanding
debt securities (hereinafter referred to as "covenant defeasance"). If we
exercise our covenant defeasance option, the obligations under the Indenture
other than with respect to such covenants and the events of default other than
with respect to such covenants shall remain in full force and effect. Such
trust may only be established if, among other things:
o we have delivered to the Trustee an opinion of counsel in the
United States to the effect that the holders of our outstanding
debt securities will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such covenant
defeasance and will be subject to U.S. federal income tax on
the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not
occurred;
19
o we have delivered to the Trustee an opinion of counsel in
Canada or a ruling from the Canada Revenue Agency to the effect
that the holders of our outstanding debt securities will not
recognize income, gain or loss for Canadian federal or
provincial income or other tax purposes as a result of such
covenant defeasance and will be subject to Canadian federal or
provincial income and other tax on the same amounts, in the
same manner and at the same times as would have been the case
had such covenant defeasance not occurred (and for the purposes
of such opinion, such Canadian counsel shall assume that
holders of our outstanding debt securities include holders who
are not resident in Canada);
o no event of default or event that, with the passing of time or
the giving of notice, or both, shall constitute an event of
default shall have occurred and be continuing on the date of
such deposit; and
o we are not an "insolvent person" within the meaning of the
Bankruptcy and Insolvency Act (Canada) on the date of such
deposit or at any time during the period ending on the 91st day
following such deposit.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by us and
the Trustee with the consent of the holders of a majority in principal amount
of the outstanding debt securities of each series issued under the Indenture
affected by such modification or amendment (voting as one class); PROVIDED,
HOWEVER, that no such modification or amendment may, without the consent of
the holder of each outstanding debt security of such affected series:
o change the stated maturity of the principal of, or any
installment of interest, if any, on any debt security;
o reduce the principal amount of (or premium, if any, or
interest, if any, on) any debt security;
o reduce the amount of principal of a debt security payable upon
acceleration of the maturity thereof;
o change the place of payment;
o change the currency of payment of principal of (or premium, if
any, or interest, if any, on) any debt security;
o impair the right to institute suit for the enforcement of any
payment on or with respect to any debt security;
o reduce the percentage of principal amount of outstanding debt
securities of such series, the consent of the holders of which
is required for modification or amendment of the applicable
Indenture or for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults; or
o modify any provisions of the Indenture relating to the
modification and amendment of the Indenture or the waiver of
past defaults or covenants except as otherwise specified in the
Indenture.
The holders of a majority in principal amount of our outstanding debt
securities of any series may on behalf of the holders of all debt securities of
that series waive, insofar as that series is concerned, compliance by us with
certain restrictive provisions of the Indenture. The holders of a majority in
principal amount of outstanding debt securities of any series may waive any
past default under the Indenture with respect to that series, except a default
in the payment of the principal of (or premium, if any) and interest, if any,
on any debt security of that series or in respect of a provision which under
the Indenture cannot be modified or amended without the consent of the holder
of each outstanding debt security of that series.
The Indenture or the debt securities may be amended or supplemented,
without the consent of any holder of such debt securities, in order to, among
other things, cure any ambiguity or inconsistency or to make any change, in any
case, that does not have a materially adverse effect on the rights of any
holder of such debt securities.
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CONSENT TO JURISDICTION AND SERVICE
Under the Indenture, we irrevocably appoint CT Corporation System,
111-8th Avenue, 13th Floor, New York, New York, as our authorized agent for
service of process in any suit or proceeding arising out of or relating to our
debt securities or the Indenture and for actions brought under federal or state
securities laws in any federal or state court located in New York, New York and
irrevocably submit to the non-exclusive jurisdiction of any such court.
GOVERNING LAW
Our debt securities and the Indenture will be governed by and construed
in accordance with the laws of the State of New York.
ENFORCEABILITY OF JUDGMENTS
Since most of our assets, as well as the assets of a number of our
directors and officers, are outside the United States, any judgment obtained in
the United States against us or certain of our directors or officers, including
judgments with respect to the payment of principal on any debt securities, may
not be collectible within the United States.
We have been informed by Macleod Dixon LLP, our Canadian counsel, that
there is doubt as to the enforceability in Canada by a court in original
actions, or in actions to enforce judgments of United States courts, of civil
liabilities predicated solely upon the United States federal securities laws.
Therefore, it may not be possible to enforce those actions against us, our
directors and officers or the experts named in this prospectus.
Because the Trustee is located in the United States, it may not be
possible for purchasers of our debt securities outside the United States to
effect service of process outside the United States upon the Trustee nor to
enforce against the Trustee, outside the United States, judgments obtained in
courts outside the United States. Also it may not be possible to enforce
judgments of non-U.S. courts against the Trustee in the United States.
RISK FACTORS
IN ADDITION TO THE RISK FACTORS SET FORTH BELOW, ADDITIONAL RISK
FACTORS RELATING TO OUR BUSINESS ARE DISCUSSED IN OUR ANNUAL INFORMATION FORM
AND OUR MANAGEMENT'S DISCUSSION AND ANALYSIS, WHICH RISK FACTORS ARE
INCORPORATED HEREIN BY REFERENCE. Prospective purchasers of the debt securities
should consider carefully the risk factors set forth below as well as the other
information contained in and incorporated by reference in this prospectus and
in the applicable prospectus supplement before purchasing the debt securities
offered hereby. If any event arising from these risks occurs, our business,
prospects, financial condition, results of operations or cash flows, or your
investment in the debt securities could be materially adversely affected.
THERE CAN BE NO ASSURANCE AS TO THE LIQUIDITY OF THE TRADING MARKET FOR THE
DEBT SECURITIES OR THAT A TRADING MARKET FOR THE DEBT SECURITIES WILL DEVELOP.
There is no public market for the debt securities and, unless otherwise
specified in the applicable prospectus supplement, we do not intend to apply
for listing of the debt securities on any securities exchanges. If the debt
securities are traded after their initial issue, they may trade at a discount
from their initial offering prices depending on prevailing interest rates, the
market for similar securities and other factors, including general economic
conditions and our financial condition. There can be no assurance as to the
liquidity of the trading market for the debt securities or that a trading
market for the debt securities will develop.
CREDIT RATINGS MAY NOT REFLECT ALL RISKS OF AN INVESTMENT IN THE DEBT
SECURITIES AND MAY CHANGE.
Credit ratings may not reflect all risks associated with an investment
in the debt securities. Any credit ratings applied to the debt securities are
an assessment of our ability to pay our obligations. Consequently, real or
anticipated changes in the credit ratings will generally affect the market
value of the debt securities. The credit ratings, however, may not reflect the
potential impact of risks related to structure, market or other factors
discussed herein on the value of the debt securities. There is no assurance
21
that any credit rating assigned to the debt securities will remain in effect
for any given period of time or that any rating will not be lowered or
withdrawn entirely by the relevant rating agency.
CHANGES IN INTEREST RATES MAY CAUSE THE VALUE OF THE DEBT SECURITIES TO
DECLINE.
Prevailing interest rates will affect the market price or value of the
debt securities. The market price or value of the debt securities may decline
as prevailing interest rates for comparable debt instruments rise, and increase
as prevailing interest rates for comparable debt instruments decline.
THE DEBT SECURITIES WILL BE EFFECTIVELY SUBORDINATED TO CERTAIN INDEBTEDNESS OF
OUR CORPORATE AND PARTNERSHIP SUBSIDIARIES.
The debt securities will be our unsubordinated and unsecured obligation
and, unless otherwise provided with respect to a series of debt securities,
will rank equally with all of our other unsecured, unsubordinated obligations.
We conduct a substantial portion of our business through corporate and
partnership subsidiaries. Our obligations under the debt securities will be
structurally subordinate to all existing and future indebtedness and
liabilities, including trade payables, of any of our corporate and partnership
subsidiaries.
CERTAIN INCOME TAX CONSIDERATIONS
The applicable prospectus supplement will describe certain Canadian
federal income tax consequences to an investor of acquiring any debt securities
offered thereunder, including, for investors who are non-residents of Canada,
whether the payments of principal and interest, if any, will be subject to
Canadian non-resident withholding tax.
The applicable prospectus supplement will also describe certain U.S.
federal income tax consequences of the acquisition, ownership and disposition
of any debt securities offered thereunder by an initial investor who is a U.S.
person (within the meaning of the U.S. Internal Revenue Code), including, to
the extent applicable, any such consequences relating to debt securities
payable in a currency other than the U.S. dollar, issued at an original issue
discount for U.S. federal income tax purposes or containing early redemption
provisions or other special items.
PLAN OF DISTRIBUTION
We may offer and sell debt securities to or through underwriters or
dealers and also may sell debt securities directly to purchasers or through
agents. These debt securities may be offered and sold in Canada, the United
States and elsewhere where permitted by law.
The distribution of debt securities of any series may be effected from
time to time in one or more transactions:
o at a fixed price or prices, which may be changed;
o at market prices prevailing at the time of sale; or
o at prices related to such prevailing market prices to be
negotiated with purchasers.
In connection with the sale of debt securities, underwriters may
receive compensation from us or from purchasers of debt securities for whom
they may act as agents in the form of concessions or commissions. Underwriters,
dealers and agents that participate in the distribution of debt securities may
be deemed to be underwriters and any commissions received by them from us and
any profit on the resale of debt securities by them may be deemed to be
underwriting commissions under the United States Securities Act of 1933, as
amended (the "Securities Act").
The prospectus supplement relating to each series of debt securities
will also set forth the terms of the offering of the debt securities, including
to the extent applicable, the initial offering price, our proceeds from the
offering, the underwriting concessions or commissions, and any other discounts
or concessions to be allowed or reallowed to dealers. Underwriters with respect
to each series sold to or through underwriters will be named in the prospectus
supplement relating to such series.
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Under agreements which may be entered into by us, underwriters, dealers
and agents who participate in the distribution of debt securities may be
entitled to indemnification by us against certain liabilities, including
liabilities under the Securities Act. The underwriters, dealers and agents with
whom we enter into agreements may be customers of, engage in transactions with
or perform services for us in the ordinary course of business.
Each series of debt securities will be a new issue of securities with
no established trading market. Unless otherwise specified in a prospectus
supplement relating to a series of debt securities, the debt securities will
not be listed on any securities exchange or on any automated dealer quotation
system. Certain broker-dealers may make a market in the debt securities, but
will not be obligated to do so and may discontinue any market making at any
time without notice. We cannot assure you that any broker-dealer will make a
market in the debt securities of any series or as to the liquidity of the
trading market, if any, for the debt securities of any series.
INTEREST COVERAGE
The following sets forth our interest coverage ratios calculated for
the twelve month period ended December 31, 2005 based on audited financial
information and June 30, 2006 based on unaudited financial information. The
interest coverage ratios set out below have been prepared and included in this
prospectus in accordance with Canadian disclosure requirements and have been
calculated based on information prepared in accordance with Canadian GAAP. The
interest coverage ratios set out below do not purport to be indicative of
interest coverage ratios for any future periods. The interest coverage ratios
do not give effect to the debt securities offered by this prospectus since the
aggregate principal amount of debt securities that will be issued hereunder and
the terms of issue are not presently known.
DECEMBER 31, 2005 JUNE 30, 2006
----------------- -------------
Interest coverage on long-term debt:
Net earnings.......................... 13.0 times 22.5 times
Cash flow............................. 20.9 times 24.3 times
Interest coverage on long-term debt on a net earnings basis is equal to
net earnings before interest on long-term debt and income taxes divided by
interest expense on long-term debt. Interest coverage on long-term debt on a
cash flow basis is equal to cash flow before interest expense on long-term debt
and cash income taxes divided by interest expense on long-term debt. For
purposes of calculating the interest coverage ratios set forth herein,
long-term debt includes the current portion of long-term debt.
LEGAL MATTERS
Unless otherwise specified in the prospectus supplement relating to a
series of debt securities, certain legal matters relating to Canadian law will
be passed upon for us by Macleod Dixon LLP, Calgary, Alberta, Canada. Certain
legal matters in connection with the offering relating to United States law
will be passed upon for us by Paul, Weiss, Rifkind, Wharton & Garrison LLP, New
York, New York. In addition, certain legal matters relating to United States
law will be passed upon for any underwriters, dealers or agents by Shearman &
Sterling LLP, Toronto, Ontario, Canada and New York, New York.
The partners and associates of Macleod Dixon LLP and Paul, Weiss,
Rifkind, Wharton & Garrison LLP as a group beneficially own, directly or
indirectly, less than 1% of any class of our securities.
EXPERTS
The audited comparative consolidated financial statements incorporated
by reference in this prospectus have been so incorporated in reliance on the
audit reports which are also incorporated by reference in this prospectus, of
PricewaterhouseCoopers LLP, Chartered Accountants, as experts in auditing and
accounting.
Information relating to our reserves in the Annual Information Form
dated February 17, 2006 was calculated based on evaluations of and reports on
our crude oil and natural gas reserves conducted and prepared by GLJ Petroleum
23
Consultants Ltd., McDaniel & Associates Consultants Ltd., Netherland, Sewell &
Associates, Inc. and DeGolyer and MacNaughton as independent qualified reserves
evaluators.
The principals of each of GLJ Petroleum Consultants Ltd., McDaniel &
Associates Consultants Ltd., Netherland, Sewell & Associates, Inc. and DeGolyer
and MacNaughton, in each case, as a group own beneficially, directly or
indirectly, less than 1% of any class of our securities.
DOCUMENTS FILED AS PART OF THE REGISTRATION STATEMENT
The following documents have been or will be filed with the SEC as part
of the registration statement of which this prospectus is a part insofar as
required by the SEC's Form F-9:
o the documents listed in the fourth paragraph under "Where You
Can Find More Information" in this prospectus;
o the consent of our accountants, PricewaterhouseCoopers LLP;
o the consent of our counsel, Macleod Dixon LLP;
o the consents of our independent qualified reserves evaluators,
GLJ Petroleum Consultants Ltd., McDaniel & Associates
Consultants Ltd., Netherland, Sewell & Associates, Inc. and
DeGoyler and MacNaughton;
o powers of attorney from our directors and officers;
o the form of trust indenture relating to the debt securities;
and
o the statement of eligibility of the trustee on Form T-1.
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INFORMATION NOT REQUIRED TO BE DELIVERED
TO OFFEREES OR PURCHASERS
INDEMNIFICATION
ENCANA CORPORATION
Under the CANADA BUSINESS CORPORATIONS ACT (the "CBCA"), EnCana
Corporation ("EnCana") may indemnify a present or former director or officer
of EnCana or another individual who acts or acted at EnCana's request as a
director or officer, or an individual acting in a similar capacity, of another
entity, against all costs, charges and expenses, including an amount paid to
settle an action or satisfy a judgment, reasonably incurred by the individual
in respect of any civil, criminal, administrative, investigative or other
proceeding in which the individual is involved because of that association
with EnCana or other entity. EnCana may not indemnify an individual unless the
individual acted honestly and in good faith with a view to the best interests
of EnCana, or, as the case may be, to the best interests of the other entity
for which the individual acted as a director or officer or in a similar
capacity at EnCana's request and in the case of a criminal or administrative
action or proceeding that is enforced by a monetary penalty, the individual
had reasonable grounds for believing that the conduct was lawful. The
indemnification may be made in connection with a derivative action only with
court approval. The aforementioned individuals are entitled to indemnification
from EnCana as a matter of right if they were not judged by the court or other
competent authority to have committed any fault or omitted to do anything that
the individual ought to have done. EnCana may advance moneys to the individual
for the costs, charges and expenses of a proceeding; however, the individual
shall repay the moneys if the individual does not fulfill the conditions set
out above.
The by-laws of EnCana provide that, subject to the limitations
contained in the CBCA, EnCana shall indemnify a director or officer, a former
director or officer, or a person who acts or acted at EnCana's request as a
director or officer of a body corporate of which EnCana is or was a
shareholder or creditor, and his heirs and legal representatives against all
costs, charges and expenses, including an amount paid to settle an action or
satisfy a judgment, reasonably incurred by him in respect of any civil,
criminal or administrative action or proceeding to which he was made a party
by reason of being or having been a director or officer of the corporation or
such body corporate, if he acted honestly and in good faith with a view to the
best interests of the corporation, and in the case of a criminal or
administrative action or proceeding that is enforced by a monetary penalty, he
had reasonable grounds for believing that his conduct was lawful.
The by-laws of EnCana provide that EnCana may, subject to the
limitations contained in the CBCA, purchase, maintain, or participate in
insurance for the benefit of any director, officer, or certain other persons,
as such against any liability incurred by him in his capacity as a director or
officer of EnCana or as a director or officer of any body corporate where he
acts or acted in that capacity at EnCana's request. EnCana has purchased third
party director and officer liability insurance.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling EnCana pursuant to the foregoing provisions, EnCana has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is therefore unenforceable.
II-1
EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.1 The Annual Information Form of EnCana Corporation ("EnCana")
dated February 17, 2006, for the year ended December 31, 2005
(incorporated by reference to EnCana's Form 40-F for the
fiscal year ended December 31, 2005 filed with the Securities
and Exchange Commission on February 17, 2006) (File No.
1-15226).
4.2 The Information Circular of EnCana (amended), dated February
28, 2006, relating to the annual meeting of shareholders of
EnCana held on April 26, 2006 (incorporated by reference to
EnCana's Form 6-K filed with the Securities and Exchange
Commission on March 30, 2006) (File No. 1-15226).
4.3 The audited comparative consolidated financial statements of
EnCana, for the year ended December 31, 2005, including the
auditors' report thereon (incorporated by reference to
EnCana's Form 40-F filed with the Securities and Exchange
Commission on February 17, 2006) (File No. 1-15226).
4.4 Management's Discussion and Analysis, for the year ended
December 31, 2005 (incorporated by reference to EnCana's Form
40-F for the fiscal year ended December 31, 2005 filed with
the Securities and Exchange Commission on February 17, 2006)
(File No. 1-15226).
4.5 The unaudited comparative consolidated financial statements
of EnCana, for the six months ended June 30, 2006
(incorporated by reference to EnCana's Form 6-K filed with
the Securities and Exchange Commission on July 28, 2006)
(File No. 1-15226).
4.6 Management's Discussion and Analysis, for the six months
ended June 30, 2006 (incorporated by reference to EnCana's
Form 6-K filed with the Securities and Exchange Commission on
July 28, 2006) (File No. 1-15226).
5.1 Consent of PricewaterhouseCoopers LLP.
5.2* Consent of Macleod Dixon LLP.
5.3* Consent of GLJ Petroleum Consultants Ltd.
5.4* Consent of McDaniel & Associates Consultants Ltd.
5.5* Consent of Netherland, Sewell & Associates, Inc.
5.6* Consent of DeGolyer and MacNaughton.
6.1 Powers of Attorney (included on the signature page of this
Registration Statement).
7.1* Form of Indenture.
7.2 Statement of Eligibility of the Trustee on Form T-1.
---------------------
* To be filed by amendment.
II-2
PART III
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
ITEM 1. UNDERTAKING
The Registrant undertakes to make available, in person or by
telephone, representatives to respond to inquiries made by the Commission
staff, and to furnish promptly, when requested to do so by the Commission
staff, information relating to the securities registered pursuant to Form F-9
or to transactions in said securities.
ITEM 2. CONSENT TO SERVICE OF PROCESS
Concurrent with the filing of this Registration Statement, the
Registrant has filed with the Commission a written irrevocable consent and
power of attorney on Form F-X.
Any change to the name or address of the agent for service of process
of the Registrant shall be communicated promptly to the Securities and Exchange
Commission by an amendment to the Form F-X referencing the file number of the
relevant registration statement.
III-1
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form F-9 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Calgary, Province of Alberta,
Canada, on September 8, 2006.
ENCANA CORPORATION
By: /s/ Randall K. Eresman
------------------------------
Name: Randall K. Eresman
Title: President & Chief
Executive Officer
III-2
SIGNATURES WITH RESPECT TO ENCANA CORPORATION
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Randall K. Eresman and Brian C. Ferguson, and each of them, any of
whom may act without the joinder of the other, the true and lawful
attorney-in-fact and agent of the undersigned, with full power of substitution
and resubstitution, for and in the name, place and stead of the undersigned, in
any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, and
hereby grants to such attorney-in-fact and agent, full power and authority to
do and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ David P. O'Brien
-------------------------- Chairman of the Board September 8, 2006
David P. O'Brien of Directors
/s/ Randall K. Eresman
-------------------------- President & Chief Executive September 8, 2006
Randall K. Eresman Officer and Director
(Principal Executive Officer)
/s/ Brian C. Ferguson
-------------------------- Executive Vice-President September 8, 2006
Brian C. Ferguson & Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Gwyn Morgan
-------------------------- Executive Vice-Chairman of September 8, 2006
Gwyn Morgan the Board of Directors
/s/ Michael N. Chernoff
-------------------------- Director September 8, 2006
Michael N. Chernoff
/s/ Ralph S. Cunningham
-------------------------- Director September 8, 2006
Ralph S. Cunningham
/s/ Patrick D. Daniel
-------------------------- Director September 8, 2006
Patrick D. Daniel
III-3
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ Ian W. Delaney
-------------------------- Director September 8, 2006
Ian W. Delaney
/s/ Michael A. Grandin
-------------------------- Director September 8, 2006
Michael A. Grandin
/s/ Barry W. Harrison
-------------------------- Director September 8, 2006
Barry W. Harrison
/s/ Dale A. Lucas
-------------------------- Director September 8, 2006
Dale A. Lucas
/s/ Ken F. McCready
-------------------------- Director September 8, 2006
Ken F. McCready
/s/ Valerie A. A. Nielsen
-------------------------- Director September 8, 2006
Valerie A. A. Nielsen
/s/ Jane L. Peverett
-------------------------- Director September 8, 2006
Jane L. Peverett
/s/ Dennis A. Sharp
-------------------------- Director September 8, 2006
Dennis A. Sharp
/s/ James M. Stanford
-------------------------- Director September 8, 2006
James M. Stanford
III-4
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of
1933, the Authorized Representative has duly caused this Registration
Statement to be signed on its behalf by the undersigned, solely in its
capacity as the duly authorized representative of EnCana Corporation in the
United States, on September 8, 2006.
ALENCO INC.
By: /s/ Brian C. Ferguson
-------------------------
Name: Brian C. Ferguson
Title: President
III-5
EXHIBITS INDEX
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.1 The Annual Information Form of EnCana Corporation ("EnCana")
dated February 17, 2006, for the year ended December 31, 2005
(incorporated by reference to EnCana's Form 40-F for the
fiscal year ended December 31, 2005 filed with the Securities
and Exchange Commission on February 17, 2006) (File No.
1-15226).
4.2 The Information Circular of EnCana (amended), dated February
28, 2006, relating to the annual meeting of shareholders of
EnCana held on April 26, 2006 (incorporated by reference to
EnCana's Form 6-K filed with the Securities and Exchange
Commission on March 30, 2006) (File No. 1-15226).
4.3 The audited comparative consolidated financial statements of
EnCana, for the year ended December 31, 2005, including the
auditors' report thereon (incorporated by reference to
EnCana's Form 40-F filed with the Securities and Exchange
Commission on February 17, 2006) (File No. 1-15226).
4.4 Management's Discussion and Analysis, for the year ended
December 31, 2005 (incorporated by reference to EnCana's Form
40-F for the fiscal year ended December 31, 2005 filed with
the Securities and Exchange Commission on February 17, 2006)
(File No. 1-15226).
4.5 The unaudited comparative consolidated financial statements
of EnCana, for the six months ended June 30, 2006
(incorporated by reference to EnCana's Form 6-K filed with
the Securities and Exchange Commission on July 28, 2006)
(File No. 1-15226).
4.6 Management's Discussion and Analysis, for the six months
ended June 30, 2006 (incorporated by reference to EnCana's
Form 6-K filed with the Securities and Exchange Commission on
July 28, 2006) (File No. 1-15226).
5.1 Consent of PricewaterhouseCoopers LLP.
5.2* Consent of Macleod Dixon LLP.
5.3* Consent of GLJ Petroleum Consultants Ltd.
5.4* Consent of McDaniel & Associates Consultants Ltd.
5.5* Consent of Netherland, Sewell & Associates, Inc.
5.6* Consent of DeGolyer and MacNaughton.
6.1 Powers of Attorney (included on the signature page of this
Registration Statement).
7.1* Form of Indenture.
7.2 Statement of Eligibility of the Trustee on Form T-1.
---------------------
* To be filed by amendment.
III-6