AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 16, 2004
REGISTRATION NO. 333-118737
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
AMENDMENT NO. 1
TO
FORM F-9
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
___________________
ENCANA CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CANADA 1311 NOT APPLICABLE
(PROVINCE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER IDENTIFICATION NO.,
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) 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:
ANDREW J. FOLEY KEVIN E. JOHNSON
EDWIN S. MAYNARD MACLEOD DIXON LLP
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 3700 CANTERRA TOWER
1285 AVENUE OF THE AMERICAS 400 - 3RD AVENUE S.W.
NEW YORK, N.Y. 10019-6064 CALGARY, ALBERTA, CANADA 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. [X] 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. [_] 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|
___________________
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.
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PART I
INFORMATION REQUIRED TO BE
DELIVERED TO OFFEREES OR PURCHASERS
I-1
BASE SHELF PROSPECTUS
[GRAPHIC]
ENCANA CORPORATION
US$2,000,000,000
DEBT SECURITIES
_______
We may from time to time 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 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, WHICH ARE INCORPORATED BY REFERENCE HEREIN, 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 SHORT FORM
PROSPECTUS.
_______
September 16, 2004
TABLE OF CONTENTS
PAGE
About This Prospectus................................................. 2
Where You Can Find More Information................................... 2
Forward-Looking Statements............................................ 5
EnCana Corporation.................................................... 6
Use of Proceeds....................................................... 6
Description of Debt Securities........................................ 6
Risk Factors.......................................................... 23
Plan of Distribution.................................................. 26
Interest Coverage..................................................... 27
Legal Matters......................................................... 28
Experts............................................................... 28
Documents Filed as Part of the Registration Statement................. 29
ABOUT THIS PROSPECTUS
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". "U.S. GAAP" means generally accepted accounting principles
in the United States. 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.
This prospectus is part of a registration statement on Form F-9
relating to the debt securities that we filed with the U.S. Securities and
Exchange Commission (the "SEC"). 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 the registration statement, 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 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.
2
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 a multijuris-
dictional disclosure system adopted by the United States, these reports and
other information (including financial information) may be prepared 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 rooms at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549. You may also obtain copies of the same documents from the public
reference room of the SEC at 450 Fifth Street, N.W., 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 the Canadian securities legislation:
(a) our Annual Information Form dated February 25, 2004 (including
Management's Discussion and Analysis for the year ended
December 31, 2003, incorporated therein by reference);
(b) our audited comparative consolidated financial statements for
the year ended December 31, 2003, including the auditors'
report thereon;
(c) our Information Circular dated March 5, 2004 relating to the
annual and special meeting of our shareholders held on April
28, 2004 (excluding those portions under the headings,
"Statement of Executive Compensation" and "Statement of
Corporate Governance Practices");
(d) our unaudited comparative interim consolidated financial
statements for the six month period ended June 30, 2004,
including the Management's Discussion and Analysis;
(e) our Material Change Report dated April 15, 2004 relating to
our agreement to acquire all of the outstanding shares of Tom
Brown, Inc.; and
(f) the audited comparative consolidated statements of earnings,
retained earnings and cash flows of Alberta Energy Company
Ltd. ("AEC") for the year ended December 31, 2001, including
the auditors' report thereon and unaudited comparative
consolidated statements of earnings, retained earnings and
cash flows for the three month period ended March 31, 2002.
Any annual information form, audited annual consolidated financial
statements (together with the auditors' report thereon), information circular
(excluding the portion under the headings "Statement of Executive Compensation",
"Statement of Corporate Governance Practices" or other similar headings),
unaudited interim consolidated financial statements and the accompanying
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
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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.
Upon a new annual information form and related annual consolidated
financial statements 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 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
and the accompanying management's discussion and analysis 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
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY APPLICABLE PROSPECTUS SUPPLEMENT AND ON THE
OTHER INFORMATION INCLUDED IN THE REGISTRATION STATEMENT OF WHICH THIS
PROSPECTUS FORMS A PART. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
DIFFERENT OR ADDITIONAL INFORMATION. WE ARE NOT MAKING AN OFFER OF THESE DEBT
SECURITIES IN ANY JURISDICTION WHERE THE OFFER IS NOT PERMITTED BY LAW. YOU
SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY APPLICABLE
PROSPECTUS SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE
FRONT OF THOSE DOCUMENTS.
4
FORWARD-LOOKING STATEMENTS
Certain statements included in this prospectus and the documents
incorporated by reference herein constitute forward-looking statements within
the meaning of 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 "anticipate", "believe",
"expect", "plan", "intend" or similar words suggesting future outcomes or
statements regarding an outlook on oil and gas prices, estimates of future
production, reserves and resources, the estimated amounts and timing of capital
expenditures, anticipated future debt levels and royalty rates, or other
expenditures, beliefs, plans, objectives, assumptions or statements about future
events or performance.
You are cautioned not to place undue reliance on forward-looking
statements. By their nature, forward-looking statements involve numerous
assumptions, inherent risks and uncertainties, both general and specific, that
contribute to the possibility that the predicted outcomes will not occur. These
factors include, but are not limited to:
o general economic, business and market conditions;
o volatility of crude oil, natural gas and natural gas liquids
prices;
o fluctuations in currency and interest rates, product supply
and demand;
o competition;
o risks inherent in foreign operations, including political and
economic risk;
o risks of war, hostilities, civil insurrection and terrorist
threats;
o risks inherent in marketing operations including credit risks;
o imprecision of reserve estimates;
o our ability to replace or expand reserves;
o our ability to either generate sufficient cash flow to meet
current and future obligations or to obtain external debt or
equity financing;
o our ability to enter into or renew leases;
o the timing and costs of pipeline and natural gas storage
facility construction and expansion;
o our ability to make capital investments and the amounts
thereof;
o imprecision in estimating future production capacity, and the
timing, costs and levels of production and drilling;
o results of our exploration, development and drilling activity;
o our ability to secure adequate product transportation;
o changes in regulations, including environmental regulations;
o risks associated with existing and potential future lawsuits
and regulatory actions against EnCana;
o uncertainty in amounts and timing of royalty payments; and
o imprecision in estimating product sales.
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. 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, other than as is required to comply with
applicable securities legislation.
5
ENCANA CORPORATION
We are one of the world's leading independent crude oil and natural gas
exploration and production companies based on landholdings and production at
December 31, 2003. Our key landholdings are in Western Canada, the U.S. Rocky
Mountains, Ecuador, the United Kingdom ("U.K."), offshore Canada's East Coast
and the Gulf of Mexico. We explore for, produce and market natural gas, crude
oil and natural gas liquids ("NGLs") in Canada and the United States. We are
engaged in exploration and production activities internationally including
production from Ecuador and the U.K. We have interests in midstream operations
and assets, including natural gas storage, NGLs gathering and processing
facilities, power plants and pipelines.
We continually pursue opportunities to develop and expand our business,
which may include significant corporate or asset acquisitions or dispositions.
We may finance acquisitions with debt or equity, or a combination of both.
EnCana was formed through the business combination (the "Merger") of
PanCanadian and AEC on April 5, 2002. Pursuant to the Merger, PanCanadian
indirectly acquired all of the outstanding common shares of AEC and
PanCanadian's name was changed to EnCana Corporation. Effective January 1, 2003,
EnCana Corporation amalgamated with its wholly-owned subsidiary, AEC, and
continued as one entity. As a result of the amalgamation, EnCana Corporation is
the successor issuer in respect of AEC's previously issued debt securities and
is responsible for all of AEC's contractual obligations.
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 relating to
our primary areas of operations in Western Canada, the U.S. Rocky Mountains,
Ecuador, the U.K., offshore Canada's East Coast, and the Gulf of Mexico. 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. A copy of the form of Indenture
has been filed as an exhibit to the registration statement filed with the SEC.
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.
Statements in this summary 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. Prospective investors should rely
6
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 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 specific terms
of a series of debt securities being offered by us and may include the
following:
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 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;
7
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 securities or
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;
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;
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; and
o any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) of the debt
securities of such series.
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 AND OTHER INDEBTEDNESS
Unless otherwise indicated in an applicable prospectus supplement, the
debt securities will be unsecured obligations and will rank equally with all of
our other unsecured and unsubordinated indebtedness outstanding from time to
time. The debt securities will be structurally subordinated to all existing and
future indebtedness and liabilities of any of our subsidiaries or partnerships.
FORM, DENOMINATIONS AND EXCHANGE
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. The Indenture also provides that a series of our debt
securities may be issuable in global form. 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
8
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.
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.
PAYMENT
Unless otherwise indicated in the applicable prospectus supplement,
payment of principal of, (and premium, if any, and interest, if any, on) our
debt securities (other than global securities) will be made at the office or
agency of the Trustee, at 101 Barclay Street, 21st Floor West, New York, New
York 10286.
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.
GLOBAL SECURITIES
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.
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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
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 require that certain purchasers of securities have
the ability to take physical delivery of such debt 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.
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. Neither we, the Trustee
nor 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.
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.
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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; 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
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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;
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,
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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
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
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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.
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 rateably with or prior to such other
indebtedness, except that we and our Restricted Subsidiaries may incur a
14
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, including the name of
such successor jurisdiction 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 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 rateably securing our debt securities, we,
simultaneously with or prior to such transaction, will cause our debt securities
to be secured equally and rateably with or prior to the indebtedness secured by
such Lien.
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
15
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-United States 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
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.
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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 or indemnity 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
or indemnity amounts with respect to any debt security of such
series as described under "-- Payment of Additional Amounts";
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
or furnish them to 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
17
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 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 EnCana 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
18
shall be applicable together with an additional seven days
before being considered an event of default for purposes of
the Indenture;
o certain events in bankruptcy, insolvency or reorganization; 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
20
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;
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
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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.
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 the 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.
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.
We have been advised by Macleod Dixon LLP, our Canadian counsel, that
there is doubt as to the enforceability, in original actions in Canadian courts,
of liabilities based upon the U.S. federal securities laws and as to the
enforceability in Canadian courts of judgments of U.S. courts obtained in
actions based upon the civil liability provisions of the U.S. federal securities
laws. Therefore, it may not be possible to enforce those actions against us, our
directors and officers or the experts named in the prospectus.
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RISK FACTORS
You 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. Additional risk factors are discussed in our Annual Information
Form which risk factors are incorporated herein by reference. If any event
arising from these risks occurs, our business, prospects, financial condition,
results of operation or cash flows could be materially adversely affected.
A SUBSTANTIAL OR EXTENDED DECLINE IN CRUDE OIL AND NATURAL GAS PRICES COULD HAVE
A MATERIAL ADVERSE EFFECT ON US.
Our financial condition is substantially dependent on the prevailing
prices of crude oil and natural gas. Fluctuations in crude oil or natural gas
prices could have an adverse effect on our operations and financial condition
and the value and amount of our reserves. Prices for crude oil and natural gas
fluctuate in response to changes in the supply of and demand for, crude oil and
natural gas, market uncertainty and a variety of additional factors beyond our
control. Crude oil prices are determined by international supply and demand.
Factors which affect crude oil prices include the actions of the Organization of
Petroleum Exporting Countries, world economic conditions, government regulation,
political stability in the Middle East and elsewhere, the foreign supply of
crude oil, the price of foreign imports, the availability of alternate fuel
sources and weather conditions. Natural gas prices realized by us are affected
primarily by North American supply and demand, weather conditions and by prices
of alternate sources of energy. Any substantial or extended decline in the
prices of crude oil and natural gas could result in a delay or cancellation of
existing or future drilling, development or construction programs or curtailment
in production at some properties or result in unutilized long-term
transportation commitments, all of which could have an adverse effect on our
revenues, profitability and cash flows.
We conduct an annual assessment of the carrying value of our assets in
accordance with Canadian GAAP. If crude oil and natural gas prices decline, the
carrying value of our assets could be subject to financial downward revisions,
and our earnings could be adversely affected.
IF WE FAIL TO ACQUIRE OR FIND ADDITIONAL CRUDE OIL AND NATURAL GAS RESERVES, OUR
RESERVES AND PRODUCTION WILL DECLINE MATERIALLY FROM THEIR CURRENT LEVELS.
Our future crude oil and natural gas reserves and production, and
therefore our cash flows, are highly dependent upon our success in exploiting
our current reserve base and acquiring or discovering additional reserves.
Without reserve additions through exploration, acquisition or development
activities, our reserves and production will decline over time as reserves are
depleted. The business of exploring for, developing or acquiring reserves is
capital intensive. To the extent cash flows from operations are insufficient and
external sources of capital become limited, our ability to make the necessary
capital investments to maintain and expand our crude oil and natural gas
reserves will be impaired. In addition, there can be no guarantee that we will
be able to find and develop or acquire additional reserves to replace production
at acceptable costs.
OUR CRUDE OIL AND NATURAL GAS RESERVE DATA AND FUTURE NET REVENUE ESTIMATES ARE
UNCERTAIN.
There are numerous uncertainties inherent in estimating quantities of
crude oil and natural gas reserves, including many factors beyond our control.
The reserve data incorporated herein represents estimates only. In general,
estimates of economically recoverable crude oil and natural gas reserves and the
future net cash flows therefrom are based upon a number of variable factors and
assumptions, such as product prices, future operating and capital costs,
historical production from the properties and the assumed effects of regulation
by governmental agencies, all of which may vary considerably from actual
23
results. All such estimates are to some degree uncertain, and classifications of
reserves are only attempts to define the degree of uncertainty involved. For
those reasons, estimates of the economically recoverable crude oil and natural
gas reserves attributable to any particular group of properties, classification
of such reserves based on risk of recovery and estimates of future net revenues
expected therefrom, prepared by different engineers or by the same engineers at
different times, may vary substantially. Our actual production, revenues, taxes
and development and operating expenditures with respect to our reserves may vary
from such estimates, and such variances could be material.
Estimates with respect to reserves that may be developed and produced
in the future are often based upon volumetric calculations and upon analogy to
similar types of reserves, rather than upon actual production history. Estimates
based on these methods generally are less reliable than those based on actual
production history. Subsequent evaluation of the same reserves based upon
production history will result in variations, which may be material, in the
estimated reserves.
WE WILL NOT OPERATE ALL OF OUR PROPERTIES AND ASSETS.
Other companies operate some of the assets in which we have interests.
As a result, we will have limited ability to exercise influence over operations
of these assets or their associated costs. Our dependence on the operator and
other working interest owners for these properties and our limited ability to
influence operations and associated costs could materially adversely affect our
financial performance. The success and timing of our activities on assets
operated by others therefore will depend upon a number of factors that are
outside of our control, including:
o timing and amount of capital expenditures;
o the operator's expertise and financial resources;
o approval of other participants;
o selection of technology; and
o risk management practices.
OUR BUSINESS IS SUBJECT TO ENVIRONMENTAL LEGISLATION IN ALL JURISDICTIONS IN
WHICH WE OPERATE AND ANY CHANGES IN SUCH LEGISLATION COULD NEGATIVELY AFFECT OUR
RESULTS OF OPERATIONS.
All phases of the crude oil and natural gas business are subject to
environmental regulation pursuant to a variety of Canadian, U.S. and other
federal, provincial, territorial, state and municipal laws and regulations
(collectively, "environmental legislation").
Environmental legislation imposes, among other things, restrictions,
liabilities and obligations in connection with the generation, handling, use,
storage, transportation, treatment and disposal of hazardous substances and
waste and in connection with spills, releases and emissions of various
substances to the environment. Environmental legislation also requires that
wells, facility sites and other properties associated with our operations be
operated, maintained, abandoned and reclaimed to the satisfaction of applicable
regulatory authorities. In addition, certain types of operations, including
exploration and development projects and changes to certain existing projects,
may require the submission and approval of environmental impact assessments or
permit applications. Compliance with environmental legislation can require
significant expenditures, including expenditures for clean up costs and damages
arising out of contaminated properties and failure to comply with environmental
legislation may result in the imposition of fines and penalties. Although it is
not expected that the costs of complying with environmental legislation will
have a material adverse effect on our financial condition or results of
operations, no assurance can be made that the costs of complying with
environmental legislation in the future will not have such an effect.
24
In 1994, the United Nations' Framework Convention on Climate Change
came into force and three years later led to the Kyoto Protocol (the "Protocol")
which requires, upon ratification, nations to reduce their emissions of carbon
dioxide and other greenhouse gases. In December 2002, the Canadian federal
government ratified the Protocol. If certain conditions are met and the Protocol
enters into force internationally, Canada will be required to reduce its
greenhouse gas (GHG) emissions. Currently the upstream crude oil and natural gas
sector is in discussions with various provincial and federal levels of
government regarding the development of greenhouse gas regulations for the
industry. It is premature to predict what impact these potential regulations
could have on EnCana's sector but it is possible that EnCana would face
increases in operating costs in order to comply with a GHG emissions target.
ENCANA MAY BE ADVERSELY AFFECTED BY LEGAL PROCEEDINGS RELATED TO ITS
DISCONTINUED MERCHANT ENERGY TRADING OPERATIONS.
An action has been filed by E. & J. Gallo Winery in the United States
District Court, Eastern District of California, against EnCana Corporation and
its wholly-owned U.S. marketing subsidiary alleging that they engaged in a
conspiracy with unnamed competitors in the natural gas and derivatives market in
California in violation of U.S. and California anti-trust and unfair competition
laws to artificially raise the price of natural gas through various means
including the illegal sharing of price information through online trading, price
indexes and wash trading. The Gallo complaint claims damages in excess of US$30
million, before potential trebling under California laws. A motion by EnCana to
dismiss the Gallo complaint on the basis that the Federal Energy Regulatory
Commission had exclusive jurisdiction regarding this matter was not granted.
In addition, EnCana Corporation and its wholly-owned U.S. marketing
subsidiary, along with other energy companies, have been named as defendants in
several class action lawsuits in California and New York federal and state
courts. The California lawsuits relate to sales of natural gas in California
from 1999 to the present and contain essentially similar allegations as in the
Gallo complaint. The New York lawsuits claim that the defendants' alleged
manipulation of natural gas price indexes resulted in higher prices of natural
gas futures and option contracts traded on the New York Mercantile Exchange
(NYMEX) during the period from January 1, 2000 to December 31, 2002. Most of the
California lawsuits have been consolidated in Nevada District Court and all of
the New York lawsuits have been consolidated in New York District Court. As is
customary, none of the class actions specify the amount of damages claimed.
There is no assurance that there will not be other actions arising out of these
allegations on behalf of the same or different classes.
We intend to vigorously defend against any claims of liability alleged
in these lawsuits; however, we cannot predict the outcome of these proceedings
or the commencement or outcome of any future proceedings against EnCana or
whether any such proceeding would lead to monetary damages which could have a
material adverse effect on our financial position.
OUR OPERATIONS ARE SUBJECT TO THE RISK OF BUSINESS INTERRUPTION AND CASUALTY
LOSSES.
Our business is subject to all of the operating risks normally
associated with the exploration for and production of crude oil and natural gas
and the operation of midstream facilities. These risks include blowouts,
explosions, fire, gaseous leaks, migration of harmful substances and crude oil
spills, any of which could cause personal injury, result in damage to, or
destruction of, crude oil and natural gas wells or formations or production
facilities and other property, equipment and the environment, as well as
interrupt operations. In addition, all of our operations will be subject to all
of the risks normally incident to the transportation, processing and storing of
crude oil, natural gas and other related products, drilling of crude oil and
natural gas wells, and the operation and development of crude oil and natural
gas properties, including encountering unexpected formations or pressures,
premature declines of reservoirs, blowouts, equipment failures and other
accidents, sour gas releases,
25
uncontrollable flows of crude oil, natural gas or well fluids, adverse weather
conditions, pollution and other environmental risks.
The occurrence of a significant event against which we are not fully
insured could have a material adverse effect on our financial position.
OUR FOREIGN OPERATIONS WILL EXPOSE US TO RISKS FROM ABROAD WHICH COULD
NEGATIVELY AFFECT OUR RESULTS OF OPERATIONS.
Some of our operations and related assets are located in countries
outside North America, some of which may be considered to be politically and
economically unstable. Exploration or development activities in such countries
may require protracted negotiations with host governments, national oil
companies and third parties and are frequently subject to economic and political
considerations, such as taxation, nationalization, expropriation, inflation,
currency fluctuations, increased regulation and approval requirements,
governmental regulation and the risk of actions by terrorist or insurgent
groups, any of which could aversely affect the economics of exploration or
development projects.
WE ARE SUBJECT TO INDEMNIFICATION OBLIGATIONS IN CONNECTION WITH PANCANADIAN'S
SPIN-OFF FROM CANADIAN PACIFIC LIMITED.
In connection with PanCanadian's spin-off from Canadian Pacific Limited
("CPL") on October 1, 2001, PanCanadian entered into an arrangement agreement
with certain other parties to the spin-off which contains a number of
representations, warranties and covenants, including (a) an agreement by each of
the parties to indemnify and hold harmless each other party on an after-tax
basis against any loss suffered or incurred resulting from a breach of a
representation, warranty or covenant; and (b) a covenant that each party will
not take any action, omit to take any action or enter into any transaction that
could adversely impact certain tax rulings received in connection with the
spin-off, including government opinions and related opinions of counsel and the
assumptions upon which they were made.
With respect to Canadian taxation, in addition to various transactions
that the respective parties were prohibited from undertaking prior to the
implementation of the CPL arrangement, after the implementation of the CPL
arrangement, no party generally is permitted to dispose of or exchange more than
10% of its assets or, among other things, undergo an acquisition of control
without severe adverse consequences where such disposition or acquisition of
control is for Canadian tax purposes part of a "series of transactions or
events" that includes the CPL arrangement, except in limited circumstances.
Should we be found to have breached our representations and warranties
or should we fail to satisfy the contractual covenants, we would be obligated to
indemnify the other parties to the arrangement agreement for losses incurred in
connection with such breach or failure. In addition, we are required to
indemnify the parties to the arrangement agreement against any loss which they
may incur resulting from a claim against us, their respective businesses or
their respective assets, whether arising prior to or after the completion of the
CPL arrangement. An indemnification claim against us pursuant to the provisions
of the arrangement agreement could have a material adverse effect upon us.
PLAN OF DISTRIBUTION
We may 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 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;
26
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.
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 interest coverage ratios for EnCana calculated
for the twelve month period ended December 31, 2003 based on audited financial
information and for the twelve month period ended June 30, 2004 based on
unaudited financial information. 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. The interest coverage ratios set out below have been
prepared and included in this prospectus in accordance with Canadian disclosure
requirements. The interest coverage ratios set out below do not purport to be
indicative of interest coverage ratios for any future periods. In calculating
the ratios, the interest expense on long-term debt has been adjusted to give
effect to the following issuances and repayments of long term debt subsequent to
December 31, 2003: the issuance of $1 billion of notes by our indirect wholly
owned subsidiary, EnCana Holdings Finance Corp., on May 13, 2004; the issuance
of $1 billion of notes by us on August 4, 2004 and the application of the net
proceeds of such issuance to repay bank and commercial paper indebtedness; the
borrowing in May 2004 of approximately $1.7 billion under a non-revolving term
loan facility to finance our acquisition of Tom Brown, Inc.; the redemption on
March 23, 2004 of our coupon reset subordinated term securities and on August 9,
2004 of our 8.50% Preferred Securities, and the borrowings incurred to fund
such redemptions; and the repayment of approximately $288 million of
indebtedness using proceeds received from recent dispositions.
27
Adjustments for other normal course issuances and repayments of long-term debt
subsequent to December 31, 2003 would not materially affect the ratios and, as a
result, have not been made.
December 31, 2003 June 30, 2004
----------------- -------------
Interest coverage on long-term debt:
Net earnings................................ 7.8 times 4.5 times
Cash flow................................... 11.7 times 11.7 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. EnCana's
net earnings before interest on long-term debt and income taxes for the 12
months ended December 31, 2003 was $3.1 billion and for the 12 months ended June
30, 2004 was $1.9 billion. 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.
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 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 25, 2004 was calculated based on evaluation of and reports on our
crude oil and natural gas reserves conducted and prepared by Gilbert Laustsen
Jung Associates Ltd., McDaniel & Associates Consultants Ltd., Ryder Scott
Company, Netherland, Sewell & Associates, Inc. and DeGolyer and MacNaughton as
independent qualified reserve evaluators.
The principals of each of Gilbert Laustsen Jung Associates Ltd.,
McDaniel & Associates Consultants Ltd., Ryder Scott Company, 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.
28
DOCUMENTS FILED AS PART OF THE REGISTRATION STATEMENT
The following documents have been filed with the SEC as part of the
registration statement of which this prospectus is a part insofar as required by
the SEC's Form F-9:
o the documents listed in the third paragraph under "Where You
Can Find More Information" in this prospectus;
o the consent of our accountants and AEC's accountants,
PricewaterhouseCoopers LLP;
o the consent of our counsel, Macleod Dixon LLP;
o the consents of our independent qualified reserves evaluators,
Gilbert Laustsen Jung Associates Ltd., McDaniel & Associates
Consultants Ltd., Ryder Scott Company, Netherland, Sewell &
Associates, Inc. and DeGoyler and MacNaughton;
o powers of attorney from directors and officers of EnCana;
o the form of trust indenture relating to the debt securities;
and
o the statement of eligibility of the trustee on Form T-1.
29
PART II
INFORMATION NOT REQUIRED TO BE DELIVERED
TO OFFEREES OR PURCHASERS
INDEMNIFICATION
Under the CANADA BUSINESS CORPORATIONS ACT (the "CBCA"), EnCana
Corporation (the "Registrant") may indemnify a present or former director or
officer of the Registrant or another individual who acts or acted at the
Registrant'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 the Registrant or other entity. The Registrant may not
indemnify an individual unless the individual acted honestly and in good faith
with a view to the best interests of the Registrant, 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 the Registrant'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 the Registrant 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. The
Registrant 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 the Registrant provide that, subject to the limitations
contained in the CBCA, the Registrant shall indemnify a director or officer, a
former director or officer, or a person who acts or acted at the Registrant's
request as a director or officer of a body corporate of which the Registrant 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 the Registrant provide that the Registrant 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 the Registrant or as a director or officer of any body corporate
where he acts or acted in that capacity at the Registrant's request. The
Registrant 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 the
Registrant pursuant to the foregoing provisions, the Registrant 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 the Registrant dated February 25,
2004, including Management's Discussion and Analysis, for the
year ended December 31, 2003 (incorporated by reference from the
Registrant's Form 40-F for the fiscal year ended December 31,
2003 filed with the Securities and Exchange Commission on March
8, 2004) (File No. 1-15226).
4.2* The Information Circular of the Registrant, dated March 5, 2004,
relating to the annual and special meeting of shareholders of
the Registrant held on April 28, 2004 , excluding those portions
under the headings "Statement of Executive Compensation" and
"Statement of Corporate Governance Practices", which portions
shall be deemed not to be incorporated by reference in this
Registration Statement on Form F-9 (incorporated by reference
from the Registrant's Form 6-K filed with the Securities and
Exchange Commission on March 26, 2004) (No. 1-15226).
4.3* The audited comparative consolidated financial statements of the
Registrant, for the year ended December 31, 2003, including the
auditors' report thereon (incorporated by reference from the
Registrant's Form 40-F filed with the Securities and Exchange
Commission on March 8, 2004) (File No. 1-15226).
4.4* The audited comparative consolidated statements of earnings,
retained earnings and cash flows of Alberta Energy Company Ltd.
for the year ended December 31, 2001, including the auditors'
report thereon (incorporated by reference from the Registrant's
Form 6-K filed with the Securities and Exchange Commission on
July 29, 2002) (File No. 1-15226).
4.5* The unaudited comparative consolidated statements of earnings,
retained earnings and cash flows of Alberta Energy Company Ltd.
for the three month period ended March 31, 2002 (incorporated by
reference from the Registrant's Amendment No. 1 to the
Registration Statement on Form F-9 filed with the Securities and
Exchange Commission on August 23, 2003) (File No. 333-98087).
4.6* The Material Change Report of the Registrant, dated April 15,
2004, relating to the Registrant's agreement to acquire all of
the outstanding shares of Tom Brown, Inc. (incorporated by
reference from the Registrant's Form 6-K filed with the
Securities and Exchange Commission on April 16, 2004) (File No.
1-15226).
4.7* The unaudited comparative interim consolidated financial
statements of the Registrant, for the six month period ended
June 30, 2004, including Management's Discussion and Analysis
(incorporated by reference from the Registrant's Form 6-K filed
with the Securities and Exchange Commission on July 30, 2004)
(File No. 1-15226).
5.1 Consent of PricewaterhouseCoopers LLP.
5.2 Consent of Macleod Dixon LLP.
5.3 Consent of Gilbert Laustsen Jung Associates Ltd.
5.4 Consent of McDaniel & Associates Consultants Ltd.
5.5 Consent of Ryder Scott Company.
5.6 Consent of Netherland, Sewell & Associates, Inc.
5.7 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 of Form T-1.
* Previously filed or incorporated by reference herein.
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
The Registrant has previously 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.
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 Amendment
No. 1 to the 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 16, 2004.
ENCANA CORPORATION
By: /s/ John D. Watson
------------------------------------------
Name: John D. Watson
Title: Executive Vice President & Chief
Financial Officer
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
* Chairman of the Board September 16, 2004
----------------------------- of Directors
David P. O'Brien
* President & Chief Executive Officer September 16, 2004
----------------------------- and Director (Principal Executive
Gwyn Morgan Officer)
/s/ John D. Watson Executive Vice-President September 16, 2004
----------------------------- & Chief Financial Officer
John D. Watson (Principal Financial and Accounting
Officer)
* Director September 16, 2004
-----------------------------
Michael N. Chernoff
* Director September 16, 2004
-----------------------------
Patrick D. Daniel
* Director September 16, 2004
-----------------------------
Ian W. Delaney
III-2
SIGNATURE CAPACITY DATE
* Director September 16, 2004
-----------------------------
William R. Fatt
* Director September 16, 2004
-----------------------------
Michael A. Grandin
* Director September 16, 2004
-----------------------------
Barry W. Harrison
* Director September 16, 2004
-----------------------------
Richard F. Haskayne, O.C.
* Director September 16, 2004
-----------------------------
Dale A. Lucas
* Director September 16, 2004
-----------------------------
Ken F. McCready
* Director September 16, 2004
-----------------------------
Valerie A.A. Nielsen
* Director September 16, 2004
-----------------------------
Jane L. Peverett
* Director September 16, 2004
-----------------------------
Dennis A. Sharp
* Director September 16, 2004
-----------------------------
James M. Stanford
* Director September 16, 2004
-----------------------------
Ralph S. Cunningham
* By: /s/ John D. Watson
---------------------
John D. Watson,
Attorney-in-Fact
III-3
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of
1933, the Authorized Representative has duly caused Amendment No. 1 to 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 16, 2004.
ALENCO INC.
By: /s/ John D. Watson
-------------------------------
Name: John D. Watson
Title: President
III-4
EXHIBIT INDEX
Exhibit
Number Description
------ -----------
4.1* The Annual Information Form of the Registrant dated February 25,
2004, including Management's Discussion and Analysis, for the
year ended December 31, 2003 (incorporated by reference from the
Registrant's Form 40-F for the fiscal year ended December 31,
2003 filed with the Securities and Exchange Commission on March
8, 2004) (File No. 1-15226).
4.2* The Information Circular of the Registrant, dated March 5, 2004,
relating to the annual and special meeting of shareholders of
the Registrant held on April 28, 2004 , excluding those portions
under the headings "Statement of Executive Compensation" and
"Statement of Corporate Governance Practices", which portions
shall be deemed not to be incorporated by reference in this
Registration Statement on Form F-9 (incorporated by reference
from the Registrant's Form 6-K filed with the Securities and
Exchange Commission on March 26, 2004) (No. 1-15226).
4.3* The audited comparative consolidated financial statements of the
Registrant, for the year ended December 31, 2003, including the
auditors' report thereon (incorporated by reference from the
Registrant's Form 40-F filed with the Securities and Exchange
Commission on March 8, 2004) (File No. 1-15226).
4.4* The audited comparative consolidated statements of earnings,
retained earnings and cash flows of Alberta Energy Company Ltd.
for the year ended December 31, 2001, including the auditors'
report thereon (incorporated by reference from the Registrant's
Form 6-K filed with the Securities and Exchange Commission on
July 29, 2002) (File No. 1-15226).
4.5* The unaudited comparative consolidated statements of earnings,
retained earnings and cash flows of Alberta Energy Company Ltd.
for the three month period ended March 31, 2002 (incorporated by
reference from the Registrant's Amendment No. 1 to the
Registration Statement on Form F-9 filed with the Securities and
Exchange Commission on August 23, 2003) (File No. 333-98087).
4.6* The Material Change Report of the Registrant, dated April 15,
2004, relating to the Registrant's agreement to acquire all of
the outstanding shares of Tom Brown, Inc. (incorporated by
reference from the Registrant's Form 6-K filed with the
Securities and Exchange Commission on April 16, 2004) (File No.
1-15226).
4.7* The unaudited comparative interim consolidated financial
statements of the Registrant, for the six month period ended
June 30, 2004, including Management's Discussion and Analysis
(incorporated by reference from the Registrant's Form 6-K filed
with the Securities and Exchange Commission on July 30, 2004)
(File No. 1-15226).
5.1 Consent of PricewaterhouseCoopers LLP.
5.2 Consent of Macleod Dixon LLP.
5.3 Consent of Gilbert Laustsen Jung Associates Ltd.
5.4 Consent of McDaniel & Associates Consultants Ltd.
5.5 Consent of Ryder Scott Company.
5.6 Consent of Netherland, Sewell & Associates, Inc.
5.7 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 of Form T-1.
* Previously filed or incorporated by reference herein.