AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 9, 2006
REGISTRATION NO. 333-133648
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
AMENDMENT NO. 1
TO
FORM F-9
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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ENCANA CORPORATION ENCANA HOLDINGS FINANCE CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CANADA NOVA SCOTIA
(PROVINCE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
1311 1311
(PRIMARY STANDARD INDUSTRIAL
CLASSIFICATION CODE NUMBER)
NOT APPLICABLE NOT APPLICABLE
(I.R.S. EMPLOYER IDENTIFICATION NO.,
IF APPLICABLE)
1800, 855 - 2ND STREET S.W. 1800, 855 - 2ND STREET S.W.
CALGARY, ALBERTA, CANADA T2P 2S5 CALGARY, ALBERTA, CANADA T2P 2S5
(403) 645-2000 (403) 645-2000
ATTENTION: CORPORATE SECRETARY ATTENTION: CORPORATE SECRETARY
(ADDRESS AND TELEPHONE NUMBER OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CT CORPORATION SYSTEM CT CORPORATION SYSTEM
111 8TH AVENUE, 13TH FLOOR 111 8TH AVENUE, 13TH FLOOR
NEW YORK, NEW YORK 10011 NEW YORK, NEW YORK 10011
(212) 894-8940 (212) 894-8940
(NAME, ADDRESS AND TELEPHONE NUMBER
(INCLUDING AREA CODE) OF AGENT FOR
SERVICE IN THE UNITED STATES)
COPIES TO:
KERRY DYTE ANDREW J. FOLEY KEVIN E. JOHNSON
ENCANA CORPORATION EDWIN S. MAYNARD MACLEOD DIXON LLP
1800, 855 - 2ND STREET S.W. PAUL, WEISS, RIFKIND, 3700 CANTERRA TOWER
CALGARY, ALBERTA, CANADA WHARTON & GARRISON LLP 400 - 3RD AVENUE S.W.
T2P 2S5 1285 AVENUE OF THE AMERICAS CALGARY, ALBERTA, CANADA
(403) 645-2000 NEW YORK, N.Y. 10019-6064 T2P 4H2
(212) 373-3000 (403) 267-8222
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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 OMITTED -- ENCANA (TM)]
[GRAPHIC OMITTED -- LOGO ENCANA HOLDINGS FINANCE CORP.]
US$2,000,000,000
DEBT SECURITIES
UNCONDITIONALLY GUARANTEED AS TO PRINCIPAL, PREMIUM (IF ANY),
INTEREST AND CERTAIN OTHER AMOUNTS BY
ENCANA CORPORATION
__________________
We may from time to time offer and sell up to US$2,000,000,000 (or the
equivalent in other currencies) aggregate principal amount of our debt
securities. These debt securities may be offered and sold in Canada, the
United States and elsewhere where permitted by law. These debt securities may
consist of debentures, notes or other types of debt and may be issuable in
series. We will provide the specific terms of these securities in supplements
to this prospectus that will be delivered to purchasers together with this
prospectus. Unless otherwise provided in a prospectus supplement relating to a
series of debt securities, the debt securities will be our direct, unsecured
and unsubordinated obligations and will be issued under a trust indenture. The
debt securities will be fully and unconditionally guaranteed by EnCana
Corporation. 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.
ENCANA CORPORATION PREPARES ITS FINANCIAL STATEMENTS IN ACCORDANCE WITH
CANADIAN GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, AND THEY ARE SUBJECT TO
CANADIAN AUDITING AND AUDITOR INDEPENDENCE STANDARDS. THEY MAY NOT BE
COMPARABLE TO FINANCIAL STATEMENTS OF UNITED STATES COMPANIES.
OWNING THE DEBT SECURITIES MAY SUBJECT YOU TO TAX CONSEQUENCES BOTH IN
THE UNITED STATES AND CANADA. THIS PROSPECTUS OR ANY APPLICABLE PROSPECTUS
SUPPLEMENT MAY NOT DESCRIBE THESE TAX CONSEQUENCES FULLY. YOU SHOULD READ THE
TAX DISCUSSION IN ANY APPLICABLE PROSPECTUS SUPPLEMENT.
YOUR ABILITY TO ENFORCE CIVIL LIABILITIES UNDER THE UNITED STATES FEDERAL
SECURITIES LAWS MAY BE AFFECTED ADVERSELY BECAUSE WE AND ENCANA CORPORATION
ARE INCORPORATED IN CANADA, MOST OF OUR AND ENCANA CORPORATION'S OFFICERS AND
DIRECTORS AND SOME OF THE EXPERTS NAMED IN THIS PROSPECTUS ARE CANADIAN
RESIDENTS, AND MOST OF OUR ASSETS, THE ASSETS OF ENCANA CORPORATION AND THE
ASSETS OF OUR AND ENCANA CORPORATION'S DIRECTORS AND OFFICERS AND THE EXPERTS
ARE LOCATED OUTSIDE THE UNITED STATES.
THERE IS NO MARKET THROUGH WHICH THESE SECURITIES MAY BE SOLD AND
PURCHASERS MAY NOT BE ABLE TO RESELL SECURITIES PURCHASED UNDER THIS
PROSPECTUS. THIS MAY AFFECT THE PRICING OF THE SECURITIES IN THE SECONDARY
MARKET, THE TRANSPARENCY AND AVAILABILITY OF TRADING PRICES, THE LIQUIDITY OF
THE SECURITIES, AND THE EXTENT OF THE ISSUER REGULATION. SEE "RISK FACTORS".
__________________
June 9, 2006
TABLE OF CONTENTS
About This Prospectus................2 Risk Factors........................23
Where You Can Find More Information..2 Certain Income Tax Considerations...24
Forward-Looking Statements...........5 Plan of Distribution................24
EnCana Holdings Finance Corp.........6 Interest Coverage...................24
EnCana Corporation...................6 Legal Matters.......................25
Use of Proceeds......................6 Experts ...........................25
Description of Debt Securities.......7 Documents Filed as Part of the
Registration Statement ..........25
ABOUT THIS PROSPECTUS
All references in this prospectus and any prospectus supplement to
"EnCana Holdings Finance", "we", "us" and "our" mean EnCana Holdings Finance
Corp. Except as set forth under "Description of Debt Securities", and unless
the context otherwise requires, all references to "EnCana" and "the Guarantor"
mean EnCana Corporation and its consolidated subsidiaries and partnerships.
In this prospectus and in any prospectus supplement, unless otherwise
specified or the context otherwise requires, all dollar amounts are expressed
in United States dollars, references to "dollars", "$" or "US$" are to United
States dollars and all references to "C$" are to Canadian dollars. Unless
otherwise indicated, all financial information included and incorporated by
reference in this prospectus or included in any prospectus supplement is
determined using Canadian generally accepted accounting principles, referred
to as "Canadian GAAP".
We may, from time to time, sell any combination of the debt securities
described in this prospectus in one or more offerings up to an aggregate
principal amount of US$2,000,000,000. This prospectus provides you with a
general description of the debt securities that we may offer. Each time we
sell debt securities under this prospectus, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering of debt securities. The prospectus supplement may also add, update or
change information contained in this prospectus. Before you invest, you should
read both this prospectus and any applicable prospectus supplement together
with additional information described under the heading "Where You Can Find
More Information". This prospectus does not contain all of the information set
forth in the registration statement, certain parts of which are omitted in
accordance with the rules and regulations of the United States Securities and
Exchange Commission (the "SEC"). You may refer to the registration statement
and the exhibits to the registration statement for further information with
respect to us, EnCana 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. 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.
The Guarantor files 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. The Guarantor is 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, it also files reports with and furnishes other information to the SEC.
Under the multijurisdictional disclosure system adopted by the United States,
these reports and other information (including financial information) may be
prepared in accordance with the disclosure requirements of Canada, which
differ from those in the United States. You may read any document we or the
Guarantor furnish to the SEC at the SEC's public reference room at Room 1580,
100 F Street, N.E., Washington, D.C. 20549. You may also obtain copies of the
same documents from the public reference room of the SEC at 100 F Street,
N.E., Washington D.C. 20549 by paying a fee. Please call the SEC at
1-800-SEC-0330 or contact them at www.sec.gov for further information on the
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public reference rooms. The Guarantor's 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.
We do not intend to file with Canadian securities regulatory authorities
separate continuous disclosure information apart from, where there is a
material change in our business, operations or capital that is not a material
change in respect of the Guarantor, a material change report. We have been
granted exemptions from all remaining continuous disclosure requirements
contained within the securities legislation of each of the provinces of Canada
(the "Decisions"). The Decisions provide, in part, that we are entitled to
file, in lieu of such continuous disclosure filings, certain filings of the
Guarantor made with the Canadian securities regulatory authorities.
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 the Guarantor files with them, which means
that we can disclose important information to you by referring you to those
documents. Information that is incorporated by reference is an important part
of this prospectus. We incorporate by reference the documents listed below,
which were filed with the Canadian securities commissions under Canadian
securities legislation:
(a) the Guarantor's Annual Information Form dated February 17, 2006;
(b) the Guarantor's audited comparative consolidated financial
statements for the year ended December 31, 2005, including the
auditors' report thereon;
(c) the Guarantor's Management's Discussion and Analysis for the year
ended December 31, 2005;
(d) the Guarantor's Information Circular (amended) dated February 28,
2006 relating to the annual meeting of the Guarantor's shareholders
held on April 26, 2006;
(e) the Guarantor's unaudited comparative consolidated financial
statements for the three months ended March 31, 2006; and
(f) the Guarantor's Management's Discussion and Analysis for the three
months ended March 31, 2006.
Any annual information form, audited annual consolidated financial
statements (together with the auditors' report thereon), information circular,
unaudited interim consolidated financial statements, management's discussion
and analysis or material change reports (excluding confidential material
change reports) subsequently filed by us or the Guarantor with securities
commissions or similar authorities in the relevant provinces and territories
of Canada after the date of this prospectus and prior to the termination of
the offering of debt securities under any prospectus supplement shall be
deemed to be incorporated by reference into this prospectus. These documents
are available through the internet on SEDAR. To the extent that any document
or information incorporated by reference into this prospectus is included in a
report that is filed with or furnished to the SEC on Form 40-F, 20-F, 10-K,
10-Q, 8-K or 6-K (or any respective successor form), such document or
information shall also be deemed to be incorporated by reference as an exhibit
to the registration statement relating to the debt securities of which this
prospectus forms a part.
ANY STATEMENT CONTAINED IN THIS PROSPECTUS OR IN A DOCUMENT (OR PART
THEREOF) INCORPORATED BY REFERENCE, OR DEEMED TO BE INCORPORATED BY REFERENCE,
IN THIS PROSPECTUS SHALL BE DEEMED TO BE MODIFIED OR SUPERSEDED, FOR PURPOSES
OF THIS PROSPECTUS, TO THE EXTENT THAT A STATEMENT CONTAINED IN THE PROSPECTUS
OR IN ANY SUBSEQUENTLY FILED DOCUMENT (OR PART THEREOF) THAT ALSO IS, OR IS
DEEMED TO BE, INCORPORATED BY REFERENCE IN THIS PROSPECTUS MODIFIES OR
REPLACES SUCH STATEMENT. ANY STATEMENT SO MODIFIED OR SUPERSEDED SHALL NOT BE
DEEMED, EXCEPT AS SO MODIFIED OR SUPERSEDED, TO CONSTITUTE PART OF THIS
PROSPECTUS. THE MODIFYING OR SUPERSEDING STATEMENT NEED NOT STATE THAT IT HAS
MODIFIED OR SUPERSEDED A PRIOR STATEMENT OR INCLUDE ANY OTHER INFORMATION SET
FORTH IN THE DOCUMENT WHICH IT MODIFIES OR SUPERSEDES.
Updated interest coverage ratios will be filed quarterly by the Guarantor
with the applicable securities regulatory authorities, including the SEC,
either as prospectus supplements or exhibits to the Guarantor's unaudited
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interim consolidated financial statements and audited annual consolidated
financial statements and will be deemed to be incorporated by reference in
this prospectus for the purpose of the offering of the debt securities.
Upon a new annual information form and related annual consolidated
financial statements and management's discussion and analysis being filed by
the Guarantor with, and where required, accepted by, the applicable securities
regulatory authorities during the duration of this prospectus, the previous
annual information form, the previous annual consolidated financial statements
and all interim consolidated financial statements and the accompanying
management's discussion and analysis, information circulars (other than an
information circular relating to an annual meeting of shareholders) and
material change reports filed prior to the commencement of the Guarantor's
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 the Guarantor with the applicable securities
regulatory authorities during the duration of this prospectus, all interim
consolidated financial statements and the accompanying management's discussion
and analysis filed prior to the new interim consolidated financial statements
shall be deemed no longer to be incorporated into this prospectus for purposes
of future offers and sales of debt securities under this prospectus.
A prospectus supplement or prospectus supplements containing the specific
terms for an issue of debt securities will be delivered to purchasers of such
debt securities together with this prospectus and will be deemed to be
incorporated by reference into this prospectus as of the date of such
prospectus supplement but only for the purposes of the debt securities issued
thereunder.
You may obtain a copy of the Guarantor's Annual Information Form and
other information identified above by writing or calling the Guarantor 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
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FORWARD-LOOKING STATEMENTS
Certain statements included in this prospectus and the documents
incorporated by reference herein constitute forward-looking statements or
information (collectively referred to as "forward-looking statements") within
the meaning of applicable securities legislation, including the United States
Private Securities Litigation Reform Act of 1995, relating to, but not limited
to, the operations, anticipated financial performance, business prospects and
strategies of EnCana (including the U.S. Group, as hereinafter defined).
Forward-looking statements typically contain statements with words such as
"projected", "anticipate", "believe", "expect", "plan", "intend" or similar
words suggesting future outcomes or statements regarding an outlook.
Forward-looking statements in or incorporated by reference into this
prospectus include, but are not limited to, statements with respect to:
oilsands strategy and the effect of this strategy, timing and completion of
the sale of the Ecuador assets, the Chinook heavy oil discovery, the natural
gas storage business and the Entrega Pipeline, plans to import diluent,
capital investment levels and the allocation thereof, drilling plans and the
timing and location thereof, production capacity and levels and the timing of
achieving such capacity and levels, pipeline capacity, the timing of pipeline
and new plant construction, the timing of completion of the environmental
assessment on the Suffield Block, the timing of completion of the Foster Creek
and Christina Lake expansions, the completion of waterflood implementation at
Pelican Lake, government royalty rates, the results of the U.S. Bureau of Land
Management decision regarding the Jonah area, the potential for natural gas
resource play development on the Foix permit lands, reserves estimates,
storage capacity, the level of expenditures for compliance with environmental
regulations, site restoration costs including abandonment and reclamation
costs, pending litigation, exploration plans, acquisition and disposition
plans, including farmout plans, the timing of acquisitions, net cash flows,
geographical expansion and plans for seismic surveys.
You are cautioned not to place undue reliance on forward-looking
statements, as there can be no assurance that the plans, intentions or
expectations upon which they are based will occur. By their nature,
forward-looking statements involve numerous assumptions, known and unknown
risks and uncertainties, both general and specific, that contribute to the
possibility that the predictions, forecasts, projections and other things
contemplated by the forward-looking statements will not occur. Although we
believe that the expectations represented by such forward-looking statements
are reasonable, there can be no assurance that such expectations will prove to
be correct. Some of the risks and other factors which could cause results to
differ materially from those expressed in the forward-looking statements
contained in this prospectus and the documents incorporated by reference
herein include, but are not limited to: volatility of and assumptions
regarding oil and natural gas prices, assumptions based upon EnCana's current
guidance, fluctuations in currency and interest rates, product supply and
demand, market competition, risks inherent in EnCana's North American and
foreign oil and natural gas and midstream operations, risks of war,
hostilities, civil insurrection and instability affecting countries in which
EnCana and its subsidiaries operate and terrorist threats, risks inherent in
EnCana's and its subsidiaries' marketing operations, including credit risk,
imprecision of reserves estimates and estimates of recoverable quantities of
oil, natural gas and liquids from resource plays and other sources not
currently classified as proved reserves, EnCana's and its subsidiaries'
ability to replace and expand oil and natural gas reserves, risks associated
with technology, EnCana's ability to generate sufficient cash flow from
operations to meet its current and future obligations, EnCana's ability to
access external sources of debt and equity capital, general economic and
business conditions, EnCana's ability to enter into or renew leases, the
timing and costs of gas storage facility, well and pipeline construction,
EnCana's ability to make capital investments and the amounts of capital
investments, imprecision in estimating the timing, costs and levels of
production and drilling, the results of exploration, development and drilling,
imprecision in estimates of future production capacity, EnCana's and its
subsidiaries' ability to secure adequate product transportation, uncertainty
in the amounts of timing of royalty payments, imprecision in estimates of
product sales, changes in environmental and other regulations or the
interpretation of such regulations, risks associated with existing and
potential future lawsuits and regulatory actions against EnCana and its
subsidiaries, political and economic conditions in the countries in which
EnCana and its subsidiaries operate, difficulty in obtaining necessary
regulatory approvals and such other risks and uncertainties described from
time to time in EnCana's reports and filings with the Canadian securities
authorities and the SEC. Statements relating to "reserves" are deemed to be
forward-looking statements, as they involve the implied assessment, based on
certain estimates and assumptions, that the reserves described exist in the
quantities predicted or estimated, and can be profitably produced in the
future.
We caution that the foregoing list of important factors is not
exhaustive. Events or circumstances could cause our or the Guarantor's actual
results to differ materially from those estimated or projected and expressed
in, or implied by, these forward-looking statements. You should also carefully
consider the matters discussed under "Risk Factors" in this prospectus, in any
applicable prospectus supplement and in the documents incorporated herein by
reference. Except as required by law, neither we nor EnCana Corporation
undertake any obligation to update publicly or otherwise revise any
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forward looking statements, whether as a result of new information, future
events or otherwise, or the foregoing list of factors affecting this
information.
ENCANA HOLDINGS FINANCE CORP.
We are an unlimited liability company incorporated on August 25, 2003
under the laws of the province of Nova Scotia, Canada. We are a wholly owned
indirect subsidiary of EnCana Corporation. Our principal executive offices are
located at 1800, 855 - 2nd Street S.W., Calgary, Alberta T2P 2S5, Canada and
our registered offices are located at Suite 800, 1959 Upper Water St., P.O.
Box 997, Halifax, Nova Scotia, B3J 2X2.
We are part of a group of EnCana's subsidiaries and partnerships which
carry on substantially all of EnCana's operations in the United States (the
"U.S. Group"). We have been established for the purpose of raising financing
for the U.S. Group. We have no subsidiaries and, except as aforesaid, have no
active business.
Unless otherwise indicated in the applicable prospectus supplement
relating to a series of debt securities, we will advance the net proceeds we
receive from the sale of the debt securities to one or more other corporations
or partnerships within the U.S. Group, by way of loan, for their use for the
general corporate purposes of the U.S. Group. See "Use of Proceeds". The
upstream operations of the U.S. Group are currently focused on exploiting
long-life unconventional natural gas formations in the Jonah field located in
southwest Wyoming, the Piceance Basin in northwest Colorado and the East
Texas, Fort Worth and Maverick Basins in Texas. The U.S. Group also has
landholdings in the Columbia River basin in Washington State, as well as
interests in natural gas gathering and processing assets. The majority of the
U.S. Group's production is from the following four key resource plays: (i)
Jonah; (ii) Piceance; (iii) East Texas; and (iv) Fort Worth.
The funds required by us to satisfy our obligations under the debt
securities that we issue under this prospectus will be obtained through our
debt interests in other members of the U.S. Group or through other advances
from EnCana Corporation or its subsidiaries or partnerships. Any debt
securities we issue under this prospectus will be fully and unconditionally
guaranteed by EnCana Corporation.
ENCANA CORPORATION
EnCana Corporation is one of North America's leading natural gas
producers, is among the largest holders of natural gas and oil resource lands
onshore North America and is a technical and cost leader in the in-situ
recovery of oilsands bitumen. EnCana pursues growth from its portfolio of
long-life resource plays situated in Canada and the United States. Contained
in unconventional reservoirs, resource plays are large contiguous
accumulations of hydrocarbons, located in thick or areally extensive deposits,
that typically have lower geological and commercial development risk, lower
average long-term decline rates and very long producing lives compared to
conventional plays. EnCana is also engaged in select exploration and
production activities internationally.
EnCana continually pursues opportunities to develop and expand its
business, which may include significant corporate or asset acquisitions.
EnCana may finance such acquisitions with debt or equity, or a combination of
both.
EnCana Corporation's 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 advance the net proceeds we
receive from the sale of the debt securities to one or more other corporations
or partnerships within the U.S. Group, by way of loan, for their use for
general corporate purposes of the U.S. Group. 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.
6
DESCRIPTION OF DEBT SECURITIES
In this section only, "EnCana Corporation" and "the Guarantor" 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") dated May 3, 2004 among us, the Guarantor and
Deutsche Bank Trust Company Americas, as "Trustee", a form of which has been
filed as an exhibit to the registration statement filed with the SEC. The
Indenture is subject to and governed by the U.S. Trust Indenture Act of 1939,
as amended. The following is a summary of the Indenture which describes
certain general terms and provisions of the debt securities and is not
intended to be complete; these statements are qualified in their entirety by,
and subject to, the provisions of the Indenture, including the definition of
capitalized terms used under this caption. We urge you to read the Indenture
carefully, because it is the Indenture, and not this summary, that governs
your rights as a holder of our debt securities. See "Where You Can Find More
Information" in this prospectus. Prospective investors should rely on
information in the applicable prospectus supplement, which may provide
information that is different from this prospectus.
We may, from time to time, issue debt instruments and incur additional
indebtedness other than through the issuance of debt securities pursuant to
this prospectus.
GENERAL
The Indenture does not limit the aggregate principal amount of debt
securities (which may include debentures, notes and other unsecured evidences
of indebtedness) that we may issue under the Indenture. It provides that debt
securities may be issued from time to time in one or more series and may be
denominated and payable in U.S. dollars or any foreign currency. Special
Canadian and U.S. federal income tax considerations applicable to any of our
debt securities denominated in a foreign currency will be described in the
prospectus supplement relating to any offering of debt securities denominated
in a foreign currency. The debt securities offered pursuant to this prospectus
will be issued in an amount up to US$2,000,000,000, or if any debt securities
are offered at original issue discount, such greater amount as shall result in
an aggregate offering price of up to US$2,000,000,000 or the equivalent in
other currencies. The Indenture also permits us to increase the principal
amount of any series of our debt securities previously issued and to issue
that increased principal amount. The applicable prospectus supplement will set
forth the following terms relating to the debt securities being offered by us:
o the specific designation and the aggregate principal amount of the
debt securities of such series;
o the extent and manner, if any, to which payment on or in respect of
our debt securities of such series will be senior or will be
subordinated to the prior payment of our other liabilities and
obligations;
o the percentage or percentages of principal amount at which our debt
securities of such series will be issued;
o the date or dates on which the principal of (and premium, if any,
on) our debt securities of such series will be payable and the
portion (if less than the principal amount) of the debt securities
of such series to be payable upon a declaration of acceleration of
maturity and/or the method by which such date or dates shall be
determined or extended;
o the rate or rates (whether fixed or variable) at which our debt
securities of such series will bear interest, if any, and the date
or dates from which such interest will accrue;
o the dates on which any interest will be payable and the regular
record dates for the payment of interest on our debt securities of
such series in registered form;
7
o the place or places where the principal of (and premium, if any,
and interest, if any, on) our debt securities will be payable, and
each office or agency where our debt securities of such series may
be presented for registration of transfer or exchange;
o if other than U.S. dollars, the currency in which our debt
securities of such series are denominated or in which currency
payment of the principal of (and premium, if any, and interest, if
any, on) such debt securities of such series will be payable;
o whether our debt securities of such series will be issuable in the
form of one or more global securities and, if so, the identity of
the depositary for the global securities;
o any mandatory or optional redemption or sinking fund provisions;
o the period or periods, if any, within which, the price or prices at
which, the currency in which and the terms and conditions upon
which our debt securities of such series may be redeemed or
purchased by us;
o the terms and conditions, if any, upon which you may redeem our
debt securities of such series prior to maturity and the price or
prices at which and the currency in which our debt securities of
such series are payable;
o any index used to determine the amount of payments of principal of
(and premium, if any, or interest, if any, on) our debt securities
of such series;
o the terms, if any, on which our debt securities may be converted or
exchanged for other of our debt securities or debt securities of
other entities;
o any other terms of our debt securities of such series, including
covenants and events of default which apply solely to a particular
series of our debt securities being offered which do not apply
generally to other debt securities, or any covenants or events of
default generally applicable to our debt securities of such series
which do not apply to a particular series of our debt securities;
o if other than The Depository Trust Company, the person designated
as the depositary for the debt securities of such series;
o any applicable material Canadian and U.S. federal income tax
consequences;
o whether and under what circumstances we will pay Additional Amounts
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 in addition to the Guarantor;
o whether the series of our debt securities are to be registered
securities, bearer securities (with or without coupons) or both;
and
o if other than denominations of US$1,000 and any integral multiple
thereof, the denominations in which any registered securities of
the series shall be issuable and, if other than the denomination of
US$5,000, the denomination or denominations in which any bearer
securities of the series shall be issuable.
Unless otherwise indicated in the applicable prospectus supplement, the
Indenture does not afford holders of our debt securities the right to tender
such debt securities to us in the event that we have a change in control.
8
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.
GUARANTEE
The Guarantor will fully and unconditionally guarantee the payment of the
principal (and premium, if any) and interest, if any, on the debt securities
issued by us and any Additional Amounts payable with respect to such debt
securities when they become due and payable, whether at the stated maturity
thereof or by declaration of acceleration, notice of redemption or otherwise.
RANKING
Unless otherwise indicated in an applicable prospectus supplement, the
debt securities will be our unsecured and unsubordinated obligations and will
rank equally with all of our other unsecured and unsubordinated indebtedness
outstanding from time to time.
The guarantee will be the Guarantor's unsubordinated and unsecured
obligation and, unless otherwise provided with respect to a series of debt
securities, will rank equally with all of the Guarantor's other unsecured,
unsubordinated obligations. The Guarantor conducts a substantial portion of
its business through corporate and partnership subsidiaries. The Guarantor's
obligations under the guarantee will be structurally subordinate to all
existing and future indebtedness and liabilities of any of the Guarantor's
corporate and partnership subsidiaries.
DEBT SECURITIES IN GLOBAL FORM
THE DEPOSITARY, BOOK-ENTRY AND SETTLEMENT
A series of our debt securities may be issued in whole or in part in
global form as a "global security" and will be registered in the name of and
be deposited with a depositary, or its nominee, each of which will be
identified in the prospectus supplement relating to that series. Unless and
until exchanged, in whole or in part, for our debt securities in definitive
registered form, a global security may not be transferred except as a whole by
the depositary for such global security to a nominee of the depositary, by a
nominee of the depositary to the depositary or another nominee of the
depositary or by the depositary or any such nominee to a successor of the
depositary or a nominee of the successor.
The specific terms of the depositary arrangement with respect to any
portion of a particular series of our debt securities to be represented by a
global security will be described in a prospectus supplement relating to such
series. We anticipate that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a global security, the depositary therefor or its
nominee will credit, on its book entry and registration system, the respective
principal amounts of our debt securities represented by the global security to
the accounts of such persons, designated as "participants", having accounts
with such depositary or its nominee. Such accounts shall be designated by the
underwriters, dealers or agents participating in the distribution of our debt
securities or by us if such debt securities are offered and sold directly by
us. Ownership of beneficial interests in a global security will be limited to
participants or persons that may hold beneficial interests through
participants. Ownership of beneficial interests in a global security will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the depositary therefor or its nominee (with respect to
interests of participants) or by participants or persons that hold through
participants (with respect to interests of persons other than participants).
The laws of some states in the United States may require that certain
purchasers of securities take physical delivery of such securities in
definitive form.
So long as the depositary for a global security or its nominee is the
registered owner of the global security, such depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the debt
securities represented by the global security for all purposes under the
Indenture. Except as provided below, owners of beneficial interests in a
global security will not be entitled to have a series of our debt securities
represented by the global security
9
registered in their names, will not receive or be entitled to receive physical
delivery of such series of our debt securities in definitive form and will not
be considered the owners or holders thereof under the Indenture.
PAYMENTS OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST
Any payments of principal, premium, if any, and interest on global
securities registered in the name of a depositary or its nominee will be made
to the depositary or its nominee, as the case may be, as the registered owner
of the global security representing such debt securities. None of us, the
Guarantor, the Trustee or any paying agent for our debt securities represented
by the global securities will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of the global security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
We expect that the depositary for a global security or its nominee, upon
receipt of any payment of principal, premium, if any, or interest, will credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of the global security
as shown on the records of such depositary or its nominee. We also expect that
payments by participants to owners of beneficial interests in a global
security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers registered in "street name", and will be the
responsibility of such participants.
DISCONTINUANCE OF DEPOSITARY'S SERVICES
If a depositary for a global security representing a particular series of
our debt securities is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by us within 90 days,
we will issue such series of our debt securities in definitive form in
exchange for a global security representing such series of our debt
securities. In addition, we may at any time and in our sole discretion
determine not to have a series of our debt securities represented by a global
security and, in such event, will issue a series of our debt securities in
definitive form in exchange for all of the global securities representing the
series of debt securities.
DEBT SECURITIES IN DEFINITIVE FORM
A series of our debt securities may be issued solely as registered
securities, solely as bearer securities or as both registered securities and
bearer securities. Registered securities will be issuable in denominations of
US$1,000 and integral multiples of US$1,000 and bearer securities will be
issuable in denominations of US$5,000 or, in each case, in such other
denominations as may be set out in the terms of the debt securities of any
particular series. Unless otherwise indicated in the applicable prospectus
supplement, bearer securities will have interest coupons attached.
A prospectus supplement may indicate the places to register a transfer of
our debt securities. Except for certain restrictions set forth in the
Indenture, no service charge will be made for any registration of transfer or
exchange of our debt securities, but we may, in certain instances, require a
sum sufficient to cover any tax or other governmental charges payable in
connection with these transactions.
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;
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o exchange any bearer security selected for redemption, except that,
to the extent provided with respect to such bearer security, such
bearer security may be exchanged for a registered security of that
series and like tenor, PROVIDED that such registered security shall
be immediately surrendered for redemption with written instruction
for payment consistent with the provisions of the Indenture; or
o issue, register the transfer of or exchange any of our debt
securities which have been surrendered for repayment at the option
of the holder, except the portion, if any, thereof not to be so
repaid.
Unless otherwise indicated in the applicable prospectus supplement,
payment of any interest will be made to the persons in whose name our debt
securities are registered at the close of business on the day or days
specified by us.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Indenture. We urge you to read the Indenture for the full definition of all
such terms.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of assets of
any person on a consolidated basis (less applicable reserves and other
properly deductible items) after deducting therefrom:
o all current liabilities (excluding any indebtedness classified as a
current liability and any current liabilities which are by their
terms extendible or renewable at the option of the obligor thereon
to a time more than 12 months after the time as of which the amount
thereof is being computed);
o all goodwill, trade names, trademarks, patents, unamortized debt
discounts and expenses and other like intangibles; and
o appropriate adjustments on account of minority interests of other
persons holding shares of the Subsidiaries of such person,
in each case, as shown on the most recent annual audited or quarterly
unaudited consolidated balance sheet of such person computed in accordance
with GAAP.
"CURRENT ASSETS" means assets which in the ordinary course of business
are expected to be realized in cash or sold or consumed within 12 months.
"FACILITIES" means any drilling equipment, production equipment and
platforms or mining equipment; pipelines, pumping stations and other pipeline
facilities; terminals, warehouses and storage facilities; bulk plants;
production, separation, dehydration, extraction, treating and processing
facilities; gasification or natural gas liquefying facilities, flares, stacks
and burning towers; floatation mills, crushers and ore handling facilities;
tank cars, tankers, barges, ships, trucks, automobiles, airplanes and other
marine, automotive, aeronautical and other similar moveable facilities or
equipment; computer systems and associated programs or office equipment;
roads, airports, docks (including drydocks); reservoirs and waste disposal
facilities; sewers; generating plants (including power plants) and electric
lines; 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
11
combination thereof, entered into by a person relating to currency
exchange rates or pursuant to which the price, value or amount
payable thereunder is dependent or based upon currency exchange
rates in effect from time to time or fluctuations in currency
exchange rates occurring from time to time; and
o commodity swap or hedging agreements, floor, cap or collar
agreements, commodity futures or options or other similar
agreements or arrangements, or any combination thereof, entered
into by a person relating to one or more commodities or pursuant to
which the price, value or amount payable thereunder is dependent or
based upon the price of one or more commodities in effect from time
to time or fluctuations in the price of one or more commodities
occurring from time to time.
"GAAP" means generally accepted accounting principles in Canada which are
in effect from time to time, unless the person's most recent audited or
quarterly financial statements are not prepared in accordance with generally
accepted accounting principles in Canada, in which case GAAP shall mean
generally accepted accounting principles in the United States in effect from
time to time.
"LIEN" means, with respect to any properties or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien,
charge, encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with respect
to such properties or assets (including, without limitation, any conditional
sale or other title retention agreement having substantially the same economic
effect as any of the foregoing).
"NON-RECOURSE DEBT" means indebtedness to finance the creation,
development, construction or acquisition of properties or assets and any
increases in or extensions, renewals or refinancings of such indebtedness,
PROVIDED that the recourse of the lender thereof (including any agent,
trustee, receiver or other person acting on behalf of such entity) in respect
of such indebtedness is limited in all circumstances to the properties or
assets created, developed, constructed or acquired in respect of which such
indebtedness has been incurred and to the receivables, inventory, equipment,
chattels payable, contracts, intangibles and other assets, rights or
collateral connected with the properties or assets created, developed,
constructed or acquired and to which such lender has recourse.
"PERMITTED LIENS" of any person at any particular time means:
o Liens existing as of the date of the Indenture, or arising
thereafter pursuant to contractual commitments entered into prior
to such date;
o Liens on Current Assets given in the ordinary course of business to
any financial institution or others to secure any indebtedness
payable on demand or maturing (including any right of extension or
renewal) within 12 months or less from the date such indebtedness
is incurred;
o Liens in connection with indebtedness, which, by its terms, is
Non-Recourse Debt to the Guarantor or any of its 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;
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o Liens upon property or facilities used in connection with, or
necessarily incidental to, the purchase, sale, storage,
transportation or distribution of oil or gas or the products
derived from oil or gas;
o Liens arising under partnership agreements, oil and natural gas
leases, overriding royalty agreements, net profits agreements,
production payment agreements, royalty trust agreements, master
limited partnership agreements, farm-out agreements, division
orders, contracts for the sale, purchase, exchange, storage,
transportation, distribution, gathering or processing of Restricted
Property, unitizations and pooling designations, declarations,
orders and agreements, development agreements, operating
agreements, production sales contracts (including security in
respect of take or pay or similar obligations thereunder), area of
mutual interest agreements, natural gas balancing or deferred
production agreements, injection, repressuring and recycling
agreements, salt water or other disposal agreements, seismic or
geophysical permits or agreements, which in each of the foregoing
cases is customary in the oil and natural gas business, and other
agreements which are customary in the oil and natural gas business,
PROVIDED in all instances that such Lien is limited to the property
or assets that are the subject of the relevant agreement;
o Liens on assets or property (including oil sands property)
securing: (i) all or any portion of the cost of acquisition
(directly or indirectly), surveying, exploration, drilling,
development, extraction, operation, production, construction,
alteration, repair or improvement of all or any part of such assets
or property, the plugging and abandonment of wells and the
decommissioning or removal of structures or facilities located
thereon, and the reclamation and clean-up of such properties,
facilities and interests and surrounding lands whether or not owned
by the Guarantor or its 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 the
Guarantor or any of its 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 the Guarantor or any of its 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 the Guarantor or any of its Subsidiaries to
secure indebtedness owed to the Guarantor or any of its
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.
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"PURCHASE MONEY MORTGAGE" of any person means any Lien created upon any
property or assets of such person to secure or securing the whole or any part
of the purchase price of such property or assets or the whole or any part of
the cost of constructing or installing fixed improvements thereon or to secure
or securing the repayment of money borrowed to pay the whole or any part of
such purchase price or cost of any vendor's privilege or Lien on such property
or assets securing all or any part of such purchase price or cost including
title retention agreements and leases in the nature of title retention
agreements; PROVIDED that (i) the principal amount of money borrowed which is
secured by such Lien does not exceed 100% of such purchase price or cost and
any fees incurred in connection therewith, and (ii) such Lien does not extend
to or cover any other property other than such item of property and any
improvements on such item.
"RESTRICTED PROPERTY" means any oil, gas or mineral property of a primary
nature located in the United States or Canada, and any facilities located in
the United States or Canada directly related to the mining, processing or
manufacture of hydrocarbons or minerals, or any of the constituents thereof
and includes Voting Shares or other interests of a corporation or other person
which owns such property or facilities, but does not include (i) any property
or facilities used in connection with or necessarily incidental to the
purchase, sale, storage, transportation or distribution of Restricted
Property, (ii) any property which, in the opinion of the Guarantor's board of
directors, is not materially important to the total business conducted by the
Guarantor and its Subsidiaries as an entirety or (iii) any portion of a
particular property which, in the opinion of the Guarantor's board of
directors, is not materially important to the use or operation of such
property.
"RESTRICTED SUBSIDIARY" means, on any date, any Subsidiary of the
Guarantor which owns at the time Restricted Property; PROVIDED, HOWEVER, such
term shall not include a Subsidiary of the Guarantor if the amount of the
Guarantor's share of Shareholders' Equity of such Subsidiary constitutes, at
the time of determination, less than 2% of the Guarantor's 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, the Guarantor will
not, and will not permit any of its 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 the Guarantor or such
Restricted Subsidiaries under the related guarantee or endorsement or other
instrument under which the Guarantor or such Restricted Subsidiaries are
contingently liable, either directly or indirectly, for borrowed money or
interest thereon), other than Permitted Liens, without also simultaneously or
prior thereto securing, or causing such Restricted Subsidiaries to secure,
indebtedness under the Indenture so that our debt securities are secured
equally and ratably with or prior to such other indebtedness, except that the
Guarantor and its Restricted Subsidiaries may incur a Lien to secure
indebtedness for borrowed money without securing our debt securities if, after
giving effect thereto, the principal amount of indebtedness for borrowed money
secured by Liens created, incurred or assumed after the date of the Indenture
and otherwise prohibited by the Indenture does not exceed 10% of the
Guarantor's Consolidated Net Tangible Assets.
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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 the Guarantor or a Restricted Subsidiary being
required to secure the debt securities.
CONSOLIDATION, AMALGAMATION, MERGER AND SALE OF ASSETS
Neither we nor the Guarantor may 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 or the Guarantor's, as
the case may be, properties and assets to any person, unless:
o the entity formed by or continuing from such consolidation or
amalgamation or into which we or the Guarantor (as the case may be)
are merged or with which we or the Guarantor (as the case may be)
enter into such statutory arrangement or the person which acquires
or leases all or substantially all of our or the Guarantor's
properties and assets (as the case may be) 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 or the
Guarantor's obligations (as the case may be) under the debt
securities and the Indenture to pay Additional Amounts, with the
name of such successor jurisdiction being included in addition to
Canada in each place that Canada appears in "-- Payment of
Additional Amounts" below;
o the successor entity expressly assumes or assumes by operation of
law all of our or the Guarantor's obligations (as the case may be)
under our debt securities, the guarantee and 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 the Guarantor's or its
Restricted Subsidiaries' Restricted Properties become subject to a Lien, then,
unless such Lien could be created pursuant to the Indenture provisions
described under the "LIMITATION ON LIENS" covenant above without equally and
ratably securing our debt securities, the Guarantor, simultaneously with or
prior to such transaction, will secure, or cause the applicable Restricted
Subsidiary to secure, our debt securities equally and ratably 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 or the Guarantor under or with respect to
any series of our debt securities or related guarantee will be made free and
clear of and without withholding or deduction for or on account of any present
or future tax, duty, levy, impost, assessment or other governmental charge
(including penalties, interest and other liabilities related thereto) imposed
or levied by or on behalf of the Government of Canada or any province or
territory thereof or by any authority or agency therein or thereof having
power to tax (hereinafter "Canadian Taxes"), unless we or the Guarantor, as
the case may be, are required to withhold or deduct Canadian Taxes by law or
by the interpretation or administration thereof. If we or the Guarantor, as
the case may be, 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 or guarantee, we or the Guarantor, as the case may be, 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
15
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 or the Guarantor, as the case may be, 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 or the Guarantor, as the case may be, 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 or the Guarantor, as the case may be, 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 or the Guarantor, as the case
may be.
We and the Guarantor 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 or the Guarantor with respect thereto) of:
o the payment of any Canadian Tax, together with any interest,
penalties and reasonable expenses in connection therewith; and
o any Canadian Taxes imposed with respect to any reimbursement under
the preceding clause, but excluding any such Canadian Taxes on such
holder's net income.
In any event, no Additional Amounts or indemnity amounts will be payable
in excess of Additional Amounts or the indemnity amounts which would be
required if the holder of debt securities was a resident of the United States
for purposes of the Canada-U.S. Income Tax Convention (1980), as amended.
Wherever in the Indenture, the debt securities or the guarantee 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 or guarantee, 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.
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
16
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 (or the Guarantor has or will
become obligated to pay, as the case may be) on the next succeeding
date on which interest is due, Additional Amounts with respect to
any debt security of such series as described under "-- Payment of
Additional Amounts"; or
o on or after the date specified in the applicable prospectus
supplement, any action has been taken by any taxing authority of,
or any decision has been rendered by a court of competent
jurisdiction in Canada, or any political subdivision or taxing
authority thereof or therein, including any of those actions
specified in the paragraph immediately above, whether or not such
action was taken or decision was rendered with respect to us (or
the Guarantor, as the case may be), or any change, amendment,
application or interpretation shall be officially proposed, which,
in any such case, in the written opinion to us (or the Guarantor,
as the case may be) of legal counsel of recognized standing, will
result in our (or the Guarantor, as the case may be) becoming
obligated to pay, on the next succeeding date on which interest is
due, Additional Amounts with respect to any debt security of such
series;
and, in any such case, we, in our business judgment, or the Guarantor, in its
business judgment, as the case may be, 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
The Guarantor will file with the Trustee, within 15 days after it files
them with the SEC, copies, which may be in electronic format, of its 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 it is required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act. Notwithstanding that the Guarantor 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, the Guarantor will continue to provide
the Trustee:
o within 140 days after the end of each fiscal year, the information
required to be contained in annual reports on Form 20-F, Form 40-F
or Form 10-K as applicable (or any successor form); and
o within 65 days after the end of each of the first three fiscal
quarters of each fiscal year, the information required to be
contained in reports on Form 6-K (or any successor form) which,
regardless of applicable requirements shall, at a minimum, contain
such information required to be provided in quarterly 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 the Guarantor has any of its securities listed on
such exchange. Such information will be prepared in accordance with
Canadian disclosure requirements and GAAP; PROVIDED, HOWEVER, that
the Guarantor 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:
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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 or the
Guarantor's 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 and the Guarantor of written notice, 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 the Guarantor, or any of its Restricted
Subsidiaries, has at the time of the Indenture or shall thereafter
have outstanding any indebtedness for borrowed money) shall happen
and be continuing, or we, or the Guarantor, 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 the
Guarantor's 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, the Guarantor or its 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, the
Guarantor or its Restricted Subsidiaries, any requirement in
connection with such failure to pay or event of default for the
giving of notice or the lapse of time or the happening of any
further condition, event or act under such other indenture or
instrument in connection with such failure to pay principal or an
event of default shall be applicable together with an additional
seven days before being considered an event of default for purposes
of the Indenture;
o the entry of decree or order by a court having jurisdiction in the
premises adjudging us or the Guarantor a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of us or
the Guarantor under the BANKRUPTCY AND INSOLVENCY ACT (Canada), the
COMPANIES' CREDITORS ARRANGEMENT ACT (Canada) or any other
applicable insolvency law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of us or the
Guarantor or of any substantial part of the property of us or the
Guarantor, or ordering the winding up or liquidation of the affairs
of us or the Guarantor, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days;
o the institution by us or the Guarantor of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by either us or
the Guarantor to the institution of bankruptcy or insolvency
proceedings against us or the Guarantor, or the filing by us or the
Guarantor of a petition or answer or consent seeking reorganization
or relief under the BANKRUPTCY AND INSOLVENCY ACT (Canada), the
COMPANIES' CREDITORS ARRANGEMENT ACT (Canada) or any other
applicable insolvency law, or the consent by us or the Guarantor to
the filing of any such petition or to the appointment of a
receiver, liquidator,
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assignee, trustee, sequestrator (or other similar official) of us
or the Guarantor or of any substantial part of the property of
either us or the Guarantor, respectively, or the making by either
us or the Guarantor of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay its debts
generally as they become due; or
o any other events of default provided with respect to debt
securities of that series.
If an event of default under the Indenture occurs and is continuing with
respect to any series of our debt securities, then and in every such case the
Trustee or the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of such affected series may, subject to any
subordination provisions thereof, declare the entire principal amount (or, if
the debt securities of that series are original issue discount debt
securities, such portion of the principal amount as may be specified in the
terms of that series) of all debt securities of such series and all accrued
and unpaid interest thereon to be immediately due and payable. However, at any
time after a declaration of acceleration with respect to any series of our
debt securities has been made, but before a judgment or decree for payment of
the money due has been obtained, the holders of a majority in principal amount
of the outstanding debt securities of that series, by written notice to us,
the Guarantor 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 and the Guarantor will annually furnish to the Trustee a statement by
certain of our and the Guarantor's officers as to whether or not we and the
Guarantor, 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.
DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise specified in the applicable prospectus supplement, the
Indenture provides that, at our or the Guarantor's option, we and the
Guarantor will be discharged from any and all obligations in respect of the
outstanding debt
19
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 or the Guarantor have delivered to the Trustee an opinion of
counsel in the United States stating that (i) we or the Guarantor
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 or the Guarantor 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 neither we nor the Guarantor is 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 or the Guarantor may exercise the defeasance option notwithstanding
the prior exercise of the Covenant Defeasance option described in the
following paragraph if the conditions described in the preceding sentence are
met at the time we or the Guarantor exercise the defeasance option.
The Indenture provides that, at our or the Guarantor's option, unless and
until we have exercised our Defeasance option described in the preceding
paragraph, we or the Guarantor, as applicable, 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 the outstanding debt securities and guarantee 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 or the Guarantor exercise the covenant defeasance option,
the obligations under the Indenture other than with respect to such covenants
and the events of default other than with respect to such covenants shall
remain in full force and effect. Such trust may only be established if, among
other things:
o we or the Guarantor have delivered to the Trustee an opinion of
counsel in the United States to the effect that the holders of the
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;
20
o we or the Guarantor 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 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 the 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 neither we nor the Guarantor is 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, the
Guarantor and the Trustee with the consent of the holders of a majority in
principal amount of the outstanding debt securities of each series issued
under the Indenture affected by such modification or amendment (voting as one
class); PROVIDED, HOWEVER, that no such modification or amendment may, without
the consent of the holder of each outstanding debt security of such affected
series:
o change the stated maturity of the principal of, or any installment
of interest, if any, on any debt security;
o reduce the principal amount of (or premium, if any, or interest, if
any, on) any debt security;
o reduce the amount of principal of a debt security payable upon
acceleration of the maturity thereof;
o change the place of payment;
o change the currency of payment of principal of (or premium, if any,
or interest, if any, on) any debt security;
o impair the right to institute suit for the enforcement of any
payment on or with respect to any debt security;
o reduce the percentage of principal amount of outstanding debt
securities of such series, the consent of the holders of which is
required for modification or amendment of the applicable Indenture
or for waiver of compliance with certain provisions of the
Indenture or for waiver of certain defaults; or
o modify any provisions of the Indenture relating to the modification
and amendment of the Indenture or the waiver of past defaults or
covenants except as otherwise specified in the Indenture.
The holders of a majority in principal amount of our outstanding debt
securities of any series may on behalf of the holders of all debt securities
of that series waive, insofar as that series is concerned, compliance by us or
the Guarantor 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.
21
CONSENT TO JURISDICTION AND SERVICE
Under the Indenture, we and the Guarantor irrevocably appoint CT
Corporation System, 111 - 8th Avenue, 13th Floor, New York, New York, as our
and the Guarantor's authorized agent for service of process in any suit or
proceeding arising out of or relating to the debt securities or the Indenture
and for actions brought under federal or state securities laws in any federal
or state court located in New York, New York and irrevocably submit to the
non-exclusive jurisdiction of any such court.
GOVERNING LAW
Our debt securities and the Indenture will be governed by and construed
in accordance with the laws of the State of New York.
ENFORCEABILITY OF JUDGMENTS
Since most of the Guarantor's assets, as well as the assets of a number
of our and the Guarantor's directors and officers, are outside the United
States, any judgment obtained in the United States against us, the Guarantor
or certain of our or the Guarantor's directors or officers, including
judgments with respect to the payment of principal on any debt securities, may
not be collectible within the United States.
We have been informed by Macleod Dixon LLP, our and the Guarantor's
Canadian counsel, that there is doubt as to the enforceability in Canada by a
court in original actions, or in actions to enforce judgments of United States
courts, of civil liabilities predicated solely upon the United States federal
securities laws. Therefore, it may not be possible to enforce those actions
against us or the Guarantor, our or the Guarantor's directors and officers or
the experts named in this prospectus.
Because the Trustee is located in the United States, it may not be
possible for purchasers of our debt securities outside the United States to
effect service of process outside the United States upon the Trustee nor to
enforce against the Trustee, outside the United States, judgments obtained in
courts outside the United States. Also, it may not be possible to enforce
judgments of non-U.S. courts against the Trustee in the United States.
22
RISK FACTORS
IN ADDITION TO THE RISK FACTORS SET FORTH BELOW, ADDITIONAL RISK FACTORS
RELATING TO THE BUSINESS OF ENCANA ARE DISCUSSED IN ENCANA'S ANNUAL
INFORMATION FORM AND ENCANA'S MANAGEMENT'S DISCUSSION AND ANALYSIS, WHICH RISK
FACTORS ARE INCORPORATED HEREIN BY REFERENCE. Prospective purchasers of the
debt securities should consider carefully the risk factors set forth below as
well as the other information contained in and incorporated by reference in
this prospectus and in the applicable prospectus supplement before purchasing
the debt securities offered hereby. If any event arising from these risks
occurs, our or EnCana's business, prospects, financial condition, results of
operations or cash flows, or your investment in the debt securities, could be
materially adversely affected.
THERE CAN BE NO ASSURANCE AS TO THE LIQUIDITY OF THE TRADING MARKET FOR THE
DEBT SECURITIES OR THAT A TRADING MARKET FOR THE DEBT SECURITIES WILL DEVELOP.
There is no public market for the debt securities and, unless otherwise
specified in the applicable prospectus supplement, we do not intend to apply
for listing of the debt securities on any securities exchanges. If the debt
securities are traded after their initial issue, they may trade at a discount
from their initial offering prices depending on prevailing interest rates, the
market for similar securities and other factors, including general economic
conditions and our financial condition. There can be no assurance as to the
liquidity of the trading market for the debt securities or that a trading
market for the debt securities will develop.
CREDIT RATINGS MAY NOT REFLECT ALL RISKS OF AN INVESTMENT IN THE DEBT
SECURITIES AND MAY CHANGE.
Credit ratings may not reflect all risks associated with an investment in
the debt securities. Any credit ratings applied to the debt securities are an
assessment of our ability to pay our obligations. Consequently, real or
anticipated changes in the credit ratings will generally affect the market
value of the debt securities. The credit ratings, however, may not reflect the
potential impact of risks related to structure, market or other factors
discussed herein on the value of the debt securities. There is no assurance
that any credit rating assigned to the debt securities will remain in effect
for any given period of time or that any rating will not be lowered or
withdrawn entirely by the relevant rating agency.
CHANGES IN INTEREST RATES MAY CAUSE THE VALUE OF THE DEBT SECURITIES TO
DECLINE.
Prevailing interest rates will affect the market price or value of the
debt securities. The market price or value of the debt securities may decline
as prevailing interest rates for comparable debt instruments rise, and
increase as prevailing interest rates for comparable debt instruments decline.
THE GUARANTEE WILL BE EFFECTIVELY SUBORDINATED TO CERTAIN INDEBTEDNESS OF
ENCANA'S CORPORATE AND PARTNERSHIP SUBSIDIARIES.
Unless otherwise indicated in an applicable prospectus supplement, the
debt securities will be our unsecured and unsubordinated obligations and will
rank equally with all of our other unsecured and unsubordinated indebtedness
outstanding from time to time. We have no significant assets or operations
other than the debt owed to us by the U.S. Group. We are dependent on interest
payments from the U.S. Group under the terms of the debt. Accordingly, our
ability to make payments on the debt securities will be dependent upon the
U.S. Group making its payments on its debt to us.
The guarantee will be the Guarantor's unsubordinated and unsecured
obligation and, unless otherwise provided with respect to a series of debt
securities, will rank equally with all of the Guarantor's other unsecured,
unsubordinated obligations. The Guarantor conducts a substantial portion of
its business through corporate and partnership subsidiaries. The Guarantor's
obligations under the guarantee will be structurally subordinate to all
existing and future indebtedness and liabilities, including trade payables, of
any of the Guarantor's corporate and partnership subsidiaries.
23
CERTAIN INCOME TAX CONSIDERATIONS
The applicable prospectus supplement will describe certain Canadian
federal income tax consequences to an investor of acquiring any debt
securities offered thereunder, including, for investors who are non-residents
of Canada, whether the payments of principal and interest, if any, will be
subject to Canadian non-resident withholding tax.
The applicable prospectus supplement will also describe certain U.S.
federal income tax consequences of the acquisition, ownership and disposition
of any debt securities offered thereunder by an initial investor who is a U.S.
person (within the meaning of the U.S. Internal Revenue Code), including, to
the extent applicable, any such consequences relating to debt securities
payable in a currency other than the U.S. dollar, issued at an original issue
discount for U.S. federal income tax purposes or containing early redemption
provisions or other special items.
PLAN OF DISTRIBUTION
We may offer and sell debt securities to or through underwriters or
dealers and also may sell debt securities directly to purchasers or through
agents. These debt securities may be offered and sold in Canada, the United
States and elsewhere where permitted by law.
The distribution of debt securities of any series may be effected from
time to time in one or more transactions:
o at a fixed price or prices, which may be changed;
o at market prices prevailing at the time of sale; or
o at prices related to such prevailing market prices to be negotiated
with purchasers.
In connection with the sale of debt securities, underwriters may receive
compensation from us or from purchasers of debt securities for whom they may
act as agents in the form of concessions or commissions. Underwriters, dealers
and agents that participate in the distribution of debt securities may be
deemed to be underwriters and any commissions received by them from us and any
profit on the resale of debt securities by them may be deemed to be
underwriting commissions under the United States Securities Act of 1933, as
amended (the "Securities Act").
The prospectus supplement relating to each series of debt securities will
also set forth the terms of the offering of the debt securities, including to
the extent applicable, the initial offering price, our proceeds from the
offering, the underwriting concessions or commissions, and any other discounts
or concessions to be allowed or reallowed to dealers. Underwriters with
respect to each series sold to or through underwriters will be named in the
prospectus supplement relating to such series.
Under agreements which may be entered into by us and the Guarantor,
underwriters, dealers and agents who participate in the distribution of debt
securities may be entitled to indemnification by us or the Guarantor against
certain liabilities, including liabilities under the Securities Act. The
underwriters, dealers and agents with whom we and the Guarantor enter into
agreements may be customers of, engage in transactions with or perform
services for us or the Guarantor 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 of the Guarantor
calculated for the twelve month period ended December 31, 2005 based on
audited financial information and March 31, 2006 based on unaudited financial
information.
24
The interest coverage ratios set out below have been prepared and included in
this prospectus in accordance with Canadian disclosure requirements and have
been calculated based on information prepared in accordance with Canadian
GAAP. The interest coverage ratios set out below do not purport to be
indicative of interest coverage ratios for any future periods. The interest
coverage ratios do not give effect to the debt securities offered by this
prospectus since the aggregate principal amount of debt securities that will
be issued hereunder and the terms of issue are not presently known.
DECEMBER 31, 2005 MARCH 31, 2006
----------------- --------------
Interest coverage on long-term debt:
Net earnings......................... 13.0 times 19.2 times
Cash flow............................ 20.9 times 22.3 times
Interest coverage on long-term debt on a net earnings basis is equal to
net earnings before interest on long-term debt and income taxes divided by
interest expense on long-term debt. Interest coverage on long-term debt on a
cash flow basis is equal to cash flow before interest expense on long-term
debt and cash income taxes divided by interest expense on long-term debt. For
purposes of calculating the interest coverage ratios set forth herein,
long-term debt includes the current portion of long-term debt.
LEGAL MATTERS
Unless otherwise specified in the prospectus supplement relating to a
series of debt securities, certain legal matters relating to Canadian law will
be passed upon for us and the Guarantor 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 and the Guarantor by
Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York. In addition,
certain legal matters relating to United States law will be passed upon for
any underwriters, dealers or agents by Shearman & Sterling LLP, Toronto,
Ontario, Canada and New York, New York.
The partners and associates of Macleod Dixon LLP and Paul, Weiss,
Rifkind, Wharton & Garrison LLP as a group beneficially own, directly or
indirectly, less than 1% of any class of the Guarantor's securities.
EXPERTS
The Guarantor's 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 the Guarantor's reserves in the Annual
Information Form dated February 17, 2006 was calculated based on evaluations
of and reports on the Guarantor's crude oil and natural gas reserves conducted
and prepared by GLJ Petroleum Consultants Ltd., McDaniel & Associates
Consultants Ltd., Netherland, Sewell & Associates, Inc. and DeGolyer and
MacNaughton as independent qualified reserves evaluators. The principals of
each of GLJ Petroleum Consultants Ltd., McDaniel & Associates Consultants
Ltd., Netherland, Sewell & Associates, Inc. and DeGolyer and MacNaughton, in
each case, as a group own beneficially, directly or indirectly, less than 1%
of any class of the Guarantor's securities.
DOCUMENTS FILED AS PART OF THE REGISTRATION STATEMENT
The following documents have been or will be filed with the SEC as part
of the registration statement of which this prospectus is a part insofar as
required by the SEC's Form F-9:
o the documents listed in the fourth paragraph under "Where You Can
Find More Information" in this prospectus;
o the consent of EnCana's accountants, PricewaterhouseCoopers LLP;
25
o the consent of our and EnCana's counsel, Macleod Dixon LLP;
o the consents of our independent qualified reserves evaluators, GLJ
Petroleum Consultants Ltd., McDaniel & Associates Consultants Ltd.,
Netherland, Sewell & Associates, Inc., and DeGoyler and MacNaughton;
o powers of attorney from directors and officers of EnCana Holdings
Finance Corp.;
o the form of trust indenture relating to the debt securities; and
o the statement of eligibility of the trustee on Form T-1.
26
PART II
INFORMATION NOT REQUIRED TO BE DELIVERED
TO OFFEREES OR PURCHASERS
INDEMNIFICATION
ENCANA CORPORATION
Under the CANADA BUSINESS CORPORATIONS ACT (the "CBCA"), EnCana
Corporation ("EnCana") may indemnify a present or former director or officer
of EnCana or another individual who acts or acted at EnCana's request as a
director or officer, or an individual acting in a similar capacity, of another
entity, against all costs, charges and expenses, including an amount paid to
settle an action or satisfy a judgment, reasonably incurred by the individual
in respect of any civil, criminal, administrative, investigative or other
proceeding in which the individual is involved because of that association
with EnCana or other entity. EnCana may not indemnify an individual unless the
individual acted honestly and in good faith with a view to the best interests
of EnCana, or, as the case may be, to the best interests of the other entity
for which the individual acted as a director or officer or in a similar
capacity at EnCana's request and in the case of a criminal or administrative
action or proceeding that is enforced by a monetary penalty, the individual
had reasonable grounds for believing that the conduct was lawful. The
indemnification may be made in connection with a derivative action only with
court approval. The aforementioned individuals are entitled to indemnification
from EnCana as a matter of right if they were not judged by the court or other
competent authority to have committed any fault or omitted to do anything that
the individual ought to have done. EnCana may advance moneys to the individual
for the costs, charges and expenses of a proceeding; however, the individual
shall repay the moneys if the individual does not fulfill the conditions set
out above.
The by-laws of EnCana provide that, subject to the limitations contained
in the CBCA, EnCana shall indemnify a director or officer, a former director
or officer, or a person who acts or acted at EnCana's request as a director or
officer of a body corporate of which EnCana is or was a shareholder or
creditor, and his heirs and legal representatives against all costs, charges
and expenses, including an amount paid to settle an action or satisfy a
judgment, reasonably incurred by him in respect of any civil, criminal or
administrative action or proceeding to which he was made a party by reason of
being or having been a director or officer of the corporation or such body
corporate, if he acted honestly and in good faith with a view to the best
interests of the corporation, and in the case of a criminal or administrative
action or proceeding that is enforced by a monetary penalty, he had reasonable
grounds for believing that his conduct was lawful.
The by-laws of EnCana provide that EnCana may, subject to the limitations
contained in the CBCA, purchase, maintain, or participate in insurance for the
benefit of any director, officer, or certain other persons, as such against
any liability incurred by him in his capacity as a director or officer of
EnCana or as a director or officer of any body corporate where he acts or
acted in that capacity at EnCana's request. EnCana has purchased third party
director and officer liability insurance.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling
EnCana pursuant to the foregoing provisions, EnCana has been informed that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable.
II-1
ENCANA HOLDINGS FINANCE CORP.
Under applicable Canadian law, EnCana Holdings Finance Corp. ("EnCana
Holdings Finance") is permitted to indemnify its officers and directors on
terms acceptable to its shareholders. The Articles of Association of EnCana
Holdings Finance provide that no director or officer, former director or
officer, or person who acts or acted at EnCana Holdings Finance request, as a
director or officer of EnCana Holdings Finance, a body corporate, partnership
or other association of which EnCana Holdings Finance is or was a shareholder,
partner, member or creditor, in the absence of any dishonesty on such person's
part, shall be liable for the acts, receipts, neglects or defaults of any
other director, officer or such person, or for joining in any receipt or other
act for conformity, or for any loss, damage or expense of any kind which
happens in the execution of the duties of such person or in relation thereto.
The Articles of Association of EnCana Holdings Finance also provide that
every director or officer, former director or officer, or person who acts or
acted at EnCana Holdings Finance's request, as a director or officer of EnCana
Holdings Finance, a body corporate, partnership or other association of which
EnCana Holdings Finance is or was a shareholder, partner, member or creditor,
and the heirs and legal representatives of such person, in the absence of any
dishonesty on the part of such person, shall be indemnified by EnCana Holdings
Finance against, and it shall be the duty of the directors out of the funds of
EnCana Holdings Finance to pay, all costs, losses and expenses, including an
amount paid to settle an action or claim or satisfy a judgment, that such
director, officer or person may incur or become liable to pay in respect of
any claim made against such person or civil, criminal or administrative action
or proceeding to which such person is made a party by reason of being or
having been a director or officer of EnCana Holdings Finance or such body
corporate, partnership or other association, whether EnCana Holdings Finance
is a claimant or party to such action or proceeding or otherwise; and the
amount for which such indemnity is proved shall immediately attach as a lien
on the property of EnCana Holdings Finance and have priority as against the
shareholders over all other claims.
As a subsidiary of EnCana, EnCana Holdings Finance is insured against
liabilities which it may incur by reason of the foregoing provisions of its
Articles of Association and directors and officers of EnCana Holdings Finance
are insured against some liabilities which might arise out of their employment
and not be subject to the indemnification contained in the Articles of
Association of EnCana Holdings Finance as previously described.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling
EnCana Holdings Finance pursuant to the foregoing provisions, EnCana Holdings
Finance 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-2
EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1 The Annual Information Form of EnCana dated February 17, 2006, for
the year ended December 31, 2005 (incorporated by reference to
EnCana's Form 40-F for the fiscal year ended December 31, 2005
filed with the Securities and Exchange Commission on February 17,
2006) (File No. 1-15226).
4.2 The Information Circular of EnCana (amended), dated February 28,
2006, relating to the annual meeting of shareholders of EnCana
held on April 26, 2006 (incorporated by reference to EnCana's Form
6-K filed with the Securities and Exchange Commission on March 30,
2006) (File No. 1-15226).
4.3 The audited comparative consolidated financial statements of
EnCana, for the year ended December 31, 2005, including the
auditors' report thereon (incorporated by reference to EnCana's
Form 40-F filed with the Securities and Exchange Commission on
February 17, 2006) (File No. 1-15226).
4.4 Management's Discussion and Analysis, for the year ended December
31, 2005 (incorporated by reference to EnCana's Form 40-F for the
fiscal year ended December 31, 2005 filed with the Securities and
Exchange Commission on February 17, 2006) (File No. 1-15226).
4.5 The unaudited comparative consolidated financial statements of
EnCana, for the three months ended March 31, 2006 (incorporated by
reference to EnCana's Form 6-K filed with the Securities and
Exchange Commission on May 2, 2006) (File No. 1-15226).
4.6 Management's Discussion and Analysis, for the three months ended
March 31, 2006 (incorporated by reference to EnCana's Form 6-K
filed with the Securities and Exchange Commission on May 1, 2006)
(File No. 1-15226).
5.1 Consent of PricewaterhouseCoopers LLP.
5.2 Consent of Macleod Dixon LLP.
5.3 Consent of GLJ Petroleum Consultants Ltd.
5.4 Consent of McDaniel & Associates Consultants Ltd.
5.5 Consent of Netherland, Sewell & Associates, Inc.
5.6 Consent of DeGolyer and MacNaughton.
6.1* Powers of Attorney.
7.1 Form of Indenture (incorporated by reference to our Amendment No.
1 to the Registration Statement on Form F-9 filed with the
Securities and Exchange Commission on March 26, 2004) (File No.
333-113732).
7.2* Statement of Eligibility of the Trustee on Form T-1.
---------------------
* Previously filed.
II-3
PART III
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
ITEM 1. UNDERTAKING
The Registrants undertake 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
Each of the Registrants 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
either Registrant shall be communicated promptly to the Securities and
Exchange Commission by an amendment to the Form F-X referencing the file
number of the relevant registration statement.
III-1
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Registrants 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 June 9, 2006.
ENCANA CORPORATION
By: /s/ Brian C. Ferguson
------------------------------------
Name: Brian C. Ferguson
Title: Executive Vice-President & Chief
Financial Officer
ENCANA HOLDINGS FINANCE CORP.
By: /s/ Brian C. Ferguson
------------------------------------
Name: Brian C. Ferguson
Title: President
III-2
SIGNATURES WITH RESPECT TO ENCANA CORPORATION
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 June 9, 2006
David P. O'Brien of Directors
*
-------------------------- President & Chief Executive June 9, 2006
Randall K. Eresman Officer and Director (Principal
Executive Officer)
/s/ Brian C. Ferguson
-------------------------- Executive Vice-President June 9, 2006
Brian C. Ferguson & Chief Financial Officer
(Principal Financial and
Accounting Officer)
*
-------------------------- Executive Vice-Chairman of the June 9, 2006
Gwyn Morgan Board of Directors
*
-------------------------- Director June 9, 2006
Michael N. Chernoff
*
-------------------------- Director June 9, 2006
Ralph S. Cunningham
*
-------------------------- Director June 9, 2006
Patrick D. Daniel
*
-------------------------- Director June 9, 2006
Ian W. Delaney
*
-------------------------- Director June 9, 2006
Michael A. Grandin
*
-------------------------- Director June 9, 2006
Barry W. Harrison
III-3
SIGNATURE CAPACITY DATE
--------- -------- ----
*
-------------------------- Director June 9, 2006
Dale A. Lucas
*
-------------------------- Director June 9, 2006
Ken F. McCready
*
-------------------------- Director June 9, 2006
Valerie A. A. Nielsen
*
-------------------------- Director June 9, 2006
Jane L. Peverett
*
-------------------------- Director June 9, 2006
Dennis A. Sharp
*
-------------------------- Director June 9, 2006
James M. Stanford
* By: /s/ Brian C. Ferguson
-----------------------
Brian C. Ferguson
as attorney-in-fact
III-4
SIGNATURES WITH RESPECT TO ENCANA HOLDINGS FINANCE CORP.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ Brian C. Ferguson
-------------------------- President and Director June 9, 2006
Brian C. Ferguson (Principal Executive Officer)
*
-------------------------- Vice-President and Comptroller June 9, 2006
William A. Stevenson and Director (Principal
Financial and Accounting Officer)
*
-------------------------- Director June 9, 2006
Thomas G. Hinton
* By: /s/ Brian C. Ferguson
-----------------------
Brian C. Ferguson
as attorney-in-fact
III-5
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of
1933, the Authorized Representative has duly caused this Registration
Statement to be signed on its behalf by the undersigned, solely in its
capacity as the duly authorized representative of EnCana Corporation and
EnCana Holdings Finance Corp. in the United States, on June 9, 2006.
ALENCO INC.
By: /s/ Brian C. Ferguson
----------------------------
Name: Brian C. Ferguson
Title: President
III-6
EXHIBITS INDEX
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1 The Annual Information Form of EnCana dated February 17, 2006, for
the year ended December 31, 2005 (incorporated by reference to
EnCana's Form 40-F for the fiscal year ended December 31, 2005
filed with the Securities and Exchange Commission on February 17,
2006) (File No. 1-15226).
4.2 The Information Circular of EnCana (amended), dated February 28,
2006, relating to the annual meeting of shareholders of EnCana
held on April 26, 2006 (incorporated by reference to EnCana's Form
6-K filed with the Securities and Exchange Commission on March 30,
2006) (File No. 1-15226).
4.3 The audited comparative consolidated financial statements of
EnCana, for the year ended December 31, 2005, including the
auditors' report thereon (incorporated by reference to EnCana's
Form 40-F filed with the Securities and Exchange Commission on
February 17, 2006) (File No. 1-15226).
4.4 Management's Discussion and Analysis, for the year ended December
31, 2005 (incorporated by reference to EnCana's Form 40-F for the
fiscal year ended December 31, 2005 filed with the Securities and
Exchange Commission on February 17, 2006) (File No. 1-15226).
4.5 The unaudited comparative consolidated financial statements of
EnCana, for the three months ended March 31, 2006 (incorporated by
reference to EnCana's Form 6-K filed with the Securities and
Exchange Commission on May 2, 2006) (File No. 1-15226).
4.6 Management's Discussion and Analysis, for the three months ended
March 31, 2006 (incorporated by reference to EnCana's Form 6-K
filed with the Securities and Exchange Commission on May 1, 2006)
(File No. 1-15226).
5.1 Consent of PricewaterhouseCoopers LLP.
5.2 Consent of Macleod Dixon LLP.
5.3 Consent of GLJ Petroleum Consultants Ltd.
5.4 Consent of McDaniel & Associates Consultants Ltd.
5.5 Consent of Netherland, Sewell & Associates, Inc.
5.6 Consent of DeGolyer and MacNaughton.
6.1* Powers of Attorney.
7.1 Form of Indenture (incorporated by reference to our Amendment No.
1 to the Registration Statement on Form F-9 filed with the
Securities and Exchange Commission on March 26, 2004) (File No.
333-113732).
7.2* Statement of Eligibility of the Trustee on Form T-1.
---------------------
* Previously filed.