AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 25, 2007
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________
FORM F-9
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
____________________________
CANADIAN PACIFIC RAILWAY COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CANADA 4011 98-0001377
(PROVINCE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER IDENTIFICATION NO.,
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IF APPLICABLE)
GULF CANADA SQUARE
401 - 9TH AVENUE S.W.
CALGARY, ALBERTA
CANADA T2P 4Z4
(403) 319-7000
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CT CORPORATION SYSTEM
111 - 8TH AVENUE
NEW YORK, NEW YORK 10011
(212) 894-8940
(NAME, ADDRESS (INCLUDING ZIP CODE) AND TELEPHONE
NUMBER (INCLUDING AREA CODE) OF AGENT FOR SERVICE IN THE UNITED STATES)
_________________________________
COPIES TO:
PAUL A. GUTHRIE KEVIN E. JOHNSON ANDREW J. FOLEY
CANADIAN PACIFIC RAILWAY COMPANY DON TSE EDWIN S. MAYNARD
GULF CANADA SQUARE MACLEOD DIXON LLP PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
401 9TH AVENUE S.W. 3700 CANTERRA TOWER 1285 AVENUE OF THE AMERICAS
CALGARY, ALBERTA, CANADA T2P 4Z4 400 - 3RD AVENUE S.W. NEW YORK, NEW YORK 10019-6064
(403) 319-7000 CALGARY, ALBERTA, CANADA T2P 4H2 (212) 373-3000
(403) 267-8222
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
PROVINCE OF ALBERTA, CANADA
(PRINCIPAL JURISDICTION REGULATING THIS OFFERING)
It is proposed that this filing shall become effective (check appropriate box
below):
A. |_| upon filing with the Commission, pursuant to Rule 467(a) (if in
connection with an offering being made contemporaneously in the United
States and Canada).
B. |X| at some future date (check appropriate box below)
1. |_| pursuant to Rule 467(b) on ( ) at ( ) (designate a time not sooner
than 7 calendar days after filing).
2. |_| pursuant to Rule 467(b) on ( ) at ( ) (designate a time 7 calendar
days or sooner after filing) because the securities regulatory
authority in the review jurisdiction has issued a receipt or
notification of clearance on ( ).
3. |_| pursuant to Rule 467(b) as soon as practicable after notification
of the Commission by the Registrant or the Canadian securities
regulatory authority of the review jurisdiction that a receipt or
notification of clearance has been issued with respect hereto.
4. |X| after the filing of the next amendment to this Form (if
preliminary material is being filed). If any of the securities
being registered on this Form are to be offered on a delayed or
continuous basis pursuant to the home jurisdiction's shelf
prospectus offering procedures, check the following box. |X|
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PROPOSED MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SECURITY (1) OFFERING PRICE (1) REGISTRATION FEE
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Debt Securities............. US$1,500,000,000 100% US$1,500,000,000 US$46,050
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(1) Estimated solely for the purpose of determining the registration fee.
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
The information in this preliminary prospectus is not complete and may be
changed. These securities may not be sold until the registration statement
filed with the Securities and Exchange Commission is effective. This
preliminary prospectus is not an offer to sell nor does it seek an offer to buy
these securities in any jurisdiction where the offer or sale is not permitted.
BASE SHELF PROSPECTUS
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 Canadian Pacific
Railway, Suite 500, 401 - 9th Avenue S.W., Calgary, Alberta, T2P 4Z4,
Telephone: (403) 319-6171 and are also available electronically at
www.sedar.com.
PRELIMINARY SHORT FORM PROSPECTUS DATED APRIL 24, 2007
o, 2007
[GRAPHIC OMITTED -- LOGO]
CANADIAN PACIFIC RAILWAY COMPANY
US$1,500,000,000
DEBT SECURITIES
Canadian Pacific Railway Company may from time to time, during the 25
month period that this prospectus remains effective, offer for sale debt
securities in an aggregate principal amount of up to US$1,500,000,000 or its
equivalent in any other currency. 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 and all
information omitted from this prospectus in supplements to this prospectus that
will be delivered to you together with this prospectus. You should read this
prospectus and the supplements carefully before you invest.
NEITHER THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION NOR ANY
STATE SECURITIES REGULATOR HAS APPROVED OR DISAPPROVED THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENCE IN THE UNITED STATES.
WE ARE PERMITTED TO PREPARE THIS PROSPECTUS IN ACCORDANCE WITH CANADIAN
DISCLOSURE REQUIREMENTS, WHICH ARE DIFFERENT FROM THOSE OF THE UNITED STATES.
WE PREPARE OUR FINANCIAL STATEMENTS IN ACCORDANCE WITH CANADIAN GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES, AND THEY ARE SUBJECT TO CANADIAN AUDITING AND
AUDITOR INDEPENDENCE STANDARDS. THUS, THEY MAY NOT BE COMPARABLE TO THE
FINANCIAL STATEMENTS OF UNITED STATES COMPANIES.
OWNING THE SECURITIES MAY SUBJECT YOU TO TAX CONSEQUENCES BOTH IN THE
UNITED STATES AND CANADA. YOU SHOULD READ THE TAX DISCUSSION IN ANY APPLICABLE
PROSPECTUS SUPPLEMENT. THIS PROSPECTUS OR ANY APPLICABLE PROSPECTUS SUPPLEMENT
MAY NOT DESCRIBE THESE TAX CONSEQUENCES FULLY.
YOUR ABILITY TO ENFORCE CIVIL LIABILITIES UNDER UNITED STATES FEDERAL
SECURITIES LAWS MAY BE AFFECTED ADVERSELY BECAUSE WE ARE INCORPORATED UNDER THE
LAWS OF CANADA, MOST OF OUR OFFICERS AND DIRECTORS AND MOST OF THE EXPERTS
NAMED IN THIS PROSPECTUS ARE RESIDENTS OF CANADA, AND A SUBSTANTIAL PORTION OF
OUR ASSETS ARE LOCATED OUTSIDE THE UNITED STATES.
THE DEBT SECURITIES OFFERED HEREBY HAVE NOT BEEN QUALIFIED FOR SALE UNDER
THE SECURITIES LAWS OF ANY PROVINCE OR TERRITORY OF CANADA AND ARE NOT BEING
AND MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN CANADA OR TO ANY
RESIDENT OF CANADA IN CONTRAVENTION OF THE SECURITIES LAWS OF ANY PROVINCE OR
TERRITORY OF CANADA.
THERE IS NO MARKET THROUGH WHICH THESE SECURITIES MAY BE SOLD AND
PURCHASERS MAY NOT BE ABLE TO RESELL SECURITIES PURCHASED UNDER THIS SHORT FORM
PROSPECTUS. 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 ISSUER REGULATION. SEE "RISK FACTORS".
Our head and registered office is Suite 500, 401 - 9th Avenue S.W.,
Calgary, Alberta, T2P 4Z4.
TABLE OF CONTENTS
PAGE
About This Prospectus.........................................................2
Where You Can Find More Information...........................................2
Forward Looking Statements....................................................4
Canadian Pacific Railway Company..............................................6
Use of Proceeds...............................................................6
Description of Debt Securities................................................6
Plan of Distribution.........................................................19
Earnings Coverage............................................................19
Certain Income Tax Considerations............................................20
Risk Factors.................................................................20
Legal Matters................................................................21
Experts ....................................................................21
Documents Filed as Part of the U.S. Registration Statement...................21
Consent of Auditors..........................................................22
ABOUT THIS PROSPECTUS
In this prospectus, unless otherwise specified or the context otherwise
requires, references to "Canadian Pacific Railway", "us", "we" or "our" mean
Canadian Pacific Railway Company and its subsidiaries. Unless otherwise
specified, all dollar amounts contained herein are expressed in Canadian
dollars, and references to "dollars", "Cdn$" or "$" are to Canadian dollars and
all references to "US$" are to United States dollars.
This prospectus is part of a registration statement on Form F-9 relating
to the debt securities that we filed with the SEC. Under the registration
statement, 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$1,500,000,000 or its equivalent in any other
currency. This prospectus provides you with a general description of the debt
securities that we may offer. Each time we sell debt securities under the
registration statement, we will provide a prospectus supplement that will
contain specific information about the terms of that offering of debt
securities. The prospectus supplement may also add, update or change
information contained in this prospectus. Before you invest, you should read
both this prospectus and any applicable prospectus supplement together with
additional information described under the heading "Where You Can Find More
Information". This prospectus does not contain all of the information set forth
in the registration statement, certain parts of which are omitted in accordance
with the rules and regulations of the SEC. Reference is made to the
registration statement and the exhibits thereto for further information with
respect to Canadian Pacific Railway and the debt securities.
Unless otherwise indicated, all financial information included and
incorporated by reference in this prospectus is determined using Canadian
generally accepted accounting principles, referred to as "Canadian GAAP".
Canadian GAAP differs from generally accepted accounting principles in the
United States, referred to as "U.S. GAAP". Therefore, the consolidated
financial statements incorporated by reference in this prospectus may not be
comparable to financial statements prepared in accordance with U.S. GAAP. A
discussion of the principal differences between the financial results
calculated under Canadian GAAP and under U.S. GAAP is provided in the notes to
the annual consolidated financial statements incorporated by reference in this
prospectus.
WHERE YOU CAN FIND MORE INFORMATION
Canadian Pacific Railway Company is a wholly-owned subsidiary of Canadian
Pacific Railway Limited ("CPRL"), a publicly traded corporation whose common
shares are listed on the Toronto Stock Exchange and the New York Stock
Exchange. Pursuant to a decision of the applicable Canadian securities
regulatory authorities, we are not subject to most Canadian continuous
disclosure requirements provided that CPRL complies with its continuous
disclosure requirements. We remain responsible for filing material change
reports upon the occurrence of a material change in our affairs which is not
also a material change in the affairs of CPRL. The decision further permits us
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to incorporate by reference in this prospectus all information or documents
that would be required to be incorporated by reference in a short form
prospectus filed by CPRL.
We and CPRL are subject to the information requirements of the U.S.
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith file reports and other information with the SEC. Under the
multijurisdictional disclosure system adopted by Canada and the United States,
such reports and other information may be prepared in accordance with the
disclosure requirements of Canada, which requirements are different from those
of the United States. You may read any document we and CPRL furnish to the SEC
at the SEC's public reference room at Room 1580, 100 F Street, N.E.,
Washington, D.C., 20549. Copies of the same documents may also be obtained 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 access its
website at WWW.SEC.GOV for further information on the public reference rooms.
Our and CPRL'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.
Under applicable law, we are permitted to incorporate by reference in
this prospectus documents which have been filed with securities commissions in
Canada, 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 securities commission or
other similar authority in each of the provinces and territories of Canada:
o the annual information form of CPRL dated March 2, 2007;
o CPRL's comparative audited consolidated financial statements as at
and for the year ended December 31, 2006, together with the report
of the auditors thereon;
o CPRL's Management's Discussion and Analysis for the year ended
December 31, 2006;
o CPRL's management proxy circular dated March 2, 2007;
o CPRL's comparative unaudited consolidated financial statements as at
and for the three months ended March 31, 2007; and
o CPRL's Management's Discussion and Analysis for the three months
ended March 31, 2007.
Any annual information form, audited annual consolidated financial
statements (together with the auditor's report thereon), information circular,
unaudited interim consolidated financial statements, management's discussion
and analysis, material change reports (excluding confidential material change
reports) or business acquisition reports subsequently filed by CPRL or us with
securities commissions or similar authorities in the relevant provinces and
territories of Canada after the date of this prospectus and prior to the
termination of the offering of debt securities under any prospectus supplement
shall be deemed to be incorporated by reference into this prospectus. 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
by CPRL or us 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.
Upon a new annual information form, management's discussion and analysis
and related annual financial statements being filed by CPRL with and, where
required, accepted by, the applicable securities regulatory authorities during
the currency of this prospectus, the previous annual information form,
management's discussion and analysis, annual financial statements and all
interim financial statements and management's discussion and analysis, material
change reports, business acquisition reports and management proxy circulars
(other than a management proxy circular relating to an annual meeting of
shareholders) filed prior to the commencement of the then current fiscal year
of CPRL will 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
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discussion and analysis being filed by CPRL with the applicable securities
regulatory authorities during the currency 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 and upon a
new management proxy circular relating to an annual meeting of shareholders of
CPRL being filed by CPRL with the applicable securities regulatory authorities
during the term of this prospectus, the management proxy circular for the
preceding annual meeting of shareholders of CPRL shall be deemed no longer to
be incorporated by reference into this prospectus for purposes of future offers
and sales of debt securities under this prospectus.
Copies of each of the documents incorporated by reference into this
prospectus may be obtained by accessing our and CPRL's disclosure documents
available through the Internet on the Canadian System for Electronic Document
Analysis and Retrieval (SEDAR) which may be accessed at WWW.SEDAR.COM or by
requesting a free copy of such documents by writing or calling Canadian Pacific
Railway at the following address and telephone number: Canadian Pacific Railway
Company, Suite 500, 401 - 9th Avenue S.W., Calgary, Alberta, T2P 4Z4,
Attention: Corporate Secretary, (403) 319-6171.
Updated interest coverage ratios will be filed by CPRL quarterly with the
applicable securities regulatory authorities, including the SEC, either as
prospectus supplements or exhibits to CPRL's unaudited 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.
A prospectus supplement containing the specific variable terms of an
offering 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
and only for the purposes of the offering of the debt securities covered by
that prospectus supplement.
ANY STATEMENT CONTAINED IN THIS PROSPECTUS OR IN A DOCUMENT INCORPORATED
OR DEEMED TO BE INCORPORATED BY REFERENCE HEREIN SHALL BE DEEMED TO BE MODIFIED
OR SUPERSEDED FOR PURPOSES OF THIS PROSPECTUS TO THE EXTENT THAT A STATEMENT
CONTAINED HEREIN OR IN ANY OTHER SUBSEQUENTLY FILED DOCUMENT WHICH ALSO IS OR
IS DEEMED TO BE INCORPORATED BY REFERENCE HEREIN MODIFIES OR SUPERSEDES SUCH
PRIOR STATEMENT. ANY STATEMENT OR DOCUMENT SO MODIFIED OR SUPERSEDED SHALL NOT,
EXCEPT TO THE EXTENT SO MODIFIED OR SUPERSEDED, BE INCORPORATED BY REFERENCE
AND CONSTITUTE A PART OF THIS PROSPECTUS.
FORWARD LOOKING STATEMENTS
This prospectus contains or incorporates by reference certain forward
looking statements within the meaning of the United States Private Securities
Litigation Reform Act of 1995 relating but not limited to our and CPRL's
operations, anticipated financial performance, business prospects and
strategies. Forward looking information typically contains statements such as
"anticipate", "believe", "expect", "plan" or similar words suggesting future
outcomes. Forward looking statements in or incorporated by reference into this
prospectus include, but are not limited to, statements with respect to: our and
CPRL's revenues and results of operations; our and CPRL's strategic plan;
quarterly and seasonal trends; our and CPRL's capital commitments and
expenditures; our and CPRL's future cash flows and the availability of other
sources of liquidity; interest rates and any hedging programs we and CPRL
undertake in respect thereof; fuel prices and any hedging programs we and CPRL
undertake in respect thereof; the impact of changes in accounting policy; the
outcome of contract negotiations (including in respect of government
contracts); our and CPRL's pension plan funding and future contributions; the
outcome of litigation; the success and cost of environmental initiatives and
remediation programs; the success and impact of our and CPRL's restructuring
initiatives; and our and CPRL's competitive environment.
Readers are cautioned to not place undue reliance on forward looking
statements because it is possible that we and CPRL will not achieve
predictions, forecasts, projections and other forms of forward looking
information. In addition, we and CPRL undertake no obligation to update
publicly or otherwise revise any forward looking information, whether as a
result of new information, future events or otherwise except as required by
law.
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By its nature, our and CPRL's forward looking information involves
numerous assumptions, inherent risks and uncertainties, including but not
limited to the following factors:
o changes in business strategies;
o general North American and global economic and business conditions;
o the availability and price of energy commodities;
o the effects of competition and pricing pressures;
o industry capacity;
o shifts in market demands;
o changes in laws and regulations, including regulation of rates;
o potential increases in maintenance and operating costs;
o uncertainties of litigation;
o labour disputes;
o risks and liabilities arising from derailments;
o timing of completion of capital and maintenance projects;
o currency and interest rate fluctuations;
o effects of changes in market conditions on the financial position of
pension plans;
o various events that could disrupt operations, including severe
weather conditions;
o security threats; and
o technological changes.
The performance of the North American and global economies remains
uncertain. Grain production and yield in Canada were stable in the 2006 crop
year and are expected to remain so in the 2007 crop year. However, factors over
which we and CPRL have no control, such as weather conditions and insect
populations, affect crop production and yield in the grain collection areas
CPRL and we serve. Fuel prices also remain uncertain, as they are influenced by
many factors, including, without limitation, worldwide oil demand,
international politics, severe weather, labour and political instability in
major oil-producing countries and the ability of these countries to comply with
agreed-upon production quotas. We and CPRL intend to continue our fuel cost
mitigation program to attempt to offset the effects of high crude oil prices.
We caution that the foregoing list of important factors is not
exhaustive. Events or circumstances could cause our and CPRL'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.
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CANADIAN PACIFIC RAILWAY COMPANY
We are one of Canada's oldest corporations and were North America's first
transcontinental railway. From our inception over 125 years ago, we have
developed into a fully-integrated and technologically advanced Class I railway
providing rail and intermodal freight transportation services over a
13,260-mile network serving the principal business centres of Canada, from
Montreal, Quebec, to Vancouver, B.C., and the U.S. Midwest and Northeast
regions. We are a wholly-owned subsidiary of CPRL. Our head office and our
registered office is located at Suite 500, 401 - 9th Avenue S.W., Calgary,
Alberta, T2P 4Z4.
USE OF PROCEEDS
Unless otherwise indicated in an applicable prospectus supplement
relating to a series of debt securities, we will use the net proceeds we
receive from the sale of the debt securities for general corporate purposes,
which may include financing our capital expenditure program and working capital
requirements. We may also use such proceeds for the repayment of indebtedness
or to provide funding to CPRL for its general corporate purposes. The amount of
net proceeds to be used for any such purpose will be set forth in the
applicable prospectus supplement. We may, from time to time, issue debt
instruments and incur additional indebtedness other than through the issue of
debt securities pursuant to this prospectus.
DESCRIPTION OF DEBT SECURITIES
In this section only, "we", "us" or "our" refer only to Canadian Pacific
Railway Company without any of its subsidiaries through which it operates.
The following description sets forth certain general terms and provisions
of the debt securities. The particular terms and provisions of the series of
debt securities offered by any prospectus supplement, and the extent to which
the general terms and provisions described below may apply thereto, will be
described in the applicable prospectus supplement, which may provide
information that is different from this prospectus.
The debt securities will be issued under a trust indenture (the
"Indenture") to be entered into between us and The Bank of New York, as trustee
(the "Trustee"), as supplemented by a supplemental indenture. A copy of the
form of the Indenture has been filed and a copy of the form of the supplemental
indenture will be filed with the SEC as exhibits to the registration statement
of which this prospectus is a part. Debt securities may also be issued under
new indentures between us and a trustee or trustees as will be discussed in a
prospectus supplement for such debt securities. The following statements with
respect to the Indenture and the Securities (as hereinafter defined) are brief
summaries of the material provisions of the Indenture. However, it is the
Indenture, and not this summary, that governs your rights as a holder of the
Securities. Wherever particular sections or defined terms of the Indenture are
referred to, these sections or defined terms are incorporated herein by
reference as part of the statement made, and the statement is qualified in its
entirety by this reference. The term "Securities", as used under this caption,
refers to all securities issued under the Indenture, including the debt
securities. Prospective investors should rely on information in the applicable
prospectus supplement if it is different from the following information.
GENERAL
The Indenture does not limit the aggregate principal amount of Securities
(which may include debentures, notes and other evidences of indebtedness) which
may be issued thereunder, and Securities may be issued thereunder from time to
time in one or more series and may be denominated and payable in foreign
currencies. The Securities offered pursuant to this prospectus will be issued
in an amount up to US$1,500,000,000 or the equivalent in other currency or
units based on other foreign currencies. The Indenture also permits us to
increase the principal amount of any series of 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 offered thereby (the "Offered Securities"):
o the specific designation of the Offered Securities;
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o any limit on the aggregate principal amount of the Offered
Securities;
o the extent and manner, if any, to which payment on or in respect of
the Offered Securities 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 the
Offered Securities will be issued;
o the date or dates, if any, on which the Offered Securities will
mature and the portion (if less than all of the principal amount) of
the Offered Securities to be payable upon declaration of
acceleration of maturity;
o the rate or rates (which may be fixed or variable) at which the
Offered Securities will bear interest, if any, the date or dates
from which that interest will accrue and on which that interest will
be payable and the regular record dates for any interest payable on
the Offered Securities;
o any mandatory or optional redemption or sinking fund provisions,
including the period or periods within which, the price or prices at
which and the terms and conditions upon which the Offered Securities
may be redeemed or purchased at our option or otherwise;
o whether the Offered Securities will be issuable in registered form
or bearer form or both, and, if issuable in bearer form, the
restrictions as to the offer, sale and delivery of the Offered
Securities in bearer form and as to exchanges between registered and
bearer form;
o whether the Offered Securities will be issuable in the form of one
or more global securities and, if so, the identity of the depository
for those global securities;
o the denominations in which any of the Offered Securities which are
in registered form will be issuable, if other than denominations of
US$1,000 and any multiple thereof, and the denominations in which
any of the Offered Securities which are in bearer form will be
issuable, if other than the denomination of US$1,000;
o each office or agency where the principal of and any premium and
interest on the Offered Securities will be payable, and each office
or agency where the Offered Securities may be presented for
registration of transfer or exchange;
o if other than United States dollars, the foreign currency or the
units based on or relating to foreign currencies in which the
Offered Securities are denominated and/or in which the payment of
the principal of and any premium and interest on the Offered
Securities will or may be payable;
o the terms, if any, on which the Offered Securities may be converted
or exchanged for other of our debt securities or debt securities of
other entities;
o whether and under what circumstances we will pay Additional Amounts
on the Offered 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 Offered Securities of such series rather
than pay the Additional Amounts (and the terms of any such option);
o any index pursuant to which the amount of payments of principal of
and any premium and interest on the Offered Securities will or may
be determined;
o any applicable Canadian and U.S. federal income tax considerations;
and
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o any other terms of the Offered Securities, including covenants and
Events of Default relating solely to the Offered Securities or any
covenants or Events of Default generally applicable to the
Securities which are not to apply to the Offered Securities.
Unless otherwise indicated in the applicable prospectus supplement, the
Indenture does not afford the holders the right to tender Securities to us for
repurchase, or provide for any increase in the rate or rates of interest per
annum at which the Securities will bear interest.
Securities may be issued under the Indenture bearing no interest and may
be offered and sold at a discount below their stated principal amount. The
Canadian and U.S. federal income tax consequences and other special
considerations applicable to those discounted Securities or other 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 thereto.
RANKING
Unless otherwise indicated in the applicable prospectus supplement, the
debt securities will be our unsecured obligations and will rank pari passu with
all our other unsecured and unsubordinated debt from time to time outstanding
and pari passu with other Securities issued under the Indenture. We conduct a
substantial portion of our business through corporate and partnership
subsidiaries. The debt securities will be structurally subordinated to all
existing and future liabilities, including trade payables and other
indebtedness, of any of our corporate or partnership subsidiaries.
DEBT SECURITIES IN GLOBAL FORM
Unless otherwise indicated in the applicable prospectus supplement, debt
securities of a particular series will be issued in the form of one or more
"global securities" which will be registered in the name of and be deposited
with a depository, 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 Securities in definitive form, a global security may not
be transferred except as a whole by the depository for a global security to a
nominee of that depository, by a nominee of that depository to that depository
or another nominee of that depository or by that depository or any nominee of
that depository to a successor of that depository or a nominee of a successor
of that depository.
The specific terms of the depository arrangement with respect to any
portion of a particular series of Securities to be represented by a global
security will be described in the prospectus supplement relating to that
series. We anticipate that the following provisions will apply to all
depository arrangements.
Upon the issuance of a global security, the depository therefor or its
nominee will credit, on its book entry and registration system, the respective
principal amounts of the Securities represented by that global security to the
accounts of those persons having accounts with that depository or its nominee
("participants") as shall be designated by the underwriters, investment dealers
or agents participating in the distribution of those Securities or by us if
those 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 the
ownership of those beneficial interests will be effected only through, records
maintained by the depository therefor or its nominee (with respect to
beneficial interests of participants) or by participants or persons that hold
through participants (with respect to interests of persons other than
participants). The laws of some states in the United States require certain
purchasers of securities to take physical delivery thereof in definitive form.
These depository arrangements and these laws may impair the ability to transfer
beneficial interests in a global security.
So long as the depository for a global security or its nominee is the
registered owner thereof, that depository or its nominee, as the case may be,
will be considered the sole owner or holder of the Securities represented by
that 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 Securities of the series represented by that global security registered
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in their names, will not receive or be entitled to receive physical delivery of
Securities of that series in definitive form and will not be considered the
owners or holders of those Securities under the Indenture.
Principal, premium, if any, and interest payments on a global security
registered in the name of a Depository or its nominee will be made to that
depository or nominee, as the case may be, as the registered owner of that
global security. None of us, the Trustee or any paying agent for Securities of
the series represented by that global security will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial interests in that global security or for maintaining, supervising
or reviewing any records relating to those beneficial interests.
We expect that the depository for a global security or its nominee, upon
receipt of any payment of principal, premium or interest, will immediately
credit participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of that global security
as shown on the records of that depository or its nominee. We also expect that
payments by participants to owners of beneficial interests in that global
security held through those participants will be governed by standing
instructions and customary practices, as is the case with securities held for
the accounts of customers registered in "street name", and will be the
responsibility of those participants.
If the depository for a global security representing Securities of a
particular series is at any time unwilling or unable to continue as depository,
or if the depository is no longer eligible to continue as depository, and a
successor depository is not appointed by us within 90 days, or if an Event of
Default described in clauses (a) or (b) of the first sentence under "Events of
Default" below with respect to a particular series of Securities has occurred
and is continuing, we will issue securities of that series in definitive form
in exchange for that global security. In addition, we may at any time and in
our sole discretion determine not to have the Securities of a particular series
represented by one or more global securities and, in that event, will issue
securities of that series in definitive form in exchange for all of the global
securities representing securities of that series.
DEBT SECURITIES IN DEFINITIVE FORM
If indicated in the applicable prospectus supplement, the Securities may
be issued in fully registered form without coupons and in denominations of
US$1,000 or any integral multiple thereof. Securities may be presented for
exchange and debt securities may be presented for registration of transfer in
the manner, at the places and, subject to the restrictions set forth in the
Indenture and in the applicable prospectus supplement, without service charge,
but upon payment of any taxes or other governmental charges due in connection
therewith. We have appointed the Trustee as Security Registrar. Securities in
bearer form and the coupons appertaining thereto, if any, will be transferable
by delivery.
Unless otherwise indicated in the applicable prospectus supplement,
payment of the principal of and any premium and interest on Securities (other
than a global security) will be made at the office or agency of the Trustee at
101 Barclay Street, 21st Floor West, New York, New York, 10286, except that, at
our option, payment of any interest may be made (a) by cheque mailed to the
address of the Person entitled thereto as that Person's address will appear in
the Security Register or (b) by wire transfer to an account maintained by the
Person entitled thereto as specified in the Security Register.
NEGATIVE PLEDGE
The Indenture includes a covenant of ours to the effect that, so long as
any of the Securities remain outstanding, we will not, and will not permit any
Subsidiary to, create, assume or otherwise have outstanding any Security
Interest, except for Permitted Encumbrances, on or over any of our present or
future Railway Properties or any of our Subsidiaries or on any shares in the
capital stock of any Railroad Subsidiary securing any Indebtedness of any
Person without also at the same time or prior thereto securing equally and
ratably with such other Indebtedness all of the Securities then outstanding
under the Indenture.
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CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Indenture. Reference is made to the Indenture for the full definitions of all
such terms.
The term "BORROWED MONEY" means Indebtedness in respect of moneys
borrowed (including interest and other charges in respect thereof) and moneys
raised by the issue of notes, bonds, debentures or other evidences of moneys
borrowed.
The term "CAPITAL LEASE OBLIGATION" means the obligation of a Person, as
lessee, to pay rent or other amounts to the lessor under a lease of real or
personal property which is required to be classified and accounted for as a
capital lease on a consolidated balance sheet of such Person in accordance with
GAAP.
The term "CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of
assets determined on a consolidated basis after deducting therefrom:
(a) 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);
(b) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles; and
(c) appropriate adjustments on account of minority interests of other
Persons holding stock of our Subsidiaries,
all as set forth on our most recent consolidated balance sheet and computed in
accordance with GAAP.
The term "GAAP" means generally accepted accounting principles which are
in effect from time to time in Canada (or, if we hereafter determine to prepare
our consolidated financial statements in accordance with generally accepted
accounting principles which are in effect from time to time in the United
States, such principles).
The term "INDEBTEDNESS" means and includes all items of indebtedness
which, in accordance with GAAP, would be included in determining total
liabilities as shown on the liability side of a balance sheet as at the date as
of which Indebtedness is to be determined, but in any event including, without
limitation, (1) obligations in respect of indebtedness for Borrowed Money
secured by any Security Interest existing on property owned subject to such
Security Interest, whether or not the obligations secured thereby shall have
been assumed, and (2) guarantees and other contingent obligations in respect
of, or any obligations to purchase or otherwise acquire or service,
indebtedness of any other Person.
The term "PERMITTED ENCUMBRANCES" means any of the following:
(a) any Security Interest existing as of the date of the first issuance
by us of the Securities issued pursuant to the Indenture, or arising
thereafter pursuant to contractual commitments entered into prior to
such issuance, including without limitation, any of our outstanding
Perpetual 4% Consolidated Debenture Stock, whether issued, pledged
or vested in trust;
(b) any Security Interest in favor of us or any of our wholly-owned
Subsidiaries;
(c) any Security Interest existing on the property of any Person at the
time such Person becomes a Subsidiary, or arising thereafter
pursuant to contractual commitments entered into prior to and not in
contemplation of such Person becoming a Subsidiary;
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(d) any Security Interest on property of a Person which Security
Interest exists at the time such Person is merged into, or
amalgamated or consolidated with, us or a Subsidiary, or such
property is otherwise acquired by us or a Subsidiary, provided that
such Security Interest does not extend to property owned by us or
such Subsidiary immediately prior to such merger, amalgamation,
consolidation or acquisition;
(e) any Security Interest already existing on property acquired
(including by way of lease) by us or any of our Subsidiaries at the
time of such acquisition;
(f) any Security Interest securing any Indebtedness incurred in the
ordinary course of business and for the purpose of carrying on the
same, repayable on demand or maturing within 12 months of the date
when such Indebtedness is incurred or the date of any renewal or
extension thereof;
(g) any Security Interest in respect of (i) liens for taxes and
assessments not at the time overdue or any liens securing workmen's
compensation assessments, unemployment insurance or other social
security obligations; provided, however, that if any such liens,
duties or assessments are then overdue, we or the Subsidiary, as the
case may be, shall be prosecuting an appeal or proceedings for
review with respect to which it shall be entitled to or shall have
secured a stay in the enforcement of any such obligations, (ii) any
lien for specified taxes and assessments which are overdue but the
validity of which is being contested at the time by us or the
Subsidiary, as the case may be, in good faith, (iii) any liens or
rights of distress reserved in or exercisable under any lease for
rent and for compliance with the terms of such lease, (iv) any
obligations or duties, affecting our property or that of a
Subsidiary to any municipality or governmental, statutory or public
authority, with respect to any franchise, grant, license or permit
and any defects in title to structures or other facilities arising
from the fact that such structures or facilities are constructed or
installed on lands held by us or the Subsidiary under government
permits, leases, licenses or other grants, (v) any deposits or liens
in connection with contracts, bids, tenders or expropriation
proceedings, surety or appeal bonds, costs of litigation when
required by law, public and statutory obligations and liens or
claims incidental to current construction or operations including
but not limited to, builders', mechanics', laborers', materialmen's,
warehousemen's, carrier's and other similar liens, (vi) the right
reserved to or vested in any municipality or governmental or other
public authority by any statutory provision or by the terms of any
lease, license, franchise, grant or permit to terminate any such
lease, license, franchise, grant or permit or to require annual or
other periodic payments as a condition to the continuance thereof,
(vii) any Security Interest the validity of which is being contested
at the time by us or a Subsidiary in good faith or payment of which
has been provided for by creation of a reserve in an amount in cash
sufficient to pay the same in full, (viii) any easements,
rights-of-way and servitudes (including, without in any way limiting
the generality of the foregoing, easements, rights-of-way and
servitudes for railways, sewers, dykes, drains, gas and water mains
or electric light and power or telephone conduits, poles, wires and
cables) and minor defects, or irregularities of title that, in our
opinion, will not in the aggregate materially and adversely impair
the use or value of the land concerned for the purpose for which it
is held by us or the Subsidiary, as the case may be, (ix) any
security to a public utility or any municipality or governmental or
other public authority when required by such utility or other
authority in connection with our operations or the operations of our
Subsidiary, as the case may be, (x) any liens and privileges arising
out of judgments or awards with respect to which we or the
Subsidiary shall be prosecuting an appeal or proceedings for review
and with respect to which it shall be entitled to or shall have
secured a stay of execution pending such appeal or proceedings for
review, and (xi) reservations, limitations, provisos and conditions,
if any, expressed in or affecting any grant of real or immoveable
property or any interest therein;
(h) any Security Interest in respect of any Purchase Money Obligation;
(i) any extension, renewal, alteration or replacement (or successive
extensions, renewals, alterations or replacements) in whole or in
part, of any Security Interest referred to in the foregoing clauses
(a) through (h) inclusive, provided that the principal amount of the
Indebtedness secured thereby on the date of such extension, renewal,
alteration or replacement is not increased and the Security Interest
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is limited to the property or other assets which secured the
Security Interest so extended, renewed, altered or replaced (plus
improvements on such property or other assets or the proceeds
thereof); and
(j) any Security Interest that would otherwise be prohibited (including
any extensions, renewals, alterations or replacements thereof)
provided that the aggregate Indebtedness outstanding and secured
under this clause (j) does not (calculated at the time of the
granting of the Security Interest) exceed an amount equal to 10% of
Consolidated Net Tangible Assets.
The term "PERSON" means any individual, corporation, limited liability
company, partnership, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
The term "PURCHASE MONEY OBLIGATION" means any monetary obligation
(including a Capital Lease Obligation) created, assumed or incurred prior to,
at the time of, or within 180 days after, the acquisition (including by way of
lease), construction or improvement of any real or tangible personal property,
for the purpose of financing all or any part of the purchase price or lease
payments in respect thereof, provided that the principal amount of such
obligation may not exceed the unpaid portion of the purchase price or lease
payments, as applicable, and further provided that any security given in
respect of such obligation shall not extend to any property other than the
property acquired in connection with which such obligation was created or
assumed and fixed improvements, if any, thereto or erected or constructed
thereon and the proceeds thereof.
The term "RAILROAD SUBSIDIARY" means a Subsidiary whose principal assets
are Railway Properties.
The term "RAILWAY PROPERTIES" means all main and branch lines of railway
located in Canada or the United States, including all real property used as the
right of way for such lines.
The term "SECURITY INTEREST" means any security by way of an assignment,
mortgage, charge, pledge, lien, encumbrance, title retention agreement or other
security interest whatsoever, howsoever created or arising, whether absolute or
contingent, fixed or floating, perfected or not, but not including any security
interest in respect of a lease which is not a Capital Lease Obligation or any
encumbrance that may be deemed to arise solely as a result of entering into an
agreement not in violation of the terms of the Indenture to sell or otherwise
transfer assets or property.
The term "SHAREHOLDERS' EQUITY" means, with respect to any Person, at any
date, the aggregate of the dollar amount of outstanding share capital, the
amount, without duplication, of any surplus, whether contributed or capital,
and retained earnings, subject to any currency translation adjustment, all as
set forth in such Person's most recent annual consolidated balance sheet.
The term "SIGNIFICANT SUBSIDIARY" means a Subsidiary that constitutes a
"significant subsidiary" as defined in Rule 1-02 of Regulation S-X of the U.S.
Securities Exchange Act of 1934, as amended.
The term "SUBSIDIARY" means any corporation or other Person of which
there are owned, directly or indirectly, by or for us or by or for any
corporation or other Person in like relation to us, Voting Shares or other
interests which, in the aggregate, entitle the holders thereof to cast more
than 50% of the votes which may be cast by the holders of all outstanding
Voting Shares of such first mentioned corporation or other Person for the
election of its directors or, in the case of any Person which is not a
corporation, Persons having similar powers or (if there are no such Persons)
entitle the holders thereof to more than 50% of the income or capital interests
(however called) thereon and includes any corporation in like relation to a
Subsidiary.
The term "VOTING SHARES" means shares of capital stock of any class of a
corporation and other interests of any other Persons having under all
circumstances the right to vote for the election of the directors of such
corporation or in the case of any Person which is not a corporation, Persons
having similar powers or (if there are no such Persons) income or capital
interests (however called), provided that, for the purpose of this definition,
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shares or other interests which only carry the right to vote conditionally on
the happening of an event shall not be considered Voting Shares whether or not
such event shall have happened.
CONSOLIDATION, MERGER, AMALGAMATION AND SALE OF ASSETS
We shall not enter into any transaction (whether by way of consolidation,
amalgamation, merger, transfer, sale or otherwise) whereby all or substantially
all of our assets would become the property of any other Person (the
"Successor") unless (a) the Successor shall, prior to or contemporaneously with
the consummation of that transaction, execute those instruments, which may
include a supplemental indenture, and do those things, if any, as shall be
necessary or advisable to establish that upon the consummation of that
transaction (i) the Successor will have assumed all of our covenants and
obligations under the Indenture in respect of the Securities of every series,
and (ii) the Securities of every series will be valid and binding obligations
of the Successor entitling the holders thereof, as against the Successor
Corporation, to all the rights of holders of Securities under the Indenture;
(b) the Successor is a corporation, company, partnership, or trust organized
and validly existing under the laws of Canada or any province thereof or of the
United States, any state thereof or the District of Columbia and (c)
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 occurred and be continuing.
PROVISION OF FINANCIAL INFORMATION
We will file with the Trustee, within 15 days after CPRL is required to
file them with the SEC, copies, which may be in electronic format, of the
annual reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the SEC may from time to time by
rules and regulations prescribe) which CPRL may be required to file with the
SEC pursuant to Section 13 or Section 15(d) of the Exchange Act, as amended.
Notwithstanding that CPRL may not be required to remain subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, as amended,
or otherwise report on an annual and quarterly basis on forms provided for such
annual and quarterly reporting pursuant to rules and regulations promulgated by
the SEC, we will provide the Trustee:
o within 140 days (or such longer period as the Trustee in its
discretion may consent to) after the end of each fiscal year, the
information required to be contained in CPRL's annual reports on
Form 20-F, Form 40-F or Form 10-K as applicable (or any successor
form); and
o within 60 days (or such longer period as the Trustee in its
discretion may consent to) after the end of each of the first three
fiscal quarters of each fiscal year, the information required to be
contained in CPRL's reports on Form 6-K (or any successor form)
which, regardless of applicable requirements, will, 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 company with securities listed on the Toronto Stock
Exchange, whether or not CPRL has any of its securities so listed.
EVENTS OF DEFAULT
The occurrence of any of the following events with respect to the
Securities of any series will constitute an "Event of Default" with respect to
the Securities of that series:
(a) default by us in payment of the principal of any of the Securities
of that series when the same becomes due under any provision of the
Indenture or of those Securities;
(b) default by us in payment of any interest due on any of the
Securities of that series and continuance of that default for a
period of 30 days;
(c) default by us in observing or performing any other of our covenants
or conditions contained in the Indenture or in the Securities of
that series and continuance of that default for a period of 60 days
after written notice as provided in the Indenture;
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(d) default by us or any Subsidiary in payment of the principal of,
premium, if any, or interest on any Indebtedness having an
outstanding principal amount in excess of the greater of $100
million and 2% of our Shareholders' Equity in the aggregate at the
time of default or default in the performance of any other covenant
of ours or any Subsidiary contained in any instrument under which
that Indebtedness is created or issued and the holders thereof, or a
trustee, if any, for those holders, declare that Indebtedness to be
due and payable prior to the stated maturities of that Indebtedness
("accelerated Indebtedness"), and such acceleration shall not be
rescinded or annulled, or such default under such instrument shall
not be remedied or cured, whether by payment or otherwise, or waived
by the holders of such Indebtedness, provided that (i) if such
accelerated Indebtedness is the 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 forth in such
instrument, it will not be considered an Event of Default under this
clause (d) until 30 days after such acceleration, or (ii) if such
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 to us or the Railroad Subsidiaries,
it shall not be considered an Event of Default; or (B) if such
accelerated Indebtedness is recourse to us or the Railroad
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;
(e) certain events of bankruptcy, insolvency, winding up, liquidation or
dissolution relating to us or any Significant Subsidiary; or
(f) any event of default provided with respect to that series.
If an Event of Default described in clause (a) or (b) above occurs and is
continuing with respect to Securities of any series, unless the principal of
all of the Securities of that series shall have already become due and payable,
the Trustee may, in its discretion, and shall upon request in writing made by
the holders of not less than 25% in aggregate principal amount of the
Securities of that series then outstanding, declare the principal of (and
premium, if any, on) all the Securities of that series then outstanding and the
interest accrued thereon and all other money, if any, owing under the
provisions of the Indenture in respect of those Securities to be due and
payable immediately on demand. If an Event of Default described in clause (c)
or (f) above occurs and is continuing with respect to the Securities of one or
more series, unless the principal of all of the Securities of the affected
series shall have already become due and payable, the Trustee may, in its
discretion, and shall upon request in writing made by the holders of not less
than 25% in aggregate principal amount of the Securities of all such affected
series then outstanding (voting as one class), declare the principal of (and
premium, if any, on) all the Securities of all the affected series then
outstanding and the interest accrued thereon and all other money, if any, owing
under the provisions of the Indenture in respect of those Securities to be due
and payable immediately on demand. If an Event of Default described in clause
(d) or (e) above occurs and is continuing, unless the principal of all
Securities then outstanding shall have already become due and payable, the
Trustee may, in its discretion, and shall upon request in writing made by the
holders of not less than 25% in aggregate principal amount of all the
Securities then outstanding (voting as one class), declare the principal of
(and premium, if any, on) all the Securities then outstanding and the interest
accrued thereon and all other money, if any, owing under the provisions of the
Indenture in respect of those Securities to be due and payable immediately on
demand. Upon certain conditions, any declaration of this kind may be cancelled
if all Events of Default with respect to the Securities of all those affected
series then outstanding shall have been cured or waived as provided in the
Indenture by the holders of not less than a majority in aggregate principal
amount of the Securities of the affected series then outstanding (voting as one
class, except in the case of Events of Default described in clauses (a) and (b)
of the first sentence of the preceding paragraph, as to which each series so
affected will vote as a separate class). See "Modification and Waiver" below.
Reference is made to the applicable prospectus supplement or supplements
relating to any series of original issue discount Securities for the particular
provisions relating to the acceleration of a portion of the principal amount
thereof upon the occurrence and continuance of an Event of Default with respect
thereto.
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The Indenture provides that the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the request or
direction of the holders, unless those holders shall have provided to the
Trustee reasonable indemnity. Subject to those provisions for indemnity and
certain other limitations contained in the Indenture, the holders of a majority
in aggregate principal amount of the Securities of all affected series then
outstanding (voting as one class) will have the right to sanction or 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 Securities of those affected series.
The Indenture provides that no holder of the Securities of any series
will have any right to institute any proceeding with respect to the Indenture
or for any remedy thereunder, unless (a) that holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to the Securities of that series, (b) the holders of not less than 25%
in aggregate principal amount of the Securities of all affected series then
outstanding (voting as one class) shall have made written request, and provided
reasonable indemnity, to the Trustee to institute that proceeding, (c) the
Trustee shall not have received from the holders of a majority in aggregate
principal amount of the Securities of all affected series then outstanding
(voting as one class) a direction inconsistent with that request and (d) the
Trustee shall have failed to institute that proceeding within 60 days after
that notification, request and offer of indemnity. However, the holder of any
Security will have an absolute right to receive payment of the principal of and
any premium and interest on that Security on or after the due dates expressed
in that Security and to institute suit for the enforcement of any of these
payments. The Indenture requires us to furnish to the Trustee annually an
officers' certificate as to our compliance with certain covenants, conditions
or other requirements contained in the Indenture and as to any non-compliance
therewith.
The Indenture provides that the Trustee may withhold notice to the
holders of the Securities of one or more series of any default affecting those
series (except defaults as to payment of principal or interest) if it, in good
faith, considers that withholding to be in the best interests of the holders of
the Securities of those series.
ADDITIONAL AMOUNTS
All payments made by us under or with respect to the debt securities will
be made free and clear of and without withholding or deduction for or on
account of any present or future tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and other liabilities
related thereto) imposed or levied by or on behalf of the Government of Canada
or of any province or territory thereof or by any authority or agency therein
or thereof having power to tax (hereinafter "Canadian Taxes"), unless we are
required to withhold or deduct Canadian Taxes by law or by the interpretation
or administration thereof. If we are so required to withhold or deduct any
amount for or on account of Canadian Taxes from any payment made under or with
respect to the debt securities, we will pay as additional interest such
additional amounts ("Additional Amounts") as may be necessary so that the net
amount received by each holder after such withholding or deduction (and after
deducting any Canadian Taxes on such Additional Amounts) will not be less than
the amount the 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 holder (such holder, an "Excluded Holder") in
respect of the beneficial owner thereof:
(a) with which we do not deal at arm's length (within the meaning of the
INCOME TAX ACT (Canada)) at the time of making such payment;
(b) which is subject to such Canadian Taxes by reason of the 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 debt
securities or the receipt of payments thereunder; or
(c) which is subject to such Canadian Taxes by reason of the holder's
failure to comply with any certification, identification,
information, 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.
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We will also:
(a) make such withholding or deduction; and
(b) remit the full amount deducted or withheld to the relevant authority
in accordance with applicable law.
We will furnish to the holders of the debt securities, within 30 days
after the date the payment of any Canadian Taxes is due pursuant to applicable
law, certified copies of tax receipts or other documents evidencing such
payment by us.
We will indemnify and hold harmless each holder (other than an Excluded
Holder) and upon written request reimburse each such holder for the amount of:
(a) any Canadian Taxes so levied or imposed and paid by such holder as a
result of payments made under or with respect to the debt
securities;
(b) any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto; and
(c) any Canadian Taxes imposed with respect to any reimbursement under
clause (a) or (b) above, but excluding any such Canadian Taxes on
such holder's net income.
In any event, no Additional Amounts or indemnity will be payable in
excess of the Additional Amounts or indemnity which would be required if the
holder of the debt security was a resident of the United States for purposes of
the Canada-U.S. Tax Convention (1980), as amended.
Wherever in the Indenture there is mentioned, in any context, the payment
of principal (and premium, if any), interest or any other amount payable under
or with respect to a Security, such mention shall be deemed to include mention
of the payment of Additional Amounts to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof.
TAX REDEMPTION
The debt securities will be subject to redemption in whole, but not in
part, at our option, at any time, on not less than 30 nor more than 60 days'
prior written notice, at 100% of the principal amount, together with accrued
interest thereon to the redemption date, in the event we determine that it is
probable that we have become or would become obligated to pay, on the next date
on which any amount would be payable with respect to the debt securities, any
Additional Amounts as a result of an amendment to or change in the laws
(including any regulations promulgated thereunder) of Canada (or any political
subdivision or taxing authority thereof or therein), or any amendment to or
change in any official position regarding the application or interpretation of
such laws or regulations, which change is announced or becomes effective on or
after the date of this prospectus.
MODIFICATION AND WAIVER
The Indenture permits us and the Trustee to enter into supplemental
indentures without the consent of the holders of the Securities to, among other
things: (a) secure the Securities of one or more series, (b) evidence the
assumption by the Successor of our covenants and obligations, under the
Indenture and the Securities then outstanding, (c) add covenants or Events of
Default for the benefit of the holders of one or more series of the Securities,
(d) cure any ambiguity or correct or supplement any defective provision in the
Indenture which correction will not be prejudicial to the interests of the
holders of the Securities in any material respect, (e) establish the form and
terms of the Securities of any series, (f) evidence the acceptance of
appointment by a successor Trustee, and (g) make any other modifications which
will not be prejudicial to the interests of the holders of the Securities in
any material respect.
-16-
The Indenture also permits us and the Trustee, with the consent of the
holders of a majority in aggregate principal amount of the Securities of each
series then outstanding and affected (voting as one class), to add any
provisions to, or change in any manner or eliminate any of the provisions of,
the Indenture or modify in any manner the rights of the holders of the
Securities of each such affected series; provided, however, that we and the
Trustee may not, among other things, without the consent of the holder of each
Security then outstanding and affected thereby: (a) change the stated maturity
of the principal amount of, or any installment of the principal of or the
interest on, that Security; (b) reduce the principal amount of or the rate of
interest on or any premium payable upon the redemption of that Security; (c)
reduce the amount of principal of an original issue discount Security payable
upon acceleration of the maturity thereof; (d) change the place or currency of
payment of the principal of or any premium or interest on that Security; (e)
impair the right to institute suit for the enforcement of payment of this kind
with respect to that Security on or after the stated maturity thereof; or (f)
reduce the percentage in principal amount of the outstanding Securities of the
affected series, the consent of whose holders is required for modification or
amendment of the Indenture, or for any waiver with respect to defaults,
breaches, Events of Default or declarations of acceleration.
The holders of a majority in aggregate principal amount of the Securities
of all series at the time outstanding with respect to which a default or breach
or an Event of Default shall have occurred and be continuing (voting as one
class) may on behalf of the holders of all such affected Securities waive any
past default or breach or Event of Default and its consequences, except a
default in the payment of the principal of or premium or interest on any
Security of any series or an Event of Default in respect of a covenant or
provision of the Indenture or of any Security which cannot be modified or
amended without the consent of the holder of each Security affected.
DEFEASANCE
The Indenture provides that, at our option, we will be discharged from
any and all obligations with respect to the Securities of any series (except
for certain obligations to register the transfer or exchange of the Securities
of that series, to replace mutilated, destroyed, lost or stolen Securities of
that series, to maintain paying agencies, to compensate and indemnify the
Trustee and to maintain the trust described below) (hereinafter called a
"defeasance") upon the irrevocable deposit with the Trustee, in trust, of
money, and/or securities of the government which issued the currency in which
the Securities of that series are payable or securities backed by the full
faith and credit of that government which, through the payment of the principal
thereof and the interest thereon in accordance with their terms, will provide
money, in an amount sufficient to pay all the principal of and any premium and
interest on the Securities of that series on the stated maturity of those
payments in accordance with the terms of the Securities of that series. Such a
defeasance may be effected only if, among other things, (a) we have delivered
to the Trustee an opinion of counsel (who may be our independent counsel)
stating that we have received from, or there has been published by, the
Internal Revenue Service a ruling or there has been a change in the applicable
laws or regulations, in either case to the effect that the holders of the
Securities of that series will not recognize income, gain or loss for United
States federal income tax purposes as a result of that defeasance and will be
subject to United States federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if that defeasance had
not occurred, and (b) we have delivered to the Trustee an opinion of counsel in
Canada (who may be our independent counsel) or a ruling from the Canada Revenue
Agency to the effect that the holders of the Securities of that series will not
recognize income, gain or loss for Canadian federal or provincial income or
other Canadian tax purposes as a result of that defeasance and will be subject
to Canadian federal or provincial income and other Canadian tax on the same
amounts, in the same manner and at the same times as would have been the case
if that defeasance had not occurred (and for the purposes of such opinion, such
Canadian counsel shall assume that holders of the Securities include holders
who are not resident in Canada). In addition, we may obtain a discharge of the
Indenture with respect to the Securities of all series issued under the
Indenture by depositing with the Trustee, in trust, an amount of money and
government securities as shall be sufficient to pay, at stated maturity or upon
redemption, all of those Securities, provided that those Securities are by
their terms to become due and payable within one year or are to be called for
redemption within one year.
The Indenture also provides that we may omit to comply with the
restrictive covenants described under the caption "Negative Pledge" and certain
other covenants and no Event of Default shall arise with respect to the
Securities of that series by reason of this failure to comply (hereinafter
called a "covenant defeasance"), upon the irrevocable deposit with the Trustee,
in trust, of money and/or securities of the government which issued the
currency in which the Securities of that series are payable or securities
backed by the full faith and credit of that government which, through the
-17-
payment of the principal thereof and the interest thereon in accordance with
their terms, will provide money, in an amount sufficient to pay all the
principal of and any premium and interest on the Securities of that series on
the stated maturity of those payments in accordance with the terms of the
Securities of that series. Our other obligations with respect to the Securities
of that series would remain in full force and effect. A covenant defeasance may
be effected only if, among other things, (a) we have delivered to the Trustee
an opinion of counsel (who may be our independent counsel) to the effect that
the holders of Securities of that series will not recognize income, gain or
loss for United States federal income tax purposes as a result of the covenant
defeasance and will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if that covenant defeasance had not occurred, and (b) we have delivered to the
Trustee an opinion of counsel in Canada (who may be our independent counsel) or
a ruling from the Canada Revenue Agency to the effect that the holders of the
Securities of that series will not recognize income, gain or loss for Canadian
federal or provincial income or other Canadian tax purposes as a result of that
defeasance and will be subject to Canadian federal or provincial income and
other Canadian tax on the same amounts, in the same manner and at the same
times as would have been the case if that defeasance had not occurred (and for
the purposes of such opinion, such Canadian counsel shall assume that holders
of the Securities include holders who are not resident in Canada).
In the event that we exercise our option to effect a covenant defeasance
with respect to the Securities of any series and the Securities of that series
are thereafter declared due and payable because of the occurrence of another
Event of Default, the amount of money and securities on deposit with the
Trustee would be sufficient to pay the amounts due on the Securities of that
series at their respective stated maturities, but may not be sufficient to pay
the amounts due on the Securities of that series at the time of the
acceleration resulting from that Event of Default. However, we would remain
liable for this deficiency.
CONSENT TO SERVICE
We have designated CT Corporation System, 111 Eighth Avenue, 13th Floor,
New York, New York, 10011 as its authorized agent for service of process in the
United States in any action, suit or proceeding arising out of or relating to
the Indenture or the Securities and for actions brought under federal or state
securities law 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
The Indenture and the Securities will be governed by and construed in
accordance with the laws of the State of New York.
ENFORCEABILITY OF JUDGMENTS
We are incorporated and governed by the laws of Canada. A substantial
portion of our assets are located outside the United States and some or all of
the directors and officers and some or all of the experts named herein are
residents of Canada. As a result, it may be difficult for investors to effect
service within the United States upon us and upon those directors, officers and
experts, or to realize in the United States upon judgments of courts of the
United States predicated upon our civil liability and the civil liability of
our directors, officers or experts. We have also been advised by Macleod Dixon
LLP that there is some doubt as to the enforceability in Canada by a court in
original actions, or in actions to enforce judgments of United States courts,
of liabilities predicated upon United States federal securities laws.
-18-
PLAN OF DISTRIBUTION
We may sell the debt securities to or through underwriters or dealers. We
may also sell the debt securities to one or more other purchasers directly or
through agents.
The applicable prospectus supplement will set forth the terms of the
offering, including the name or names of any underwriters or agents, the
purchase price or prices of the debt securities to be offered, the proceeds to
us from the sale of the debt securities to be offered, any initial public
offering price, any underwriting discount or commission and any discounts,
concessions or commissions allowed or reallowed or paid by any underwriter to
other dealers. Any initial public offering price and any discounts, concessions
or commissions allowed or reallowed or paid to dealers may be changed from time
to time.
The debt securities may be sold from time to time in one or more
transactions at a fixed price or fixed prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to these
prevailing market prices or at negotiated prices.
If so indicated in the applicable prospectus supplement, we may authorize
dealers or other persons acting as our agents to solicit offers by certain
institutions to purchase the debt securities directly from us pursuant to
contracts providing for payment and delivery on a future date. These contracts
will be subject only to the conditions set forth in the applicable prospectus
supplement or supplements, which will also set forth the commission payable for
solicitation of these contracts.
Underwriters, dealers and agents who participate in the distribution of
the debt securities may be entitled under agreements to be entered into with us
to indemnification by us against certain liabilities, including liabilities
under the U.S. Securities Act of 1933, as amended, or to contribution with
respect to payments which those underwriters, dealers or agents may be required
to make in respect thereof. Those underwriters, dealers and agents may be
customers of, engage in transactions with or perform services for us in the
ordinary course of business.
Each series of the debt securities will be a new issue of securities with
no established trading market. Unless otherwise specified in an applicable
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. Some broker-dealers may make a market in the debt
securities, but they will not be obligated to do so and may discontinue any
market-making activities at any time without notice. No assurance can be given
as to the liquidity of the trading market for the debt securities of any series
or that an active public market for the debt securities of any series will
develop. If an active public trading market for the debt securities of any
series does not develop, the market price and liquidity of such series of debt
securities may be adversely affected.
EARNINGS COVERAGE
The following consolidated earnings coverage ratios of CPRL are
calculated for the twelve-month period ended December 31, 2006 based on audited
financial information and for the twelve-month period ended March 31, 2007
based on unaudited financial information. The ratios 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. These coverage ratios do not give effect to the
issuance of securities that may be issued pursuant to this prospectus and any
prospectus supplement, since the aggregate principal amounts and the terms of
such securities are not presently known.
Twelve Months Twelve Months
Ended Ended
December 31, March 31,
2006 2007
------------- -------------
Earnings coverage on long-term debt
Before foreign exchange on long-term debt (1)........ 5.7 5.7
After foreign exchange on long-term debt (2)......... 5.7 5.8
NOTES:
-19-
(1) Earnings coverage is equal to income (before foreign exchange on
long-term debt) before net interest expense and income tax expense
divided by net interest expense on all debt.
(2) Earnings coverage is equal to income (after foreign exchange on long-term
debt) before net interest expense and income tax expense divided by net
interest expense on all debt.
CPRL's net interest expense requirements amounted to approximately $194.5
million for the twelve-month period ended December 31, 2006 and approximately
$194.0 for the twelve-month period ended March 31, 2007. CPRL's earnings before
net interest expense and income tax expense for the twelve-month period ended
December 31, 2006 was approximately $1,100.7 million, which is 5.7 times CPRL's
net interest expense requirements for this period and for the twelve-month
period ended March 31, 2007 was approximately $1,120.2 million, which is 5.8
times CPRL's net interest expense requirements for this period.
If we offer debt securities having a term to maturity in excess of one
year under this prospectus and a prospectus supplement, the prospectus
supplement will include earnings coverage ratios giving effect to the issuance
of such securities.
CERTAIN INCOME TAX CONSIDERATIONS
The applicable prospectus supplement will describe the material Canadian
federal income tax consequences to investors of purchasing, owning and
disposing of debt securities, including, in the case of an investor who is not
a resident of Canada, whether payments of principal, premium, if any, and
interest 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 purchase, ownership and disposition of
the debt securities by an investor who is a United States person, including, to
the extent applicable, certain relevant U.S. federal income tax rules
pertaining to capital gains and ordinary income treatment, original issue
discount, backup withholding and the foreign tax credit, and any consequences
relating to debt securities payable in a currency other than U.S. dollars,
issued at an original discount for U.S. federal income tax purposes or
containing early redemption provisions or other special terms.
RISK FACTORS
IN ADDITION TO THE RISK FACTORS SET FORTH BELOW, ADDITIONAL RISK FACTORS
RELATING TO OUR BUSINESS ARE DISCUSSED IN OUR ANNUAL INFORMATION FORM AND OUR
MANAGEMENT'S DISCUSSION AND ANALYSIS, WHICH RISK FACTORS ARE INCORPORATED
HEREIN BY REFERENCE. PROSPECTIVE PURCHASERS OF THE DEBT SECURITIES SHOULD
CONSIDER CAREFULLY THE RISK FACTORS SET FORTH BELOW AND THOSE INCORPORATED BY
REFERENCE AS WELL AS THE OTHER INFORMATION CONTAINED IN AND INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND CONTAINED IN THE APPLICABLE PROSPECTUS
SUPPLEMENT BEFORE PURCHASING THE DEBT SECURITIES OFFERED HEREBY.
If any event arising from these risks occurs, our business, prospects,
financial condition, results of operations or cash flows, or your investment in
the debt securities could be materially adversely affected.
THERE CAN BE NO ASSURANCE AS TO THE LIQUIDITY OF THE TRADING MARKET FOR THE
DEBT SECURITIES OR THAT A TRADING MARKET FOR THE DEBT SECURITIES WILL DEVELOP.
There is no public market for the debt securities and, unless otherwise
specified in the applicable prospectus supplement, we do not intend to apply
for listing of the debt securities on any securities exchanges. If the debt
securities are traded after their initial issue, they may trade at a discount
from their initial offering prices depending on prevailing interest rates, the
market for similar securities and other factors, including general economic
conditions and our financial condition. There can be no assurance as to the
liquidity of the trading market for the debt securities or that a trading
market for the debt securities will develop.
CREDIT RATINGS MAY NOT REFLECT ALL RISKS OF AN INVESTMENT IN THE DEBT
SECURITIES AND MAY CHANGE.
-20-
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 DEBT SECURITIES WILL BE EFFECTIVELY SUBORDINATED TO CERTAIN INDEBTEDNESS OF
OUR CORPORATE AND PARTNERSHIP SUBSIDIARIES.
The debt securities will be our unsubordinated and unsecured obligation
and, unless otherwise provided with respect to a series of debt securities,
will rank equally with all of our other unsecured, unsubordinated obligations.
We conduct a substantial portion of our business through corporate and
partnership subsidiaries. Our obligations under the debt securities will be
structurally subordinate to all existing and future indebtedness and
liabilities, including trade payables, of any of our corporate and partnership
subsidiaries.
LEGAL MATTERS
Unless otherwise specified in the applicable prospectus supplement
relating to a series of debt securities, certain legal matters will be passed
upon for us by Macleod Dixon LLP, Calgary, Alberta, and 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 the underwriters,
dealers or agents by Shearman & Sterling LLP, Toronto, Ontario.
EXPERTS
The consolidated financial statements of CPRL incorporated in this
prospectus by reference have been so incorporated by reference in reliance on
the audit report of PricewaterhouseCoopers LLP, chartered accountants, given on
the authority of the said firm as experts in auditing and accounting.
DOCUMENTS FILED AS PART OF THE U.S. REGISTRATION STATEMENT
The following documents have been filed with the SEC as part of the
registration statement of which this prospectus is a part insofar as required
by the SEC's Form F-9:
o the documents listed in the third paragraph under "Where You Can
Find More Information" in this prospectus;
o the consents of accountants and counsel;
o powers of attorney;
o the form of trust indenture relating to the Offered Securities; and
o the statement of eligibility of the trustee on Form T-1.
-21-
CONSENT OF AUDITORS
We have read the short form base shelf prospectus of Canadian Pacific
Railway Company (the "Company") dated o, 2007 relating to the issue and sale of
debt securities in an aggregate principal amount of up to US$1,500,000,000 or
its equivalency in any other currency (the "prospectus"). We have complied with
Canadian generally accepted standards for an auditor's involvement with
offering documents.
We consent to the incorporation by reference in the above-mentioned
prospectus of our report to the shareholders of Canadian Pacific Railway
Limited ("CPRL") on the consolidated balance sheets of CPRL as at December 31,
2006 and 2005 and the consolidated statements of income, retained income and
cash flows for each of the years in the three-year period ended December 31,
2006. Our report is dated March 2, 2007.
o
Chartered Accountants
o, 2007
-22-
PART II
INFORMATION NOT REQUIRED TO BE
DELIVERED TO OFFEREES OR PURCHASERS
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 124 of the Canada Business Corporations Act provides as follows:
124. (1) Indemnification. A corporation may indemnify a director or officer
of the corporation, a former director or officer of the corporation or another
individual who acts or acted at the corporation's request as a director or
officer, or an individual acting in a similar capacity, of another entity,
against all costs, charges and expenses, including an amount paid to settle an
action or satisfy a judgment, reasonably incurred by the individual in respect
of any civil, criminal, administrative, investigative or other proceeding in
which the individual is involved because of that association with the
corporation or other entity.
(2) Advance of Costs. A corporation may advance moneys to a director, officer
or other individual for the costs, charges and expenses of a proceeding
referred to in subsection (1). The individual shall repay the moneys if the
individual does not fulfill the conditions of subsection (3).
(3) Limitation. A corporation may not indemnify an individual under
subsection (1) unless the individual
(a) acted honestly and in good faith with a view to the best interests
of the corporation, or, as the case may be, to the best interests
of the other entity for which the individual acted as director or
officer or in a similar capacity at the corporation's request; and
(b) 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 individual's conduct was
lawful.
(4) Indemnification in derivative actions. A corporation may with the
approval of a court, indemnify an individual referred to in subsection (1), or
advance moneys under subsection (2), in respect of an action by or on behalf of
the corporation or other entity to procure a judgment in its favour, to which
the individual is made a party because of the individual's association with the
corporation or other entity as described in subsection (1) against all costs,
charges and expenses reasonably incurred by the individual in connection with
such action, if the individual fulfills the conditions set out in subsection
(3).
(5) Right to indemnity. Despite subsection (1), an individual referred to in
that subsection is entitled to indemnity from the corporation in respect of all
costs, charges and expenses reasonably incurred by the individual in connection
with the defence of any civil, criminal, administrative, investigative or other
proceeding to which the individual is subject because of the individual's
association with the corporation or other entity as described in subsection
(1), if the individual seeking indemnity
(a) was 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; and
(b) fulfills the conditions set out in subsection (3).
(6) Insurance. A corporation may purchase and maintain insurance for the
benefit of an individual referred to in subsection (1) against any liability
incurred by the individual
(a) in the individual's capacity as a director or officer of the
corporation; or
(b) in the individual's capacity as a director or officer, or similar
capacity, of another entity, if the individual acts or acted in
that capacity at the corporation's request.
(7) Application to court. A corporation, an individual or an entity referred
to in subsection (1) may apply to a court for an order approving an indemnity
under this section and the court may so order and make any further order that
it sees fit.
(8) Notice to Director. An applicant under subsection (7) shall give the
Director notice of the application and the Director is entitled to appear and
be heard in person or by counsel.
(9) Other notice. On an application under subsection (7) the court may order
notice to be given to any interested person and the person is entitled to
appear and be heard in person or by counsel.
The by-laws of the Registrant provide that, subject to the limitations
contained in the CBCA, the Registrant shall indemnify a director or officer, a
former director or officer, or a person who acts or acted at the Registrant's
request as a director or officer of a body corporate of which the Registrant is
or was a shareholder or creditor, and his heirs and legal representatives
against all costs, charges and expenses, including an amount paid to settle an
action or satisfy a judgment, reasonably incurred by him in respect of any
civil, criminal or administrative action or proceeding to which he was made a
party by reason of being or having been a director or officer of the
corporation or such body corporate, if he acted honestly and in good faith with
a view to the best interests of the corporation, and in the case of a criminal
or administrative action or proceeding that is enforced by a monetary penalty,
he had reasonable grounds for believing that his conduct was lawful.
The Registrant has entered into indemnity agreements with persons who are or
have been directors or officers of the Registrant or who act or have acted, at
the specific written request of the Registrant, as directors or officers, or in
a similar capacity of another entity (including a partnership, trust, joint
venture or other unincorporated entity), to indemnify such person to the
fullest extent permitted by the CBCA or otherwise by law.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers or persons controlling the
Corporation pursuant to the foregoing provisions, the Corporation has been
informed that in the opinion of the U.S. 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 Canadian Pacific Railway Limited dated
March 2, 2007 (incorporated by reference to the Registrant's Annual
Report on Form 40-F filed with the Commission on March 30, 2007,
Commission File No. 001-15272).
4.2* Canadian Pacific Railway Limited's audited consolidated balance sheets
as at December 31, 2006 and 2005 and the consolidated statements of
income, retained income and cash flows for each of the three years in
the period ended December 31, 2006, together with the report of the
auditors thereon (incorporated by reference to the Registrant's
Current Report on Form 6-K filed with the Commission on March 30,
2007, Commission File No. 001-15272).
4.3* Canadian Pacific Railway Limited's Management's Discussion and
Analysis for the year ended December 31, 2006 (incorporated by
reference to the Registrant's Current Report on Form 6-K filed with
the Commission on March 30, 2007, Commission File No. 001-15272).
4.4* Canadian Pacific Railway Limited's management proxy circular dated
March 2, 2007 (incorporated by reference to the Registrant's Current
Report on Form 6-K filed with the Commission on March 30, 2007,
Commission File No. 001-15272).
4.5* Canadian Pacific Railway Limited's unaudited interim comparative
consolidated financial statements for the three months ended March 31,
2007 (incorporated by reference to the Registrant's Current Report on
Form 6-K, filed with the Commission on April 24, 2007, Commission File
No. 001-15272).
4.6* Canadian Pacific Railway Limited's Management's Discussion and
Analysis for the three months ended March 31, 2007 (incorporated by
reference to the Registrant's Current Report on Form 6-K, filed with
the Commission on April 24, 2007, Commission File No. 001-15272).
5.1** Consent of PricewaterhouseCoopers LLP.
5.2*** Consent of Macleod Dixon LLP.
6.1** Powers of Attorney (included on the signature page of this
Registration Statement).
7.1*** Form of Trust Indenture, between the Registrant and The Bank of New
York.
7.2*** Statement of Eligibility of the Trustee, The Bank of New York, on Form
T-1.
--------------------------
* Previously filed.
** Filed herewith.
*** To be filed by amendment.
II-3
PART III
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
ITEM 1. UNDERTAKING
The Registrant undertakes to make available, in person or by
telephone, representatives to respond to inquiries made by the Commission
staff, and to furnish promptly, when requested to do so by the Commission
staff, information relating to the securities registered pursuant to Form F-9
or to transactions in said securities.
ITEM 2. CONSENT TO SERVICE OF PROCESS
Concurrent with the filing of this Registration Statement on Form F-9,
the Registrant filed with the Commission a written irrevocable consent and
power of attorney on Form F-X.
Any change to the name or address of the agent for service of process
of the Registrant shall be communicated promptly to the Securities and Exchange
Commission by an amendment to the Form F-X referencing the file number of the
relevant registration statement.
III-1
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form F-9 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Calgary, Province of Alberta, Canada, on the 24th
day of April, 2007.
CANADIAN PACIFIC RAILWAY COMPANY
By: /s/ F. Green
----------------------------------
Name: F. Green
Title: President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Frederic J. Green, President and Chief
Executive Officer, Michael R. Lambert, Executive Vice President and Chief
Financial Officer, Paul A. Guthrie, Vice President, Legal Services, Brock
Winter, Senior Vice President, Operations and M.M. Szel, Senior Vice-President,
Marketing and Sales, or any of them, his or her true and lawful
attorneys-in-fact and agents, each of whom may act alone, with full powers of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any or all amendments to this
Registration Statement, including post-effective amendments, and any and all
additional registration statements (including amendments and post-effective
amendments thereto) in connection with any increase in the amount of debt
securities registered with the Securities and Exchange Commission, and to file
the same, with all exhibits thereto, and other documents and in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, and hereby ratifies and confirms all his or her said
attorneys-in-fact and agents or any of them or his or her substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
III-2
This Power of Attorney may be executed in multiple counterparts, each
of which shall be deemed an original, but which taken together shall constitute
one instrument.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
indicated on April 24, 2007.
SIGNATURE TITLE
--------- -----
/s/ F.J. Green President and Chief Executive Officer and
------------------------------ Director (Principal Executive Officer)
F.J. Green
/s/ M.R. Lambert Executive Vice President and Chief Financial
------------------------------ Officer (Principal Financial Officer)
M.R. Lambert
------------------------------ Director
S.E. Bachand
/s/ J.E. Cleghorn
------------------------------ Director
J.E. Cleghorn
/s/ T.W. Faithfull
------------------------------ Director
T.W. Faithfull
/s/ The Hon. J.P. Manley
------------------------------ Director
The Hon. J.P. Manley
------------------------------ Director
L.J. Morgan
/s/ James R. Nininger
------------------------------ Director
James R. Nininger
/s/ M. Paquin
------------------------------ Director
M. Paquin
------------------------------ Director
M.E.J. Phelps
III-3
/s/ R. Phillips
------------------------------ Director
R. Phillips
/s/ H.T. Richardson
------------------------------ Director
H.T. Richardson
/s/ M.W. Wright
------------------------------ Director
M.W. Wright
III-4
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of
1933, the undersigned has signed this Registration Statement, in the capacity
of the duly authorized representative of the Registrant in the United States,
on April 24, 2007.
SOO LINE CORPORATION
By: /s/ William M. Tuttle
----------------------------------
Name: William M. Tuttle
Title: Vice President Corporate
III-5
EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.1* The annual information form of Canadian Pacific Railway Limited dated
March 2, 2007 (incorporated by reference to the Registrant's Annual
Report on Form 40-F filed with the Commission on March 30, 2007,
Commission File No. 001-15272).
4.2* Canadian Pacific Railway Limited's audited consolidated balance sheets
as at December 31, 2006 and 2005 and the consolidated statements of
income, retained income and cash flows for each of the three years in
the period ended December 31, 2006, together with the report of the
auditors thereon (incorporated by reference to the Registrant's
Current Report on Form 6-K filed with the Commission on March 30,
2007, Commission File No. 001-15272).
4.3* Canadian Pacific Railway Limited's Management's Discussion and
Analysis for the year ended December 31, 2006 (incorporated by
reference to the Registrant's Current Report on Form 6-K filed with
the Commission on March 30, 2007, Commission File No. 001-15272).
4.4* Canadian Pacific Railway Limited's management proxy circular dated
March 2, 2007 (incorporated by reference to the Registrant's Current
Report on Form 6-K filed with the Commission on March 30, 2007,
Commission File No. 001-15272).
4.5* Canadian Pacific Railway Limited's unaudited interim comparative
consolidated financial statements for the three months ended March 31,
2007 (incorporated by reference to the Registrant's Current Report on
Form 6-K, filed with the Commission on April 24, 2007, Commission File
No. 001-15272).
4.6* Canadian Pacific Railway Limited's Management's Discussion and
Analysis for the three months ended March 31, 2007 (incorporated by
reference to the Registrant's Current Report on Form 6-K, filed with
the Commission on April 24, 2007, Commission File No. 001-15272).
5.1** Consent of PricewaterhouseCoopers LLP.
5.2*** Consent of Macleod Dixon LLP.
6.1** Powers of Attorney (included on the signature page of this
Registration Statement).
7.1*** Form of Trust Indenture, between the Registrant and The Bank of New
York.
7.2*** Statement of Eligibility of the Trustee, The Bank of New York, on Form
T-1.
--------------------------
* Previously filed.
** Filed herewith.
*** To be filed by amendment.
III-6