AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 16, 2005
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM F-10
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_______________________
TECK COMINCO LIMITED
(Exact Name of Registrant as Specified in its Charter)
CANADA 1021 NOT APPLICABLE
(Province or other jurisdiction (Primary Standard Industrial (I.R.S. Employer Identification No.,
of incorporation or organization) Classification Code Number) if applicable)
SUITE 600, 200 BURRARD STREET
VANCOUVER, BRITISH COLUMBIA, CANADA V6C 3L9
(604) 687-1117
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
CT CORPORATION SYSTEM
111 EIGHTH 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:
GEOFREY MYERS EDWIN S. MAYNARD CHRISTOPHER J. CUMMINGS
LANG MICHENER LLP PAUL, WEISS, RIFKIND, SHEARMAN & STERLING LLP
BCE PLACE, P.O. BOX 747 WHARTON & GARRISON LLP COMMERCE COURT WEST
SUITE 2500, 181 BAY STREET 1285 AVENUE OF THE AMERICAS 199 BAY STREET, SUITE 4405
TORONTO, ONTARIO, CANADA NEW YORK, NEW YORK P.O. BOX 247
M5J 2T7 10019-6064 TORONTO, ONTARIO, CANADA
(416) 360-8600 (212) 373-3000 M5L 1E8
(416) 360-8484
_______________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: From time to time after the effective date of this Registration
Statement.
PROVINCE OF BRITISH COLUMBIA, 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
- ----------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SECURITY(1) OFFERING PRICE(1) REGISTRATION FEE(2)
- ----------------------------------------------------------------------------------------------------------------
Class B Subordinate Voting Shares
Debt Securities
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Total....................... US$ 1,000,000,000 100% US$ 1,000,000,000 US$ 117,700
- ----------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of determining the registration fee. There
are being registered under this Registration Statement such indeterminate
number of Class B Subordinate Voting Shares of the Registrant and such
indeterminate principal amount of debt securities of the Registrant as
shall have an aggregate initial offering price not to exceed US$
1,000,000,000. If any debt securities are issued at an original issue
discount, then the securities registered shall include such additional debt
securities as may be necessary such that the aggregate initial public
offering price of all securities issued pursuant to this Registration
Statement will equal US$ 1,000,000,000. Any securities registered under
this Registration Statement may be sold separately or as units with other
securities registered under this Registration Statement. The proposed
maximum initial offering price per security will be determined, from time
to time, by the registrant in connection with the sale of the securities
registered under this Registration Statement.
(2) An aggregate of US$ 27,600 of the amount of the registration fee was
previously paid in connection with US$ 300,000,000 of unissued securities
of the US$ 500,000,000 of securities registered under Registration
Statement No. 333-92116 initially filed on July 3, 2002 by the registrant
(US$ 46,000 in fees paid), which unsold securities are hereby deregistered.
Accordingly, pursuant to Rule 457(p) of the General Rules and Regulations
under the Securities Act of 1933, as amended, US$ 27,600 is being offset
against the total registration fee due for this Registration Statement.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE AS PROVIDED IN RULE 467 UNDER THE SECURITIES
ACT OF 1933 OR ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A)
OF THE ACT, MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE UNITED
STATES SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT
AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PART I
INFORMATION REQUIRED TO BE DELIVERED
TO OFFEREES OR PURCHASERS
SUBJECT TO COMPLETION, DATED JUNE 16, 2005
BASE SHELF PROSPECTUS
THIS SHORT FORM PROSPECTUS IS REFERRED TO AS A SHORT FORM BASE SHELF PROSPECTUS
AND HAS BEEN FILED UNDER LEGISLATION IN THE PROVINCE OF BRITISH COLUMBIA THAT
PERMITS CERTAIN INFORMATION ABOUT THESE SECURITIES TO BE DETERMINED AFTER THIS
PROSPECTUS HAS BECOME FINAL AND THAT PERMITS THE OMISSION FROM THIS PROSPECTUS
OF THAT INFORMATION. THE LEGISLATION REQUIRES THE DELIVERY TO PURCHASERS OF A
PROSPECTUS SUPPLEMENT CONTAINING THE OMITTED INFORMATION WITHIN A SPECIFIED
PERIOD OF TIME AFTER AGREEING TO PURCHASE ANY OF THESE SECURITIES.
THIS SHORT FORM PROSPECTUS CONSTITUTES A PUBLIC OFFERING OF THESE SECURITIES
ONLY IN THOSE JURISDICTIONS WHERE THEY MAY BE LAWFULLY OFFERED FOR SALE AND
THEREIN ONLY BY PERSONS PERMITTED TO SELL SUCH SECURITIES. NO SECURITIES
REGULATORY AUTHORITY HAS EXPRESSED AN OPINION ABOUT THESE SECURITIES AND IT IS
AN OFFENCE TO CLAIM OTHERWISE. INFORMATION HAS BEEN INCORPORATED BY REFERENCE IN
THIS SHORT FORM 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 KAREN L. DUNFEE,
CORPORATE SECRETARY OF TECK COMINCO LIMITED AT SUITE 600, 200 BURRARD STREET,
VANCOUVER, BRITISH COLUMBIA V6C 3L9 (TELEPHONE: (604) 687-1117).
PRELIMINARY SHORT FORM PROSPECTUS
NEW ISSUE June 16, 2005
TECK COMINCO LIMITED
US$1,000,000,000
DEBT SECURITIES
CLASS B SUBORDINATE VOTING SHARES
Teck Cominco Limited ("Teck Cominco" or the "company") may from time to
time offer for sale debt securities or Class B subordinate voting shares
(collectively, the "securities") up to an aggregate initial offering price of
US$1,000,000,000 (or the equivalent in other currencies), during the 25 month
period that this prospectus, including any amendments hereto, remains valid. The
securities may be offered separately or together, in one or more series, in
amounts, at prices and on other terms to be determined based on market
conditions at the time of sale and set forth in an accompanying prospectus
supplement.
We will provide the specific terms of the securities in respect of
which this prospectus is being delivered (the "offered securities") and all
information omitted from this prospectus in supplements to this prospectus. You
should read this prospectus and any applicable prospectus supplement 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 OFFENSE.
WE ARE PERMITTED, UNDER A MULTIJURISDICTIONAL DISCLOSURE SYSTEM ADOPTED
BY THE UNITED STATES AND CANADA, TO PREPARE THIS PROSPECTUS IN ACCORDANCE WITH
CANADIAN DISCLOSURE REQUIREMENTS, WHICH ARE DIFFERENT FROM UNITED STATES
DISCLOSURE REQUIREMENTS. WE PREPARE OUR FINANCIAL STATEMENTS, WHICH ARE
INCORPORATED BY REFERENCE HEREIN, IN ACCORDANCE WITH CANADIAN GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES, AND THEY ARE SUBJECT TO CANADIAN AUDITING AND AUDITOR
INDEPENDENCE STANDARDS. AS A RESULT, THEY MAY NOT BE COMPARABLE TO FINANCIAL
STATEMENTS OF UNITED STATES COMPANIES.
OWNING THE SECURITIES MAY SUBJECT YOU TO TAX CONSEQUENCES BOTH IN THE
UNITED STATES AND CANADA. THIS PROSPECTUS OR ANY APPLICABLE PROSPECTUS
SUPPLEMENT MAY NOT DESCRIBE THESE TAX CONSEQUENCES FULLY. YOU
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SHOULD READ THE TAX DISCUSSION IN ANY APPLICABLE PROSPECTUS SUPPLEMENT AND
SHOULD CONSULT WITH YOUR OWN TAX ADVISOR WITH RESPECT TO YOUR OWN PARTICULAR
CIRCUMSTANCES.
YOUR ABILITY TO ENFORCE CIVIL LIABILITIES UNDER THE UNITED STATES
FEDERAL SECURITIES LAWS MAY BE AFFECTED ADVERSELY BECAUSE WE ARE INCORPORATED IN
CANADA, MOST OF OUR OFFICERS AND DIRECTORS AND SOME OF THE EXPERTS NAMED IN THIS
PROSPECTUS ARE NOT RESIDENTS OF THE UNITED STATES, AND MANY OF OUR ASSETS AND
ALL OR A SUBSTANTIAL PORTION OF THE ASSETS OF SUCH PERSONS ARE LOCATED OUTSIDE
OF THE UNITED STATES.
The company may sell the securities to or through underwriters or
dealers, and also may sell the securities to one or more other purchasers
directly or through agents. See "PLAN OF DISTRIBUTION". A prospectus supplement
will set forth the names of any underwriters, dealers or agents involved in the
sale of any offered securities and will set forth the terms of the offering of
the offered securities, including, to the extent applicable, the initial public
offering price, the proceeds to the company, the principal amounts, if any, to
be purchased by underwriters, the underwriting discounts or commissions, and any
other discounts or concessions to be allowed or reallowed to dealers.
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TABLE OF CONTENTS
ABOUT THIS PROSPECTUS..........................................................3
WHERE YOU CAN FIND MORE INFORMATION............................................4
FORWARD-LOOKING STATEMENTS.....................................................6
RISK FACTORS...................................................................8
THE COMPANY...................................................................11
USE OF PROCEEDS...............................................................12
INTEREST COVERAGE.............................................................12
DESCRIPTION OF SHARE CAPITAL..................................................13
DESCRIPTION OF DEBT SECURITIES................................................13
CERTAIN INCOME TAX CONSEQUENCES...............................................29
PLAN OF DISTRIBUTION..........................................................29
LEGAL MATTERS.................................................................30
EXPERTS.......................................................................31
DOCUMENTS FILED AS PART OF THE REGISTRATION STATEMENT.........................31
Except as set forth under "DESCRIPTION OF DEBT SECURITIES", and unless
the context otherwise requires, all references in this prospectus to the
"COMPANY", "WE", "US" and "OUR" refer to Teck Cominco Limited and its
subsidiaries and joint ventures.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form F-10
relating to the securities that we have filed with the United States Securities
and Exchange Commission (the "SEC"). Under the registration statement, we may,
from time to time, sell any combination of the securities described in this
prospectus in one or more offerings up to an aggregate initial offering price of
US$1,000,000,000. This prospectus provides you with a general description of the
securities that we may offer. Each time we sell securities under the
registration statement, we will provide a prospectus supplement that will
contain specific information about the terms of that offering of 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 the additional information
described under the heading "WHERE YOU CAN FIND MORE INFORMATION". This
prospectus does not contain all of the information set forth in the registration
statement, certain parts of which are omitted in accordance with the rules and
regulations of the SEC. You may refer to the registration statement and the
exhibits to the registration statement for further information with respect to
us and the securities.
The securities will not be qualified for sale under the securities laws
of Canada or any province or territory of Canada, unless the applicable
prospectus supplement indicates otherwise with respect to the offered
securities, and may not be offered or sold, directly or indirectly, in Canada or
to residents of Canada in contravention of the securities laws of any province
or territory of Canada. Each underwriter and each dealer participating in the
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distribution of offered securities will agree that, unless the applicable
prospectus supplement indicates otherwise, it will not, directly or indirectly,
offer, sell or deliver any such offered securities purchased by it in connection
with such distribution, in Canada or to residents of Canada in contravention of
the securities laws of any province or territory of Canada.
WHERE YOU CAN FIND MORE INFORMATION
We file with the British Columbia Securities Commission (the "BCSC"), a
commission of authority in the Province of British Columbia, Canada similar to
the SEC, and with the various securities commissions or similar authorities in
each of the provinces and territories of Canada, annual and quarterly reports,
material change reports and other information. We are subject to the
informational requirements of the United States Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and, in accordance with the Exchange Act, we
also file certain reports with and furnish other information to the SEC. Under a
multijurisdictional disclosure system adopted by the United States and Canada,
these reports and other information (including financial information) may be
prepared in accordance with the disclosure requirements of Canada, which differ
from those in the United States. You may read and copy any document we file with
or furnish to the SEC at the SEC's public reference room at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 or
contact them at WWW.SEC.GOV for further information on the public reference room
and copying charges.
Under the multijurisdictional disclosure system adopted by the United
States and Canada, the SEC and the BCSC allow us to "incorporate by reference"
certain information that we file with them, which means that we can disclose
important information to you by referring you to those documents. Information
that is incorporated by reference is an important part of this prospectus. The
following documents, filed by us with the various securities commissions or
similar authorities in each of the provinces and territories of Canada, are
specifically incorporated by reference in and form an integral part of this
prospectus:
(a) Annual Information Form of the company dated March 22, 2005
for the year ended December 31, 2004;
(b) Audited consolidated financial statements, and the related
notes thereto, of the company as at and for the years ended
December 31, 2004 and 2003 and the Auditors' Report thereon;
(c) Management's Discussion and Analysis of Financial Position and
Operating Results of the company for the year ended December
31, 2004;
(d) Management Proxy Circular dated March 4, 2005 for the
company's annual meeting of shareholders held on April 27,
2005 (other than the sections entitled "Statement of Corporate
Governance Practices", "Statement of Executive Compensation"
and "Share Performance Graph");
(e) Unaudited interim consolidated financial statements of the
company for the three months ended March 31, 2005 and 2004;
(f) Management's Discussion and Analysis of Financial Position and
Operating Results of the company for the three months ended
March 31, 2005 and March 31, 2004; and
(g) Supplementary Information Required under U.S. GAAP as at
December 31, 2004 and 2003 and for each of the years in the
three-year period ended December 31, 2004.
Any document of the type referred to in the preceding paragraph and in
material change reports (excluding confidential material change reports) and any
exhibits to unaudited interim consolidated financial statements which contain
up-dated interest coverage ratios filed by the company with a securities
commission or similar authority in Canada after the date of this prospectus and
prior to the termination of the offering will be deemed to be incorporated by
reference into this prospectus. These documents are available through the
Internet on the System for Electronic Document Analysis and Retrieval (SEDAR)
which can be accessed at WWW.SEDAR.COM. In addition,
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any report on Form 6-K or Form 40-F that we file with the SEC after the date of
this prospectus shall be deemed to be incorporated by reference into this
prospectus and the registration statement of which this prospectus forms a part,
if and to the extent expressly provided in such report.
Copies of the documents incorporated herein by reference may be
obtained on request without charge from Karen L. Dunfee, Corporate Secretary of
Teck Cominco Limited, Suite 600, 200 Burrard Street, Vancouver, British Columbia
V6C 3L9; telephone: (604) 687 1117.
ANY STATEMENT CONTAINED IN THIS PROSPECTUS OR IN A DOCUMENT
INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE IN THIS PROSPECTUS WILL
BE DEEMED TO BE MODIFIED OR SUPERSEDED FOR PURPOSES OF THIS PROSPECTUS TO THE
EXTENT THAT A STATEMENT CONTAINED IN THIS PROSPECTUS OR IN ANY SUBSEQUENTLY
FILED DOCUMENT THAT ALSO IS OR IS DEEMED TO BE INCORPORATED BY REFERENCE IN THIS
PROSPECTUS MODIFIES OR SUPERSEDES THAT STATEMENT. ANY STATEMENT SO MODIFIED OR
SUPERSEDED WILL NOT BE DEEMED, EXCEPT AS SO MODIFIED OR SUPERSEDED, TO
CONSTITUTE A PART OF THIS PROSPECTUS. THE MAKING OF A MODIFYING OR SUPERSEDING
STATEMENT WILL NOT BE DEEMED AN ADMISSION FOR ANY PURPOSES THAT THE MODIFIED OR
SUPERSEDED STATEMENT, WHEN MADE, CONSTITUTED A MISREPRESENTATION, AN UNTRUE
STATEMENT OF A MATERIAL FACT OR AN OMISSION TO STATE A MATERIAL FACT THAT IS
REQUIRED TO BE STATED OR THAT IS NECESSARY TO MAKE A STATEMENT NOT MISLEADING IN
LIGHT OF THE CIRCUMSTANCES IN WHICH IT WAS MADE.
Upon a new annual information form and the related annual consolidated
financial statements being filed by us with, and, where required, accepted by,
the appropriate securities regulatory authorities during the currency of this
prospectus, the previous annual information form, annual consolidated financial
statements and all interim consolidated financial statements, material change
reports, information circulars and all prospectus supplements filed by us prior
to the commencement of our fiscal year in which the new annual information form
is filed will be deemed no longer to be incorporated by reference into this
prospectus for purposes of future offers and sales of securities hereunder.
A prospectus supplement containing the specific terms in respect of any
offering and sale of securities, updated disclosure of interest coverage ratios,
if applicable, and other information in relation to such securities will be
delivered to purchasers of such securities together with this prospectus and
will be deemed to be incorporated into this prospectus as of the date of such
prospectus supplement, but only for purposes of the offering of such securities
by such prospectus supplement.
In this prospectus and any prospectus supplement, all references to
"dollars" or "$" are to Canadian dollars and all references to U.S. dollars and
US$ are to United States dollars. Unless otherwise indicated, all financial
information included or incorporated by reference in this prospectus or included
in any prospectus supplement is determined using Canadian generally accepted
accounting principles which are in effect from time to time. For a discussion of
the principal differences between our financial results as calculated under
Canadian generally accepted accounting principles and under U.S. generally
accepted accounting principles, you should refer to Note 20 of our audited
consolidated financial statements for the years ended December 31, 2004 and
2003, and to the Supplementary Information Required under U.S. GAAP as at
December 31, 2004 and 2003 and for each of the years in the three-year period
ended December 31, 2004 which are incorporated by reference in this prospectus.
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY APPLICABLE PROSPECTUS SUPPLEMENT AND ON THE
OTHER INFORMATION INCLUDED IN THE REGISTRATION STATEMENT OF WHICH THIS
PROSPECTUS FORMS A PART. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
DIFFERENT OR ADDITIONAL INFORMATION. WE ARE NOT MAKING AN OFFER OF THESE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER IS NOT PERMITTED BY LAW. YOU
SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED IN OR INCORPORATED BY REFERENCE
IN THIS PROSPECTUS OR ANY APPLICABLE PROSPECTUS SUPPLEMENT IS ACCURATE AS OF ANY
DATE OTHER THAN THE DATE ON THE FRONT OF THE APPLICABLE PROSPECTUS OR PROSPECTUS
SUPPLEMENT.
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FORWARD-LOOKING STATEMENTS
This prospectus, and the material incorporated by reference into this
prospectus, contain certain forward-looking statements within the meaning of the
United States Private Securities Litigation Reform Act of 1995. These
forward-looking statements include but are not limited to, statements
concerning:
o price volatility for zinc, copper, coal, gold and other primary
metals and minerals;
o the long-term demand for and supply of zinc, copper, coal, gold and
other primary metals and minerals;
o our premiums realized over London Metal Exchange cash and other
benchmark prices and the sensitivity of our financial results to
changes in metals and minerals prices;
o our strategies and objectives;
o our interest and other expenses;
o political unrest or instability in countries such as Peru and its
impact on our foreign assets, including our interest in the
Antamina copper, zinc mine;
o the timing of decisions regarding, the costs of construction and
production with respect to, and the issuance of the necessary
permits and other authorizations required for, certain of our
development and expansion projects, including, among others, the
Pogo Project;
o our estimates of the quantity and quality of our mineral reserves
and resources;
o our planned capital expenditures and our estimates of reclamation
and other costs related to environmental protection;
o our future capital and mine production costs and production levels,
including the costs and potential impact of complying with existing
and proposed environmental laws and regulations in the operation
and closure of various operations;
o our ability to secure adequate transportation for our products;
o our ability to procure mining equipment and operating supplies in
sufficient quantities and on a timely basis;
o the impact of changes in Canadian-U.S. dollar and other foreign
exchange rates on our costs and results;
o our cost reduction and other financial and operating objectives;
o our exploration initiatives as well as environmental, health and
safety initiatives;
o the negotiation of collective agreements with unionized employees;
o the outcome of legal proceedings in which we are involved;
o general business and economic conditions;
o the outcome of our coal price negotiations with customers; and
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o our dividend policy.
Inherent in forward-looking statements are risks and uncertainties
beyond our ability to predict or control. Actual results and developments are
likely to differ, and may differ materially, from those expressed or implied by
the forward-looking statements contained in, or incorporated by reference into,
this prospectus. Such statements are based on a number of assumptions which may
prove to be incorrect, including, but not limited to, assumptions about:
o general business and economic conditions;
o interest rates and foreign exchange rates;
o the supply and demand for, deliveries of, and the level and
volatility of prices of zinc, copper, coal and gold and our other
primary metals and minerals;
o the timing of the receipt of regulatory and governmental approvals
for our development projects and other operations;
o the availability of financing for our development projects on
reasonable terms;
o our costs of production and our production and productivity levels,
as well as those of our competitors;
o power prices;
o engineering and construction timetables and capital costs for our
development and expansion projects;
o costs of closure of various operations;
o market competition;
o risks involved in mining, processing, exploration and research and
development activities;
o the accuracy of our reserve estimates (including, with respect to
size, grade and recoverability) and the geological, operational and
price assumptions on which these are based;
o premiums realized over London Metal Exchange cash and other
benchmark prices;
o tax benefits;
o the outcome of our coal price negotiations with customers;
o the resolution of environmental and other proceedings; and
o our ongoing relations with our employees and with our business
partners and joint venturers.
We caution that the foregoing list of important factors is not
exhaustive. Events or circumstances could cause our actual results to differ
materially from those estimated or projected and expressed in, or implied by,
these forward looking statements. You should also carefully consider the matters
discussed under "RISK FACTORS" in this prospectus. We undertake no obligation to
update publicly or otherwise revise any forward-looking statements or the
foregoing list of factors, whether as a result of new information or future
events or otherwise.
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RISK FACTORS
BEFORE MAKING AN INVESTMENT DECISION, YOU SHOULD CAREFULLY CONSIDER THE
RISKS AND UNCERTAINTIES DESCRIBED BELOW AS WELL AS THE OTHER INFORMATION
CONTAINED AND INCORPORATED BY REFERENCE IN THIS PROSPECTUS. THESE RISKS AND
UNCERTAINTIES ARE NOT THE ONLY ONES FACING US. ADDITIONAL RISKS AND
UNCERTAINTIES NOT PRESENTLY KNOWN TO US OR THAT WE CURRENTLY CONSIDER IMMATERIAL
MAY ALSO IMPAIR OUR BUSINESS OPERATIONS. IF ANY OF SUCH RISKS ACTUALLY OCCUR,
OUR BUSINESS, PROSPECTS, FINANCIAL CONDITION, CASH FLOWS AND OPERATING RESULTS
COULD BE MATERIALLY HARMED.
RISKS INHERENT IN THE MINING AND METALS BUSINESS
The business of exploring for minerals is inherently risky. Few
properties that are explored are ultimately developed into producing mines.
Mineral properties are often non-productive for reasons that cannot be
anticipated in advance. Even after the commencement of mining operations, such
operations may be subject to risks and hazards, including environmental hazards,
industrial accidents, unusual or unexpected geological formations, unanticipated
metallurgical difficulties, ground control problems and flooding. The Trail
metallurgical operations, concentrate mills and coal preparation plants are also
subject to risks of process upsets and equipment malfunctions. Equipment and
supplies may from time to time be unavailable on a timely basis. The occurrence
of any of the foregoing could result in damage to or destruction of mineral
properties or production facilities, personal injuries, environmental damage,
delays or interruption of production, increases in production costs, monetary
losses, legal liability and adverse governmental action.
Our property, business interruption and liability insurance may not
provide sufficient coverage for losses related to these or other hazards.
Insurance against certain risks, including certain liabilities for environmental
pollution, may not be available to us or to other companies within the industry.
In addition, our insurance coverage may not continue to be available at
economically feasible premiums, or at all. Any such event could have a material
adverse affect on our business.
Approximately 4,400 of our approximately 6,900 employees are employed
under collective bargaining agreements. The collective bargaining agreements at
our Trail Metallurgical Operations and at the Line Creek Mine have expired, and
two other collective agreements are scheduled to expire within the next 12
months. While operations at Trail and Line Creek are continuing as the parties
are currently in the process of negotiating the renewal of these agreements, we
cannot assure you of the outcome of those negotiations. We could be subject to
labour unrest or other labour disturbances as a result of the failure of these
negotiations, or at our other operations, which could, while ongoing, have a
material adverse effect on our business.
COMMODITY PRICE FLUCTUATIONS AND HEDGING
The results of our operations are significantly affected by the market
price of base metals, specialty metals, metallurgical coal and gold which are
cyclical and subject to substantial price fluctuations. Our earnings are
particularly sensitive to changes in the market price of zinc and metallurgical
coal. Market prices can be affected by numerous factors beyond our control,
including levels of supply and demand for a broad range of industrial products,
expectations with respect to the rate of inflation, the relative strength of the
U.S. dollar and of certain other currencies, interest rates, global or regional
political or economic crises and sales of gold and base metals by holders in
response to such factors. If prices should decline below our cash costs of
production and remain at such levels for any sustained period, we could
determine that it is not economically feasible to continue commercial production
at any or all of our mines.
The objectives of our hedging programs are to reduce the risk of a
commodity's market price while optimizing upside participation, to maintain
adequate cash flows and profitability to contribute to the long-term viability
of our business. There are, however, risks associated with hedging programs
including, (among other things), an increase in the world price of the
commodity, an increase in gold lease rates (in the case of gold hedging), an
increase in interest rates, rising operating costs, counter-party risks and
production interruption events.
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Prices of diesel and electricity also fluctuate and these fluctuations affect
the costs of production at various operations.
We do not hedge our exposure to changes in the price of metallurgical
coal.
COMPETITION FOR MINING PROPERTIES
Because the life of a mine is limited by its ore reserves, we are
continually seeking to replace and expand our reserves through the exploration
of our existing properties as well as through acquisitions of interests in new
properties or of interests in companies which own such properties. We encounter
strong competition from other mining companies in connection with the
acquisition of properties. This competition may increase the cost of acquiring
suitable properties, should such properties become available to us.
FUTURE MARKET ACCESS
Access to our markets is subject to ongoing interruptions and trade
barriers due to policies and tariffs of individual countries, and the actions of
certain interest groups to restrict the import of certain commodities. Although
there are currently no significant trade barriers existing or impending of which
we are aware that do, or could, materially affect our access to certain markets,
there can be no assurance that our access to these markets will not be
restricted in the future.
MINERAL RESERVES AND RECOVERY ESTIMATES
Disclosed reserve estimates should not be interpreted as assurances of
mine life or of the profitability of current or future operations. We estimate
our mineral reserves in accordance with the requirements of the applicable
Canadian securities regulatory authorities and established mining standards.
The SEC does not permit mining companies in their filings with the SEC
to disclose estimates other than mineral reserves. However, because we prepare
this prospectus in accordance with Canadian disclosure requirements, this
prospectus incorporates estimates of mineral resources. Mineral resources are
concentrations or occurrences of minerals that are judged to have reasonable
prospects for economic extraction, but for which the economics of extraction
cannot be assessed, whether because of insufficiency of geological information
or lack of feasibility analysis, or for which economic extraction cannot be
justified at the time of reporting. Consequently, mineral resources are of a
higher risk and are less likely to be accurately estimated or recovered than
mineral reserves.
Our reserves and resources are estimated by persons who are employees
of the respective operating company for each of our operations under the
supervision of our employees. These individuals are not "independent" for
purposes of applicable securities legislation. We do not use outside sources to
verify reserves or resources. The mineral reserve and resource figures
incorporated in this prospectus are estimates based on the interpretation of
limited sampling and subjective judgments regarding the grade, continuity and
existence of mineralization, as well as the application of economic assumptions,
including assumptions as to operating costs, foreign exchange rates and future
metal prices. The sampling, interpretations or assumptions underlying any
reserve or resource estimate may be incorrect, and the impact on mineral
reserves or resources may be material. In addition, short term operating factors
relating to the mineral reserves, such as the need for orderly development of
ore bodies or the processing of new or different ores, may cause mineral reserve
estimates to be modified or operations to be unprofitable in any particular
fiscal period.
There can be no assurance that the indicated amount of minerals will be
recovered or that they will be recovered at the prices assumed for purposes of
estimating reserves.
CURRENCY FLUCTUATIONS
Our operating results and cash flow are affected by changes in the
Canadian dollar exchange rate relative to the currencies of other countries.
Exchange rate movements can have a significant
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impact on results as a significant portion of our operating costs are incurred
in Canadian and other currencies and most revenues are earned in U.S. dollars.
To reduce the exposure to currency fluctuations, we enter into limited foreign
exchange contracts from time to time, but such hedges do not eliminate the
potential that such fluctuations may have an adverse effect on us. In addition,
foreign exchange contracts expose us to the risk of default by the
counterparties to such contracts, which could have a material adverse effect on
our business.
INTEREST RATE RISK
Our exposure to changes in interest rates results from investing and
borrowing activities undertaken to manage our liquidity and capital
requirements. We have incurred indebtedness that bears interest at fixed and
floating rates, and we have entered into interest rate swap agreements to
effectively convert some fixed rate exposure to floating rate exposure. There
can be no assurance that we will not be materially adversely affected by
interest rate changes in the future. In addition, our use of interest rate swaps
exposes us to the risk of default by the counterparties to such arrangements.
Any such default could have a material adverse effect on our business.
ENVIRONMENT
Environmental legislation affects nearly all aspects of our operations.
Compliance with environmental legislation can require significant expenditures
and failure to comply with environmental legislation may result in the
imposition of fines and penalties, clean up costs arising out of contaminated
properties, damages and the loss of important permits. Exposure to these
liabilities arises not only from our existing operations, but from operations
that have been closed or sold to third parties. Our historical operations have
generated significant environmental contamination. There can be no assurances
that we will at all times be in compliance with all environmental regulations or
that steps to achieve compliance would not materially adversely affect our
business.
Environmental laws and regulations are evolving in all jurisdictions
where we have activities. We are not able to determine the specific impact that
future changes in environmental laws and regulations may have on our operations
and activities, and our resulting financial position; however, we anticipate
that capital expenditures and operating expenses will increase in the future as
a result of the implementation of new and increasingly stringent environment
regulation. Further changes in environmental laws, new information on existing
environmental conditions or other events, including legal proceedings based upon
such conditions or an inability to obtain necessary permits, could require
increased financial reserves or compliance expenditures or otherwise have a
material adverse effect on us. Changes in environmental legislation could also
have a material adverse effect on product demand, product quality and methods of
production and distribution.
ABORIGINAL TITLE CLAIMS
Recent Canadian jurisprudence requires governments to consult with
aboriginal peoples with respect to grants of mineral rights and the issuance or
amendment of project authorizations. This may affect our ability to acquire
within a reasonable time frame effective mineral titles in some parts of Canada,
particularly British Columbia, in which aboriginal title is claimed. The risk of
unforeseen aboriginal title claims also exists in foreign jurisdictions and also
could affect existing operations as well as development projects and future
acquisitions. These legal requirements may affect our ability to expand or
transfer existing operations or to develop new projects.
FOREIGN ACTIVITIES
Our business operates in a number of foreign countries where there are
added risks and uncertainties due to the different economic, cultural and
political environments. Some of these risks include nationalization and
expropriation, social unrest and political instability, uncertainties in
perfecting mineral titles, trade barriers and exchange controls and material
changes in taxation. Further, developing country status or an unfavorable
political climate may make it difficult for us to obtain financing for projects
in some countries.
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LEGAL PROCEEDINGS
The nature of our business subjects us to numerous regulatory
investigations, claims, lawsuits and other proceedings in the ordinary course of
our business. The results of these legal proceedings cannot be predicted with
certainty. There can be no assurances that these matters will not have a
material adverse effect on our business.
We are subject to two potentially material legal proceedings: a
citizens' suit brought by two members of the Colville Confederated Tribes to
enforce a universal administrative order issued by the U.S. Environmental
Protection Agency in relation to Lake Roosevelt; and a multi-jurisdictional,
industry-wide investigation by competition authorities involving major copper
concentrate producers, including HVC. These matters are described below.
The Colville suit was brought pursuant to Section 310(a)(i) of the U.S.
Superfund Statute (CERCLA) to enforce a unilateral administrative order issued
by the U.S. Environmental Protection Agency (EPA) purporting to require Teck
Cominco Metals to conduct a remedial investigation and feasibility study with
respect to metal contamination in the sediments of the Upper Columbia River and
Lake Roosevelt. The EPA issued the order shortly after breaking off negotiations
with Teck Cominco Metals during which Teck Cominco Metals offered to fund human
health and ecological studies, at an estimated cost of US$13 million, to address
the possible impact of historical discharges from the Trail Metallurgical
Operations in British Columbia. Both the Canadian government and the Company
have the view that the EPA does not have jurisdiction to apply U.S. law in
Canada. On November 11, 2004, the District Court for Eastern Washington State
denied a motion by Teck Cominco Metals to dismiss the suit for want of
jurisdiction. Teck Cominco Metals has petitioned for appeal of the decision to
the 9th Circuit Court of Appeal.
The Government of Canada and the Government of the United States are
continuing to pursue a bilateral agreement to facilitate the studies and
appropriate remediation to address environmental concerns about the area. Such
an agreement could provide a basis under which Teck Cominco Metal's offer of
funding for this work could be implemented.
There can be no assurance that the offer by Teck Cominco Metals to fund
the studies will resolve the matter, or that Teck Cominco Metal or its
affiliates will not be faced with liability in relation to this matter. Until
studies of the kind described above are completed, it is not possible to
estimate the extent and cost, if any, of remediation that may be required.
In an unrelated matter, Teck Cominco Metals, as the marketing agent for
HVC, has responded to an order issued by the Federal Court of Canada pursuant to
the Competition Act to produce documents relevant to the marketing of custom
copper concentrates. We understand that this is part of an ongoing industry-wide
investigation involving major copper concentrate producers commenced in Canada,
the United States and Europe to determine whether there is evidence of a cartel
agreement and related illegal practices concerning pricing, customer allocation
and market sharing in the copper concentrate sector. We have been advised by the
United States Department of Justice that it intends to close its investigation.
There can be no assurance that the investigation will not result in further
regulatory action against us or HVC in Canada or elsewhere or that we or HVC
will not face prosecution or liability under the Act or otherwise in relation to
the investigation. We can also offer no guidance or assurance as to the course
of the ongoing investigation or when the ongoing investigation will be
completed. We are cooperating in the continuing investigation.
THE COMPANY
Teck Cominco Limited was continued under the CANADA BUSINESS
CORPORATIONS ACT in 1978. The company's head and registered office is located at
Suite 600, 200 Burrard Street, Vancouver, British Columbia V6C 3L9.
Teck Cominco is engaged primarily in the exploration for, and the
development and production of, natural resources. We are a producer of zinc,
coal, copper, gold, lead, as well as various specialty metals such as germanium
and indium. We have interests in the following principal mining and processing
operations:
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OPERATION COMMODITY JURISDICTION
---------------------------------------------------------------------------------
Red Dog Zinc/Lead Alaska, USA
Pend Oreille Zinc/Lead Washington, USA
Trail Zinc/ Lead/Specialty Metals British Columbia, Canada
Elkview Coal British Columbia, Canada
Fording River Coal British Columbia, Canada
Greenhills Coal British Columbia, Canada
Coal Mountain Coal British Columbia, Canada
Line Creek Coal British Columbia, Canada
Cardinal River Coal Alberta, Canada
Antamina Copper/Zinc Peru
Highland Valley Copper/Molybdenum British Columbia, Canada
David Bell/Williams Gold Ontario, Canada
Our principal products are zinc concentrate, zinc metal, metallurgical
coal and copper concentrate.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we
will use the net proceeds from the sale of the securities to repay existing
indebtedness outstanding from time to time and for general corporate purposes.
We may invest funds that we do not immediately require in short-term marketable
securities.
INTEREST COVERAGE
Interest coverage ratios are included in this prospectus in accordance
with Canadian disclosure requirements. They have been calculated on a
consolidated basis using financial information prepared in accordance with
Canadian generally accepted accounting principles and do not give pro forma
effect to any offering of debt securities offered by this prospectus or to any
change in indebtedness subsequent to the dates indicated below. For purposes of
these calculations, reported net earnings have been increased by interest
expense, and income and mining taxes. The interest coverage ratio is equal to
net earnings, adjusted as described above, divided by interest expense. These
ratios do not purport to be indicative of interest coverage ratios for any
future period.
The interest coverage ratio for the twelve-month period ended December
31, 2004 was 16.1 times interest expense. For the twelve-month period ended
March 31, 2005, the interest coverage ratio was 19.6 times interest expense. Our
earnings for the twelve month periods ended December 31, 2004 and March 31, 2005
before interest expense, income and mining taxes, depreciation and amortization
amounted to approximately $1,258 million and $1,441 million, respectively, which
amounted to 20.6 times and 24.4 times our interest expense for those periods,
respectively.
The interest coverage ratios calculated above exclude the interest
charges relating to our exchangeable debentures due 2024. Our exchangeable
debentures due 2024 are classified as a component of shareholders' equity and
the interest, net of taxes, is charged directly to retained earnings. If our
exchangeable debentures due 2024 had been accounted for in their entirety as
debt for the purpose of calculating the above interest coverage ratios, the
entire amount of the interest charge would have been reflected in the
calculations.
If our exchangeable debentures due 2024 had been accounted for as debt,
the interest coverage ratio for the twelve-month period ended December 31, 2004
would have been 15.1. For the twelve month period ended March 31, 2005, the
interest coverage ratio would have been 18.3 times interest expense. In
addition, if our exchangeable debentures due 2024 had been accounted for as
debt, the interest coverage ratios for the twelve-month period ended December
31, 2004 and March 31, 2005, calculated based on earnings before interest
expense, income and mining taxes, depreciation and amortization would have
amounted to 19.3 times and 22.9 times our interest expense for those periods,
respectively.
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DESCRIPTION OF SHARE CAPITAL
We are authorized to issue an unlimited number of Class A common shares
and Class B subordinate voting shares and an unlimited number of preference
shares, issuable in series. As at March 4, 2005, there were issued and
outstanding, 4,673,453 Class A common shares, 197,249,091 Class B subordinate
voting shares and 790,000 Series 1 and 550,000 Series 2 preference shares.
Class A common shares carry the right to 100 votes per share. Class B
subordinate voting shares carry the right to one vote per share. Each Class A
common share is convertible, at the option of the holder, into one Class B
subordinate voting share. In all other respects, the Class A common shares and
Class B subordinate voting shares rank equally.
The attributes of the Class B subordinate voting shares contain so
called "coattail provisions" which provide that, in the event that an offer (an
"Exclusionary Offer") to purchase Class A common shares which is required to be
made to all or substantially all holders thereof, is not made concurrently with
an offer to purchase Class B subordinate voting shares on identical terms, then
each Class B subordinate voting share will be convertible into one Class A
common share. The Class B subordinate voting shares will not be convertible in
the event that an Exclusionary Offer is not accepted by holders of a majority of
the Class A common shares (excluding those shares held by the person making the
Exclusionary Offer). If an offer to purchase Class A common shares does not,
under applicable securities legislation or the requirements of any stock
exchange having jurisdiction, constitute a "take-over bid" or is otherwise
exempt from any requirement that such offer be made to all or substantially all
holders of Class A common shares, the coattail provisions will not apply.
The voting rights attached to Class B subordinate voting shares
represent 29.68% of the aggregate voting rights attached to the Class A common
shares and Class B subordinate voting shares.
On April 27, 2005, we announced that we would pay an increased dividend
of $0.40 per share on June 30, 2005 to holders of record of Class A common
shares and Class B subordinate voting shares on June 15, 2005. Subject to
changes in market conditions or our financial position, we contemplate paying a
similar dividend on December 31, 2005.
In November 2003, we issued 790,000 Series 1 and 550,000 Series 2
preference shares to replace certain preference shares issued by Teck Cominco
Metals. These shares entitle the holders to receive dividends and redemptions
based upon a rate of return index governed by world prices for lead and silver.
The rate of return index to date has been insufficient to trigger any dividend
or redemption. Based on foreseeable metal prices, these shares are expected to
expire in March 2006 without any dividends or redemptions.
DESCRIPTION OF DEBT SECURITIES
In this section, the words "company", "we", "us" and "our" refer only
to Teck Cominco Limited and not to any of our subsidiaries or joint ventures.
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 a prospectus supplement, and the extent to which the
general terms and provisions described below may apply thereto, will be
described in such prospectus supplement.
Unless otherwise specified in the applicable prospectus supplement, the
debt securities will be issued under the trust indenture (the "indenture") dated
as of September 12, 2002 entered into between the company and The Bank of New
York, as trustee (the "trustee"). A copy of the indenture has been filed with
the SEC as an exhibit to the registration statement of which this prospectus
forms a part. The following statements with respect to the indenture and the
debt securities are brief summaries of certain provisions of the indenture and
do not purport to be complete. For a more complete description, including the
definition of any terms used but not defined under this section, prospective
investors should refer to the indenture. Whenever we refer to particular
provisions of the indenture, those provisions are qualified in their entirety by
reference to the indenture.
We may from time to time issue debt securities and incur additional
indebtedness otherwise than through the offering of debt securities pursuant to
this prospectus.
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GENERAL
The indenture does not limit the aggregate principal amount of debt
securities (which may include debentures, notes or other evidences of
indebtedness) which may be issued thereunder. It provides that debt securities
may be issued from time to time in one or more series and may be denominated and
payable in foreign currencies, including composite currencies. Special Canadian
and United States federal income tax considerations applicable to any debt
securities so denominated will be described in the prospectus supplement
relating thereto. The debt securities offered pursuant to this prospectus will
be limited to US$1,000,000,000 (or the equivalent in other currencies) aggregate
principal amount. Unless otherwise indicated in the applicable prospectus
supplement, the indenture also permits the company to increase the principal
amount of any series of debt securities previously issued and to issue such
increased principal amount.
The terms of the debt securities we may offer may differ from the
general information provided below. In particular, certain covenants described
below may not apply to certain debt securities we may offer under the indenture.
We may issue debt securities with terms different from those of debt securities
previously issued under the indenture.
The applicable prospectus supplement will set forth the specific terms
relating to the debt securities of the series being offered and may include,
without limitation, any of the following:
o the specific designation of the offered securities;
o 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 per annum (which may be fixed or variable) at
which the offered securities will bear interest, if any, the date
or dates from which any such interest will accrue (or the method by
which such date or dates will be determined) and the dates on which
any such 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 or analogous
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 the option of
the company or otherwise;
o whether the offered securities will be issuable in whole or in part
in the form of one or more registered global securities
("registered global securities") and, if so, the identity of the
depositary for such registered global securities;
o the denominations in which registered debt securities ("registered
securities") will be issuable, if other than denominations of
US$1,000 and any integral multiple thereof;
o each place where the principal of and any premium and interest on
the offered securities will be payable and each place where the
offered securities may be presented for registration of transfer or
exchange;
15
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 any index formula or other method 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 whether and under what circumstances we will pay Additional Amounts
(as defined below under "- PAYMENT OF ADDITIONAL AMOUNTS") on the
offered securities 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 rather than pay the Additional
Amounts (and the terms of any such option);
o the terms and conditions, if any, on which the debt securities may
be convertible into or exchangeable for any other of our securities
or securities of other entities;
o whether the payment of the offered securities will be guaranteed by
any other person;
o whether the offered securities will have the benefit of any
security interest created pursuant to the terms of the indenture;
and
o any other terms of the offered securities, including covenants and
events of default which apply solely to the offered securities, or
any covenants or events of default generally applicable to the debt
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 debt securities to the
company for repurchase or provide for any increase in the rate or rates of
interest at which the debt securities will bear interest in the event we should
become involved in a highly leveraged transaction or in the event of a change in
control of the company.
Our debt securities may be issued under the indenture bearing no
interest or interest at a rate below the prevailing market rate at the time of
issuance, to be offered and sold at a discount below their stated principal
amount. The Canadian and United States federal income tax consequences and other
special considerations applicable to any such discounted debt securities or
other debt securities offered and sold at par which are treated as having been
issued at a discount for Canadian and/or United States federal income tax
purposes will be described in the prospectus supplement relating thereto.
Unless otherwise specified in the applicable prospectus supplement,
upon completion of an offering of debt securities ("offered debt securities"),
we will advance the proceeds of such offering to our subsidiary, Teck Cominco
Metals Ltd. ("Cominco"), and Cominco will issue us a note (a "Cominco note") in
the amount of such proceeds. The principal amount of such Cominco note, plus (i)
accrued and unpaid interest thereon at least equal to accrued and unpaid
interest on the applicable offered debt securities and (ii) other monetary
obligations payable pursuant to the Cominco note, will become due and payable on
demand by us or, upon an event of default under the indenture, on demand by us
or our assignee. Any Cominco notes issued will be pledged in favor of the
trustee for the benefit of the holders of the applicable offered debt
securities. A breach under the collateral documents relating to any such pledge
will be an event of default under the indenture. It will also be an event of
default under the indenture if at any time following the termination of the
collateral documents relating to any such pledge:
o Cominco or any successor thereto which has assumed Cominco's
obligations under any such pledge has been, for a period of not
less than 30 consecutive days, the primary obligor or guarantor
with respect to Indebtedness (as defined below under "- CERTAIN
COVENANTS") in an aggregate amount which exceeds 10% of
Consolidated Net Tangible Assets (as defined below under "- CERTAIN
COVENANTS");
o we have not, within such 30 day period, created a security interest
in favor of the trustee in another note or evidence of Indebtedness
issued to us by Cominco or such successor in the same principal
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amount and substantially similar to such collateral documents that
ranks equally and ratably with unsecured and unsubordinated
Indebtedness of Cominco or such successor; and
o on the 30th day of such 30 day period Cominco or such successor was
a Subsidiary (as defined below under "- Certain Covenants").
As a result, for so long as this intercompany arrangement and pledge
are in place, upon the occurrence of an event of default under the indenture,
the trustee on behalf of the holders of the applicable offered debt securities
will have the right to make a demand on the Cominco note and will have a claim
against Cominco in an amount equal to the amount due under the applicable
offered debt securities. Therefore, the applicable offered debt securities will
in effect rank equally and ratably with any unsecured and unsubordinated debt
issued or guaranteed by Cominco.
RANKING AND OTHER INDEBTEDNESS
Except as indicated herein or in the applicable prospectus supplement,
the debt securities will be unsecured obligations and will rank equally with all
of our other unsecured and unsubordinated Indebtedness from time to time
outstanding. The debt securities will be effectively subordinated to all
Indebtedness and other liabilities of our subsidiaries (other than those of
Cominco so long as the pledge of the Cominco note remains in place) and
subordinated to all secured Indebtedness and other secured liabilities of
Cominco to the extent of the assets securing such Indebtedness and other
liabilities. At March 31, 2005, the aggregate amount of the Indebtedness and
trade payables of our subsidiaries (other than Cominco) and the secured
Indebtedness of Cominco was approximately $73 million. In addition, Compania
Minera Antamina S.A., in which we have a 22.5% interest, had outstanding at
March 31, 2005, US$738 million of secured indebtedness and US$70 million of
trade payables and current taxes, our proportionate share of which is reflected
in our consolidated balance sheet. Elk Valley Coal Partnership, in which we have
a 39% partnership interest, has given an unsecured guarantee of up to $400
million of indebtedness of Fording Inc., which guarantee is limited in recourse
against us to the assets of Elk Valley Coal Partnership. The debt securities
will be effectively subordinated to the obligations of Elk Valley Coal
Partnership under this guarantee.
PLEDGE TERMINATION
Under the circumstances set forth below, we may terminate the pledge of
a Cominco note.
If we elect to terminate the pledge of a Cominco note, we are obligated
to notify each debt rating agency known to us which has assigned a rating to the
applicable offered debt securities and which is designated by the SEC as a
"Nationally Recognized Statistical Rating Organization" (a "Participating
NRSRO") and the trustee of our intention to exercise our option to terminate the
pledge of such Cominco note at least 45 days prior to the proposed date of such
termination (the "Release Date"). In order to effect the termination of the
pledge of a Cominco note, on the proposed Release Date we are obligated to
deliver to the trustee an officers' certificate stating that we have satisfied
each of the conditions listed below.
After delivery of such officers' certificate, we may, at our option and
without the consent of the holders of the applicable offered debt securities,
permanently terminate the pledge of a Cominco note, provided that at the time of
such termination:
o Cominco shall not be the primary obligor or guarantor with respect
to any Indebtedness, other than Indebtedness which in the aggregate
does not exceed an amount equal to 10% of Consolidated Net Tangible
Assets;
o the rating assigned to the applicable offered debt securities by at
least two Participating NRSRO's (or if there is only one
Participating NRSRO, by that one Participating NRSRO) is within one
of the ratings categories assigned by them designating "investment
grade" corporate debt securities;
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o at least two Participating NRSRO's (or if there is only one
Participating NRSRO, that one Participating NRSRO) have affirmed
that the rating assigned by them to the applicable offered debt
securities shall not be downgraded as a result of the termination
of the pledge, or notice thereof; and
o no default or event of default has occurred and is continuing under
the indenture.
FORM, DENOMINATION, EXCHANGE AND TRANSFER
Unless otherwise indicated in the applicable prospectus supplement, the
debt securities will be issued only in fully registered form without coupons and
in denominations of US$1,000 or any integral multiple thereof. Debt securities
may be presented for exchange and registered 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. The company has appointed the
trustee as security registrar.
PAYMENT
Unless otherwise indicated in the applicable prospectus supplement,
payment of the principal of and any premium and interest on registered
securities (other than registered global securities) will be made at the office
or agency of the trustee, at 101 Barclay Street, Floor 21 West, New York, New
York 10286, Attention: Global Finance Unit, to the persons in whose name such
registered securities are registered at the close of business on the regular
record date for such interest payment.
REGISTERED GLOBAL SECURITIES
The registered securities of a particular series may be issued in the
form of one or more registered global securities which will be registered in the
name of and be deposited with a depositary, or its nominee, each of which will
be identified in the prospectus supplement relating to such series. Unless and
until exchanged, in whole or in part, for debt securities in definitive
registered form, a registered global security may not be transferred except as a
whole by the depositary for such registered global security to a nominee of such
depositary, by a nominee of such depositary to such depositary or another
nominee of such depositary or by such depositary or any such nominee to a
successor of such depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any
portion of a particular series of debt securities to be represented by a
registered global security will be described in the prospectus supplement
relating to such series. The company anticipates that the following provisions
will apply to all depositary arrangements.
Upon the issuance of a registered global security, the depositary
therefor or its nominee will credit, on its book entry and registration system,
the respective principal amounts of the debt securities represented by such
registered global security to the accounts of such persons having accounts with
such depositary or its nominee ("participants") as will be designated by the
underwriters, investment dealers or agents participating in the distribution of
such debt securities, or by the company if such debt securities are offered and
sold directly by the company. Ownership of beneficial interests in a registered
global security will be limited to participants or persons that may hold
beneficial interests through participants. Ownership of beneficial interests in
a registered global security will be shown on, and the transfer of such
ownership will be effected only through, records maintained by the depositary
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).
So long as the depositary for a registered global security or its
nominee is the registered owner thereof, such depositary or such nominee, as the
case may be, will be considered the sole owner or holder of the debt securities
represented by such registered global security for all purposes under the
indenture. Except as provided below, owners of beneficial interests in a
registered global security will not be entitled to have debt securities of the
series represented by such registered global security registered in their names,
will not receive or be entitled to
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receive physical delivery of debt securities of such series in definitive form
and will not be considered the owners or holders thereof under the indenture.
Principal, premium, if any, and interest payments on a registered
global security registered in the name of a depositary or its nominee will be
made to such depositary or nominee, as the case may be, as the registered owner
of such registered global security. None of the company, the trustee or any
paying agent for debt securities of the series represented by such registered
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 such
registered global security or for maintaining, supervising or reviewing any
records relating to such beneficial interests.
We expect that the depositary for a registered 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 such
registered global security as shown on the records of such depositary or its
nominee. We also expect that payments by participants to owners of beneficial
interests in such registered global security held through such participants will
be governed by standing instructions and customary practices, as is now the case
with debt securities held for the accounts of customers registered in "street
name", and will be the responsibility of such participants.
If the depositary for a registered global security representing debt
securities of a particular series is at any time unwilling or unable to continue
as depositary or ceases to be a clearing agency registered under the Exchange
Act and no successor depositary is appointed within 90 days after we receive
notice or become aware of such condition, we will issue registered securities of
such series in definitive form in exchange for such registered global security.
In addition, we may at any time and in our sole discretion determine not to have
the debt securities of a particular series represented by one or more registered
global securities and, in such event, will issue registered securities of such
series in definitive form in exchange for all of the registered global
securities representing debt securities of such series.
CERTAIN COVENANTS
Set forth below is a summary of certain of the defined terms used in
the indenture. We urge you to read the indenture for the full definition of all
such terms.
"Attributable Debt" means as to any particular lease under which any
person is liable at the time as lessee, and at any date as of which the amount
thereof is to be determined, the total net amount of rent required to be paid by
such person under such lease during the remaining term thereof (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended), discounted from the respective due dates thereof to such
date at a rate per annum equivalent to the rate inherent in such lease (as
determined by our board of directors) compounded semi-annually, excluding
amounts required to be paid on account of or attributable to operating costs and
overhead charges and including, in certain circumstances, any termination
penalty in the case of a lease terminable by the lessee.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (1) all current liabilities (excluding any portion thereof
constituting Funded Debt); and (2) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other like intangibles, all
as set forth on the most recent consolidated balance sheet of Teck Cominco and
computed in accordance with GAAP.
"Funded Debt", means as applied to any person, all Indebtedness created
or assumed by such person maturing after, or renewable or extendable at the
option of such person beyond, 12 months from the date of creation thereof.
"GAAP" means generally accepted accounting principles in Canada in
effect from time to time, unless the person's most recent audited or quarterly
financial statements are not prepared in accordance with generally accepted
accounting principles in Canada, in which case "GAAP" will mean generally
accepted accounting principles in the United States in effect from time to time.
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"Indebtedness" means all obligations for borrowed money represented by
notes, bonds, debentures or similar evidence of indebtedness and obligations for
borrowed money evidenced by credit, loan or other like agreements.
"Mortgage" means any mortgage, deed of trust, pledge, hypothec, lien,
encumbrance, charge or security interest of any kind.
"person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Principal Property" means the interest of Teck Cominco or any
Restricted Subsidiary in (1) the property located near Marathon, Ontario,
Canada, known as the "Williams mine", the property located near Marathon,
Ontario, Canada, known as the "David Bell mine", the property located near
Kamloops, British Columbia, Canada, known as the "Highland Valley copper mine"
and the property located near Kotzebue, Alaska, U.S.A., known as the "Red Dog
mine"; and (2) any (a) mineral property or (b) manufacturing or processing
plant, building, structure, dam or other facility, together with the land upon
which it is erected and fixtures comprising a part thereof, whether owned as of
the date of the indenture or thereafter acquired or constructed by Teck Cominco
or any Restricted Subsidiary, which, in the case of the items enumerated in each
of 2(a) and 2(b) above, is located in Canada or the United States or its
territories or possessions, the net book value of which interest, in each case,
on the date as of which the determination is being made, is an amount which
exceeds 10% of Consolidated Net Tangible Assets, except any such mineral
property, plant, building, structure, dam or other facility or any portion
thereof, together with the land upon which it is erected and fixtures comprising
a part thereof, (i) acquired or constructed principally for the purpose of
controlling or abating atmospheric pollutants or contaminants, or water, noise,
odor or other pollution or (ii) which the board of directors of Teck Cominco by
resolution declares is not of material importance to the total business
conducted by Teck Cominco and its Restricted Subsidiaries considered as one
enterprise.
"Restricted Subsidiary" means (1) any Subsidiary (a) substantially all
of the property of which is located, or substantially all of the business of
which is carried on, within Canada or the United States or its territories or
possessions; and (b) which owns or leases a Principal Property; and (2) any
Subsidiary engaged primarily in the business of owning or holding securities of
Restricted Subsidiaries; provided that the term "Restricted Subsidiary" will not
include any Subsidiary the principal assets of which are stock or Indebtedness
of persons which conduct substantially all of their business outside Canada or
the United States or its territories or possessions.
"Sale and Leaseback Transactions" mean any arrangement with a bank,
insurance company or other lender or investor (other than Teck Cominco or a
Restricted Subsidiary) providing for the leasing by Teck Cominco or any such
Restricted Subsidiary of any Principal Property which has been or is to be sold
or transferred, more than 120 days after the later of the acquisition,
completion of construction or commencement of full operation thereof by Teck
Cominco or such Restricted Subsidiary to such lender or investor or to any
person to whom funds have been or are to be advanced by such lender or investor
on the security of such Principal Property.
"Shareholders' Equity" means the aggregate amount of shareholders'
equity of Teck Cominco as shown on the most recent audited annual consolidated
balance sheet of Teck Cominco and computed in accordance with GAAP.
"Subsidiary" means, at any relevant time, any person of which the
voting shares or other interests carrying more than 50% of the outstanding
voting rights attached to all outstanding voting shares or other interests are
owned, directly or indirectly, by or for Teck Cominco and/or one or more
Subsidiaries of Teck Cominco.
NEGATIVE PLEDGE
We have covenanted under the indenture that for so long as any of our
debt securities under the indenture are outstanding, and subject to the
provisions of the indenture, we will not, and we will not permit any Restricted
Subsidiary to, create, incur, issue, assume or otherwise have outstanding any
Mortgage on or over any Principal Property now owned or hereafter acquired by
Teck Cominco or a Restricted Subsidiary to secure any Indebtedness,
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or on shares of stock or Indebtedness of any Restricted Subsidiary now owned or
hereafter acquired by Teck Cominco or a Restricted Subsidiary to secure any
Indebtedness, unless at the time thereof or prior thereto the debt securities
then outstanding under the indenture (together with, if and to the extent we so
determine, any other Indebtedness then existing or thereafter created) are
secured equally and rateably with (or prior to) any and all such Indebtedness
for so long as such Indebtedness is so secured by such Mortgage; PROVIDED,
HOWEVER, such negative pledge will not apply to or operate to prevent or
restrict the following permitted encumbrances:
(1) any Mortgage on property, shares of stock or Indebtedness of any
person existing at the time such person becomes a Restricted
Subsidiary or created, incurred, issued or assumed in connection
with the acquisition of any such person;
(2) any Mortgage on any Principal Property created, incurred, issued
or assumed at or prior to the time such property became a
Principal Property or existing at the time of acquisition of such
Principal Property by Teck Cominco or a Restricted Subsidiary,
whether or not assumed by Teck Cominco or such Restricted
Subsidiary; PROVIDED that no such Mortgage will extend to any
other Principal Property of Teck Cominco or any Restricted
Subsidiary;
(3) any Mortgage on all or any part of any Principal Property
(including any improvements or additions to improvements on a
Principal Property) hereafter acquired, developed, expanded or
constructed by Teck Cominco or any Restricted Subsidiary to secure
the payment of all or any part of the purchase price, cost of
acquisition or cost of development, expansion or construction of
such Principal Property or of improvements or additions to
improvements thereon (or to secure any Indebtedness incurred by
Teck Cominco or a Restricted Subsidiary for the purpose of
financing all or any part of the purchase price, cost of
acquisition or cost of development, expansion or construction
thereof or of improvements or additions to improvements thereon)
created prior to, at the time of, or within 360 days after the
later of, the acquisition, development, expansion or completion of
construction (including construction of improvements or additions
to improvements thereon), or commencement of full operation of
such Principal Property; PROVIDED that no such Mortgage will
extend to any other Principal Property of Teck Cominco or a
Restricted Subsidiary other than, in the case of any such
construction, improvement, development, expansion or addition to
improvement, all or any part of any other Principal Property on
which the Principal Property so constructed, developed or
expanded, or the improvement or addition to improvement, is
located;
(4) any Mortgage on any Principal Property of any Restricted
Subsidiary to secure Indebtedness owing by it to Teck Cominco or
to another Restricted Subsidiary;
(5) any Mortgage on any Principal Property of Teck Cominco to secure
Indebtedness owing by it to a Restricted Subsidiary;
(6) any Mortgage on any Principal Property or other assets of Teck
Cominco or any Restricted Subsidiary existing on the date of the
indenture, or arising thereafter pursuant to contractual
commitments entered into prior to the date of the indenture;
(7) any Mortgage on any Principal Property or other assets of Teck
Cominco or any Restricted Subsidiary created for the sole purpose
of extending, renewing, altering or refunding any of the foregoing
Mortgages, PROVIDED that the Indebtedness secured thereby will not
exceed the principal amount of Indebtedness so secured at the time
of such extension, renewal, alteration or refunding, plus an
amount necessary to pay fees and expenses, including premiums,
related to such extensions, renewals, alterations or refundings,
and that such extension, renewal, alteration or refunding Mortgage
will be limited to all or any part of the same Principal Property
and improvements and additions to improvements thereon and/or
shares of stock and Indebtedness of a Restricted Subsidiary which
secured the Mortgage extended, renewed, altered or refunded or
either of such property or shares of stock or Indebtedness; or
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(8) any Mortgage on any Principal Property or on any shares of stock
or Indebtedness of any Restricted Subsidiary created, incurred,
issued or assumed to secure Indebtedness of Teck Cominco or any
Restricted Subsidiary, which would otherwise be subject to the
foregoing restrictions, in an aggregate amount which, together
with the aggregate principal amount of other Indebtedness secured
by Mortgages on any Principal Property or on any shares of stock
or Indebtedness of any Restricted Subsidiary then outstanding
(excluding Indebtedness secured by Mortgages permitted under the
foregoing exceptions) and the Attributable Debt in respect of all
Sale and Leaseback Transactions entered into after the date of the
indenture (not including Attributable Debt in respect of any such
Sale and Leaseback Transactions the proceeds of which are applied
as set forth below under "- LIMITATION ON SALE AND LEASEBACK
TRANSACTIONS") would not then exceed 10% of Consolidated Net
Tangible Assets.
For purposes of the foregoing and the covenant below entitled "-
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS", the giving of a guarantee which
is secured by a Mortgage on a Principal Property or on shares of stock or
Indebtedness of any Restricted Subsidiary, and the creation of a Mortgage on a
Principal Property or on shares of stock or Indebtedness of any Restricted
Subsidiary to secure Indebtedness which existed prior to the creation of such
Mortgage, will be deemed to involve the creation of Indebtedness in an amount
equal to the principal amount guaranteed or secured by such Mortgage but the
amount of Indebtedness secured by Mortgages on any Principal Property and shares
of stock and Indebtedness of Restricted Subsidiaries will be computed without
cumulating the underlying Indebtedness with any guarantee thereof or Mortgage
securing the same.
The following types of transactions will not be deemed to be Mortgages
securing Indebtedness: any acquisition by Teck Cominco or any Restricted
Subsidiary of any property or assets subject to any reservation or exception
under the terms of which any vendor, lessor or assignor creates, reserves or
excepts or has created, reserved or excepted an interest in base metals,
precious metals, oil, gas or any other mineral or timber in place or the
proceeds thereof; any conveyance or assignment whereby Teck Cominco or any
Restricted Subsidiary conveys or assigns to any person or persons an interest in
base metals, precious metals, oil, gas or any other mineral or timber in place
or the proceeds thereof; or any Mortgage upon any property or assets owned or
leased by Teck Cominco or any Restricted Subsidiary or in which Teck Cominco or
any Restricted Subsidiary owns an interest to secure to the person or persons
paying the expenses of developing or conducting operations for the recovery,
storage, transportation or sale of the mineral resources of the said property
(or property with which it is utilized) the payment to such person or persons of
Teck Cominco's or the Restricted Subsidiary's proportionate part of such
development or operating expense; provided that such Mortgage does not extend
beyond such property or assets and that the principal amount of any Indebtedness
secured thereby does not exceed the amount of such expenses.
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
Sale and Leaseback Transactions by Teck Cominco or any Restricted
Subsidiary of any Principal Property are prohibited by the indenture unless (1)
such transaction involves a lease or right to possession or use for a temporary
period not to exceed three years following such transaction, by the end of which
it is intended that the use of such property by the lessee will be discontinued;
or (2) immediately prior to the entering into of such transaction, Teck Cominco
or such Restricted Subsidiary could create a Mortgage on such Principal Property
securing Indebtedness in an amount equal to the Attributable Debt with respect
to the particular Sale and Leaseback Transaction; or (3) the proceeds of such
transaction (a) are equal to or greater than the fair market value (as
determined by our board of directors) of the Principal Property so sold and
leased back at the time of entering into such Sale and Leaseback Transaction and
(b) within 180 days after such transaction, are applied to either the payment of
all or any part of the purchase price, cost of acquisition, cost of development,
cost of expansion or cost of construction of a Principal Property or cost of
improvements or additions to improvements thereon or the prepayment (other than
mandatory prepayment) of Funded Debt of Teck Cominco or a Restricted Subsidiary
(other than Funded Debt held by Teck Cominco or any Restricted Subsidiary).
CONSOLIDATION, AMALGAMATION AND MERGER AND SALE OF ASSETS
We may not consolidate or amalgamate with or merge into or enter into
any statutory arrangement with any other person, or, directly or indirectly,
convey, transfer or lease all or substantially all our properties and assets to
any person, unless:
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o the person formed by or continuing from such consolidation or
amalgamation or into which we are merged or with which we enter
into such statutory arrangement or the person which acquires or
leases all or substantially all of our properties and assets is
organized and existing under the laws of the United States, any
state thereof or the District of Columbia or the laws of Canada or
any province or territory thereof, or, if such consolidation,
amalgamation, merger, statutory arrangement or other transaction
would not impair the rights of the holders of the debt securities
under the indenture, in any other country, provided that if such
successor person is organized under the laws of a jurisdiction
other than the United States, any state thereof or the District of
Columbia, or the laws of Canada or any province or territory
thereof, the successor person assumes our obligations under the
debt securities and the indenture to pay Additional Amounts (as
defined below under "- PAYMENT OF ADDITIONAL AMOUNTS"), and, in
connection therewith, for purposes of the provisions described in
"- PAYMENT OF ADDITIONAL AMOUNTS" and "- TAX REDEMPTION" below,
the name of such successor jurisdiction is added with Canada in
each place that Canada appears therein;
o the successor person expressly assumes or assumes by operation of
law all of our obligations under our debt securities and under the
indenture;
o immediately before and after giving effect to such transaction, no
event of default and no event which, after notice or lapse of time
or both, would become an event of default, will have happened and
be continuing; and
o certain other conditions are met.
If, as a result of any such transaction, any of our Principal
Properties become subject to a Mortgage, then, unless such Mortgage could be
created pursuant to the indenture provisions described under "- NEGATIVE PLEDGE"
above without equally and ratably securing our debt securities, we,
simultaneously with or prior to such transaction, will cause our debt securities
to be secured equally and ratably with or prior to the Indebtedness secured by
such Mortgage.
PAYMENT OF ADDITIONAL AMOUNTS
Unless otherwise specified in the applicable prospectus supplement, all
payments made by or on behalf of us under or with respect to any series of our
debt securities issued under the indenture will be made free and clear of and
without withholding or deduction for or on account of any present or future tax,
duty, levy, impost, assessment or other governmental charge (including
penalties, interest and other liabilities related thereto) imposed or levied by
or on behalf of the Government of Canada or any province or territory thereof or
by any authority or agency therein or thereof having power to tax (hereinafter
"Canadian Taxes"), unless we are required to withhold or deduct Canadian Taxes
by law or by the interpretation or administration thereof by the relevant
government authority or agency. 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 issued under the indenture, we will pay to each
holder of such debt securities as additional interest such additional amounts
("Additional Amounts") as may be necessary so that the net amount received by
each such holder after such withholding or deduction (and after deducting any
Canadian Taxes on such Additional Amounts) will not be less than the amount such
holder would have received if such Canadian Taxes had not been withheld or
deducted. However, no Additional Amounts will be payable with respect to a
payment made to a debt securities holder (such holder, an "Excluded Holder"):
o with which we do not deal at arm's length (for the purposes of the
INCOME TAX ACT (Canada)) at the time of the making of such
payment;
o which is subject to such Canadian Taxes by reason of the debt
securities holder being a resident, domicile or national of, or
engaged in business or maintaining a permanent establishment or
other physical presence in or otherwise having some connection
with Canada or any province or territory thereof otherwise than by
the mere holding of the debt securities or the receipt of payments
thereunder;
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o which is subject to such Canadian Taxes by reason of the debt
securities holder's failure to comply with any certification,
identification, documentation or other reporting requirements if
compliance is required by law, regulation, administrative practice
or an applicable treaty as a precondition to exemption from, or a
reduction in the rate of deduction or withholding of, such
Canadian Taxes; or
o which is subject to such Canadian Taxes because the debt
securities holder is not entitled to the benefit of an applicable
treaty by reason of the legal nature of such holder.
We will also:
o make such withholding or deduction; and
o remit the full amount deducted or withheld to the relevant
authority in accordance with applicable law.
We will furnish to the holders of the debt securities, within 60 days
after the date the payment of any Canadian Taxes is due pursuant to applicable
law, certified copies of tax receipts or other documents evidencing such payment
by us.
We will indemnify and hold harmless each holder of debt securities
(other than an Excluded Holder) and upon written request reimburse each such
holder for the amount (excluding any Additional Amounts that have previously
been paid by us) of:
o 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;
o any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto; and
o any Canadian Taxes imposed with respect to any reimbursement under
the preceding two bullet points, but excluding any such Canadian
Taxes on such holder's net income.
Wherever in the indenture there is mentioned, in any context, the
payment of principal (and premium, if any), interest, if any, or any other
amount payable under or with respect to a debt security, such mention will be
deemed to include mention of the payment of Additional Amounts to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof.
TAX REDEMPTION
Unless otherwise specified in the applicable prospectus supplement, a
series of our debt securities will be subject to redemption at any time, in
whole but not in part, at a redemption price equal to the principal amount
thereof together with accrued and unpaid interest to the date fixed for
redemption, upon the giving of a notice as described below, if we determine
that:
o as a result of any change in or amendment to the laws (or any
regulations or rulings promulgated thereunder) of Canada or of any
political subdivision or taxing authority thereof or therein
affecting taxation, or any change in official position regarding
the application or interpretation of such laws, regulations or
rulings by any legislative body, court, governmental agency or
regulatory authority (including a holding by a court of competent
jurisdiction), which change or amendment is announced or becomes
effective on or after the date of this prospectus, we have or will
become obligated to pay, on the next succeeding date on which
interest is due, Additional Amounts; or
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o on or after the date of this prospectus, any action has been taken
by any taxing authority of, or any decision has been rendered by a
court of competent jurisdiction in, Canada or any political
subdivision or taxing authority thereof or therein, including any
of those actions specified in the paragraph immediately above,
whether or not such action was taken or decision was rendered with
respect to us, or any change, amendment, application or
interpretation will be officially proposed, which, in any such
case, in the written opinion of our legal counsel, will result in
our becoming obligated to pay, on the next succeeding date on
which interest is due, Additional Amounts with respect to any debt
security of such series,
and, in any such case, we, in our business judgment, determine that such
obligation cannot be avoided by the use of reasonable measures available to us.
In the event that we elect to redeem a series of our debt securities
pursuant to the provisions set forth in the preceding paragraph, we will deliver
to the trustee an officers' certificate, signed by two authorized officers,
stating that we are entitled to redeem such series of our debt securities
pursuant to their terms.
Notice of intention to redeem such series of our debt securities will
be given not more than 60 nor less than 30 days prior to the date fixed for
redemption and will specify the date fixed for redemption.
PROVISION OF FINANCIAL INFORMATION
We will file with the trustee, within 15 days after we file them with
the SEC, copies, which may be in electronic format, of our annual report and of
the information, documents and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) which we are
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. Notwithstanding that we may not be required to remain subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise
report on an annual and quarterly basis on forms provided for such annual and
quarterly reporting pursuant to rules and regulations promulgated by the SEC, we
will continue to provide the trustee:
o within 140 days after the end of each fiscal year, the information
required to be contained in annual reports on Form 20-F, Form 40-F
or Form 10-K as applicable (or any successor form); and
o within 60 days after the end of each of the first three fiscal
quarters of each fiscal year, the information required to be
contained in reports on Form 6-K (or any successor form) which,
regardless of applicable requirements 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 corporation with securities listed on the Toronto
Stock Exchange, whether or not we have any of our securities
listed on such exchange.
Such information will be prepared in accordance with Canadian disclosure
requirements and GAAP; PROVIDED, HOWEVER, that we will not be obligated to file
such report with the SEC if the SEC does not permit such filings.
EVENTS OF DEFAULT
The following are summaries of events of default under the indenture
with respect to debt securities of any series:
o default in the payment of any interest on any debt securities of
that series when such interest becomes due and payable, and such
default is continued for 30 days;
o default in the payment of the principal of (or premium, if any,
on) any debt securities of that series when it becomes due and
payable;
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o default in the performance, or breach, of any of the covenants of
the company in the indenture in respect of the debt securities of
that series and described above under "- CONSOLIDATION,
AMALGAMATION AND MERGER AND SALE OF ASSETS";
o default in the performance, or breach, of any other covenant of
the company in the indenture in respect of the debt securities of
that series, and such default or breach is continued for 60 days
after written notice to us as provided in the indenture;
o if an event of default (as defined in any indenture or instrument
under which we or one of our Restricted Subsidiaries has at the
time of the indenture or will thereafter have outstanding any
Indebtedness) has occurred and is continuing, or Teck Cominco or
any Restricted Subsidiary has failed to pay principal amounts with
respect to such Indebtedness at maturity and such event of default
or failure to pay has resulted in Indebtedness under such
indentures or instruments being declared due, payable or otherwise
being accelerated, in either event so that an amount in excess of
the greater of US$50,000,000 and 2% of our Shareholders' Equity
will be or become due, payable and accelerated upon such
declaration or prior to the date on which the same would otherwise
have become due, payable and accelerated (the "accelerated
indebtedness"), and such acceleration will not be rescinded or
annulled, or such event of default or failure to pay under such
indenture or instrument will not be remedied or cured, whether by
payment or otherwise, or waived by the holders of such accelerated
indebtedness, then (i) if the accelerated indebtedness will be as
a result of an event of default which is not related to the
failure to pay principal or interest on the terms, at the times,
and on the conditions set out in any such indenture or instrument,
it will not be considered an event of default for purposes of the
indenture governing our debt securities until 30 days after such
Indebtedness has been accelerated, or (ii) if the accelerated
indebtedness will 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 our Restricted
Subsidiaries, it will not be considered an event of default for
purposes of the indenture governing our debt securities; or (B) if
such accelerated indebtedness is recourse to us or our Restricted
Subsidiaries, any requirement in connection with such failure to
pay or event of default for the giving of notice or the lapse of
time or the happening of any further condition, event or act under
such other indenture or instrument in connection with such failure
to pay principal or an event of default will be applicable
together with an additional seven days before being considered an
event of default for purposes of the indenture;
o certain events of bankruptcy, insolvency or reorganization occur;
o certain events of default concerning the collateral documents
relating to the pledge described above under "- GENERAL"; and
o any other events of default provided with respect to debt
securities of that series.
If an event of default with respect to any series of the debt
securities occurs and is continuing, unless the principal amount of all of the
debt securities of that series will have already become due and payable, the
trustee may, in its discretion, and will upon request in writing made by the
holders of not less than 25% in aggregate principal amount of the outstanding
debt securities of such affected series, declare by written notice to us as
provided in the indenture, the principal amount of all debt securities of such
affected series and all accrued interest thereon to be immediately due and
payable. However, at any time after a declaration of acceleration with respect
to the debt securities has been made and before a judgment or decree for payment
of the money due has been obtained, the holders of a majority in aggregate
principal amount of the outstanding debt securities of that series may, under
certain circumstances, rescind and annul such declaration.
Except in cases of default where the trustee is required to exercise
those rights and powers vested in it by the indenture, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs, the
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trustee is not required to take any action under the indenture at the request of
any holders of the debt securities unless the holders offer the trustee
protection from expenses and liability satisfactory to the trustee (called an
"indemnity"). If such indemnity is provided, the holders of a majority in
aggregate principal amount of the outstanding debt securities may direct the
time, method and place of conducting any lawsuit or other formal legal action
seeking any remedy available to the trustee and these majority holders may also
direct the trustee to perform or exercise any trust or power granted to the
trustee under the indenture with respect to the debt securities.
No holder of debt securities of any series will have any right to
institute any proceeding with respect to the indenture, or for the appointment
of a receiver or a trustee or for any other remedy thereunder, unless:
(1) such holder has previously given to the trustee written notice
that an event of default has occurred with respect to the debt
securities of such series;
(2) the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of such series make a written request
that the trustee take action because of the default, and such
holder or holders offer an indemnity satisfactory to the trustee
against the cost and other liabilities of taking that action; and
(3) the trustee has not received from the holders of a majority in
aggregate principal amount of the outstanding debt securities of
such series a direction inconsistent with such request and has
failed to take any action for 60 days after receipt of the above
notice, request and direction.
However, such above-mentioned limitations do not apply to a suit
instituted by the holder of a debt security for the enforcement of payment of
the principal of, or any premium, if any, or interest on such debt securities on
or after the applicable due date specified in such debt securities.
The trustee may withhold notice of any continuing default from the
holders of the debt securities (except a default in the payment of principal (or
premium, if any) or interest, if any, if it determines in good faith that
withholding notice is in the interest of the holders.
Every year we will furnish to the trustee a written statement of
certain of our officers certifying that to their knowledge we are in compliance
with the indenture and the debt securities or, if not, specifying any known
default.
MODIFICATION AND WAIVER
Modifications and amendments of the indenture may be made by us and the
trustee with the consent of the holders of a majority in principal amount of the
outstanding debt securities of each series issued under the indenture affected
by such modification or amendment; PROVIDED, HOWEVER, that no such modification
or amendment may, without the consent of the holder of each outstanding debt
security of such affected series:
o change the stated maturity of the principal of (or premium, if
any) or any installment of interest, if any, on any debt security;
o change any of our obligations to pay Additional Amounts (except
under certain circumstances provided in the indenture);
o reduce the principal amount of (or premium, if any), or rate of
interest, if any, on any debt security;
o reduce the amount of principal of a debt security payable upon
acceleration of the maturity thereof or the amount thereof
provable in bankruptcy or adversely affect any right of repayment
at the option of any holder of debt securities;
o change the place of payment;
27
o change the currency of payment of principal of (or premium, if
any) or interest, if any, on any debt security;
o adversely affect any right to convert or exchange any debt
security;
o impair the right to institute suit for the enforcement of any
payment on or with respect to any debt security;
o reduce the voting or quorum requirements relating to meetings of
holders of debt securities;
o reduce the percentage of aggregate principal amount of outstanding
debt securities of such series, the consent of the holders of
which is required for modification or amendment of the applicable
indenture provisions or for waiver of compliance with certain
provisions of the indenture or for waiver of certain defaults; or
o modify any provisions of the indenture relating to the
modification and amendment of the indenture or the waiver of past
defaults of covenants except as otherwise specified in the
indenture.
The holders of a majority in principal amount of our outstanding debt
securities of any series may on behalf of the holders of all debt securities of
that series waive, insofar as that series is concerned, compliance by us with
certain restrictive provisions of the indenture. The holders of a majority in
principal amount of outstanding debt securities of any series may waive any past
default under the indenture with respect to that series, except a default in the
payment of the principal of (or premium, if any) and interest, if any, on any
debt security of that series or in respect of a provision which under the
indenture cannot be modified or amended without the consent of the holder of
each outstanding debt security of that series. The indenture or the debt
securities may be amended or supplemented, without the consent of any holder of
such debt securities, in order to, among other things, cure any ambiguity or
inconsistency or to make any change, in any case, that would not adversely
affect any holder of such debt securities.
DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise specified in the applicable prospectus supplement, the
indenture provides that, at our option, we will be discharged from any and all
obligations in respect of the outstanding debt securities of any series upon
irrevocable deposit with the trustee, in trust, of money and/or U.S. government
securities which will provide money in an amount sufficient in the opinion of a
nationally recognized firm of financial advisers or independent chartered
accountants as evidenced by a certificate of an officer of the company delivered
to the trustee to pay the principal of (and premium, if any) and interest, if
any, on the outstanding debt securities of such series (hereinafter referred to
as a "defeasance") (except with respect to the authentication, transfer,
exchange or replacement of our debt securities or the maintenance of a place of
payment and certain other obligations set forth in the indenture). Such trust
may only be established if, among other things:
o we have delivered to the trustee an opinion of counsel in the
United States stating that (i) we have received from, or there has
been published by, the United States Internal Revenue Service a
ruling, or (ii) since the date of execution of the indenture,
there has been a change in the applicable U.S. federal income tax
law, in either case to the effect that the holders of the
outstanding debt securities of such series will not recognize
income, gain or loss for U.S. federal income tax purposes as a
result of such defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not
occurred;
o we have delivered to the trustee an opinion of counsel in Canada
or a ruling from the Canada Customs and Revenue Agency to the
effect that the holders of the outstanding debt securities of such
series will not recognize income, gain or loss for Canadian
federal, provincial or territorial income or other Canadian tax
purposes as a result of such defeasance and will be subject to
Canadian federal, provincial or territorial income and other
Canadian tax on the same amounts, in
28
the same manner and at the same times as would have been the case
had such defeasance not occurred (and for the purposes of such
opinion, such Canadian counsel will assume that holders of the
outstanding debt securities of such series include holders who are
not resident in Canada);
o no event of default or event that, with the passing of time or the
giving of notice, or both, will constitute an event of default
will have occurred and be continuing on the date of such deposit;
o we are not an "insolvent person" within the meaning of the
BANKRUPTCY AND INSOLVENCY ACT (Canada) on the date of such deposit
and after the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors'
rights generally; and
o other customary conditions precedent are satisfied.
We may exercise our defeasance option notwithstanding our prior
exercise of our covenant defeasance option described in the following paragraph
if we meet the conditions described in the preceding paragraph at the time we
exercise the defeasance option.
The indenture provides that, at our option, unless and until we have
exercised our defeasance option described above, we may omit to comply with the
covenants described under "- NEGATIVE PLEDGE" and "- LIMITATION ON SALE AND
LEASEBACK TRANSACTIONS", and certain aspects of the covenant described under "-
CONSOLIDATION, AMALGAMATION, MERGER AND SALE OF ASSETS" and certain other
covenants and such omission will not be deemed to be an event of default under
the indenture and our outstanding debt securities upon irrevocable deposit with
the trustee, in trust, of money and/or U.S. government securities which will
provide money in an amount sufficient in the opinion of a nationally recognized
firm of financial advisers or independent chartered accountants as evidenced by
a certificate of an officer of the company delivered to the trustee to pay the
principal of (and premium, if any) and interest, if any, on the outstanding debt
securities (hereinafter referred to as "covenant defeasance"). If we exercise
our covenant defeasance option, the obligations under the indenture other than
with respect to such covenants and the events of default other than with respect
to such covenants will remain in full force and effect. Such trust may only be
established if, among other things:
o we have delivered to the trustee an opinion of counsel in the
United States to the effect that the holders of our outstanding
debt securities will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such covenant
defeasance and will be subject to U.S. federal income tax on the
same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred;
o we have delivered to the trustee an opinion of counsel in Canada
or a ruling from the Canada Customs and Revenue Agency to the
effect that the holders of our outstanding debt securities will
not recognize income, gain or loss for Canadian federal,
provincial or territorial income or other Canadian tax purposes as
a result of such covenant defeasance and will be subject to
Canadian federal, provincial or territorial income and other
Canadian tax on the same amounts, in the same manner and at the
same times as would have been the case had such covenant
defeasance not occurred (and for the purposes of such opinion,
such Canadian counsel will assume that holders of our outstanding
debt securities include holders who are not resident in Canada);
o no event of default or event that, with the passing of time or the
giving of notice, or both, will constitute an event of default
will have occurred and be continuing on the date of such deposit;
o we are not an "insolvent person" within the meaning of the
BANKRUPTCY AND INSOLVENCY ACT (Canada) on the date of such deposit
and after the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors'
rights generally; and
o other customary conditions precedent are satisfied.
29
GOVERNING LAW
The indenture and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New York.
CONSENT TO SERVICE
Under the indenture, Teck Cominco has irrevocably appointed CT
Corporation System, 111 - 8th Avenue, 13th Floor, New York, New York 10011, as
its authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to the indenture or the debt securities that may be
instituted in any federal or New York state court located in the Borough of
Manhattan, in the City of New York, or brought by the trustee (whether in its
individual capacity or in its capacity as trustee under the indenture), and will
irrevocably submit to the non-exclusive jurisdiction of such courts.
DISCHARGE OF THE INDENTURE
We may satisfy and discharge our obligations under the indenture with
respect to the debt securities by delivering to the trustee for cancellation all
outstanding debt securities or by depositing with the trustee or the paying
agent, after the debt securities have become due and payable, whether at stated
maturity, on any redemption date or otherwise, cash sufficient to pay all of the
outstanding debt securities and pay all other sums payable under the indenture
by us.
ENFORCEABILITY OF JUDGMENTS
We are incorporated under and governed by the laws of Canada. Many of
our assets are located outside the United States and most of our directors and
officers and some of the experts named in this prospectus are not residents of
the United States. As a result, it may be difficult for you 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 under the United States federal securities laws. We have
been advised by our Canadian counsel, Lang Michener LLP, that there is doubt as
to the enforceability in Canada by a court in original actions, or in actions to
enforce judgments in United States courts, of civil liabilities predicated upon
United States federal securities laws.
CERTAIN INCOME TAX CONSEQUENCES
The applicable prospectus supplement will describe to an investor who
is a non-resident of Canada certain Canadian federal income tax consequences of
acquiring any securities offered thereunder, including whether the 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 United States federal income tax consequences of the
acquisition, ownership and disposition of any securities offered thereunder by
an initial investor who is a United States person (within the meaning of the
United States Internal Revenue Code).
PLAN OF DISTRIBUTION
We may sell the securities to or through underwriters or dealers, and
also may sell the securities to one or more other purchasers directly or through
agents.
The applicable prospectus supplement will set forth the terms of the
offering relating to the particular securities, including, to the extent
applicable, the name or names of any underwriters or agents, the initial public
offering price or prices of the offered securities, the proceeds to us from the
sale of the offered securities, 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.
30
The securities may be sold from time to time in one or more
transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at prices to be negotiated with purchasers.
In connection with the sale of securities, underwriters may receive
compensation from us or from purchasers of securities for whom they may act as
agents in the form of concessions or commissions. Underwriters, dealers and
agents that participate in the distribution of securities may be deemed to be
underwriters and any commissions received by them from us and any profit on the
resale of securities by them may be deemed to be underwriting commissions under
the U.S. Securities Act of 1933, as amended (the "Securities Act").
If so indicated in the applicable prospectus supplement, we may
authorize dealers or other persons acting as the company's agents to solicit
offers by certain institutions to purchase the offered securities directly from
the company pursuant to contracts providing for payment and delivery on a future
date. Such contracts will be subject only to the conditions set forth in such
prospectus supplement, which will also set forth the commission payable for
solicitation of such contracts.
Underwriters, dealers and agents who participate in the distribution of
the securities may be entitled under agreements to be entered into with us to
indemnification by us against certain liabilities, including liabilities under
the Securities Act, or to contributions with respect to payments which such
underwriters, dealers, or agents may be required to make in respect thereof.
Such underwriters, dealers and agents may be customers of, engage in
transactions with or perform services for us in the ordinary course of business.
In connection with any offering of securities, the underwriters may
over-allot or effect transactions which stabilize or maintain the market price
of the securities offered at a level above that which might otherwise prevail in
the open market. Such transactions, if commenced, may be discontinued at any
time.
The securities will not be qualified for sale under the securities laws
of Canada or any province or territory of Canada, unless the applicable
prospectus supplement indicates otherwise with respect to the offered
securities, and may not be offered or sold, directly or indirectly, in Canada or
to residents of Canada in contravention of the securities laws of any province
or territory of Canada. Each underwriter and each dealer participating in the
distribution of offered securities will agree that, unless the applicable
prospectus supplement indicates otherwise, it will not, directly or indirectly,
offer, sell or deliver any such offered securities purchased by it in connection
with such distribution, in Canada or to residents of Canada in contravention of
the securities laws of any province or territory of Canada.
Each series of debt securities will be a new issue of debt securities
with no established trading market. Unless otherwise specified in the applicable
prospectus supplement relating to a series of debt securities, the debt
securities will not be listed on any securities exchange or automated quotation
system and you may not be able to resell the debt securities purchased. Certain
broker-dealers may make a market in the debt securities, but will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given that any broker-dealer will make a market in
the debt securities of any series or as to the liquidity of the trading market
for the debt securities of any series.
LEGAL MATTERS
Unless otherwise specified in the applicable prospectus supplement,
certain matters of Canadian law will be passed upon for the company by Lang
Michener LLP, Toronto and Vancouver, Canada. Certain matters of United States
law will be passed upon for the company by Paul, Weiss, Rifkind, Wharton &
Garrison LLP, New York, New York. In addition, certain matters of United States
law will be passed upon for the underwriters by Shearman & Sterling LLP,
Toronto, Canada.
The partners and associates of Lang Michener LLP and Paul, Weiss,
Rifkind, Wharton & Garrison LLP and the individuals named under the heading
"Experts" as a group beneficially own, directly and indirectly, less than 1% of
our securities of any class.
31
EXPERTS
Our consolidated financial statements for the years ended December 31,
2004 and 2003 and for each of the years in the three year period ended December
31, 2004 have been incorporated herein by reference in reliance upon the report
of PricewaterhouseCoopers LLP, independent accountants, incorporated herein by
reference, and upon the authority of said firm as experts in accounting and
auditing. The statements as to our mineral reserves and resources which appear
in our Annual Information Form for the year ended December 31, 2004 have been
incorporated by reference herein upon the authority of the following experts:
William P. Armstrong, P.Eng, and Dan Gurtler, AIMM, and Colin McKenny, P.Geol.,
each of whom has acted as a Qualified Person in connection with the estimates of
reserves and resources presented in this prospectus. Mr. Armstrong is an
employee of the company. Mr. McKenny is an employee of Elk Valley Coal
Partnership, of which the company is the managing partner. Mr. Gurtler is an
employee of Compania Minera Antamina S.A., in which the company holds a 22.5%
share interest. Messrs. Armstrong, Gurtler and McKenny hold beneficially,
directly or indirectly, less than 1% of any class of the company's securities.
DOCUMENTS FILED AS PART OF THE REGISTRATION STATEMENT
The following documents have been filed with the SEC as part of the
registration statement of which this prospectus is a part insofar as required by
the SEC's Form F-10:
o the documents listed under "Where You Can Find More Information"
in this prospectus;
o the consent of our independent accountants PricewaterhouseCoopers
LLP;
o the consent of our Canadian counsel, Lang Michener LLP;
o the consents of William P. Armstrong, P. Eng., an employee of Teck
Cominco, Dan Gurtler, AIMM, an employee of Compania Minera
Antamina S.A., and Colin McKenny, P. Geol., an employee of Elk
Valley Coal Partnership;
o powers of attorney from directors and officers of Teck Cominco;
o the trust indenture dated as of September 12, 2002 relating to the
debt securities and the form of Cominco note and pledge agreement
relating thereto;
o statement of eligibility of the trustee on Form T-1; and
o interest coverage ratios.
PART II
INFORMATION NOT REQUIRED TO BE DELIVERED
TO OFFEREES OR PURCHASERS
INDEMNIFICATION
Under the CANADA BUSINESS CORPORATIONS ACT (the "CBCA"), Teck Cominco
Limited (the "Registrant") may indemnify a present or former director or officer
of the Registrant or another individual who acts or acted at the Registrant's
request as a director or officer, or an individual acting in a similar capacity,
of another entity, against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably incurred by the
individual in respect of any civil, criminal, administrative, investigative or
other proceeding in which the individual is involved because of that association
with the Registrant or other entity. The Registrant may not indemnify an
individual unless the individual acted honestly and in good faith with a view to
the best interests of the Registrant, or, as the case may be, to the best
interests of the other entity for which the individual acted as a director or
officer or in a similar capacity at the Registrant's request and in the case of
a criminal or administrative action or proceeding that is enforced by a monetary
penalty, the individual had reasonable grounds for believing that the conduct
was lawful. The indemnification may be made in connection with a derivative
action only with court approval. The aforementioned individuals are entitled to
indemnification from the Registrant as a matter of right if they were not judged
by the court or other competent authority to have committed any fault or omitted
to do anything that the individual ought to have done and they fulfill the
conditions set out above. The Registrant may advance moneys to the individual
for the costs, charges and expenses of a proceeding; however, the individual
shall repay the moneys if the individual does not fulfill the conditions set out
above.
The by-laws of the Registrant provide that, subject to the limitations
contained in the CBCA, the Registrant shall indemnify a director or officer, a
former director or officer, or a person who acts or acted at the Registrant's
request as a director or officer of a body corporate of which the Registrant is
or was a shareholder or creditor (or a person who undertakes or has undertaken
any liability on behalf of the Registrant or any such body corporate) 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 Registrant or such body corporate, if he acted
honestly and in good faith with a view to the best interests of the corporation,
and in the case of a criminal or administrative action or proceeding that is
enforced by a monetary penalty, he had reasonable grounds for believing that his
conduct was lawful. The by-laws of the Registrant also provide that the
Registrant shall also indemnify such a person in such other circumstances as the
CBCA permits or requires.
The by-laws of the Registrant provide that the Registrant may, subject
to the limitations contained in the CBCA, purchase and maintain insurance for
the benefit of any person referred to in the foregoing paragraph. The Registrant
has purchased third party director and officer liability insurance.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the Registrant
has been informed that in the opinion of the U.S. Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is therefore unenforceable.
EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
3.1* Form of Underwriting Agreement.
3.2 Interest coverage calculations.
4.1 Annual Information Form dated March 22, 2005 for the year ended
December 31, 2004 (incorporated by reference to the Registrant's
Annual Report on Form 40-F/A for the fiscal year ended December 31,
2004, as filed with the Securities and Exchange Commission on April
1, 2005).
4.2 Audited comparative consolidated financial statements, and the
related notes thereto, as at and for the years ended December 31,
2004 and 2003 and the Auditors' Report thereon (incorporated by
reference to the Registrant's Annual Report on Form 40-F/A for the
fiscal year ended December 31, 2004, as filed with the Securities
and Exchange Commission on April 1, 2005).
4.3 Management's Discussion and Analysis of Financial Position and
Operating Results of the Registrant for the year ended December 31,
2004 (incorporated by reference to the Registrants' Annual Report
on Form 40-F/A for the fiscal year ended December 31, 2004, as
filed with the Securities and Exchange Commission on April 1,
2005).
4.4 Management Proxy Circular dated March 4, 2005 in connection with
the Annual Meeting of Shareholders to be held on April 27, 2005
(other than the sections entitled "Statement of Corporate
Governance Practices," "Statement of Executive Compensation" and
"Share Performance Graph") (incorporated by reference to the
Registrant's Report on Form 6-K as filed with the Securities and
Exchange Commission on March 31, 2005).
4.5 Unaudited interim comparative consolidated financial statements for
the three months ended March 31, 2005 and 2004 (incorporated by
reference to the Registrants' Report on Form 6-K, as filed with the
Securities and Exchange Commission on April 27, 2005).
4.6 Management's Discussion and Analysis for the three months ended
March 31, 2005 and 2004 (incorporated by reference to the
Registrants' Report on Form 6-K, as filed with the Securities and
Exchange Commission on April 27, 2005).
4.7 Supplementary information required under U.S. GAAP as at December
31, 2004 and 2003 and for each of the years in the three year
period ended December 31, 2004 (incorporated by reference to the
Registrant's Report on Form 6-K, as filed with the Securities and
Exchange Commission on June 15, 2005).
5.1 Consent of PricewaterhouseCoopers LLP.
5.2 Consent of Lang Michener LLP.
5.3* Consent of William P. Armstrong, P. Eng.
5.4* Consent of Dan Gurtler, AIMM.
____________________________
*To be filed by Amendment.
5.5* Consent of Colin McKenny, P. Geol.
6.1 Power of Attorney (included on the signature page of this
Registration Statement).
7.1 Trust indenture dated as of September 12, 2002 by and between Teck
Cominco Limited and The Bank of New York, as Trustee (the form of
which is incorporated by reference to the Registrant's Registration
Statement on Form F-9, filed with the Securities and Exchange
Commission on July 15, 2002 (Registration No. 333-92116)).
7.2* Statement of Eligibility of the Trustee on Form T-1.
____________________________
*To be filed by Amendment.
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-10 or to transactions
in said securities.
ITEM 2. CONSENT TO SERVICE OF PROCESS
Concurrent with the filing of this Registration Statement, the
Registrant has filed with the Commission a written irrevocable consent and power
of attorney on Form F-X.
Any change to the name or address of the agent for service of process
of the Registrants shall be communicated promptly to the Commission by an
amendment to the Form F-X referencing the file number of the relevant
registration statement.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form F-10 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Vancouver in the Province of British Columbia,
Canada, on June 16, 2005.
TECK COMINCO LIMITED
By: /s/ Donald R. Lindsay
-------------------------------
Name: Donald R. Lindsay
Title: Chief Executive Officer and
President
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints David A. Thompson and John G. Taylor, and each of them, any of whom may
act without the joinder of the other, the true and lawful attorney-in-fact and
agent of the undersigned, with full power of substitution and resubstitution,
for and in the name, place and stead of the undersigned, in any and all
capacities, to sign any and all amendments to this Registration Statement,
including post-effective amendments, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, and hereby grants to such attorney-in-fact and agent, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
/s/ Norman B. Keevil
- ------------------------------ Chairman and Director June 16, 2005
Norman B. Keevil
/s/ Donald R. Lindsay
- ------------------------------ Chief Executive Officer, June 16, 2005
Donald R. Lindsay President and Director
/s/ John G. Taylor
- ------------------------------ Senior Vice President, Finance June 16, 2005
John G. Taylor and Chief Financial Officer
/s/ Robert J. Wright
- ------------------------------ Deputy Chairman and Director June 16, 2005
Robert J. Wright
Signature Title Date
/s/ David A. Thompson
- ------------------------------ Director June 16, 2005
David A. Thompson
/s/ J. Brian Aune
- ------------------------------ Director June 16, 2005
J. Brian Aune
/s/ Lloyd I. Barber
- ------------------------------ Director June 16, 2005
Lloyd I. Barber
/s/ Jalynn H. Bennett
- ------------------------------ Director June 16, 2005
Jalynn H. Bennett
/s/ Hugh J. Bolton
- ------------------------------ Director June 16, 2005
Hugh J. Bolton
/s/ Masayuki Hisatsune
- ------------------------------ Director June 16, 2005
Masayuki Hisatsune
/s/ Norman B. Keevil III
- ------------------------------ Director June 16, 2005
Norman B. Keevil III
/s/ Takuro Mochihara
- ------------------------------ Director June 16, 2005
Takuro Mochihara
/s/ Warren S.R. Seyffert
- ------------------------------ Director June 16, 2005
Warren S.R. Seyffert
/s/ Keith E. Steeves
- ------------------------------ Director June 16, 2005
Keith E. Steeves
/s/ Chris M.T. Thompson
- ------------------------------ Director June 16, 2005
Chris M.T. Thompson
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of
1933, Teck Cominco American Incorporated as the Authorized Representative has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, solely in its capacity as the duly authorized representative of
Teck Cominco Limited in the United States, in the City of Spokane, State of
Washington on June 16, 2005.
TECK COMINCO AMERICAN INCORPORATED
By: /s/ C. Bruce DiLuzio
------------------------------
Name: C. Bruce DiLuzio
Title: Vice President, Law and
Administration
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
3.1* Form of Underwriting Agreement.
3.2 Interest coverage calculations.
4.1 Annual Information Form dated March 22, 2005 for the year ended
December 31, 2004 (incorporated by reference to the Registrant's
Annual Report on Form 40-F/A for the fiscal year ended December 31,
2004, as filed with the Securities and Exchange Commission on April
1, 2005).
4.2 Audited comparative consolidated financial statements, and the
related notes thereto, as at and for the years ended December 31,
2004 and 2003 and the Auditors' Report thereon (incorporated by
reference to the Registrant's Annual Report on Form 40-F/A for the
fiscal year ended December 31, 2004, as filed with the Securities
and Exchange Commission on April 1, 2005).
4.3 Management's Discussion and Analysis of Financial Position and
Operating Results of the Registrant for the year ended December 31,
2004 (incorporated by reference to the Registrants' Annual Report
on Form 40-F/A for the fiscal year ended December 31, 2004, as
filed with the Securities and Exchange Commission on April 1,
2005).
4.4 Management Proxy Circular dated March 4, 2005 in connection with
the Annual Meeting of Shareholders to be held on April 27, 2005
(other than the sections entitled "Statement of Corporate
Governance Practices," "Statement of Executive Compensation" and
"Share Performance Graph") (incorporated by reference to the
Registrant's Report on Form 6-K as filed with the Securities and
Exchange Commission on March 31, 2005).
4.5 Unaudited interim comparative consolidated financial statements for
the three months ended March 31, 2005 and 2004 (incorporated by
reference to the Registrants' Report on Form 6-K, as filed with the
Securities and Exchange Commission on April 27, 2005).
4.6 Management's Discussion and Analysis for the three months ended
March 31, 2005 and 2004 (incorporated by reference to the
Registrants' Report on Form 6-K, as filed with the Securities and
Exchange Commission on April 27, 2005).
4.7 Supplementary information required under U.S. GAAP as at December
31, 2004 and 2003 and for each of the years in the three year
period ended December 31, 2004 (incorporated by reference to the
Registrant's Report on Form 6-K, as filed with the Securities and
Exchange Commission on June 15, 2005).
5.1 Consent of PricewaterhouseCoopers LLP.
5.2 Consent of Lang Michener LLP.
5.3* Consent of William P. Armstrong, P. Eng.
5.4* Consent of Dan Gurtler, AIMM.
____________________________
*To be filed by Amendment.
5.5* Consent of Colin McKenny, P. Geol.
6.1 Power of Attorney (included on the signature page of this
Registration Statement).
7.1 Trust indenture dated as of September 12, 2002 by and between Teck
Cominco Limited and The Bank of New York, as Trustee (the form of
which is incorporated by reference to the Registrant's Registration
Statement on Form F-9, filed with the Securities and Exchange
Commission on July 15, 2002 (Registration No. 333-92116)).
7.2* Statement of Eligibility of the Trustee on Form T-1.
____________________________
*To be filed by Amendment.