AS FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 29, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BURLINGTON RESOURCES INC.
(Exact name of registrant as specified in its charter)
DELAWARE 91-1413284
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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5051 WESTHEIMER, SUITE 1400
HOUSTON, TEXAS 77056
(713) 624-9500
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
-----------------------------------
FREDERICK J. PLAEGER, II, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
BURLINGTON RESOURCES INC.
5051 WESTHEIMER, SUITE 1400
HOUSTON, TEXAS 77056
(713) 624-9500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
GARY P. COOPERSTEIN, ESQ.
WARREN DE WIED, ESQ.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10004
(212) 859-8000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement.
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If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------ --------------- -------------- --------------------- -------------
PROPOSED PROPOSED MAXIMUM
MAXIMUM AGGREGATE OFFERING
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PRICE PER REGISTRATION
UNIT FEE
- ------------------------------------------------ --------------- ------------- --------------------- -------------
<S> <C> <C> <C> <C>
Common Stock of Burlington Resources Inc.(1)..... 38,500,000 35.782(2) $ 1,377,607,000(2) $ 382,975(3)
- ------------------------------------------------ --------------- ------------- --------------------- -------------
<FN>
(1) Includes the stock purchase rights associated with the Common Stock of
Burlington Resources Inc.
(2) Estimated pursuant to Rule 457(c) for the purposes of computing the
registration fee based upon the average of the high and low prices of
the Common Stock of Burlington Resources Inc., as reported on the New
York Stock Exchange on October 27, 1999.
(3) In accordance with Rule 457(b), the registration fee of $382,975 is
offset by the fee of $316,980 which was paid with respect to the Joint
Proxy Statement filed on September 10, 1999 with respect to this
transaction, resulting in an additional fee of $65,995.
</FN>
</TABLE>
-----------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
[RED HERRING]
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
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.
<PAGE>
SUBJECT TO COMPLETION. DATED OCTOBER 29, 1999.
UP TO 38,500,000 SHARES
BURLINGTON RESOURCES INC.
COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
--------------------
This prospectus relates to the shares of Common Stock of Burlington
Resources Inc., a Delaware corporation, issuable upon exchange of the
exchangeable shares of Burlington Resources Canada Inc., an Alberta
corporation and a subsidiary of BR. The exchangeable shares are being
issued to the former shareholders of Poco Petroleums Ltd. in connection
with our acquisition of Poco. Each exchangeable share may be exchanged for
one share of our common stock, plus all payable and unpaid dividends on a
share of our common stock. Because the shares of our common stock offered
by this prospectus will be issued only in exchange for, or upon the
redemption of, the exchangeable shares, we will not receive any cash
proceeds from this offering. We are paying all expenses of registration
incurred in connection with this offering.
Our common stock is listed on the New York Stock Exchange under the
symbol "BR". On October 28, 1999 the last reported price for our common
stock as reported on the NYSE Composite Tape was 33 15/16 per share. Unless
otherwise indicated, all dollar references in this prospectus are to U.S.
dollars.
YOU SHOULD CAREFULLY CONSIDER THE RISK FACTORS BEGINNING ON PAGE 1.
--------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
Prospectus dated _______________.
<PAGE>
TABLE OF CONTENTS
Page
Risk Factors..............................................................1
Cautionary Statement Concerning Forward-Looking Statements................3
The Company...............................................................4
Use of Proceeds...........................................................4
Plan of Distribution......................................................5
Income Tax Considerations................................................10
Legal Matters............................................................19
Experts..................................................................19
Where You Can Find More Information......................................19
Incorporation of Certain Documents By Reference..........................20
----------------
<PAGE>
RISK FACTORS
You should consider carefully the following factors, in addition to
the other information contained or incorporated by reference in this
prospectus, before exchanging or redeeming your exchangeable shares for the
shares of our common stock offered by this prospectus.
THE EXCHANGE OF YOUR EXCHANGEABLE SHARES IS GENERALLY TAXABLE
Based on the tax laws as of the date of this prospectus, the exchange
or redemption of exchangeable shares is generally a taxable event in Canada
and may be a taxable event in the U.S. Your tax consequences depend on a
number of factors, including your residency and whether the shares are
exchanged or redeemed.
THE MARKET PRICE OF OUR COMMON STOCK MAY BE LESS THAN THE MARKET PRICE
OF THE EXCHANGEABLE SHARES
Our common stock trades on the New York Stock Exchange and the
exchangeable shares are expected to trade on the Toronto Stock Exchange. We
do not plan to list our common stock or the exchangeable shares on any
other exchanges. Although the market prices on the NYSE and TSE should
reflect equivalent value, there can be no assurances that the market price
of our common stock will be identical, or similar, to the market prices of
the exchangeable shares.
OUR COMMON STOCK WILL BE FOREIGN PROPERTY FOR CANADIAN TAX PURPOSES
You may be required to limit your investment in our common stock or
risk incurring penalties under the Canadian Income Tax Act if you are:
o a trust governed by a registered pension plan;
o a registered retirement savings plan;
o a registered retirement income fund;
o a registered education savings plan;
o a deferred profit sharing plan; or
o among some other classes of tax-exempt person.
So long as the exchangeable shares are listed on a prescribed Canadian
stock exchange, which exchanges include the TSE, and BR Canada maintains a
substantial presence in Canada, the exchangeable shares will be qualified
investments for these plans or persons and will not be foreign property
under the Canadian Income Tax Act. Our common stock will, however, be
foreign property for these plans or persons. These plans or persons must
limit their investment in our common stock or risk incurring penalties
under the Canadian Income Tax Act.
<PAGE>
Our business is subject to a variety of market, operational and oil
and gas industry risks that could affect our future results.
ACQUISITION OF POCO
o The acquisition could interrupt or cause a loss of momentum in
our business activities.
o A departure of key employees could cause significant disruptions.
o We will be more dependent upon doing business in Canada than we
were prior to the acquisition.
THE OIL AND GAS MARKET
o Oil and gas prices fluctuate greatly.
o Extended periods of low prices for oil or gas could result in the
cancellation or delay of planned drilling programs, the
curtailment of production or downward adjustments to our
estimated reserves.
o Market prices for crude oil and natural gas may decrease due to
changes in regional and worldwide supply and demand, weather
related and seasonal factors, and transportation costs.
o We hedge our exposure to fluctuations in oil and gas prices with
derivative instruments. The value of these instruments may change
greatly in response to small changes in oil or gas prices.
OUR OPERATIONS
o Our future growth depends upon our ability to maintain and
increase our crude oil and natural gas reserves. Results of
future exploration, exploitation and acquisition activities may
significantly impact our reserves and our operations.
o We rely on third parties to provide most of the services and
equipment necessary to drill wells. The prices charged by these
third parties may increase significantly.
o Future price decreases may result in reductions in the carrying
value of our oil and gas properties.
o The laws and policies of the U.S. or Canada affecting the oil and
gas industry, foreign trade or taxation may harm our operations.
OIL AND GAS INDUSTRY
o Reserve estimates often differ from the quantities of oil and gas
ultimately recovered.
o The prices used to estimate future net revenues may not be
realized.
o International operations are subject to a great deal of political
and economic uncertainty.
o Some of our competitors may have far greater resources.
o Environmental laws and regulations may result in large penalties
or monetary obligations.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
We have made forward-looking statements in this document and in
documents incorporated by reference that are subject to risks and
uncertainties. Forward-looking statements include the information in this
document and in documents incorporated by reference regarding:
o our intentions regarding the exchangeable shares;
o capital spending;
o oil and natural gas production;
o asset portfolios;
o oil and natural gas reserves;
o synergies;
o efficiencies;
o cost savings;
o revenue enhancements;
o future earnings; and
o capital productivity.
Our forward-looking statements can be identified by the use of the
future tense and by words such as "believes", "expects", "anticipates",
"intends", "estimates" or similar expressions. Statements and calculations
concerning oil and gas reserves and their present value also may be deemed
to be forward-looking statements in that they reflect the determination,
based on estimates and assumptions, that oil and gas resources may be
profitably exploited in the future. For all these statements, we claim the
protection of the safe harbor for forward-looking statements contained in
the Private Securities Litigation Reform Act of 1995, as amended.
<PAGE>
THE COMPANY
BR is a holding company engaged, through its principal subsidiaries,
Burlington Resources Oil & Gas Company and The Louisiana Land and
Exploration Company and their affiliated companies, in the exploration,
development, production and marketing of oil and gas. We are the largest
U.S. independent oil and gas company based on total proved U.S. reserves,
and second largest U.S. based independent oil and gas company based on
total proved worldwide reserves.
Our principal executive offices are located at 5051 Westheimer, Suite
1400, Houston, Texas 77056 and our telephone number is (713) 624-9500.
USE OF PROCEEDS
Because the shares of our common stock will be issued in exchange for
exchangeable shares, we will not receive any cash proceeds upon the
issuance of our common stock.
<PAGE>
PLAN OF DISTRIBUTION
Our common stock may be issued to you in several ways:
o You have the right to exchange or cause the redemption of your
exchangeable shares. You may require an exchange by us or
redemption by BR Canada of your exchangeable shares for our
common stock. These rights are called your:
o exchange put rights; and
o retraction rights;
o Automatic exchange or redemption. Upon the occurrence of a
specified triggering event, you will be required to exchange your
exchangeable shares for our common stock. These rights arise
automatically upon the occurrence of triggering events, and are
called:
o the automatic redemption right;
o the optional exchange right;
o the liquidation right; and
o the automatic exchange right;
o We may exercise our call rights. Our call rights permit us to
require an exchange of exchangeable shares for our common stock
if you exercise your retraction rights or in any circumstance
where BR Canada would redeem your exchangeable shares. We plan to
exercise our call rights, when available, and currently foresee
no circumstances under which we would not exercise our call
rights. We expect that you will receive our common stock only
through an exchange with us, as opposed to a redemption by BR
Canada, of your exchangeable shares for our common stock. While
the consideration received upon an exchange with us or a
redemption by BR Canada will be the same, the tax consequences
will be substantially different. These call rights are called
our:
o retraction call rights;
o liquidation call rights; and
o redemption call rights.
YOUR RIGHTS TO EXCHANGE OR REDEEM YOUR SHARES
We will grant your exchange put right described below to CIBC Mellon
Trust Company, as trustee, for the benefit of the holders of the
exchangeable shares. You also have the right to retract any or all of your
exchangeable shares.
Your exchange put right. You may require us to exchange all or any
part of your exchangeable shares for an equivalent number of shares of our
common stock, plus all of our dividends, payable and unpaid. You may
exercise your exchange put right by presenting to CIBC Mellon at its
principal offices in Calgary, Alberta or Toronto, Ontario:
o written notice;
o a certificate or certificates representing the exchangeable
shares you desire to have us exchange; and
o other documents and instruments as provided in the voting and
exchange trust agreement among us, BR Canada and CIBC Mellon.
An exchange pursuant to this right will be completed not later than
the close of business on the third business day following receipt by CIBC
Mellon of the items listed above.
Your retraction rights. Subject to applicable law and our retraction
call right, you are entitled at any time to retract, or require BR Canada
to redeem, any or all of your exchangeable shares and to receive an equal
number of shares of our common stock plus the amount of all of our
dividends, payable and unpaid. You may retract by presenting to CIBC Mellon
or BR Canada:
o a certificate or certificates representing the number of
exchangeable shares you desire to retract; and
o a duly executed retraction request:
o specifying the number of exchangeable shares you desire to
retract;
o stating the retraction date on which you desire to have BR
Canada redeem your shares, which must be a business day
between five and ten days from the date of delivery of the
request; and
o acknowledging our retraction call right to purchase all but
not less than all of the retracted shares directly from you
and that the retraction request will be deemed to be a
revocable offer by you to sell the retracted shares to us in
accordance with our retraction call right on the terms and
conditions described below.
BR Canada will promptly notify us upon receipt of a retraction
request. In order to exercise our retraction call right, we must notify BR
Canada of our determination to do so within two business days of our
receipt of notification. If we deliver the call notice within two business
days, and you have not revoked your retraction request, BR Canada will not
redeem the retracted shares and we will purchase from you the retracted
shares on the retraction. If we do not timely deliver the call notice and
you have not revoked your retraction request, BR Canada will redeem the
retracted shares on the retraction date.
You may withdraw your retraction request by giving notice in writing
to BR Canada before the close of business on the business day before your
retraction date. If you withdraw your retraction request, your offer to
sell the shares to us will be deemed to have been revoked. If, as a result
of liquidity or solvency requirements or other provisions of applicable
law, BR Canada is not permitted to redeem all the exchangeable shares you
desire to retract, BR Canada will redeem only those exchangeable shares you
have tendered as would be permitted by applicable law.
Your retraction rights are subject to our retraction call rights.
If any of your exchangeable shares are not redeemed by BR Canada as a
consequence of applicable law or purchased by us, you will be deemed to
have required us to purchase your unretracted shares in exchange for an
equal number of shares of our common stock, plus the amount of all of our
dividends, payable and unpaid, on the retraction date pursuant to your
exchange put right.
AUTOMATIC RIGHTS
The automatic redemption right. Subject to applicable law and our
redemption call rights, on an automatic redemption date, BR Canada will
redeem all but not less than all of the then outstanding exchangeable
shares in exchange for an equal number of shares of our common stock, plus
the amount of all of our dividends, payable and unpaid. Notwithstanding any
proposed redemption of the exchangeable shares, our redemption call rights
give us the overriding right to acquire on an automatic redemption date all
but not less than all of the outstanding exchangeable shares in exchange
for an equal number of shares of our common stock, plus the amount of all
of our dividends, payable and unpaid.
An automatic redemption date is the first to occur of:
o the date selected by the BR Canada board, if the selected date is
later than the fifth anniversary of the closing of our
acquisition of Poco;
o the date selected by the BR Canada board, if the selected date is
later than the third anniversary of the closing of our
acquisition of Poco and if less than 10% of the number of
exchangeable shares issuable at the closing of our acquisition of
Poco, other than exchangeable shares held by BR and entities
controlled by BR, are outstanding;
o the date on which the share purchase rights issued pursuant to
our rights agreement separate from our common stock and become
exercisable;
o the business day prior to the record date for any meeting or vote
of the BR Canada shareholders to consider any matter in which the
holders of exchangeable shares would be entitled to vote as BR
Canada shareholders, but excluding any meeting or vote as
described in the bullet immediately below; and
o the business day following the day on which the holders of
exchangeable shares fail to take the necessary action at a
meeting or other vote of holders of exchangeable shares, if and
to the extent the action is required, to approve or disapprove,
as applicable, any change to, or in the rights of the holders of,
the exchangeable shares, if the approval or disapproval, as
applicable, of the change would be required to maintain the
economic and legal equivalence of the exchangeable shares and our
common stock.
At least 45 days before an automatic redemption date or before a
possible automatic redemption date which may result from a failure of the
holders of the exchangeable shares to take a necessary action as described
above, BR Canada shall provide you with written notice of the proposed
redemption or possible redemption of the exchangeable shares by BR Canada.
In the case of a possible automatic redemption date, the notice will be
given contingently and will be withdrawn if the contingency does not occur.
The optional exchange right. Upon the occurrence and during the
continuance of a BR Canada insolvency event, you will be entitled to
instruct CIBC Mellon to exercise the optional exchange right, with respect
to any or all of your exchangeable shares, requiring us to acquire your
exchangeable shares. Immediately upon the occurrence of a BR Canada
insolvency event or any event which may, with the passage of time or the
giving of notice, become a BR Canada insolvency event, we and BR Canada
will give written notice to CIBC Mellon. CIBC Mellon will then promptly
notify you of the event or potential event and will advise you of your
rights with respect to the optional exchange right. The consideration for
each exchangeable share to be acquired under the optional exchange right
will be one share of our common stock, plus the amount of all of our
dividends, payable and unpaid.
A BR Canada insolvency event is:
o the institution of, or the consent of BR Canada to the
institution of, any proceeding for BR Canada to be adjudicated
bankrupt or insolvent or to be dissolved or wound-up, or the
filing of a petition, answer or consent seeking dissolution or
winding-up under bankruptcy, insolvency or analogous laws;
o the failure of BR Canada to contest in good faith any bankruptcy,
insolvency, dissolution, winding-up proceeding or analogous
proceeding commenced against it within 15 days of becoming aware
of the proceeding;
o the consent of BR Canada to the filing of any bankruptcy,
insolvency, dissolution, winding-up petition or analogous
petition or appointment of a receiver;
o the making by BR Canada of a general assignment for the benefit
of creditors, or the admission in writing of its inability to pay
its debts generally as they become due; or
o BR Canada's not being permitted, pursuant to liquidity or
solvency requirements of applicable law, to redeem any
exchangeable shares pursuant to a retraction request.
If, as a result of liquidity or solvency requirements or other
provisions of applicable law, BR Canada is not permitted to redeem all of
your exchangeable shares tendered for retraction in accordance with your
retraction call rights, you will be deemed to have exercised the optional
exchange right with respect to your unredeemed exchangeable shares, and we
will be required to purchase your unredeemed shares.
The liquidation right. Subject to our liquidation call right, in the
event of the liquidation, dissolution or winding-up of BR Canada or any
other distribution of assets of BR Canada among its shareholders for the
purpose of winding-up its affairs, you will be entitled to receive for each
exchangeable share one share of BR common stock, together with the amount
of all of our dividends, payable and unpaid.
The automatic exchange right. In the event of a BR liquidation event,
we will be deemed to have purchased each outstanding exchangeable share and
you will be deemed to have sold your exchangeable shares to us for an equal
number of shares of BR common stock, plus the equivalent amount of all BR
dividends, payable and unpaid.
A BR liquidation event is:
o any determination by our board to institute voluntary
liquidation, dissolution or winding-up proceedings of BR or to
effect any other distribution of our assets among our
shareholders for the purpose of winding-up our affairs; or
o the earlier of receipt of notice of, and our otherwise becoming
aware of, any threatened or instituted claim or other proceeding
with respect to the involuntary liquidation, dissolution or
winding-up of BR or to effect any other distribution of our
assets among our shareholders for the purpose of winding-up our
affairs.
OUR CALL RIGHTS
In the circumstances described below, we will have overriding call
rights to acquire your exchangeable shares by delivering an equal number of
shares of our common stock, plus the amount of all of our dividends,
payable and unpaid. Different Canadian federal income tax consequences may
arise depending upon whether we exercise our call rights or whether your
exchangeable shares are redeemed by BR Canada. See "Canadian Federal Income
Tax Considerations."
Our retraction call right. If you request the redemption by BR Canada
of your exchangeable shares, you will be deemed to offer your exchangeable
shares to us, and we will have an overriding retraction call right to
acquire all, but not less than all, of the exchangeable shares that you
have requested BR Canada to redeem in exchange for an equal number of
shares of our common stock, plus the amount of all of our dividends,
payable and unpaid.
Our liquidation call right. We will be granted an overriding
liquidation call right, in the event of and notwithstanding a proposed
liquidation, dissolution or winding-up of BR Canada or any other
distribution of the assets of BR Canada among its shareholders for the
purpose of winding-up its affairs, to acquire all, but not less than all,
of the exchangeable shares then outstanding in exchange for an equal number
of shares of our common stock, plus the amount of all of our dividends,
payable and unpaid. Upon the exercise of our liquidation call right, you
will be obligated to transfer your exchangeable shares to us. Our
acquisition of all of the outstanding exchangeable shares upon the exercise
of our liquidation call right will occur on the effective date of the
voluntary or involuntary liquidation, dissolution or winding-up of BR
Canada.
Our redemption call right. We have an overriding redemption call right
to acquire on an automatic redemption date all, but not less than all, of
the exchangeable shares then outstanding in exchange for an equal number of
shares of our common stock, plus the amount of all of our dividends,
payable and unpaid, and, upon the exercise of our redemption call right,
you will be obligated to transfer your shares to us.
If we exercise one or more of our call rights, we will directly issue
our common stock to you and will become the holder of your exchangeable
shares. We will not be entitled to exercise any of the voting rights
attached to your exchangeable shares. If we decline to exercise our call
rights when available, we will be required to issue our common stock as BR
Canada directs, including to BR Canada, which will, in turn, transfer our
common stock to you in consideration for the return and cancellation of
your exchangeable shares. In the event we do not exercise our call rights
when applicable and instead deliver our common stock as BR Canada directs,
you would receive the same consideration, while the Canadian tax
consequences will be substantially different. See "Canadian Federal Income
Tax Considerations." However, we anticipate that we will exercise our call
rights, when available, and currently foresee no circumstances under which
we would not exercise our call rights. In addition, we do not anticipate
any restriction or limitation on the number of exchangeable shares we would
acquire upon the exercise of our call rights.
INCOME TAX CONSIDERATIONS
CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
- ------------------------------------------
In the opinion of Bennett Jones, our Canadian counsel, the following
is a fair and adequate summary of the material Canadian federal income tax
considerations generally applicable under the Canadian Income Tax Act if
you hold exchangeable shares or acquire our common stock on the exchange of
exchangeable shares and if, for purposes of the Canadian Income Tax Act,
you deal with us at arm's length and hold your exchangeable shares and will
hold our common stock as capital property. This discussion does not apply
to you if you are a "financial institution", as defined in the Canadian
Income Tax Act, and are therefore subject to the mark-to-market provisions
of the Canadian Income Tax Act.
The exchangeable shares and our common stock will generally be
considered to be capital property to you unless the shares are held by you
in the course of carrying on a business of buying and selling similar
securities or the shares are acquired in a transaction considered to be an
adventure in the nature of trade. If you are a resident of Canada and the
exchangeable shares might not otherwise qualify as capital property, you
may be entitled to obtain this qualification by making the irrevocable
election provided under subsection 39(4) of the Canadian Income Tax Act. If
you do not hold your exchangeable shares or will not hold our common stock
as capital property, you should consult your own tax advisors for
information and advice having regard to your particular circumstances.
This summary is based on the current provisions of the Canadian Income
Tax Act and regulations, the current provisions of the Convention Between
the United States of America and Canada with Respect to Taxes on Income and
on Capital, signed September 26, 1980, as amended and our counsel's
understanding of the current published administrative practices of Revenue
Canada. This summary takes into account all specific proposals to amend the
Canadian Income Tax Act and regulations that have been publicly announced
by the Minister of Finance (Canada) prior to the date hereof and assumes
that all of these proposed amendments will be enacted in their present
form. No assurances can be given that any proposed amendments will be
enacted in the form proposed, if at all. Except for the foregoing, this
summary does not take into account or anticipate any changes in law,
whether by legislative, administrative or judicial decision or action, nor
does it take into account provincial, territorial or foreign income tax
legislation or considerations which may differ from the Canadian federal
income tax considerations described below. No advance income tax ruling has
been sought or obtained from Revenue Canada to confirm the tax consequences
of any of the transactions relating to the exchangeable shares or the
acquisition of our common stock on the exchange of exchangeable shares.
For purposes of the Canadian Income Tax Act, all amounts relating to
the acquisition, holding or disposition of our common stock, including
dividends, adjusted cost base amounts and proceeds of disposition, must be
converted into Canadian dollars based on the prevailing United States
dollar exchange rate generally at the time these amounts arise.
THIS SUMMARY IS OF A GENERAL NATURE ONLY AND IS NOT INTENDED TO BE,
AND SHOULD NOT BE CONSTRUED TO BE, LEGAL, BUSINESS OR TAX ADVICE TO YOU.
THEREFORE, YOU SHOULD CONSULT YOUR OWN TAX ADVISORS WITH RESPECT TO YOUR
PARTICULAR CIRCUMSTANCES.
SHAREHOLDERS RESIDENT IN CANADA
The following portion of this summary will apply to you if, for the
purposes of the Canadian Income Tax Act and any applicable income tax
treaty or convention, you are resident or deemed to be resident in Canada
at all relevant times. This summary does not apply to you if we are or will
be a "foreign affiliate" of you as defined in the Canadian Income Tax Act
or if you hold or will hold more than 10% of the exchangeable shares.
Redemption of exchangeable shares. On a redemption (including a
retraction) of your exchangeable shares by BR Canada, you will be deemed to
have received a dividend equal to the amount, if any, by which the
redemption proceeds exceed the paid-up capital of the exchangeable shares
so redeemed. For these purposes, the redemption proceeds will be the fair
market value of our common stock received from BR Canada at the time of the
redemption plus the amount, if any, of all payable and unpaid dividends on
the exchangeable shares paid on the redemption. The taxation of dividends
received on the exchangeable shares is described below.
On a redemption (including a retraction) of your exchangeable shares,
you will also be considered to have disposed of your exchangeable shares,
but the amount of the deemed dividend will be excluded in computing your
proceeds of disposition for purposes of computing any capital gain or
capital loss arising on the disposition. If you are a corporation, in some
circumstances, the amount of any such deemed dividend may be treated as
proceeds of disposition and not as a dividend. The taxation of capital
gains and capital losses is described below.
Exchange of exchangeable shares with us. On an exchange of your
exchangeable shares with us for our common stock, you will generally
realize a capital gain (or a capital loss) equal to the amount by which the
proceeds of disposition of your exchangeable shares, net of any reasonable
costs of disposition, exceed (or are less than) the adjusted cost base to
you of the exchangeable shares immediately before the exchange. For these
purposes, the proceeds of disposition will be the fair market value at the
time of the exchange of our common stock which you receive plus any other
amounts received from us as part of the exchange. The taxation of capital
gains and capital losses is described below.
Dividends on exchangeable shares. If you are an individual, dividends
received or deemed to be received on the exchangeable shares will be
included in computing your income, and will be subject to the gross-up and
dividend tax credit rules normally applicable to taxable dividends received
from a corporation resident in Canada.
If you are a corporation other than a "specified financial
institution", as defined in the Canadian Income Tax Act, dividends received
or deemed to be received on the exchangeable shares normally will be
included in your income and deductible in computing your taxable income.
The exchangeable shares will be "term preferred shares", as defined in
the Canadian Income Tax Act. Consequently, if you are a "specified
financial institution", as defined in the Canadian Income Tax Act, a
dividend received or deemed to be received on the exchangeable shares will
be deductible in computing your taxable income only if:
o you did not acquire the exchangeable shares in the ordinary
course of carrying on your business; or
o at the time the dividend is received, the exchangeable shares are
listed on a prescribed stock exchange in Canada (which currently
includes the TSE) and you, either alone or together with persons
with whom you do not deal at arm's length, do not receive (or are
not deemed to receive) dividends in respect of more than 10% of
the issued and outstanding exchangeable shares.
In addition, to the extent that a deemed dividend arises on the
redemption of the exchangeable shares by BR Canada, a portion of the
dividend may not be subject to the denial of dividend deduction applicable
in respect of term preferred shares in accordance with the exceptions
outlined above. If you are a specified financial institution, you should
consult you own tax advisors.
If you are a "private corporation", as defined in the Canadian Income
Tax Act, or any other corporation resident in Canada and controlled or
deemed to be controlled by or for the benefit of an individual or a related
group of individuals, you may be liable under Part IV of the Canadian
Income Tax Act to pay a refundable tax of 33 1/3% of any dividends received
or deemed to be received on your exchangeable shares to the extent that
these dividends are deductible in computing your taxable income.
A shareholder that is throughout the relevant taxation year a
"Canadian-controlled private corporation", as defined in the Canadian
Income Tax Act, may be liable to pay an additional refundable tax of 6 2/3%
on its "aggregate investment income" for the year which will include
dividends or deemed dividends that are not deductible in computing taxable
income.
Acquisition and disposition of our common stock. The cost of our
common stock received on a retraction, redemption or exchange of
exchangeable shares will be equal to the fair market value of these shares
at the time of that event, and will be averaged with the adjusted cost base
of any other shares of our common stock held by you at that time as capital
property. A disposition or deemed disposition of our common stock by you
will generally result in the realization of a capital gain (or a capital
loss) equal to the amount by which the proceeds of disposition, net of any
reasonable costs of disposition, exceed (or are less than) the adjusted
cost base to you of these shares immediately before the disposition. The
taxation of capital gains and capital losses is described below.
Dividends on our common stock. Dividends on our common stock will be
included in your income for the purposes of the Canadian Income Tax Act. If
you are an individual, you will not be subject to the gross-up and dividend
tax credit rules in the Canadian Income Tax Act applicable to dividends
received from corporations resident in Canada. If you are a corporation,
you will be required to include these dividends in computing your income
and generally will not be entitled to deduct the amount of these dividends
in computing your taxable income.
A shareholder that is throughout the relevant taxation year a
"Canadian-controlled private corporation", as defined in the Canadian
Income Tax Act, may be liable to pay an additional refundable tax of 6 2/3%
on its "aggregate investment income" for the year which will include these
dividends.
If there is United States non-resident withholding tax on any
dividends you receive on our common stock, you will be generally be
eligible for foreign tax credit or deduction treatment where applicable
under the Canadian Income Tax Act.
Taxation of capital gains and capital losses. Three-quarters of any
capital gain realized on a disposition or deemed disposition of
exchangeable shares or our common stock must be included in your income for
the year of the disposition. You generally may be able to deduct
three-quarters of any capital losses against three-quarters of any capital
gains realized in the year of the disposition. Any capital losses in excess
of capital gains in the year of the disposition may generally be carried
back and deducted against net capital gains (capital gains less capital
losses) up to three taxation years or carried forward indefinitely, to the
extent and in the circumstances prescribed in the Canadian Income Tax Act.
Capital gains realized by an individual or trust, other than certain
trusts, may give rise to alternative minimum tax under the Canadian Income
Tax Act.
A shareholder that is throughout the relevant taxation year a
"Canadian-controlled private corporation", as defined in the Canadian
Income Tax Act, may be liable to pay an additional refundable tax of 6 2/3%
on its "aggregate investment income" for the year which will include an
amount in respect of taxable capital gains.
If you are a corporation, the amount of any capital losses arising
from a disposition or deemed disposition of shares may be reduced by the
amount of any dividends received or deemed to have been received by you on
these shares to the extent and under circumstances prescribed by the
Canadian Income Tax Act. Similar rules may apply where you are a
corporation and a member of a partnership or a beneficiary of a trust that
owns these shares or where a trust or partnership of which a corporation is
a beneficiary or a member is a member of a partnership or a beneficiary of
a trust that owns any of these shares. You should consult your own tax
advisors if these rules may be relevant to you.
Foreign property information reporting. With some exceptions, any
taxpayer resident in Canada in the year will be a "specified Canadian
entity", as defined in the Canadian Income Tax Act. If you are a specified
Canadian entity for a taxation year or fiscal period and the total cost
amount of "specified foreign property", which would include our common
stock, at any time in the year or fiscal period exceeds C$100,000, you will
be required to file an information return for the year or period disclosing
prescribed information, your cost amount, any dividends received in the
year, and any gains or losses realized in the year, in respect of the
specified foreign property. You should consult you own advisors about
whether you must comply with these rules with respect to the ownership of
our common stock.
SHAREHOLDERS NOT RESIDENT IN CANADA
The following portion of this summary will apply to you only if, for
purposes of the Canadian Income Tax Act and any applicable tax treaty or
convention, you will not be resident or deemed to be resident in Canada at
any time while you hold exchangeable shares or our common stock, and if you
will not use or hold the exchangeable shares or our common stock in the
course of carrying on a business (including an insurance business) in
Canada and, except as specifically discussed below, if those shares do not
constitute "taxable Canadian property" to you as defined in the Canadian
Income Tax Act.
The exchangeable shares will generally not be taxable Canadian
property to you at a particular time provided that these shares are listed
on a prescribed stock exchange (which currently includes the TSE) and you,
separately or together with persons with whom you do not deal at arm's
length, have not owned (or had under option) 25% or more of the issued
shares of any class or series of the capital stock of BR Canada at any time
within five years preceding the particular time. Our common stock will
generally not constitute taxable Canadian property to you.
Provided the exchangeable shares or our common stock are not taxable
Canadian property to you, you will not be subject to tax under the Canadian
Income Tax Act on the exchange of exchangeable shares for our common stock
(except to the extent the exchange gives rise to a deemed dividend as
discussed below), or on the sale or other disposition of exchangeable
shares or our common stock.
Dividends paid or deemed to be paid on the exchangeable shares will be
subject to non-resident withholding tax under the Canadian Income Tax Act
at the rate of 25%, although this rate may be reduced under the provisions
of an applicable income tax treaty or convention. For example, under the
Canada-U.S. Tax Convention the rate of non-resident withholding tax is
generally reduced to 15% in respect of dividends paid to a person who is
the beneficial owner thereof and who is resident in the United States for
purposes of the convention.
A holder whose exchangeable shares are redeemed by BR Canada (either
under redemption rights or pursuant to retraction rights) will be deemed to
receive a dividend equal to the amount, if any, by which the redemption
proceeds exceed the paid-up capital of the exchangeable shares at the time
the exchangeable shares are redeemed. For these purposes, the redemption
proceeds will be the fair market value of our common stock received from BR
Canada at the time of the redemption plus the amount, if any, of all
payable and unpaid dividends on the exchangeable shares paid on the
redemption. Any deemed dividend will be subject to non-resident withholding
tax as described in the preceding paragraph. However, we anticipate that we
will exercise our call rights, when available, and currently foresee no
circumstances under which exchangeable shares would be redeemed by BR
Canada.
U.S. FEDERAL INCOME TAX CONSIDERATIONS
- --------------------------------------
In the opinion of White & Case LLP, U.S. tax counsel to BR, the
following is a description of the material U.S. federal income tax
considerations generally applicable to holders of exchangeable shares that
hold their exchangeable shares as capital assets and that exchange those
shares for shares of BR common stock. This description is based on:
o the U.S. Internal Revenue Code of 1986, as amended;
o income tax regulations, proposed and final, issued under the U.S.
Code; and
o judicial and administrative interpretations of the U.S. Code and
regulations;
in each case as in effect and available as of the date of this prospectus.
These income tax laws, regulations and interpretations, however, may
change at any time, and any change could be retroactive to the date of this
prospectus. These income tax laws and regulations are also subject to
various interpretations, and the U.S. Internal Revenue Service or the U.S.
courts could later disagree with the explanations or conclusions contained
in this description.
For purposes of this description, a U.S. holder is a beneficial owner
of exchangeable shares or BR common stock, as the case may be, that, for
U.S. federal income tax purposes, is:
o a citizen or resident of the U.S., including some former citizens
or residents of the U.S.;
o a partnership or corporation created or organized in or under the
laws of the U.S. or any state thereof, including the District of
Columbia;
o an estate if its income is subject to U.S. federal income
taxation regardless of its source; or
o a trust if it has validly elected to be treated as a United
States person for U.S. federal income tax purposes or if a U.S.
court can exercise primary supervision over its administration,
and one or more United States persons have the authority to
control all of its substantial decisions.
A non-U.S. holder is a beneficial owner of exchangeable shares or BR
common stock, as the case may be, other than a U.S. holder.
The tax consequences to the following parties are not addressed in
this description:
o persons that may be subject to special tax treatment such as
financial institutions, real estate investment trusts, tax-exempt
organizations, regulated investment companies, insurance
companies, and brokers and dealers or traders in securities or
currencies;
o persons who acquired exchangeable shares pursuant to an exercise
of employee stock options or rights or otherwise as compensation;
o persons having a functional currency for U.S. federal income tax
purposes other than the U.S. dollar;
o persons that hold or will hold exchangeable shares or BR common
stock, as the case may be, as part of a position in a straddle or
as part of a hedging or conversion transaction; and
o persons that own, or are deemed to own, 5% or more, by voting
power or value, of the outstanding stock of BR Canada or BR, as
the case may be.
U.S. holders who do not maintain a substantial presence, permanent
home or habitual abode in the U.S. or whose personal and economic relations
are not closer to the U.S. than to any other country (other than Canada)
may be unable to benefit from the provisions described herein of the
Canada-U.S. Tax Convention. These holders should consult their own tax
advisors concerning the availability of benefits under the Canada-U.S. Tax
Convention.
No statutory, judicial, or administrative authority exists which
directly addresses some of the U.S. federal income tax consequences of the
issuance and ownership of instruments and rights comparable to the
exchangeable shares and the related rights. Therefore, some aspects of the
U.S. federal income tax treatment of the exchange of exchangeable shares
for shares of BR common stock are not certain. No advance income tax ruling
has been sought or obtained from the IRS regarding any of the tax
consequences of the exchange of exchangeable shares for shares of BR common
stock.
This description does not address aspects of U.S. taxation other than
U.S. federal income taxation, nor does it address all aspects of U.S.
federal income taxation that may be applicable to particular holders. In
addition, this description does not address the U.S. state or local tax
consequences or the tax consequences in jurisdictions other than the U.S.
of the exchange of exchangeable shares for shares of BR common stock.
HOLDERS ARE URGED TO CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE
U.S. FEDERAL, STATE, AND LOCAL TAX CONSEQUENCES AND THE NON-U.S. TAX
CONSEQUENCES OF THE EXCHANGE OF EXCHANGEABLE SHARES FOR SHARES OF BR COMMON
STOCK AND THE OWNERSHIP OF SHARES OF BR COMMON STOCK.
UNITED STATES HOLDERS
Tax treatment of the initial exchange. White & Case LLP has opined
that, although not free from doubt, it is more likely than not that U.S.
holders of Poco common shares that exchange their Poco common shares for
exchangeable shares will not recognize gain or loss on that exchange for
U.S. federal income tax purposes. There is, however, no direct authority
addressing the proper treatment of that initial exchange for U.S. federal
income tax purposes, and, therefore, White & Case LLP's opinion regarding
the initial exchange and the conclusions contained in the discussion below
regarding the exchange of exchangeable shares for shares of BR common stock
are subject to significant uncertainty. Accordingly, there can be no
assurance that the IRS will not challenge a U.S. holder's assertion that
the initial exchange of Poco common shares for exchangeable shares gives
rise to no gain or loss for U.S. federal income tax purposes, that the
exchange of exchangeable shares for shares of BR common stock results in
the tax consequences described below, or that, if challenged, a court will
not agree with the IRS.
CONSEQUENCES IF THE INITIAL EXCHANGE OF POCO COMMON SHARES FOR
EXCHANGEABLE SHARES IS TAX-FREE
Assuming that the initial exchange of Poco common shares for
exchangeable shares does not constitute a taxable transaction for U.S.
federal income tax purposes, the following U.S. federal income tax
consequences should apply to the exchange of exchangeable shares for shares
of BR common stock. A U.S. holder that exchanges exchangeable shares for
shares of BR common stock, including an exchange upon the occurrence of an
automatic redemption date, may be justified in taking the position that no
gain or loss is recognized on the exchange on the grounds that the initial
exchange of Poco common shares for exchangeable shares was made pursuant to
a tax-free reorganization under Section 368(a)(1)(B) of the U.S. Code in
which the exchangeable shares, in substance, constituted BR common stock,
and, therefore, the exchange of the exchangeable shares for shares of BR
common stock is not a taxable event. In that case, the aggregate tax basis
of the BR common stock received pursuant to the exchange by the U.S. holder
of exchangeable shares should equal the holder's aggregate adjusted tax
basis in the exchangeable shares surrendered pursuant to the exchange, and
the holding period of the BR common stock received by the U.S. holder of
exchangeable shares pursuant to the exchange should include the holding
period of the exchangeable shares surrendered in the exchange, which, in
turn, should include the holding period of any Poco common shares exchanged
in the initial exchange, provided that the Poco common shares and
exchangeable shares have been held as capital assets immediately prior to
the initial exchange and the subsequent exchange, respectively.
If, however, the initial exchange of Poco common shares for
exchangeable shares is considered to be made pursuant to a transaction
described in Section 351(a) of the U.S. Code in which the transferee
corporation is BR Canada, then, subject to the discussion below, a U.S.
holder that exchanges exchangeable shares for shares of BR common stock,
including an exchange upon the occurrence of an automatic redemption date,
may be required to recognize gain or loss equal to the difference between
the fair market value of the shares of BR common stock received at the time
of the exchange and the U.S. holder's aggregate adjusted tax basis in the
exchangeable shares exchanged. In that case, the gain or loss, if any, will
be capital gain or loss if the exchangeable shares are held as a capital
asset at the time of the exchange, except that, with respect to any amount
representing accrued but unpaid dividends on the exchangeable shares,
ordinary income may be recognized by the holder thereof. In the case of a
noncorporate U.S. holder of exchangeable shares that receives BR common
stock on the exchange, generally the maximum U.S. federal income tax rate
applicable to any capital gain recognized on the exchange will be lower
than the maximum U.S. federal income tax rate applicable to ordinary income
if the holder's holding period for the exchangeable shares, which should
include the holding period of any Poco common shares exchanged in the
initial exchange, provided that the Poco common shares have been held as
capital assets immediately prior to the initial exchange, exceeds one year.
The deductibility of capital losses is subject to limitations. The U.S.
holder's tax basis in the shares of BR common stock will be the fair market
value of the shares of BR common stock received by the U.S. holder in the
exchange, and the holding period will begin on the day after the exchange.
For U.S. federal income tax purposes, any gain recognized by a U.S.
holder on the exchange of exchangeable shares for shares of BR common stock
generally will be treated as U.S. source gain, except that, under the terms
of the Canada-U.S. Tax Convention, the gain may be treated as sourced in
Canada. Any Canadian tax imposed on the gain generally will be available as
a credit against U.S. federal income taxes, subject to applicable
limitations. A U.S. holder that is ineligible for a foreign tax credit with
respect to any Canadian tax paid may be entitled to deduct the Canadian tax
in computing U.S. taxable income.
In view of this possibility of recognizing gain or loss upon the
exchange of the exchangeable shares for shares of BR common stock, U.S.
holders may wish to consider delaying the exchange until the time when they
intend to dispose of the shares of BR common stock receivable in exchange
for their exchangeable shares or, as discussed below, until the time when
BR will own at least 80% of all the then issued and outstanding
exchangeable shares either at the time of or as a result of the exchange.
Assuming that the initial exchange of Poco common shares for
exchangeable shares is considered to be made pursuant to a transaction
described in Section 351(a) of the U.S. Code in which the transferee
corporation is BR Canada, the exchange by a U.S. holder of exchangeable
shares for shares of BR common stock may be characterized as a tax-free
exchange under limited circumstances. An exchange of exchangeable shares
for shares of BR common stock generally may be characterized as a tax-free
exchange if: at least 80% of the then outstanding exchangeable shares are
held by BR either at the time of or as a result of the exchange; and in the
exchange, BR, rather than BR Canada, acquires the exchangeable shares in
exchange for shares of BR common stock pursuant to the exercise of its call
rights. In any case, the exchange would not be tax-free unless some other
requirements are satisfied, which, in turn, will depend upon facts and
circumstances existing at the time of the exchange and cannot be accurately
predicted as of the date of this prospectus. If the exchange did qualify as
a tax-free exchange, a U.S. holder's aggregate tax basis in the shares of
BR common stock received would be equal to the holder's aggregate adjusted
tax basis in the exchangeable shares exchanged. The holding period of the
shares of BR common stock received by the U.S. holder should include the
holding period of the exchangeable shares exchanged, which, in turn, should
include the holding period of any Poco common shares exchanged in the
initial exchange, provided that the Poco common shares and exchangeable
shares have been held as capital assets immediately prior to the initial
exchange and the subsequent exchange, respectively.
CONSEQUENCES IF THE INITIAL EXCHANGE OF POCO COMMON SHARES FOR
EXCHANGEABLE SHARES AND THE RELATED RIGHTS IS TAXABLE
Assuming that the initial exchange of Poco common shares for
exchangeable shares and the related rights constitutes a taxable
transaction for U.S. federal income tax purposes, the following U.S.
federal income tax consequences should apply to the exchange of
exchangeable shares and the related rights for shares of BR common stock. A
U.S. holder that exchanges exchangeable shares and the related rights for
shares of BR common stock, including an exchange upon the occurrence of an
automatic redemption date, generally will recognize gain or loss on the
receipt of the shares of BR common stock in exchange for the exchangeable
shares and the related rights. The gain or loss will be equal to the
difference between the fair market value of the shares of BR common stock
at the time of the exchange and the U.S. holder's aggregate adjusted tax
basis in the exchangeable shares and the related rights exchanged. The gain
or loss, if any, will be capital gain or loss if the exchangeable shares
are held as a capital asset at the time of the exchange, except that, with
respect to any declared but unpaid dividends on the exchangeable shares,
ordinary income may be recognized by the holder of the exchangeable shares.
In the case of a noncorporate U.S. holder, generally the maximum marginal
U.S. federal income tax rate applicable to any capital gain recognized on
the exchange will be lower than the maximum marginal U.S. federal income
tax rate applicable to ordinary income if the U.S. holder's holding period
for the exchangeable shares and the related rights exceeds one year at the
time of the exchange. A U.S. holder's tax basis in the shares of BR common
stock will equal the fair market value of the shares of BR common stock
received by the U.S. holder in the exchange and the holder's holding period
will begin on the day after the date that the U.S. holder received the
shares of BR common stock.
For U.S. federal income tax purposes, any gain recognized by a U.S.
holder on the exchange of exchangeable shares and the related rights for
shares of BR common stock generally will be treated as U.S. source gain,
except that, under the terms of the Canada-U.S. Tax Convention, the gain
may be treated as sourced in Canada. Any Canadian tax imposed on the gain
generally will be available as a credit against U.S. federal income taxes,
subject to applicable limitations. A U.S. holder that is ineligible for a
foreign tax credit with respect to any Canadian tax paid may be entitled to
deduct the Canadian tax in computing U.S. taxable income.
NON-U.S. HOLDERS
Subject to the discussion below under "Backup withholding tax and
information reporting requirements", a non-U.S. holder generally will not
be subject to U.S. federal income tax on gain, if any, recognized on the
exchange of exchangeable shares for shares of BR common stock or on the
sale of shares of BR common stock, unless the gain is effectively connected
with a U.S. trade or business of the holder or, in the case of gains
recognized by an individual, the individual is present in the U.S. for 183
days or more in the taxable year of disposition, and some other conditions
are satisfied.
Subject to the discussion below under "Backup withholding tax and
information reporting requirements", dividends, unless effectively
connected with a U.S. trade or business, received by non-U.S. holders with
respect to the BR common stock generally will be subject to U.S.
withholding tax at a rate of 30%, which rate may be subject to reduction by
an applicable income tax treaty. This reduction generally would result in a
withholding tax of 15% on dividends paid to eligible residents of Canada
under the Canada-U.S. Tax Convention.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING REQUIREMENTS
U.S. backup withholding tax and information reporting requirements
generally apply to some payments to particular noncorporate holders of
stock. Information reporting generally will apply to payments of dividends
on, and to proceeds from the sale or redemption of, BR common stock by a
payor or middleman to a holder of BR common stock other than an exempt
recipient. Exempt recipients include corporations, payees that are not
United States persons and that provide an appropriate certification and
some other persons. A payor or middleman will be required to withhold 31%
of any payments of dividends on, and to proceeds from the sale or
redemption of, BR common stock, unless the holder is an exempt recipient,
if the holder fails to furnish its correct taxpayer identification number
or otherwise fails to comply with the backup withholding tax requirements.
However, dividends paid to non-U.S. holders outside the United States that
are subject to the 30% withholding tax or a reduced rate under a United
States income tax treaty will be exempt from backup withholding tax.
Income tax regulations issued on October 6, 1997, and an IRS notice
issued on April 29, 1999, would modify some of the rules discussed above
generally with respect to payments on BR common stock made after December
31, 2000. In particular, in the case of payments by a payor or middleman to
a foreign partnership, other than payments to a foreign partnership that
qualifies as a withholding foreign partnership within the meaning of these
income tax regulations and payments to a foreign partnership that are
effectively connected with the conduct of a trade or business in the U.S.,
the partners of the partnership will be required to provide the
certification discussed above in order to establish an exemption from
backup withholding tax and information reporting requirements. Moreover, a
payor or middleman may rely on a certification provided by a non-U.S.
holder only if the payor or middleman does not have actual knowledge or a
reason to know that any information or certification stated in the
certificate is unreliable.
THE DISCUSSION OF THE U.S. FEDERAL INCOME TAX CONSEQUENCES SET FORTH
ABOVE IS FOR GENERAL INFORMATION ONLY AND DOES NOT PURPORT TO BE A COMPLETE
ANALYSIS OR LISTING OF ALL POTENTIAL TAX EFFECTS THAT MAY APPLY TO A HOLDER
OF EXCHANGEABLE SHARES THAT EXCHANGES THOSE SHARES FOR SHARES OF BR COMMON
STOCK. HOLDERS OF EXCHANGEABLE SHARES ARE STRONGLY URGED TO CONSULT THEIR
OWN TAX ADVISORS TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO THEM OF
THE EXCHANGE, INCLUDING THE APPLICATION AND EFFECT OF U.S. FEDERAL, STATE,
LOCAL, AND OTHER TAX LAWS.
LEGAL MATTERS
The validity of the shares of our common stock will be passed upon for
us by Fried, Frank, Harris, Shriver & Jacobson (a partnership including
professional corporations), New York, New York. Certain U.S. federal income
tax matters have been passed upon by White & Case LLP, New York, New York,
and certain Canadian federal income tax matters have been passed upon by
Bennett Jones, Calgary, Alberta.
EXPERTS
The financial statements of Burlington Resources Inc. incorporated in
this registration statement by reference to the Annual Report on Form 10-K
for the year ended December 31, 1998 have been so incorporated in reliance
on the report of PricewaterhouseCoopers LLP, independent accountants, given
on the authority of said firm as experts in auditing and accounting.
The financial statements of Poco Petroleums Ltd., as at December 31,
1998 and 1997 and for each of the years in the three year period ended
December 31, 1998 have been included in the Definitive Proxy Statement on
Schedule 14-A filed October 13, 1999 which has been incorporated by
reference herein in reliance upon the report of KPMG LLP, independent
chartered accountants, and upon the authority of said firm as experts in
auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus does not contain all the information set forth in the
registration statement filed with the SEC, parts of which are omitted in
accordance with the rules and regulations of the SEC. For more information
on us and the securities covered by this prospectus you should see the
registration statement and the exhibits and schedules. Any statement made
in this prospectus concerning the provisions of the documents may be
incomplete, and you should refer to the copy of any documents filed as an
exhibit to the registration statement with the SEC.
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. These filings are available to the public
over the Internet at the SEC's web site at http://www.sec.gov. You may
obtain information on the operation of the SEC's public reference rooms by
calling the SEC at 1-800-SEC-0330. You may also read and copy any document
we file at these rooms located at:
o Fifth Street, N.W., Washington, DC 20549;
o 7 World Trade Center, New York, NY 10048; and
o Citicorp Center, 500 W. Madison St., Chicago, IL 60661.
You can also inspect these materials at the New York Stock Exchange at
20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference
is an important part of this prospectus, and information we file with the
SEC after the date of this prospectus will automatically update and
supersede this information.
We incorporate by reference the following documents and any future
filings with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act until our offering is complete:
o our Definitive Proxy Statement on Schedule 14-A filed October 14,
1999;
o our Annual Report on Form 10-K for the fiscal year ended December
31, 1998;
o our Quarterly Reports on Form 10-Q for the three-month periods
ended March 3, June 30 and September 30, 1999;
o our Current Reports on Form 8-K filed with the SEC on March 3,
August 18, and August 19, 1999;
o the description of our common stock contained in our Registration
Statement on Form S-3, dated July 19, 1999; and
o the description of our rights agreement contained in our
Registration Statement on Form 8-A filed with the SEC on December
18, 1998.
On request, we will provide without charge a copy of any or all of the
above documents incorporated by reference (other than exhibits to
documents, unless the exhibits are specifically incorporated by reference
into the documents that this prospectus incorporates). Send your written or
oral requests to: Wendi S. Zerwas, Corporate Secretary, Burlington
Resources Inc., 5051 Westheimer, Suite 1400, Houston, Texas 77056,
telephone: (713) 624-9500.
You should rely only on the information we incorporate by reference or
provide in this prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are
not making an offer of the securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or
any prospectus supplement is accurate as of any date other than the date on
the front of those documents.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are the estimated expenses (except for the SEC
registration fee), other than underwriting discounts and commissions, to be
incurred in connection with the issuance and distribution of the securities
registered under this Registration Statement:
SEC registration fee................................. $382,975
Fees and expenses of qualification
under state securities
laws (including legal fees)........................ 0
Printing and engraving expenses...................... 50,000
Legal fees and expenses.............................. 50,000
Accounting fees and expenses......................... 25,000
Miscellaneous........................................ 4,900
-----------------
Total......................................... $ 512,875
=================
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees
and individuals against expenses, including attorneys' fees, judgments,
fines, and amounts paid in settlement in connection with specified actions,
suits, proceedings whether civil, criminal, administrative, or
investigative, other than a derivative action by or in the right of the
corporation, if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification
extends only to expenses, including attorneys' fees, incurred in connection
with the defense or settlement of such action, and the statute requires
court approval before there can be any indemnification where the person
seeking indemnification has been found liable to the corporation. The
statute provides that it is not exclusive of other indemnification that may
be granted by a corporation's charter, by-laws, disinterested director
vote, stockholder vote, agreement, or otherwise.
Article IX of our by-laws requires indemnification to the full extent
permitted under Delaware law as from time to time in effect. Subject to any
restrictions imposed by Delaware law, our by-laws provide an unconditional
right to indemnification for all expense, liability, and loss, including
attorneys' fees, judgments, fines, ERISA excise taxes, or penalties and
amounts paid in settlement, actually and reasonably incurred or suffered by
any person in connection with any actual or threatened proceeding by reason
of the fact that such person is or was serving as a director or officer of
BR, or is or was serving at our request as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust, or
other enterprise, including service with respect to an employee benefit
plan. Our by-laws also provide that we may, by action of our board of
directors, provide indemnification to our agents with the same scope and
effect as the foregoing indemnification of directors and officers. Section
102(b)(7) of the DGCL permits a corporation to provide in its certificate
of incorporation that a director of the corporation shall not be personally
liable to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability for:
o any breach of the director's duty of loyalty to the corporation
or its stockholders;
o acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
o payment of unlawful dividends or unlawful stock purchases or
redemptions; or
o any transaction from which the director derived an improper
personal benefit.
Article 13 of our certificate of incorporation provides that to the
full extent that the DGCL, as it now exists or may hereafter be amended,
permits the limitation or elimination of the liability of directors, a
director of BR shall not be liable to us or our stockholders for monetary
damages for breach of fiduciary duty as a director. Any amendment to or
repeal of Article 13 shall not adversely affect any right or protection of
a director of BR for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal. We maintain
directors' and officers' liability insurance which provides for payment, on
behalf of the directors and officers of BR and our subsidiaries, of some
losses of such persons, other than matters uninsurable under law, arising
from claims, including claims arising under the Securities Act of 1933, for
acts or omissions by such persons while acting as directors or officers of
BR and/or our subsidiaries, as the case may be.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT
NUMBER DESCRIPTION
------- -----------
2.1 Amended and Restated Combination Agreement by and
between Burlington Resources Inc. and Poco Petroleums
Ltd. dated effective as of August 16, 1999 (included as
Annex B to our definitive Joint Proxy Statement filed
on October 14, 1999).
2.2 Plan of Arrangement involving and affecting Poco
Petroleums Ltd. and the holders of its common shares
and options (included as Annex D to our definitive
Joint Proxy Statement filed on October 14, 1999).
4.1 Form of Share capital and other provisions to be
included in the Articles of Incorporation of BR Canada
(included as Annex E to our definitive Joint Proxy
Statement filed on October 14, 1999).
4.2 Form of Support Agreement by and between BR and BR
Canada to be dated as of the date of closing of our
acquisition of Poco (included as Annex F to our
definitive Joint Proxy Statement filed on October 14,
1999).
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson.
8.1 Opinion of Bennett Jones.
8.2 Opinion of White & Case LLP.
9.1 Form of Voting and Exchange Trust Agreement by and
between BR and BR Canada to be dated as of the date of
closing of our acquisition of Poco (included as Annex G
to our definitive Joint Proxy Statement filed on
October 14, 1999).
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1).
23.2 Consent of Bennett Jones (included in Exhibit 8.1).
23.3 Consent of White & Case LLP (included in Exhibit 8.2).
23.4 Consent of PricewaterhouseCoopers LLP.
23.5 Consent of KPMG LLP.
24.1 Powers of Attorney (included on signature pages
hereto).
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post effective amendment to this registration
statement to include any material information with respect
to the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in the registration statement.
(2) That, for the purposes of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant
to Section15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(5) To deliver or cause to be delivered with the prospectus, to
each person to whom the prospectus is sent or given, the
latest annual report, to security holders that is
incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or
Rule 14c-3 under the Securities Exchange Act of 1934; and,
where interim financial information required to be presented
by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each
person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim
financial information.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by any such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether or not such indemnification is against
public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Burlington
Resources Inc. has duly caused this Registration Statement on Form S-3 to
be signed on its behalf by the undersigned, thereunto duly authorized, in
Houston, Texas on October 28, 1999.
BURLINGTON RESOURCES INC.
By: /s/ Bobby S. Shackouls
------------------------
Name: Bobby S. Shackouls
Title: Chairman of the Board,
President and
Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
John E. Hagale and L. David Hanower and each of them as attorneys-in-fact,
with full power of substitution, to execute in the name and on behalf of
such person, individually and in each capacity stated below, and to file,
any and all amendments to this Registration Statement, including any and
all post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 28th day of October, 1999.
Signature Title
--------- -----
/s/ Bobby S. Shackouls Chairman of the Board, President
------------------------------- and Chief Executive Officer
Bobby S. Shackouls
/s/ H. Leighton Steward Vice Chairman of the Board
-------------------------------
H. Leighton Steward
/s/ John E. Hagale Executive Vice President and Chief
------------------------------- Financial Officer
John E. Hagale
/s/ Philip W. Cook Vice President, Controller and
------------------------------- Assistant Treasurer
Philip W. Cook
/s/ John V. Byrne Director
-------------------------------
John V. Byrne
/s/ S. Parker Gilbert Director
-------------------------------
S. Parker Gilbert
/s/ Laird I. Grant Director
-------------------------------
Laird I. Grant
/s/ John T. LaMacchia Director
-------------------------------
John T. LaMacchia
/s/ James F. McDonald Director
-------------------------------
James F. McDonald
/s/ Kenneth W. Orce Director
-------------------------------
Kenneth W. Orce
/s/ Donald M. Roberts Director
-------------------------------
Donald M. Roberts
/s/ John F. Schwartz Director
-------------------------------
John F. Schwartz
/s/ Walter Scott, Jr. Director
-------------------------------
Walter Scott, Jr.
/s/ William E. Wall Director
-------------------------------
William E. Wall
<PAGE>
EXHIBIT INDEX
-------------
EXHIBIT
NUMBER DESCRIPTION
------- -----------
2.1 Amended and Restated Combination Agreement by and
between Burlington Resources Inc. and Poco Petroleums
Ltd. dated effective as of August 16, 1999 (included as
Annex B to our definitive Joint Proxy Statement filed
on October 14, 1999).
2.2 Plan of Arrangement involving and affecting Poco
Petroleums Ltd. and the holders of its common shares
and options (included as Annex D to our definitive
Joint Proxy Statement filed on October 14, 1999).
4.1 Form of Share capital and other provisions to be
included in the Articles of Incorporation of BR Canada
(included as Annex E to our definitive Joint Proxy
Statement filed on October 14, 1999).
4.2 Form of Support Agreement by and between BR and BR
Canada to be dated as of the date of closing of our
acquisition of Poco (included as Annex F to our
definitive Joint Proxy Statement filed on October 14,
1999).
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson.
8.1 Opinion of Bennett Jones.
8.2 Opinion of White & Case LLP.
9.1 Form of Voting and Exchange Trust Agreement by and
between BR and BR Canada to be dated as of the date of
closing of our acquisition of Poco (included as Annex G
to our definitive Joint Proxy Statement filed on
October 14, 1999).
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1).
23.2 Consent of Bennett Jones (included in Exhibit 8.1).
23.3 Consent of White & Case LLP (included in Exhibit 8.2).
23.4 Consent of PricewaterhouseCoopers LLP.
23.5 Consent of KPMG LLP.
24.1 Powers of Attorney (included on signature pages
hereto).
Exhibit 5.1
OPINION OF
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
October 28, 1999
Burlington Resources Inc.
5051 Westheimer, Suite 1400
Houston, TX 77056
Ladies and Gentlemen:
We are acting as special counsel to Burlington Resources Inc., a
Delaware corporation ("BR"), in connection with the Registration Statement
on Form S-3 (the "Registration Statement"), under the Securities Act of
1933, as amended (the "Securities Act"), relating to the issuance by BR of
up to 38,500,000 shares of common stock of BR ("Common Stock") to be
issuable upon exchange of the exchangeable shares (the "Exchangeable
Shares") of Burlington Resources Canada Inc., an Alberta corporation and a
subsidiary of BR, in connection with the acquisition of Poco Petroleums
Ltd. by BR. Capitalized terms used herein have the meanings set forth in
the Registration Statement, unless otherwise defined herein. With your
permission, all assumptions and statements of reliance herein have been
made without any independent investigation or verification on our part
except to the extent otherwise expressly stated, and we express no opinion
with respect to the subject matter or accuracy of such assumptions or items
relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals, or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of BR, such certificates of public officials and such other documents, and
(iii) received such information from officers and representatives of BR as
we have deemed necessary or appropriate for the purposes of this opinion.
In all such examinations, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of
original and certified documents and the conformity to original or
certified documents of all copies submitted to us as conformed or
reproduction copies. As to various questions of fact relevant to the
opinion expressed herein, we have relied upon, and assume the accuracy of,
representations and warranties contained in the documents relevant hereto
and certificates and oral or written statements and other information of or
from representatives of BR and others and assume compliance on the part of
all parties to such documents with their covenants and agreements contained
therein.
We have assumed that the certificate of incorporation and by-laws of
BR at the time of issuance of the shares of Common Stock will be identical
to the certificate of incorporation and by-laws of BR as in effect at the
date hereof.
We also have assumed, with respect to all parties to the documents
relevant hereto other than BR, that such parties have the power and
authority to enter into and perform such documents and to consummate the
transactions contemplated thereby, that such documents have been duly
authorized, executed and delivered by such parties and constitute legal,
valid and binding obligations of such parties enforceable against such
parties in accordance with the terms, and that such parties will comply
with all of their obligations under such documents and all laws applicable
thereto. As to various questions of fact relevant to such opinions, we have
relied upon, and have assumed the accuracy of, certificates and oral or
written statements and other information of or from public officials,
officers or representatives of BR and others.
Based upon the foregoing and assuming that all of the Exchangeable
Shares are validly issued, fully paid and non-assessable, it is our opinion
that, if shares of Common Stock are issued as described in the Registration
Statement, at such time of issuance such shares of Common Stock will be
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Registration Statement as having passed upon the
validity of the issuance of the Common Stock. In giving this consent, we do
not hereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act.
Very truly yours,
FRIED, FRANK, HARRIS SHRIVER & JACOBSON
By: /s/ Warren de Wied
------------------
Warren de Wied
Exhibit 8.1
[BENNETT JONES LETTERHEAD]
October 28, 1999
Burlington Resources Inc.
5051 Westheimer, Suite 1400
Houston, TX 77056-5604
Dear Ladies and Gentlemen:
We are acting as Canadian counsel to Burlington Resources Inc. ("BR")
in connection with BR's proposed acquisition (the "Proposed Transaction")
of Poco Petroleums Ltd. ("Poco"), a corporation organized under the laws of
Alberta, Canada, upon the terms and conditions set forth in the Amended and
Restated Combination Agreement between BR and Poco, effective as of August
16, 1999, and the exhibits thereto (the "Combination Agreement"). Provided
that various conditions are satisfied, BR will cause Burlington Resources
Canada Inc. ("BR Canada"), a subsidiary of BR organized under the laws of
Alberta, Canada, to issue certain exchangeable shares (the "Exchangeable
Shares") to Poco shareholders that surrender their Poco common shares to BR
Canada pursuant to a plan of arrangement set forth in exhibit A to the
Combination Agreement.
BR proposes to file with the Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended (the "1933 Act"), a
registration statement on Form S-3 (the "Registration Statement") with
respect to the common stock of BR (the "BR Common Stock") to be issued to
holders of Exchangeable Shares that exchange such shares for shares of BR
Common Stock in connection with the Proposed Transaction. In addition BR,
and Poco have prepared, and we have reviewed, a Joint Management
Information Circular and Proxy Statement (the "Joint Proxy Statement"),
which is dated October 13, 1999 and which is incorporated by reference in
the Registration Statement. In rendering the opinion set forth below we
have relied upon the facts stated in the Registration Statement and the
Joint Proxy Statement and upon such other documents as we have deemed
appropriate, including representations of BR and Poco referred to in the
Registration Statement and the Joint Proxy Statement.
This opinion is based on the current provisions of the Income Tax Act
(Canada) and regulations, the current provisions of the Convention Between
the United States of America and Canada with Respect to Taxes on Income and
on Capital, signed September 26, 1980, as amended and our understanding of
the current published administrative practices of Revenue Canada. This
opinion takes into account all specific proposals to amend the Income Tax
Act and regulations that have been publicly announced by the Minister of
Finance (Canada) prior to the date hereof and assumes that all of these
proposed amendments will be enacted in their present form. No assurances
can be given that any proposed amendments will be enacted in the form
proposed, if at all. Except for the foregoing, this opinion does not take
into account or anticipate any changes in law, whether by legislative,
administrative or judicial decision or action, nor does it take into
account provincial, territorial or foreign income tax legislation or
considerations which may differ from the Canadian federal income tax
considerations described in the Registration Statement. In addition, we
have assumed that all parties to the Combination Agreement have acted, and
will act, in accordance with the terms of such Combination Agreement and
that the Combination Agreement will be consummated pursuant to the terms
and conditions set forth therein without the waiver or modification of any
such terms and conditions.
Based upon and subject to the foregoing, the confirmation by BR of the
accuracy of certain assumptions and representations underlying this
opinion, and the qualifications, limitations, and assumptions contained in
the portion of the Registration Statement captioned "Income Tax
Considerations-Canadian Federal Income Tax Considerations," we hereby
confirm, as to matters of Canadian federal income tax law, our opinion
contained in the Registration Statement under the caption "Income Tax
Considerations- Canadian Federal Income Tax Considerations".
We have not considered and render no opinion on any aspect of law
other than as expressly set forth above.
This opinion is furnished to you solely for use in connection with the
Registration Statement and may not be used for any other purpose without
our prior written consent. We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement and to the reference to us
under the captions "Income Tax Consideration - Canadian Federal Income Tax
Considerations" and "Legal Matters" in the Registration Statement. In
giving such consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the 1933 Act.
Yours truly,
/s/ Bennett Jones
Exhibit 8.2
As of the Effective Date of the Registration Statement (as defined below)
Burlington Resources Inc.
5051 Westheimer, Suite 1400
Houston, TX 77056-5604
Ladies and Gentlemen:
We are acting as United States tax counsel to Burlington Resources
Inc. ("BR") in connection with BR's proposed acquisition (the "Proposed
Transaction") of Poco Petroleums Ltd. ("Poco"), a corporation organized
under the laws of Alberta, Canada, upon the terms and conditions set forth
in the Amended and Restated Combination Agreement between BR and Poco,
effective as of August 16, 1999, and the exhibits thereto (the "Combination
Agreement"). Provided that various conditions are satisfied, BR will cause
Burlington Resources Canada Inc. ("BR Canada"), a subsidiary of BR
organized under the laws of Alberta, Canada, to issue certain exchangeable
shares (the "Exchangeable Shares") to Poco shareholders that surrender
their Poco common shares to BR Canada pursuant to a plan of arrangement set
forth in exhibit A to the Combination Agreement.
BR proposes to file with the Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended (the "1933 Act"), a
registration statement on Form S-3 (the "Registration Statement") with
respect to the common stock of BR (the "BR Common Stock") to be issued to
holders of Exchangeable Shares that exchange such shares for shares of BR
Common Stock in connection with the Proposed Transaction. In addition, BR
and Poco have prepared, and we have reviewed, a Joint Management
Information Circular and Proxy Statement (the "Joint Proxy Statement"),
which is dated October 13, 1999 and which is incorporated by reference in
the Registration Statement. In rendering the opinion set forth below we
have relied upon the facts stated in the Registration Statement and the
Joint Proxy Statement and upon such other documents as we have deemed
appropriate, including representations of BR and Poco referred to in the
Registration Statement and the Joint Proxy Statement.
This opinion letter is based on the Internal Revenue Code of 1986, as
amended, the Treasury Regulations issued thereunder, and administrative and
judicial interpretations thereof, in each case, as in effect and available
on the date hereof In addition, we have assumed that all parties to the
Combination Agreement have acted, and will act, in accordance with the
terms of such Combination Agreement and that the Combination Agreement will
be consummated pursuant to the terms and conditions set forth therein
without the waiver or modification of any such terms and conditions.
Based upon and subject to the foregoing, the confirmation by BR of the
accuracy of certain assumptions and representations underlying this
opinion, and the qualifications, limitations, and assumptions contained in
the portion of the Registration Statement captioned "Income Tax
Considerations-U.S. federal income tax considerations," we hereby confirm,
as to matters of U.S. federal income tax law, our opinion contained in the
Registration Statement under the caption "Income Tax Considerations-U. S.
federal income tax considerations".
We have not considered and render no opinion on any aspect of law
other than as expressly set forth above.
This opinion is furnished to you solely for use in connection with the
Registration Statement and may not be used for any other purpose without
our prior written consent. We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement and to the reference to us
under the caption "Legal Matters" in the Registration Statement. In giving
such consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the 1933 Act.
Very truly yours,
/s/ White & Case LLP
--------------------
White & Case LLP
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 20, 1999 relating to the
financial statements, which appears in the 1998 Annual Report to
Shareholders of Burlington Resources Inc., which is incorporated by
reference in Burlington Resources Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1998. We also consent to the reference to us under
the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Houston, Texas
October 28, 1999
EXHIBIT 23.5
The Board of Directors
Burlington Resources Inc.
We consent to the incorporation by reference in the Registration Statement
on Form S-3 of Burlington Resources Inc. dated October 28, 1999 of our
report dated February 18, 1999 (except as to Note 10 which is as of August
18, 1999) with respect to the consolidated balance sheets of Poco
Petroleums Ltd. as of December 31, 1998 and 1997 and the consolidated
statements of earnings, deficit and cash flows for each of the years in the
three year period ended December 31, 1998 which report appears in the
Definitive Proxy Statement on Schedule 14-A filed October 13, 1999.
/s/ KPMG LLP
Calgary, Canada
October 28, 1999
