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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
____________________________
ENERPLUS RESOURCES FUND
(Exact name of registrant as specified in its charter)
ALBERTA, CANADA N/A
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
THE DOME TOWER, SUITE 3000, 333 - 7TH AVENUE S.W.
CALGARY, ALBERTA, CANADA T2P 2Z1
(403) 298-2200
(Address of principal executive offices, including zip code)
_____________________________
TRUST UNIT RIGHTS INCENTIVE PLAN
EXECUTIVE FULL VALUE UNIT PLAN
EMPLOYEE FULL VALUE UNIT PLAN
(Full title of each plan)
CT CORPORATION SYSTEM
111 8TH AVENUE, 13TH FLOOR
NEW YORK, NEW YORK 10011
(212) 894-8700
(Name, address and telephone number, including area code, of agent for service)
__________________________________
COPIES TO:
Gordon J. Kerr Chad Schneider Andrew J. Foley
Enerplus Resources Fund Blake, Cassels & Graydon LLP Paul, Weiss, Rifkind, Wharton &
The Dome Tower, Suite 3000 3500, 855 - 2nd Street S.W. Garrison LLP
333 - 7th Avenue S.W. Calgary, Alberta 1285 Avenue of the Americas
Calgary, Alberta, Canada T2P 4J8 New York, New York 10019-6064
Canada T2P 2Z1 (403) 260-9600 (212) 373-3000
(403) 298-2200
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CALCULATION OF REGISTRATION FEE
1
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TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE REGISTRATION
REGISTERED REGISTERED (1)(2) TRUST UNIT (3) OFFERING PRICE (3) FEE
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Trust Unit Rights 2,000,000 U.S. $45.71 U.S. $91,420,000 U.S. $9,781.94
Incentive Plan
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Executive Full Value 50,000 U.S. $45.71 U.S. $2,285,500 U.S. $244.55
Unit Plan
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Employee Full Value Unit 250,000 U.S. $45.71 U.S. $11,427,500 U.S. $1,222.74
Plan
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TOTAL 2,300,000 -- U.S. $105,133,000 U.S. $11,249.23
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(1) Represents the maximum number of additional trust units (the "TRUST
UNITS") of Enerplus Resources Fund (the "REGISTRANT") issuable in the
United States under the Registrant's Trust Unit Rights Incentive Plan,
Executive Full Value Unit Plan and Employee Full Value Unit Plan
(collectively, the "PLANS"), as specified below.
(2) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), the number of Trust Units being registered hereby shall
be adjusted to include any additional Trust Units that may become issuable
as a result of stock splits, stock dividends, recapitalization or any
other similar transactions effected without the receipt of consideration
that results in an increase in the number of the Registrant's outstanding
Trust Units in accordance with the provisions of the plans described
herein.
(3) Pursuant to Rules 457(c) and 457(h) under the Securities Act, the Proposed
Maximum Offering Price Per Trust Unit and the Proposed Maximum Aggregate
Offering Price are estimated, solely for the purpose of computing the
registration fee, based on the average of the high and low prices of the
Trust Units being registered hereby as reported on The New York Stock
Exchange on December 4, 2006.
2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
All information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act and the Note to Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
All information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Commission are
incorporated by reference herein and shall be deemed a part hereof:
(a) The Annual Report of the Registrant on Form 40-F for the
fiscal year ended December 31, 2005 (File No. 001-15150),
filed on March 7, 2006 pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act");
(b) The description of the Registrant's Trust Units in the
Registration Statement of the Registrant on Form 8-A, filed
on May 22, 2002 pursuant to Section 12 of the Exchange Act;
and
(c) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by
the Annual Report of the Registrant referred to in (a) above.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed
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document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Business Corporations Act (Alberta) (the "ABCA") provides that a
corporation may, in certain circumstances, indemnify a director or officer of
the corporation, a former director or officer of the corporation, a person who
acts or acted at the corporation's request as a director or officer of a body
corporate of which the corporation is or was a shareholder or creditor and the
heirs and legal representatives of any such persons (collectively, "INDEMNIFIED
PERSONS") against all costs, charges and expenses reasonably incurred by any
such Indemnified Person, including an amount paid to settle an action or
satisfy a judgment, in respect of any civil, criminal or administrative actions
or proceedings to which the director or officer is made a party by reason of
being or having been a director or officer of the corporation or other body
corporate, if (a) the director or officer acted honestly and in good faith with
a view to the best interests of the corporation, and (b) in the case of a
criminal or administrative action or proceeding that is enforced by a monetary
penalty, the director or officer had reasonable grounds for believing that such
director or officer's conduct was lawful (collectively, the "INDEMNIFICATION
CONDITIONS").
EnerMark Inc. ("ENERMARK") is a wholly-owned subsidiary of the
Registrant that is responsible for the overall governance of Enerplus and
establishes the general policies and principles outlining the overall
management and direction of Enerplus. The by-laws of EnerMark provide that,
subject to Section 124 of the ABCA, it shall indemnify Indemnified Persons of
EnerMark in the manner contemplated by the ABCA. Additionally, in accordance
with the provisions of the ABCA and the by-laws of EnerMark, EnerMark has
entered into indemnity agreements with each of its officers and directors under
which EnerMark has agreed to indemnify and save harmless its officers and
directors against any and all damages, liabilities, costs, charges or expenses
suffered or incurred by such officers or directors, or their respective heirs,
successors or legal representatives, as a result or by reason of such person
being or having been a director and/or officer of EnerMark. Such indemnity
agreements supplement the indemnification provisions contained in the by-laws
of EnerMark and include specific provisions relating to any tax that may become
payable as a result of such indemnification, the retention of counsel by an
indemnified party and the mechanics under which claims for indemnification may
be made and expenses and other costs paid.
As contemplated by Section 124(4) of the ABCA, EnerMark has purchased
insurance against potential claims against the past, present and future
directors and officers of EnerMark and against any loss for which EnerMark may
be required or permitted by law to indemnify such directors and officers. The
ABCA provides that a corporation may not purchase insurance for the
4
benefit of an Indemnified Person against a liability that relates to the
person's failure to act honestly and in good faith with a view to the best
interests of the corporation or body corporate.
Notwithstanding the foregoing, the ABCA provides that an Indemnified
Person is entitled to indemnity from the corporation in respect of all costs,
charges and expenses reasonably incurred by the person in connection with the
defense of any civil, criminal or administrative action or proceeding to which
the person is made a party by reason of being or having been a director or
officer of the corporation or body corporate, if the person seeking indemnity
(a) was substantially successful on the merits in the person's defense of the
action or proceeding, (b) fulfills the Indemnification Conditions, and (c) is
fairly and reasonably entitled to indemnity.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the Registrant
has been informed that in the opinion of the of the Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits to this registration statement are listed in the exhibit
index, which appears elsewhere herein and is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) 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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
this Registration Statement;
(iii) 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 this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
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(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and where applicable, each filing of the employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the indemnification provisions described under Item
6, or otherwise, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed
in the Securities Act 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 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 whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Calgary, Province of Alberta, Country of Canada, on
December 7, 2006.
ENERPLUS RESOURCES FUND
By ENERMARK INC.
By: /s/ Gordon J. Kerr
---------------------------------
Name: Gordon J. Kerr
Title: President and Chief Executive Officer
and Director
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POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints
each of Gordon J. Kerr and Robert J. Waters his or her true and lawful
attorney-in-fact and agent, each of whom may act alone, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign and to file a Registration
Statement on Form S-8 (or such other Form as may be appropriate) in connection
with the registration of Common Shares of the Registrant and any and all
amendments (including post-effective amendments) to any such Registration
Statement on Form S-8 with the Commission, granting unto said attorneys-in-fact
and agents, each of whom may act alone, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, each of whom may act alone, or his/her substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
statement on Form S-8 has been signed by the following persons in the
capacities indicated on December 7, 2006.
SIGNATURE TITLE
--------- -----
/s/ Gordon J. Kerr Gordon J. Kerr, President and Chief
--------------------------- Executive Officer and Director
(Principal Executive Officer)
/s/ Robert J. Waters Robert J. Waters, Senior Vice President and
--------------------------- Chief Financial Officer
(Principal Financial Officer and Principal
Accounting Officer)
/s/ Douglas R. Martin Douglas R. Martin, Chairman of the Board
---------------------------
/s/ Edwin Dodge Edwin Dodge, Director
---------------------------
/s/ Robert Normand Robert Normand, Director
---------------------------
/s/ Glen D. Roane Glen D. Roane, Director
---------------------------
/s/ W.C. Seth W.C. Seth, Director
---------------------------
/s/ Donald T. West Donald T. West, Director
---------------------------
/s/ Harry B. Wheeler Harry B. Wheeler, Director
---------------------------
/s/ Robert L. Zorich Robert L. Zorich, Director
---------------------------
AUTHORIZED U.S. REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act,
the Authorized Representative has duly caused this Registration Statement to be
signed on its behalf by the undersigned, solely in its capacity as the duly
authorized representative of Enerplus Resources Fund in the United States, in
the City of Calgary, Province of Alberta, Country of Canada, on December 7,
2006.
ENERPLUS RESOURCES (USA) CORPORATION
(Authorized U.S. Representative)
By: /s/ Gordon J. Kerr
------------------------------------------
Name: Gordon J. Kerr
Title: President and Chief Executive Officer
EXHIBIT INDEX
EXHIBIT DESCRIPTION
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4.1 Enerplus Resources Fund Amended and Restated Trust Indenture, dated
as of January 1, 2004
5.1 Opinion of Blake, Cassels & Graydon LLP, regarding the legality of
the Trust Units
23.1 Consent of Blake, Cassels & Graydon LLP (included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Sproule Associates Limited
23.4 Consent of GLJ Petroleum Consultants Ltd.
23.5 Consent of DeGolyer and MacNaughton
24.1 Power of Attorney (included in signature page)