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UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-K

 

[X]

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2017

or

 

[   ]

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Commission file number 1-15226

 

LOGO

 

ENCANA CORPORATION

(Exact name of registrant as specified in its charter)

 

Canada   98-0355077
(State or other jurisdiction of incorporation or organization)   (I.R.S. Employer Identification No.)

Suite 4400, 500 Centre Street S.E., P.O. Box 2850, Calgary, Alberta, Canada, T2P 2S5

(Address of principal executive offices)

Registrant’s telephone number, including area code (403)  645-2000

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each

class

  

Name of each exchange

  on which registered  

Common Shares    New York Stock Exchange

Securities registered pursuant to Section 12(g) of the Act: None

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.

Yes [X] No [  ]

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.

Yes [  ] No [X]

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.                                                                              Yes [X] No [   ]

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).

Yes [X] No [   ]

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.                                                                [   ]

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer [X]

  

Accelerated filer [   ]

Non-accelerated filer [   ]  (Do  not check if a smaller reporting company)

  

Smaller reporting company [   ]

  

Emerging growth company [   ]

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.               [   ]

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act):            Yes [  ] No [X]

 

Aggregate market value of the voting and non-voting common equity held by non-affiliates of registrant as of June 30, 2017

   $      8,563,240,884    

Number of registrant’s common shares outstanding as of February 16, 2018

   973,123,364    

Documents Incorporated by Reference

Portions of registrant’s definitive proxy statement (“Proxy Statement”) for the registrant’s 2018 annual meeting of shareholders to be held May 1, 2018 (to be filed with the Securities and Exchange Commission prior to April 30, 2018) are incorporated by reference in Part III of this Annual Report on Form 10-K.


Table of Contents

ENCANA CORPORATION

FORM 10-K

TABLE OF CONTENTS

 

PART I   

Items 1 and 2. Business and Properties

     5  

Item 1A. Risk Factors

     24  

Item 1B. Unresolved Staff Comments

     32  

Item 3.    Legal Proceedings

     32  

Item 4.    Mine Safety Disclosures

     32  
PART II   

Item 5.     Market for Registrant’s Common Equity, Related Shareholder Matters and Issuer Purchases of Equity Securities

     33  

Item 6.    Selected Financial Data

     36  

Item 7.     Management’s Discussion and Analysis of Financial Condition and Results of Operations

     37  

Item 7A. Quantitative and Qualitative Disclosures about Market Risk

     66  

Item 8.    Financial Statements and Supplementary Data

     68  

Item 9.     Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

     126  

Item 9A. Controls and Procedures

     126  

Item 9B. Other Information

     126  
PART III   

Item 10.  Directors, Executive Officers and Corporate Governance

     127  

Item 11.  Executive Compensation

     127  

Item 12.   Security Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters

     127  

Item 13.   Certain Relationships and Related Transactions, and Director Independence

     127  

 

Item 14.  Principal Accounting Fees and Services

     127  
PART IV   

Item 15.  Exhibits and Financial Statement Schedules

     128  

Signatures

     132  

 

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DEFINITIONS

Unless the context otherwise indicates, references to “us,” “we,” “our,” “ours,” “Encana” and the “Company” refer to Encana Corporation and its consolidated subsidiaries. In addition, the following are other abbreviations and definitions of certain terms used within this Annual Report on Form 10-K:

“AECO” means Alberta Energy Company and is the Canadian benchmark price for natural gas.

“ASC” means Accounting Standards Codification.

“ASU” means Accounting Standards Update.

“bbl” or “bbls” means barrel or barrels.

“bbls/d” means barrels per day.

“Bcf” means billion cubic feet.

“Bcf/d” means billion cubic feet per day.

“BOE” means barrels of oil equivalent.

“BOE/d” means barrels of oil equivalent per day.

“Btu” means British thermal units, a measure of heating value.

“DD&A” means depreciation, depletion and amortization expenses.

“FASB” means Financial Accounting Standards Board.

“LIBOR” means London Interbank Offered Rate.

“Mbbls” means thousand barrels.

“Mbbls/d” means thousand barrels per day.

“MBOE” means thousand barrels of oil equivalent.

“MBOE/d” means thousand barrels of oil equivalent per day.

“Mcf” means thousand cubic feet.

“Mcf/d” means thousand cubic feet per day.

“MD&A” means Management’s Discussion and Analysis of Financial Condition and Results of Operations.

“MMbbls” means million barrels.

“MMbbls/d” means million barrels per day.

“MMBOE” means million barrels of oil equivalent.

“MMBOE/d” means million barrels of oil equivalent per day.

“MMBtu” means million Btu.

“MMcf” means million cubic feet.

“MMcf/d” means million cubic feet per day.

“NGL” or “NGLs” means natural gas liquids.

“NYMEX” means New York Mercantile Exchange.

“NYSE” means New York Stock Exchange.

“OPEC” means Organization of the Petroleum Exporting Countries.

“SEC” means United States Securities and Exchange Commission.

“Standardized measure” means the present value of after-tax future net revenues discounted at 10% per annum.

“S&P 500” means Standard and Poor’s 500 index.

“S&P/TSX Composite Index” means Standard and Poor’s index for Canadian equity markets.

“TSX” means Toronto Stock Exchange.

“U.S.” or “United States” or “USA” means United States of America.

“U.S. GAAP” means U.S. Generally Accepted Accounting Principles.

“WTI” means West Texas Intermediate.

 

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CONVERSIONS

In this Annual Report on Form 10-K, a conversion of natural gas volumes to BOE is on the basis of six Mcf to one bbl. BOE is based on a generic energy equivalency conversion method primarily applicable at the burner tip and does not represent economic value equivalency at the wellhead. Given that the value ratio based on the current price of oil as compared to natural gas is significantly different from the energy equivalency of 6:1, utilizing a conversion on a 6:1 basis may be misleading as an indication of value, particularly if used in isolation.

CONVENTIONS

Unless otherwise specified, all dollar amounts are expressed in U.S. dollars, all references to “dollars”, “$” or “US$” are to U.S. dollars and all references to “C$” are to Canadian dollars. All amounts are provided on a before tax basis, unless otherwise stated. In addition, all information provided herein is presented on an after royalties basis.

The term “liquids” is used to represent oil, NGLs and condensate. The term “liquids rich” is used to represent natural gas streams with associated liquids volumes. The term “play” is used to describe an area in which hydrocarbon accumulations or prospects of a given type occur. Encana’s focus of development is on hydrocarbon accumulations known to exist over a large areal expanse and/or thick vertical section and are developed using hydraulic fracturing. This type of development typically has a lower geological and/or commercial development risk and lower average decline rate, when compared to conventional development.

The term “core asset” refers to plays that are the focus of the Company’s current capital investment and development plan. The Company continually reviews funding for development of its plays based on strategic fit, profitability and portfolio diversity and, as such, the composition of plays identified as a core asset may change over time.

References to information contained on the Company’s website at www.encana.com are not incorporated by reference into, and does not constitute a part of, this Annual Report on Form 10-K.

FORWARD-LOOKING STATEMENTS AND RISK

This Annual Report on Form 10-K and documents incorporated herein by reference contain certain forward-looking statements or information (collectively, “forward-looking statements”) within the meaning of applicable securities legislation, including the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements include: composition of the Company’s core assets, including the allocation of capital and focus of development plans; growth in long-term shareholder value; vision to being a leading North American resource play company; statements with respect to the Company’s strategic objectives including capital allocation strategy, focus of investment, growth of high margin liquids volumes, operating and capital efficiencies and ability to preserve balance sheet strength; ability to lower costs and improve efficiencies to achieve competitive advantage, including benefits of integrated supply chain model and self-sourcing; ability to repeat and deploy successful practices across the Company’s multi-basin portfolio; balancing commodity portfolio; anticipated commodity prices; success of and benefits from technology and innovation, including cube development approach, precision well targeting and advanced completion designs; reduced dependence on fresh water requirements and anticipated water infrastructure; ability to accelerate activity levels; ability to optimize well and completion designs, including changes to lateral lengths drilled, stage, well spacing and stacking optimization; future well inventory; anticipated drilling, number of drilling rigs and the success thereof; anticipated drilling costs and cycle times; anticipated proceeds and future benefits from various joint venture, partnership and other agreements; expected timing for construction of facilities and costs thereof; expansion of future midstream services; estimates of reserves and resources; expected production and product types; ability to replicate successful test wells to future production; statements regarding anticipated cash flow, non-GAAP cash flow margin and leverage ratios; anticipated cash and cash equivalents; anticipated hedging and outcomes of risk management program, including ability to leverage marketing fundamentals expertise, exposure to certain commodity prices and foreign exchange, amount of hedged production, market access and physical sales locations; impact of changes in laws and regulations, including recent U.S. tax reform and potential changes to free trade agreements; compliance with environmental legislation and claims related to the purported causes and impact of climate change, and the costs therefrom; adequacy of provisions for abandonment and site reclamation costs; financial flexibility and discipline; access to cash and cash equivalents and other methods of funding; ability to meet financial obligations, manage debt and financial ratios, finance growth and compliance with financial covenants; impact to the Company as a result of a downgrade to its credit rating; access to the Company’s credit facilities; planned annualized dividend and the declaration and payment of future dividends, if any; managing capital structure including adjustments to capital spending or dividends, issuing debt or equity, purchasing shares through a normal course issuer bid (“NCIB”) or repaying existing debt; the Company’s planned NCIB, including amounts and number of shares to be acquired, anticipated timeframe, method and location of purchases, and source of

 

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funding thereof; adequacy of the Company’s provision for taxes and legal claims; projections and expectation of meeting the targets contained in the Company’s corporate guidance and five-year plan; ability to manage cost inflation and expected cost structures, including expected operating, transportation and processing and administrative expenses; competitiveness and pace of growth of the Company’s assets within North America and against its peers; outlook of oil and gas industry generally and impact of geopolitical environment; returns from the Company’s core assets; anticipated capital spending plans and source of funding thereof; anticipated staffing levels; expected future interest expense; the Company’s commitments and obligations; statements with respect to future ceiling test impairments; and the possible impact and timing of accounting pronouncements, rule changes and standards.

Readers are cautioned against unduly relying on forward-looking statements which, by their nature, involve numerous assumptions, risks and uncertainties that may cause such statements not to occur, or results to differ materially from those expressed or implied. These assumptions include: future commodity prices and differentials; foreign exchange rates; ability to access credit facilities and shelf prospectuses; assumptions contained in the Company’s corporate guidance, five-year plan and as specified herein; data contained in key modeling statistics; availability of attractive hedges and enforceability of risk management program; effectiveness of the Company’s drive to productivity and efficiencies; results from innovations; expectation that counterparties will fulfill their obligations under the gathering, midstream and marketing agreements; access to transportation and processing facilities where Encana operates; assumed tax, royalty and regulatory regimes; and expectations and projections made in light of, and generally consistent with, Encana’s historical experience and its perception of historical trends, including with respect to the pace of technological development, benefits achieved and general industry expectations.

Risks and uncertainties that may affect these business outcomes include: ability to generate sufficient cash flow to meet obligations; commodity price volatility; ability to secure adequate transportation and potential pipeline curtailments; variability and discretion of Encana’s board of directors (the “Board of Directors”) to declare and pay dividends, if any; timing and costs of well, facilities and pipeline construction; business interruption, property and casualty losses or unexpected technical difficulties, including impact of weather; counterparty and credit risk; impact of a downgrade in credit rating and its impact on access to sources of liquidity; fluctuations in currency and interest rates; risks inherent in the Company’s corporate guidance; failure to achieve cost and efficiency initiatives; risks inherent in marketing operations; risks associated with technology; changes in or interpretation of royalty, tax, environmental, greenhouse gas, carbon, accounting and other laws or regulations; risks associated with existing and potential lawsuits and regulatory actions made against the Company; impact of disputes arising with its partners, including suspension of certain obligations and inability to dispose of assets or interests in certain arrangements; the Company’s ability to acquire or find additional reserves; imprecision of reserves estimates and estimates of recoverable quantities, including future net revenue estimates; risks associated with past and future acquisitions or divestitures of certain assets or other transactions or receipt of amounts contemplated under the transaction agreements (such transactions may include third-party capital investments, farm-outs or partnerships, which Encana may refer to from time to time as “partnerships” or “joint ventures” and the funds received in respect thereof which Encana may refer to from time to time as “proceeds”, “deferred purchase price” and/or “carry capital”, regardless of the legal form) as a result of various conditions not being met; and other risks described in Item 1A. Risk Factors of this Annual Report on Form 10-K and risks and uncertainties impacting Encana’s business as described from time to time in the Company’s other periodic filings with the SEC incorporated by reference in this Annual Report on Form 10-K.

Although the Company believes the expectations represented by such forward-looking statements are reasonable, there can be no assurance that such expectations will prove to be correct. Readers are cautioned that the assumptions, risks and uncertainties referenced above and in the documents incorporated by reference herein are not exhaustive. Forward-looking statements are made as of the date of this document (or, in the case of a document incorporated by reference, the date of such document incorporated by reference) and, except as required by law, the Company undertakes no obligation to update publicly or revise any forward-looking statements. The forward-looking statements contained or incorporated by reference in this Annual Report on Form 10-K are expressly qualified by these cautionary statements.

The reader should read carefully the risk factors described in the documents incorporated by reference in this Annual Report on Form 10-K for a description of certain risks that could, among other things, cause actual results to differ from these forward-looking statements.

 

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PART I

Items 1 and 2. Business and Properties

GENERAL

Encana is a leading North American energy producer that is focused on developing its multi-basin portfolio of oil, NGL and natural gas producing plays. Encana’s operations also include the marketing of oil, NGLs and natural gas. All of Encana’s reserves and production are located in North America.

Encana’s registered and principal office is located at 4400, 500 Centre Street S.E., Calgary, Alberta T2P 2S5, Canada. Encana’s common shares are listed and posted for trading on the TSX and on the NYSE under the symbol “ECA”. Encana is incorporated under the Canada Business Corporations Act (the “CBCA”) and was formed in 2002 through the business combination of two predecessor companies.

Available Information

Encana is subject to the informational requirements of the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”) and, in accordance with the Exchange Act, it also files reports with and furnishes other information to the SEC. The public may read any document Encana files with or furnishes to the SEC at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. Readers may also obtain copies of the same documents from the public reference room of the SEC at 100 F Street, N.E., Washington D.C. 20549 by paying a fee. Please call the SEC at 1-800-SEC-0330 or contact them at www.sec.gov for further information on the public reference room. Encana’s filings are also electronically available from the SEC’s Electronic Document Gathering, Analysis, and Retrieval system (“EDGAR”), which can be accessed at www.sec.gov , or via the System for Electronic Document Analysis and Retrieval (“SEDAR”), which can be accessed at www.sedar.com, as well as from commercial document retrieval services.

Copies of this Annual Report on Form 10-K and the documents incorporated herein by reference may be obtained on request without charge from Encana’s Corporate Secretary, 4400, 500 Centre Street S.E., P.O. Box 2850, Calgary, Alberta T2P 2S5, Canada, telephone: (403) 645-2000. Encana also provides access without charge to all of the Company’s SEC filings, including copies of this Annual Report on Form 10-K and the documents incorporated herein by reference, current reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act, as soon as reasonably practicable after filing or furnishing, on Encana’s website located at www.encana.com .

Enforceability of Civil Liabilities

Encana is a corporation incorporated under and governed by the CBCA. Some of Encana’s officers and directors, and some of the experts named in this Annual Report on Form 10-K, are Canadian residents, and many of Encana’s assets or the assets of its officers and directors and the experts are located outside the United States. Encana has appointed an agent for service of process in the United States, but it may be difficult for holders of common shares who reside in the United States to effect service within the United States upon those directors, officers and experts who are not residents of the United States. It may also be difficult for holders of common shares who reside in the United States to realize in the United States upon judgments of courts of the United States predicated upon our civil liability and the civil liability of our officers and directors and experts under the United States federal securities laws.

STRATEGY

Encana’s vision is to be a leading North American resource play company that is committed to growing long-term shareholder value through a disciplined focus on generating profitable growth. Objectives that support the execution of the Company’s strategy include:

 

  ·  

Disciplined capital allocation strategy to core assets

  ·  

Focused investment on growing high margin liquids volumes

  ·  

Maximizing profitability through operational and capital efficiencies

  ·  

Preserving balance sheet strength

The Company has a history of identifying and entering into strategic plays that can be developed with industry leading horizontal drilling and completions methods and leveraging technology to profitably develop oil and natural gas resources within the plays. Encana continually strives to lower costs and improve efficiencies to achieve competitive advantage through

 

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technology and innovation. Capital and operating efficiencies are achieved by repeating and deploying successful practices across the Company’s multi-basin portfolio.

Encana’s capital investment strategy is focused on quality growth from a limited number of core, high margin and scalable projects, while balancing the commodity portfolio and optimizing performance from the remainder of the Company’s resource base. In addition, Encana leverages its market fundamentals expertise by actively monitoring and managing market volatility and diversifying price and market access risks to enhance the Company’s margins.

During 2017, the oil and natural gas industry continued to experience commodity price volatility. In spite of this trend, Encana has continued to execute on its strategy by focusing capital investment to core assets with high margin liquids and future growth potential and divesting of non-strategic assets. Moreover, the Company focused on lowering overhead costs and enhancing capital and operating efficiencies by leveraging technology and innovation to maximize efficiencies and results. Encana also focused on reducing costs by leveraging its integrated supply chain model by self-sourcing key drilling and completions consumables to obtain scale advantages from negotiating better contract pricing as well as security of supply services. Through continued execution of its strategy, Encana is well positioned for growth in the current price environment. For additional discussion on the Company’s results, see Item 7 of this Annual Report on Form 10-K.

REPORTING SEGMENTS

Encana’s predominant operations are focused on the finding and development of oil, NGL and natural gas reserves. The Company is also focused on creating and capturing additional value through its market optimization segment. The Company conducts a substantial portion of its business through subsidiaries. Encana’s operating and reportable segments are: (i) Canadian Operations; (ii) USA Operations; and (iii) Market Optimization.

 

  ·  

Canadian Operations includes the exploration for, development of, and production of oil, NGLs, natural gas and other related activities within Canada. Core assets that are part of Encana’s strategic development focus include: Montney in northeast British Columbia and northwest Alberta and Duvernay in west central Alberta. Other Upstream Operations comprise assets that are not part of Encana’s current strategic focus and primarily include: Wheatland in southern Alberta, Horn River in northeast British Columbia and Deep Panuke located offshore Nova Scotia.

 

  ·  

USA Operations includes the exploration for, development of, and production of oil, NGLs, natural gas and other related activities within the U.S. Core assets that are part of Encana’s strategic development focus include: Eagle Ford in south Texas and Permian in west Texas. Other Upstream Operations comprise assets that are not part of Encana’s current strategic focus and primarily includes San Juan in northwest New Mexico.

 

  ·  

Market Optimization activities are managed by the Midstream, Marketing & Fundamentals team, which is primarily responsible for the sale of the Company’s proprietary production to third party customers and enhancing the associated netback price. Market Optimization activities also include third party purchases and sales of product to provide operational flexibility and cost mitigation for transportation commitments, product type, delivery points and customer diversification.

For additional information regarding Encana’s reporting segments, see Note 2 of Encana’s audited Consolidated Financial Statements under Item 8 of this Annual Report on Form 10-K.

 

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OIL AND GAS PROPERTIES AND ACTIVITIES

The following map outlines the location of Encana’s North American landholdings and assets as at December 31, 2017.

 

LOGO

The term ‘Core Asset’ in the map above reflects plays identified with high growth and return potential and are the focus of the Company’s current capital investment and development plan. The term ‘Other’ in the map above reflects base and option value plays that are not part of Encana’s current strategic focus. Base plays are managed to generate cash flows and focus on enhancing operational efficiency and cost reductions rather than development programs. Option value plays may receive funding for exploration or development based on strategic fit, play profitability driven by price and energy fundamentals and portfolio diversity.

 

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Canadian Operations

Overview:  In 2017, the Canadian Operations had total capital investment of approximately $426 million and drilled approximately 117 net wells all of which were in Montney and Duvernay. Production averaged approximately 29.5 Mbbls/d of oil and NGLs and approximately 838 MMcf/d of natural gas. At December 31, 2017, the Canadian Operations had an established land position in Canada of approximately 1.7 million net acres including approximately 1.2 million net undeveloped acres. In addition, the Canadian Operations accounted for 38% of production sales during 2017 and 59% of total proved reserves as at December 31, 2017.

The following tables summarize the Canadian Operations landholdings, producing wells and daily production as at and for the periods indicated.

 

Landholdings   

Developed

        Acreage        

  

Undeveloped

        Acreage        

  

Total

        Acreage        

  

Average  
Working  
Interest  

 

(thousands of acres at December 31, 2017)    Gross    Net      Gross    Net      Gross    Net     

Montney

   560    357      718    451      1,278    808      63%  

Duvernay

   105    44      541    330      646    374      58%  

Other Upstream Operations (1)

   229    157      622    381      851    538      63%  

Total Canadian Operations

   894    558      1,881    1,162      2,775    1,720      62%  

(1) Other Upstream Operations includes Wheatland, Horn River and Deep Panuke.

 

Producing Wells

 

  

                Oil                 

  

        Natural Gas        

  

            Total             

(number of wells at December 31, 2017) (1)    Gross    Net      Gross    Net      Gross    Net  

Montney

   6    5      1,282    1,173      1,288    1,178  

Duvernay

   11    4      156    78      167    82  

Other Upstream Operations (2)

   18    12      609    505      627    517  

Total Canadian Operations

   35    21      2,047    1,756      2,082    1,777  

(1) Figures exclude wells capable of producing, but not producing.

(2) Other Upstream Operations includes Wheatland, Horn River and Deep Panuke.

 

         

NGLs

    

Production

 

  

Oil

         (Mbbls/d)          

  

    Plant Condensate    

(Mbbls/d)

  

Other

             (Mbbls/d)              

  

Total

         (Mbbls/d)          

  

Natural Gas

         (MMcf/d)          

(average daily)    2017    2016      2017    2016      2017    2016      2017    2016      2017    2016  

Montney (1)

   0.2    1.9      14.6    10.4      4.5    6.2      19.1    16.6      644    735  

Duvernay

   0.2    -      8.3    7.1      1.3    1.2      9.6    8.3      64    54  

Other Upstream Operations (2)

   -    0.1      0.2    0.1      0.2    0.2      0.4    0.3      130    177  

Total Canadian Operations

   0.4    2.0      23.1    17.6      6.0    7.6      29.1    25.2      838    966  

 

(1)

During 2016, Encana divested of the Gordondale assets in Montney. Prior to the disposition, production from Gordondale averaged 1.6 Mbbls/d of oil, 3.7 Mbbls/d of NGLs and 45 MMcf/d of natural gas.

(2)

Other Upstream Operations includes Wheatland, Horn River and Deep Panuke.

Montney

Montney is primarily a condensate rich natural gas play located in northeast British Columbia and northwest Alberta. While Encana is currently targeting the development of condensate rich locations in the Montney formation, the acreage comprising the Montney play also includes landholdings with incremental producing formations such as Cadomin and Doig. In 2017, total production from the play averaged approximately 19.3 Mbbls/d of oil and NGLs and approximately 644 MMcf/d of natural gas. As at December 31, 2017, Encana controlled approximately 808,000 net acres in the play.

During 2017, Encana continued to focus development in the Montney formation, which is characterized by up to six stacked horizons spanning over 1,000 feet of stratigraphy and is being developed exclusively with horizontal well technology. At December 31, 2017, Encana held a large position in the Montney formation of approximately 475,000 net acres, including 259,000 net undeveloped acres and production averaged approximately 19.1 Mbbls/d of oil and NGLs and approximately 567 MMcf/d of natural gas.

 

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Significant efficiency improvements with respect to Montney drilling and completions have been achieved using the cube development approach. In addition to utilizing larger multi-well pads and simultaneous use of multiple drilling rigs, Encana also focused on tighter well spacing, increased completions intensity and reducing costs. In 2017, Encana drilled approximately 108 net horizontal wells with lateral lengths ranging from approximately 3,200 to 12,800 feet and tighter inter-well spacing ranging from approximately 490 to 880 feet. As Encana continues to optimize well and completion designs, lateral lengths drilled, stage and well spacing may change. The Company also continued to focus on reducing water costs through its centralized water hub by re-using produced water from drilling operations and utilizing otherwise unusable saline water from a subsurface water aquifer.

As at December 31, 2017, Encana has access to natural gas processing capacity of approximately 1,200 MMcf/d, of which approximately 1,000 MMcf/d is under contract with third parties under varying terms and duration and approximately 215 MMcf/d is owned by the Company. Encana also has access to gathering and compression capacity of approximately 1,300 MMcf/d, of which approximately 1,200 MMcf/d is under contract with third parties under varying terms and duration and approximately 100 MMcf/d is owned by the Company. During the fourth quarter of 2017, access to liquids handling capacity increased due to three new facilities that provide compression and processing under contract with third parties.

Encana has a partnership agreement with a subsidiary of Mitsubishi Corporation (“Mitsubishi”), the Cutbank Ridge Partnership (“CRP”), to jointly develop certain lands predominately in Montney. Under the agreement, Mitsubishi agreed to invest approximately C$2.9 billion for its 40 percent partnership interest in the CRP, of which approximately C$2.5 billion has been received as of December 31, 2017. In addition to its 40 percent of the CRP’s future capital funding investment, Mitsubishi is expected to invest the remaining amount of approximately C$0.4 billion under an agreed upon five-year development plan of the area, thereby reducing Encana’s capital funding commitment to 30 percent of the total expected capital investment until the remaining investment commitment is satisfied.

Duvernay

Duvernay is a liquids rich shale gas play located in west central Alberta and includes properties that are primarily located in the Duvernay formation, but also holds potential in other overlapping formations such as the Montney. As at December 31, 2017, Encana controlled approximately 374,000 net acres in the play.

The Duvernay formation within the play primarily comprises approximately 332,000 net acres, including 290,000 net undeveloped acres, and extends across the Simonette, Pinto, Edson and Willesden Green properties. Encana is currently targeting the development of condensate rich locations in the north and south Simonette areas of the formation using multi-well pad horizontal drilling technology. During 2017, Encana focused on efficient development to fill existing processing capacity, reducing drilling days and leveraging successful advanced completions designs to maximize well productivity. Encana also drilled approximately 9 net wells during the year with lateral lengths ranging from approximately 6,400 to 10,800 feet with inter-well spacing averaging approximately 1,000 feet. As Encana continues to optimize well and completion designs, lateral lengths drilled, stage and well spacing may change. In 2017, production averaged approximately 9.8 Mbbls/d of oil and NGLs and approximately 64 MMcf/d of natural gas. In addition, Encana focused on reducing operating costs by approximately 15 percent since 2016 primarily from the automation and centralized monitoring of wells and facilities and lowering of water handling costs by utilizing existing infrastructure to dispose of water to plant site disposal wells, eliminating costs to truck disposal water to third party disposal sites.

Encana holds an approximate 50.1 percent ownership in three Simonette natural gas processing plants and the associated gathering and compression, of which Encana’s share of natural gas processing capacity is approximately 90 MMcf/d with NGLs production capacity of approximately 18.0 Mbbls/d.

Encana has an agreement with a subsidiary of PetroChina Company Limited (“PetroChina”) to jointly explore and develop certain Duvernay lands. Under the agreement, PetroChina agreed to invest approximately C$2.18 billion for a 49.9 percent working interest in the lands, of which the investment was substantially received as of December 31, 2017. In February 2018, Encana received the final investment from PetroChina, satisfying the commitment under the agreement.

Other Upstream Operations:

Wheatland

Wheatland is located in southern Alberta and includes producing horizons primarily in the coals and sands of the Cretaceous Edmonton and Belly River Groups. In the fourth quarter of 2017, Encana divested of approximately 511,000 net acres and approximately 4,720 net wells in the play. As at December 31, 2017, Encana had approximately 525 gross producing wells (approximately 464 net producing wells) and controlled approximately 207,000 net acres in the play. During 2017, Encana

 

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focused on play optimization, reducing production declines and lowering operating costs. In 2017, natural gas production from the remaining properties averaged approximately 6 MMcf/d.

Horn River

Horn River is located in northeast British Columbia, where development was historically in the Horn River Basin shales (Muskwa, Otter Park and Evie), which are upwards of 500 feet thick. In 2017, Encana’s natural gas production averaged approximately 49 MMcf/d. As at December 31, 2017, Encana had approximately 97 gross producing horizontal wells (49 net producing horizontal wells) and controlled approximately 164,000 net acres, which includes 143,000 net undeveloped acres in the Horn River Basin shales. Encana owns an interest in natural gas compression capacity in Horn River of approximately 285 MMcf/d at various facilities in the area. Encana has a processing arrangement with a third party related to a previously planned expansion of the Cabin natural gas processing plant, for which commissioning and expansion was suspended in 2012.

Deep Panuke

Encana is the owner and operator of the Deep Panuke gas field located offshore Nova Scotia, which is approximately 250 kilometres southeast of Halifax on the Scotian shelf. Natural gas from Deep Panuke is produced and processed by an offshore Production Field Centre (“PFC”). The PFC is under a lease arrangement which has an initial term that expires in 2021, with the option to extend the lease for 12 successive one-year terms at fixed prices after the initial lease term. Produced gas is transported to Goldboro, Nova Scotia, via subsea pipeline which interconnects with the Maritimes & Northeast Pipeline, where the natural gas is ultimately transported to markets in eastern Canada and northeastern U.S.

In 2017, natural gas production averaged approximately 19 MMcf/d. Encana sells all natural gas produced from Deep Panuke under a long-term physical sales contract at the prevailing market prices in that region, under a seasonal operating strategy. At December 31, 2017, Encana had approximately 4 gross producing wells (4 net producing wells) and controlled approximately 30,000 net acres offshore Nova Scotia. Encana operates five of its six licenses in these areas.

 

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USA Operations

Overview:  In 2017, the USA Operations had total capital investment of approximately $1,358 million and drilled approximately 168 net wells. Production averaged approximately 75.9 Mbbls/d of oil, approximately 23.7 Mbbls/d of NGLs and approximately 266 MMcf/d of natural gas. At December 31, 2017, the USA Operations had an established land position of approximately 399,000 net acres including approximately 119,000 net undeveloped acres. In addition, the USA Operations accounted for 62% of production sales during 2017 and 41% of total proved reserves as at December 31, 2017.

During 2017, Encana divested of approximately 550,000 net acres in Piceance located in northwestern Colorado for proceeds of approximately $605 million, after closing adjustments and the sale of approximately 144,000 net acres in Tuscaloosa Marine Shale (“TMS”) located in east Louisiana and west Mississippi.

The following tables summarize the USA Operations landholdings, producing wells and daily production as at and for the periods indicated.

 

Landholdings   

        Developed        

Acreage

  

        Undeveloped        

Acreage

  

Total

        Acreage        

   Average  
Working  
Interest  
(thousands of acres at December 31, 2017)    Gross    Net      Gross    Net      Gross    Net     

Eagle Ford

   44    42      1    1      45    43      96%  

Permian

   97    86      44    32      141    118      84%  

Other Upstream Operations (1)

   251    152      153    86      404    238      59%  

Total USA Operations

   392    280      198    119      590    399      68%  

(1) Other Upstream Operations primarily includes San Juan.

 

Producing Wells   

    

Oil

  

    Natural Gas    

  

    Total    

(number of wells at December 31, 2017) (1)        Gross    Net          Gross        Net          Gross    Net  

Eagle Ford

   424    411      59    55      483    466  

Permian

   1,645    1,541      -    -      1,645    1,541  

Other Upstream Operations (2)

   119    68      259    179      378    247  

Total USA Operations

   2,188    2,020      318    234      2,506    2,254  

(1) Figures exclude wells capable of producing, but not producing.

(2) Other Upstream Operations primarily includes San Juan.

 

         

NGLs

    
Production   

Oil

         (Mbbls/d)          

  

  Plant Condensate  

(Mbbls/d)

  

Other

         (Mbbls/d)          

  

Total

         (Mbbls/d)          

  

    Natural Gas    

         (MMcf/d)          

(average daily)    2017    2016      2017    2016      2017    2016      2017    2016      2017    2016  

Eagle Ford

   30.8    32.4      1.4    0.6      6.8    6.6      8.2    7.2      51    48  

Permian

   41.4    29.8      1.5    1.1      12.1    8.9      13.6    10.0      67    50  

Other Upstream Operations (1, 2)

   3.7    9.5      0.3    1.0      1.6    5.0      1.9    6.0      148    319  

Total USA Operations

   75.9    71.7      3.2    2.7      20.5    20.5      23.7    23.2      266    417  

(1) Other Upstream Operations primarily includes San Juan.

(2) Other Upstream Operations includes production from Piceance and TMS which were divested in 2017 and from DJ Basin which was divested in 2016.

Eagle Ford

Eagle Ford is a tight oil play located in south Texas in the Karnes and Atascosa counties. The focus is on the development of the thickest portion of the Eagle Ford shale in the Karnes Trough, where Encana holds a largely contiguous position. At December 31, 2017, Encana controlled approximately 43,000 net acres in the play. Encana is focused on developing the lower Eagle Ford exclusively using horizontal drilling, as well as optimizing upper Eagle Ford and Austin Chalk targets. During 2017, Encana drilled approximately 37 net wells in the area with lateral lengths ranging from approximately 2,600 to 6,800 feet with an average measured total depth of approximately 16,700 feet. Production averaged approximately 30.8 Mbbls/d of oil, approximately 8.2 Mbbls/d of NGLs and approximately 51 MMcf/d of natural gas during the year.

During 2017, Encana continued to focus on precision well targeting, spacing and stacking optimization and improving completions designs. Performance improvements were achieved from optimizing fracture complexity by driving down stage spacing and cluster spacing to less than 20 feet, while optimizing cluster efficiency through thin fluids design, resulting in

 

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increased well productivity and optimized capital efficiency. In addition, Encana expanded development activity in the Austin Chalk, drilling 12 net horizontal wells in 2017. As Encana continues to optimize development and apply advanced completions designs, lateral lengths drilled, cluster spacing and well spacing may change. Encana also focused on reducing operating costs by negotiating better contract pricing, optimizing artificial lift systems and streamlining well interventions.

The play is located within close proximity to markets and has a well-developed infrastructure. Oil and natural gas production is gathered at various production facilities, with the majority of the oil subsequently transported to sales points by pipeline or trucked from facilities depending on the sales contract. Encana has access to firm natural gas gathering capacity of up to approximately 52 MMcf/d and firm processing capacity of up to approximately 72 MMcf/d with third parties under varying terms and duration. Encana utilizes interruptible capacity arrangements for excess production.

Permian

Permian is a tight oil play located in west Texas in the Midland, Martin, Howard, Glasscock and Upton counties. The primary focus is on the development of the Spraberry and Wolfcamp formations in the Midland basin, where Encana holds a large position. At December 31, 2017, Encana controlled approximately 118,000 net acres in the play. The properties are characterized by exposure of up to 11 potential producing horizons spanning approximately 4,000 feet of stratigraphy (also referred to as “stacked pay”), an extensive production history and mature infrastructure. In 2017, production averaged approximately 41.4 Mbbls/d of oil, approximately 13.6 Mbbls/d of NGLs and approximately 67 MMcf/d of natural gas.

During 2017, Encana focused on maximizing efficiency improvements at an industrial scale and maximizing resource recovery by accessing layers of the stacked pay simultaneously using the cube development approach. This approach utilizes large multi-well pads, multi- rig spreads and frac spreads running in parallel to optimize cycle times, increase capital efficiency and reduce costs through economies of scale from higher utilization of services and consumable supplies, while minimizing the development or surface footprint. Encana also reduced capital costs through centralized wellsite facilities and water infrastructure. Encana also focused on increasing well productivity by optimizing completions designs, with precision targeting of the wells drilled, tighter cluster spacing and using cleaner and thinner fluids to maximize fracture complexity. During 2017, Encana drilled 126 horizontal net wells with lateral lengths ranging from approximately 4,200 to 11,000 feet at a measured average total depth of approximately 17,300 feet with well spacing ranging from approximately 360 to 660 feet. As Encana continues to optimize well and completion designs, lateral lengths drilled, stage and well spacing may change.

Oil and natural gas facilities include field gathering systems, storage batteries, saltwater disposal systems, separation equipment and pumping units. The majority of Encana’s acreage and associated oil production is dedicated to a pipeline gathering agreement, which has a total remaining term of 12 years including optional renewal terms. In the event of pipeline capacity constraints, Encana’s oil production is trucked by a third party. Natural gas is delivered by Encana to the purchaser’s meter and pipeline interconnection point in the field.

Other Upstream Operations:

San Juan

San Juan is a light sweet oil play located in the San Juan Basin in northwest New Mexico where Encana has its land position almost exclusively in the oil window of the play. Development is focused on the liquids in Tocito and El Vado formations within the play. At December 31, 2017, Encana controlled approximately 198,000 net acres in the play, which includes 69,000 net undeveloped acres. During 2017, Encana drilled 3 horizontal net wells in the Tocito and 1 horizontal net wells in El Vado with lateral lengths ranging from approximately 3,600 to 7,900 feet at a measured average total depth of approximately 12,300 feet. In 2017, Encana applied successful drilling and completions strategies from its other plays, drilling the wells in a transverse orientation utilizing thinner fluids and tighter cluster spacing to optimize fracture complexity. Encana is currently evaluating the stacked pay potential and future well inventory of the play from the well spacing trial. Production averaged approximately 3.9 Mbbls/d of oil and NGLs and approximately 9 MMcf/d of natural gas during the year. Encana has access to natural gas processing capacity of up to approximately 50 MMcf/d under a dedication agreement with a third party.

 

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PROVED RESERVES AND OTHER OIL AND GAS INFORMATION

The process of estimating oil, NGL and natural gas reserves is complex and requires significant judgment. Encana’s estimates of proved reserves and associated future net cash flows were evaluated and prepared by the Company’s qualified reserves evaluators (“QREs”) and are the responsibility of management. As a result, Encana has developed internal policies that prescribe procedures and standards to be followed for preparing, estimating and recording reserves in compliance with SEC definitions and regulations. Encana’s policies assign responsibilities for compliance in booking reserves and require that reserve estimates be made by its QREs. QRE is defined as a registered professional licensed to practice engineering, geology, geophysics and an individual who has a minimum of five years practical experience, with at least three recent years of experience in the evaluation of reserves.

Encana’s Vice-President, Corporate Reserves and Chief Reservoir Engineering and nine other staff (collectively, the “Corporate Reserves Group”) under this individual’s direction, oversee the internal preparation, review and approval of the reserves estimates. The Corporate Reserves Group reports to the Executive Vice-President, Exploration and Business Development and is separate and independent from the preparation of reserves estimates which are within operations who report to Encana’s Executive Vice-President & Chief Operating Officer. The Corporate Reserves Group maintains Encana’s internal policies that prescribe procedures and standards to be followed for preparing, estimating and recording reserves, which includes updating the Company’s reserves manual, and also conducts periodic internal audits of the procedures, records and controls relating to the preparation of reserves estimates. Encana’s QREs receive ongoing education on the fundamentals of SEC definitions and reserves reporting through the review of the Company’s reserves manual and internal training programs administered by the Corporate Reserves Group. The Corporate Reserves Group also oversees the engagement of independent qualified reserves evaluators (“IQREs”) or independent qualified reserves auditors (“IQRAs”), if any, retained by the Company.

As a member of the Corporate Reserves Group, the Company’s Director, Corporate Reserves reports to Encana’s Vice-President, Corporate Reserves and Chief Reservoir Engineering and is primarily responsible for overseeing the preparation of proved reserves estimates. The Director, Corporate Reserves has a Bachelor of Science with a degree in Petroleum Engineering from the University of Alberta, is a member of the Association of Professional Engineers and Geoscientists of Alberta (APEGA) and the Society of Petroleum Evaluation Engineers (Calgary Chapter).

Annually, each play is reviewed in detail by the QREs, the Corporate Reserves Group, the Company’s executive officers and an internal Reserves Review Committee, as appropriate. The Corporate Reserves Group also conducts a separate review to ensure the effectiveness of the disclosure controls and that the reserves estimates are free from material misstatement. The final reserves estimates are reviewed by Encana’s Reserves Committee of the Board of Directors (the “Reserves Committee”), for approval by the Board of Directors. The Reserves Committee comprises directors that are independent and familiar with estimating oil and gas reserves and disclosure requirements. The Reserves Committee provides additional oversight to the Company’s reserves process, meeting with management periodically to review the reserves process, the portfolio of properties results and related disclosures. The Reserves Committee is also responsible for reviewing the qualifications and appointment of IQREs or IQRAs, if any, retained by the Company, including recommending the selection of such IQREs or IQRAs to the Board of Directors for its approval, and will meet with such IQREs or IQRAs to review their reports.

For year-ended December 31, 2017, Encana involved IQRAs to audit and review the processes relating to the Company’s internal oil and gas reserve estimates for certain properties. In 2017, McDaniel & Associates Consultants Ltd. audited 75 percent of Encana’s estimated Canadian proved reserves volumes and Netherland, Sewell & Associates, Inc. audited 80 percent of Encana’s estimated U.S. proved reserves volumes. An audit of reserves is an examination of a company’s oil and gas reserves and future net cash flows by an independent petroleum consultant that is conducted for the purpose of expressing an opinion as to whether such estimates, in aggregate, are reasonable and have been estimated and presented in conformity with generally accepted petroleum engineering and evaluation methods and procedures.

Proved oil and gas reserves are those quantities of oil, gas and NGLs which, by analysis of geoscience and engineering data, can be estimated with reasonable certainty to be economically producible from known reservoirs under existing economic conditions, operating methods and government regulations. To be considered proved, oil and gas reserves must be economically producible before contracts providing the right to operate expire, unless evidence indicates that renewal is reasonably certain. Also, the project to extract the hydrocarbons must have commenced or the operator must be reasonably certain that it will commence the project within a reasonable time. Undrilled locations can be classified as having undeveloped reserves only if a development plan has been adopted indicating that they are scheduled to be drilled within five years.

 

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The Company’s reserve estimates are conducted from fundamental petrophysical, geological, engineering, financial and accounting data. Reserves are estimated based on production decline analysis, analogy to producing offsets, detailed reservoir modeling, volumetric calculations or a combination of these methods, in all cases having regard to economic considerations and using technologies that have been demonstrated in the field to yield repeatable and consistent results as defined in the SEC regulations. Data used in assessments include information obtained directly from the subsurface through wellbores such as well logs, reservoir core samples, fluid samples, static and dynamic pressure information, production test data, and surveillance and performance information. In the case of producing reserves, the emphasis is on decline analysis where volumetric analysis is considered to limit forecasts to reasonable levels. Non-producing reserves are estimated by analogy to producing offsets, with consideration of volumetric estimates of in place quantities. All locations to which proved undeveloped reserves have been assigned are subject to a development plan adopted by Encana’s management. The tools used to interpret the data included proprietary and commercially available reservoir modeling and simulation software. Reservoir parameters from analogous reservoirs were used to increase the quality of and confidence in the reserves estimates when available. The method or combination of methods used to estimate the reserves of each reservoir are based on the unique circumstances of each reservoir and the dataset available at the time of the estimate.

In general, estimates of economically recoverable reserves and the future net cash flows therefrom are based upon a number of variable factors and assumptions, such as historical production from the properties, production rates, ultimate reserve recovery, timing and amount of capital expenditures, marketability of crude oil and natural gas, royalty rates, the assumed effects of regulation by governmental agencies, and future operating costs, all of which may vary materially from actual results. For those reasons, among others, estimates of the economically recoverable crude oil and natural gas reserves attributable to any particular group of properties and estimates of future net revenues associated with reserves may vary and such variations may be material. The actual production, revenues, taxes and development, and operating expenditures with respect to the reserves associated with the Company’s properties may vary from the information presented herein, and such variations could be material.

The SEC regulations require that proved reserves be estimated using existing economic conditions (constant pricing). Based on this methodology, Encana’s reserves have been calculated utilizing the 12-month average trailing historical price for each of the years presented prior to the effective date of the report. The 12-month average is calculated as an unweighted average of the first-day-of-the-month price for each month. The reserves estimates provided herein are estimates only and there is no guarantee that the estimated reserves will be recovered.

Encana does not file any estimates of total net proved reserves with any U.S. federal authority or agency other than the SEC and the Department of Energy (“DOE”). Reserve estimates filed with the SEC correspond with the estimates of the Company’s reserves contained in its reports. Reserve estimates filed with the DOE are based upon the same underlying technical and economic assumptions as the estimates of Encana’s reserves that are filed with the SEC, however, the DOE requires reports to include the interests of all owners in wells that Encana operates and to exclude all interests in wells that Encana does not operate. Encana is also required to provide reserves data prepared in accordance with Canadian securities regulatory requirements, specifically National Instrument 51-101, Standards of Disclosure for Oil and Gas Activities (“NI 51-101”) which is filed concurrently on SEDAR at www.sedar.com under Encana’s issuer profile. The primary differences between NI 51-101 reporting requirements and SEC requirements include the disclosure of proved and probable reserves estimated using forecast prices and costs, presentation of reserves and production before royalties and granular product type disclosures. The reserves data prepared in accordance in NI 51-101 do not form part of this Annual Report on Form 10-K.

The reserves and other oil and gas information set forth below has an effective date of December 31, 2017 and was prepared as of January 15, 2018. The audit reports prepared by the IQRA’s are attached in Exhibits 99.1 and 99.2 of this Annual Report on Form 10-K.

The following table is a summary of the Company’s proved reserves and estimates of future net cash flows and discounted future net cash flows from proved reserves information relating to proved reserves which can also be found in Note 25 of Encana’s audited Consolidated Financial Statements under Item 8 of this Annual Report on Form 10-K.

 

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Proved Reserves

The table below summarizes the Company’s total proved reserves by natural gas, oil and NGLs and by geographic area as at December 31, 2017 and other summary operating data.

 

                     As at December 31, 2017                   
     

 

Canada

    

 

U.S.

    

 

Total  

 

 

  Proved Reserves: (1)

        

    Oil (MMbbls):

        

      Developed

     0.2        104.7        104.9    

      Undeveloped

     -        87.7        87.7    

      Total

     0.2        192.3        192.5    

 

    Natural Gas Liquids (MMbbls):

        

      Developed

     40.5        41.6        82.1    

      Undeveloped

     74.5        25.8        100.3    

      Total

     115.0        67.5        182.5    

 

    Natural Gas (Bcf):

        

      Developed

     1,082        243        1,325    

      Undeveloped

     1,053        141        1,195    

      Total

     2,135        384        2,519    

 

    Total Proved Reserves (MMBOE):

        

      Developed

     221.0        186.8        407.8    

      Undeveloped

     250.0        137.0        387.1    

      Total

     471.0        323.9        794.9    

 

    Percent Proved Developed

     47%        58%        51%    

    Percent Proved Undeveloped

     53%        42%        49%    

 

  Production (MBOE/d)

     169.1        144.1        313.2    

  Capital Investments (millions)

     $ 426        $1,358        $1,784    

  Total Net Producing Wells (2)

     1,835        2,339        4,174    

  Standardized Measure of Discounted Net Cash Flows: (3)

        

    Pre-Tax (millions)

     $1,635        $2,731        $4,366    

    Taxes (millions)

     53        -        53    

  After-Tax (millions)

     $1,582        $2,731        $4,313    

 

  (1)

Numbers may not add due to rounding.

  (2)

Total net producing wells includes producing wells and wells mechanically capable of production.

  (3)

The Pre-Tax standardized measure of discounted cash flows (“standardized measure”) is a non-GAAP measure. The Company believes the Pre-Tax standardized measure is a useful measure in addition to the After-Tax standardized measure, as it assists in both the estimation of future cash flows of the current reserves as well as in making relative value comparisons among peer companies. The After-Tax standardized measure is dependent on the unique tax situation of each individual company, while the Pre-Tax standardized measure is based on prices and discount factors, which are more consistent between peer companies. See Note 25 of Encana’s audited Consolidated Financial Statements under Item 8 of this Annual Report on Form 10-K for the standardized measure.

Changes to the Company’s proved reserves during 2017 are summarized in the table below:

 

                 2017                   
     

Oil

(MMbbls)

    

NGLs

(MMbbls)

    

Natural Gas

(Bcf)

    

Total

(MMBOE)

 

  Beginning of year (1)

     155.6         150.4         2,902         789.7   

    Revisions and improved recovery (2)

     (15.8)        (18.1)        (58)        (43.6)  

    Extensions and discoveries

     85.1         72.9         871         303.1   

    Purchase of reserves in place

     0.8         0.4                1.5   

    Sale of reserves in place

     (5.4)        (3.8)        (795)        (141.6)  

    Production

     (27.8)        (19.3)        (403)        (114.3)  

  End of year

     192.5         182.5         2,519         794.9   

  Developed

     104.9         82.1         1,325         407.8   

  Undeveloped

     87.7         100.3         1,195         387.1   

  Total

     192.5         182.5         2,519         794.9   
(1)

Numbers may not add due to rounding.

(2)

Changes in reserve estimates resulting from application of improved recovery techniques are nil and are included in revisions of previous estimates.

 

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In 2017, Encana’s proved oil and NGLs reserves of 375.0 MMbbls increased 69.0 MMbbls from 2016 primarily due to extensions and discoveries of 158.0 MMbbls in the Permian, Montney, and Eagle Ford and purchase of reserves in place of 1.2 MMbbls, partly offset by production of 47.1 MMbbls, negative revisions and improved recovery of 33.9 MMbbls and by sale of reserves of 9.2 MMbbls. Revisions and improved recovery of oil and NGLs were negative primarily due to negative revisions resulting from changes in the approved development plan of 40.3 MMbbls and forecast changes resulting from well performance of 7.7 MMbbls, partly offset by positive revisions of 14.0 MMbbls from higher 12-month average trailing oil and NGL prices.

In 2017, Encana’s proved natural gas reserves of approximately 2,519 Bcf decreased 383 Bcf from 2016 primarily due to sales of reserves in place of 795 Bcf resulting from the divestiture of the Piceance natural gas play and production of 403 Bcf. Revisions and improved recovery of natural gas were negative primarily due to negative revisions of 258 Bcf resulting from changes in the approved development plan, partly offset by positive revisions of 111 Bcf from higher 12-month average trailing natural gas prices and by positive forecast changes other than price of 89 Bcf. Extensions and discoveries of 871 Bcf were due to successful drilling and delineation of Permian, Montney and Eagle Ford assets.

Proved reserves are estimated based on the average beginning-of-month prices during the 12-month period for the respective year. The average prices used to compute proved reserves at December 31, 2017 were WTI: $51.34 per bbl, Edmonton Condensate: C$67.65 per bbl, Henry Hub: $2.98 per MMBtu, and AECO: C$2.32 per MMBtu. Prices for natural gas, oil and NGLs can fluctuate widely.

Proved Undeveloped Reserves

Changes to the Company’s proved undeveloped reserves during 2017 are summarized in the table below:

 

  (MMBOE)    2017  

  Beginning of year

     341.0  

    Revisions of prior estimates

     (98.7

    Extensions and discoveries

     225.7  

    Conversions to developed

     (82.4

    Purchase of reserves in place

     1.5  

    Sale of reserves in place

     -     

  End of Year

     387.1  

   * Numbers may not add due to rounding.

As of December 31, 2017, there were no proved undeveloped reserves that will remain undeveloped for five years or more.

Revisions of previous estimates of proved undeveloped reserves were revised down by 98.7 MMBOE primarily due to the removal of proved undeveloped locations of 83.3 MMBOE resulting from changes in the development plan related to Montney, Permian, Eagle Ford, and San Juan where specific locations previously planned to be drilled within five years were shifted to a later development timeframe and replaced with different locations that are included in extensions and discoveries. In addition, revisions of previous estimates also included a negative revision of 17.4 MMBOE from decreased well performance, offset by a positive revision of 2.0 MMBOE due to higher commodity prices.

Conversions of proved undeveloped reserves to proved developed status were 82.4 MMBOE, equating to 24 percent of the total prior year-end proved undeveloped reserves. Approximately 70 percent of proved undeveloped reserves conversions occurred in Canada in Montney and Duvernay and 30 percent occurred in the U.S. in Permian and Eagle Ford. Encana spent approximately $427 million to develop proved undeveloped reserves in 2017, of which approximately 40 percent related to the Canadian properties and 60 percent related to the U.S. properties.

Purchases of proved undeveloped reserves of 1.5 MMBOE relate to acquisitions in the Eagle Ford and Permian.

 

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Sales Volumes, Prices and Production Costs

The following table summarizes the Company’s production by final product sold, average sales price, and production cost per BOE for each of the last three years by geographic area:

 

    

            Production             

 

            Average Sales  Price (1)             

 

Average    
    Production    
    Cost (2)     

     

Oil

(MMbbls)

  

NGLs

(MMbbls)

  

Natural Gas  

(Bcf)  

 

Oil

($/bbl)

  

NGLs

($/bbl)

  

Natural Gas  

($/Mcf)  

  ($/BOE)   

  2017

                  

  Canada (3)

   0.1    10.6    306     42.33    45.35    2.16     11.46  

  USA

   27.7    8.7    97     49.14    22.30    3.03     9.42  

  Total

   27.8    19.3    403     49.10    34.98    2.37     10.52  

  2016 (4)

                  

  Canada

   0.7    9.2    353     36.32    32.32    1.77     10.69  

  USA

   26.3    8.5    153     38.67    14.86    2.29     10.89  

  Total

   27.0    17.7    506     38.61    23.94    1.93     10.78  

   2015 (4)

                  

  Canada

   2.0    8.3    354     43.90    29.21    2.75     11.74  

  USA

   29.8    8.6    242     43.31    14.37    2.60     13.96  

  Total

   31.8    16.9    596     43.35    21.66    2.69     12.92  

 

(1)

Excludes the impact of commodity derivatives.

(2)

Excludes ad valorem, severance and property taxes.

(3)

Annual production from fields that comprise greater than 15% of the Company’s total proved reserves as at December 31, 2017 related to Dawson North in Montney and included 81 Bcf of natural gas (2016 – 89 Bcf; 2015 – 67 Bcf) and 2.3 MMbbls of NGLs (2016 – 1.3 MMbbls; 2015 – 0.9 MMbbls).

(4)

Encana had no fields where annual production comprised greater than 15% of the Company’s total proved reserves for the periods ended December 31, 2016 and December 31, 2015.

The following table summarizes the Company’s revenues by product sold and by geographic area for each of the last three years:

 

   ($ millions)                Net Production Sales                                 Total
        Revenue        
 
   Oil      NGLs     Natural Gas       

Other    

Revenue (1)

     Gains (losses) on risk
management, net
         

  2017

                

  Canada

     $           7        $       481       $       662        $ 189          $ 522          $ 1,861    

  USA

     1,360        193       296          773        (40)        2,582    

  Total

     $    1,367        $       674       $       958        $ 962          $ 482          $ 4,443    

  2016

                

  Canada

     $         26        $       298       $       628        $ 166          $ (151)          $ 967    

  USA

     1,015        126       350          584        (124)        1,951    

  Total

     $    1,041        $       424       $       978        $ 750          $ (275)          $ 2,918    

  2015

                

  Canada

     $         90        $       243       $       976        $ 222          $ 166          $ 1,697    

  USA

     1,288        124       629          258        426        2,725    

  Total

     $    1,378        $       367       $    1,605        $ 480          $ 592          $ 4,422    

 

(1)

Includes market optimization and other revenues such as purchased product sold to third parties, sublease revenues and gathering and processing services provided to third parties.

 

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Drilling and other exploratory and development activities (1, 2)

The following tables summarize Encana’s gross participation and net interest in wells drilled for the periods indicated by geographic area.

 

    

        Exploratory        

  

                Development                 

  

Total

      Productive    Dry    Productive    Dry    Productive    Dry
      Gross    Net    Gross    Net      Gross    Net    Gross    Net      Gross    Net    Gross          Net  

  2017

                                   

  Canada

   2    1    -    -      189    116    -    -      191    117    -    -  

  USA

   -    -    -    -      183    168    -    -      183    168    -    -  

   Total

   2    1    -    -      372    284    -    -      374    285    -    -  

  2016

                                   

  Canada

   1    -    1    -      100    44    3    -      101    44    4    -  

  USA

   3    3    -    -      124    113    -    -      127    116    -    -  

   Total

   4    3    1    -      224    157    3    -      228    160    4    -  

  2015

                                   

  Canada

   -    -    1    -      173    135    -    -      173    135    1    -  

  USA

   -    -    -    -      402    265    2    -      402    265    2    -  

  Total

   -    -    1    -      575    400    2    -      575    400    3    -  

 

(1)

“Gross” wells are the total number of wells in which Encana has an interest.

(2)

“Net” wells are the number of wells obtained by aggregating Encana’s working interest in each of its gross wells.

Drilling and other exploratory and development activities (1, 2)

The following table summarizes the number of wells in the process of drilling or in active completion stages and the number of wells suspended or waiting on completion by geographic area at December 31, 2017.

 

    

Wells in the Process of Drilling or
in Active Completion

 

Wells Suspended or Waiting on
Completion   (3)

    

Exploratory

 

Development

 

Exploratory

 

Development

      Gross    Net     Gross    Net     Gross    Net     Gross    Net  

  2017

                    

  Canada

   -    -     19    13     -    -     57    34  

  USA

   -    -     23    23     -    -     11    11  

  Total

   -    -     42    36     -    -     68    45  

 

(1)

“Gross” wells are the total number of wells in which Encana has an interest.

(2)

“Net” wells are the number of wells obtained by aggregating Encana’s working interest in each of its gross wells.

(3)

Wells suspended or waiting on completion include exploratory and development wells where drilling has occurred, but the wells are awaiting the completion of hydraulic fracturing or other completion activities or the resumption of drilling in the future.

Oil and gas properties, wells, operations, and acreage

The following table summarizes the number of producing wells and wells mechanically capable of production by geographic area at December 31, 2017.

 

  Productive Wells  (1,  2)   

            Oil  (3)              

  

      Natural Gas  (4)        

  

  Total  

      Gross    Net      Gross    Net      Gross    Net  

  2017

                 

  Canada

   36    22      2,121    1,813      2,157    1,835  

  USA

   2,234    2,060      367    279      2,601    2,339  

   Total

   2,270    2,082      2,488    2,092      4,758    4,174  

 

(1)

“Gross” wells are the total number of wells in which Encana has an interest.

(2)

“Net” wells are the number of wells obtained by aggregating Encana’s working interest in each of its gross wells.

(3)

Includes 66 gross oil wells (13 net oil wells) containing multiple completions.

(4)

Includes 1,994 gross natural gas wells (1,674 net natural gas wells) containing multiple completions.

 

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The following table summarizes Encana’s developed, undeveloped and total landholdings by geographic area as at December 31, 2017.

 

  Landholdings  (1  - 6)      

Developed

 

Undeveloped

 

Total

  (thousands of acres)        Gross    Net        Gross    Net        Gross    Net     

  Canada

             

   Onshore

  — Crown   815   503       1,605   975       2,420   1,478    
  — Freehold   58   34       217   172       275   206    
  — Fee   1   1       3   3       4   4    

   Offshore

  — Crown   20   20       56   12       76   32    

  Total Canada

      894   558       1,881   1,162       2,775   1,720    

  United States

             
  — Federal/State   235   140       128   80       363   220    
  — Freehold   156   140       65   38       221   178    
  — Fee   1   -       5   1       6   1    
             

  Total United States

      392   280       198   119       590   399  

  International

             

   Australia

    -   -       104   40       104   40    

  Total International

      -   -       104   40       104   40    

  Total

      1,286   838       2,183   1,321       3,469   2,159    

 

(1)

Fee lands are those lands in which Encana has a fee simple interest in the mineral rights and has either: (i) not leased out all the mineral zones; (ii) retained a working interest; or (iii) one or more substances or products that have not been leased. The current fee lands acreage summary includes all fee titles owned by Encana that have one or more zones that remain unleased or available for development.

(2)

Crown/Federal/State lands are those owned by the federal, provincial or state government or First Nations, in which Encana has purchased a working interest lease.

(3)

Freehold lands are owned by individuals (other than a government or Encana), in which Encana holds a working interest lease.

(4)

Gross acres are the total area of properties in which Encana has an interest.

(5)

Net acres are the sum of Encana’s fractional interest in gross acres.

(6)

Undeveloped acreage refers to those acres on which wells have not been drilled or completed to a point that would permit the production of economic quantities of oil or gas regardless of whether such acreage contains proved reserves.

Of the total 2.2 million net acres, approximately 0.8 million net acres is held by production. The table above includes acreage subject to leases that will expire over the next three years: 2018 – approximately 78,000 net acres; 2019 – approximately 201,000 net acres; and 2020 – approximately 192,000 net acres, if the Company does not establish production or take any other action to extend the terms. For acreage that the Company intends to further develop, Encana will perform operational and administrative actions to continue the lease terms that are set to expire. As a result, it is not expected that a significant portion of the Company’s net acreage will expire before such actions occur.

Title to Properties

As is customary in the oil and natural gas industry, a preliminary review of title records, which may include opinions or reports of appropriate professionals or counsel, is made at the time Encana acquires properties. The Company believes that title to all of the various interests set forth in the above table is satisfactory and consistent with the standards generally accepted in the oil and gas industry, subject only to immaterial exceptions that do not detract substantially from the value of the interests or materially interfere with their use in Encana’s operations. The interests owned by Encana may be subject to one or more royalty, overriding royalty, or other outstanding interests (including disputes related to such interests) customary in the industry. The interests may additionally be subject to obligations or duties under applicable laws, ordinances, rules, regulations, and orders of arbitral or governmental authorities. In addition, the interests may be subject to burdens such as production payments, net profits interests, liens incident to operating agreements and current taxes, development obligations under oil and gas leases, and other encumbrances, easements, and restrictions, none of which detract substantially from the value of the interests or materially interfere with their use in the Company’s operations.

 

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MARKETING ACTIVITIES

Market Optimization activities are managed by Encana’s Midstream, Marketing & Fundamentals team, which is responsible for the sale of the Company’s proprietary production and enhancing the associated netback price. In marketing production, Encana looks to minimize market related shut-ins, maximize realized prices and manage concentration of credit-risk exposure. Market Optimization activities include third party purchases and sales of product to provide operational flexibility and cost mitigation for transportation commitments, product type, delivery points and customer diversification. In conjunction with certain divestitures, Encana has also agreed to market and transport certain portions of the acquirer’s production with remaining terms of less than five years.

Encana’s produced oil, NGLs and natural gas, are primarily marketed to refiners, local distributing companies, energy marketing companies and electronic exchanges. Prices received by Encana are based primarily upon prevailing market index prices in the region in which it is sold. Prices are impacted by regional and global supply and demand and by competing fuels in such markets.

Encana’s oil production is sold under short term and evergreen contracts or under dedication agreements, for which prices received by Encana are based primarily upon the prevailing index prices in the relevant region where the product is sold. Encana’s NGLs production is sold under short term and long-term contracts that range up to 11 years, or under dedication arrangements at the relevant market price at the time the product is sold. Encana’s natural gas production is sold under short-term delivery contracts with terms less than 2 years in duration, at the relevant monthly or daily market price at the time the product is sold. Natural gas production from Deep Panuke is sold under a dedication agreement with a third party for prevailing market prices in that region.

Encana also seeks to mitigate the market risk associated with future cash flows by entering into various financial risk management contracts relating to produced oil, NGLs and natural gas. Details of contracts related to Encana’s various financial risk management positions are found in Note 22 of Encana’s audited Consolidated Financial Statements under Item 8 of this Annual Report on Form 10-K.

The Company enters into various contractual agreements to sell oil, NGLs and natural gas, some of which require the delivery of fixed and determinable quantities. As of December 31, 2017, Encana was committed to deliver approximately 3,600 Mbbls of oil and NGLs and approximately 180,000 MMcf of natural gas in the Canadian Operations and approximately 44,000 MMcf of natural gas in the USA Operations with terms under two years.

Certain transportation and processing commitments result in the following financial commitments:

 

 ($ millions)    1 Year      2-3 Years      4-5 Years      > 5 years      Total   

 Transportation & Processing

              

 Canadian Operations

              

Oil & NGLs

     51        137        127        281        596   

Natural Gas

     406        779        657        1,809        3,651   

Total Canadian Operations

     457        916        784        2,090        4,247   

 

 USA Operations

              

Oil & NGLs

     3        6        6        17        32   

Natural Gas

     144        449        310        208        1,111   

Total USA Operations

     147        455        316        225        1,143   

  Total Canadian and USA Operations

     604        1,371        1,100        2,315        5,390   

In general, Encana expects to fulfill delivery commitments with production from proved developed reserves, with longer term delivery commitments to be filled from the Company’s proved undeveloped reserves. Where proved reserves are not sufficient to satisfy the Company’s delivery commitments, Encana can and may use spot market purchases to satisfy the respective commitments. In addition, for the Company’s long-term transportation and processing agreements, Encana also expects to fulfill delivery commitments from the future development of resources not yet characterized as proved reserves. Likewise, where delivery commitments are not transferred along with property divestitures, Encana may market and transport certain portions of the acquirer’s production to meet the delivery requirements.

 

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In addition, production from the Company’s reserves are not subject to any priorities or curtailments that may affect quantities delivered to its customers or any priority allocations or price limitations imposed by federal or state regulatory agencies, or any other factors beyond the Company’s control that may affect Encana’s ability to meet contractual obligations other than those discussed in Item 1A. Risk Factors of this Annual Report on Form 10-K.

MAJOR CUSTOMERS

In connection with the marketing and sale of Encana’s production and purchased oil, NGLs and natural gas for the year ended December 31, 2017, the Company had two customers, Royal Dutch Shell Group and Flint Hills Resources, which individually accounted for more than 10 percent of Encana’s consolidated revenues (2016 and 2015 – two customers, Royal Dutch Shell Group and Flint Hills Resources). Encana does not believe that the loss of any single customer would have a material adverse effect on the Company’s financial condition or results of operations. Further information on Encana’s major customers are found in Note 2 of Encana’s audited Consolidated Financial Statements under Item 8 of this Annual Report on Form 10-K.

COMPETITION

The Company’s competitors include national, integrated and independent oil and gas companies, as well as oil and gas marketers and other participants in other industries supplying energy and fuel to industrial, commercial and individual consumers. All aspects of the oil and gas industry are highly competitive and Encana actively competes with other companies in the industry, particularly in the following areas:

 

  ·  

Exploration for and development of new sources of oil, NGLs and natural gas reserves;

  ·  

Reserves and property acquisitions;

  ·  

Transportation and marketing of oil, NGLs, natural gas and diluents;

  ·  

Access to services and equipment to carry out exploration, development and operating activities; and

  ·  

Attracting and retaining experienced industry personnel.

The oil and gas industry also competes with other industries focused on providing alternative forms of energy to consumers. Competitive forces can lead to cost increases or result in an oversupply of oil, NGLs or natural gas.

EMPLOYEES

At December 31, 2017, Encana employed 2,107 employees as set forth in the following table.

      Employees     

 Canada

     1,157        

 U.S.

     950        

 

 Total

  

 

 

 

2,107      

 

 

The Company also engages a number of contractors and service providers.

ENVIRONMENTAL AND REGULATORY MATTERS

As Encana is an owner or lessee and operator of oil and gas properties and facilities in Canada and the United States, the Company is subject to numerous federal, provincial, state, local, tribal and foreign country laws and regulations relating to pollution, protection of the environment and the handling of hazardous materials. These laws and regulations generally require Encana to remove or remedy the effect of its activities on the environment at present and former operating sites, including dismantling production facilities, remediating damage caused by the use or release of specified substances, and require suspension or cessation of operations in affected areas. The following are significant areas of government control and regulation affecting Encana’s operations:

Exploration and Development Activities:

Our operations are subject to federal, tribal, state, provincial and local laws and regulations. These laws and regulations relate to matters that include: acquisition of seismic data; location, drilling and casing of wells; well design; hydraulic

 

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fracturing; well production; use, transportation, storage and disposal of fluids and materials incidental to oil and gas operations; surface usage and the restoration of properties upon which wells have been drilled and facilities have been constructed; plugging and abandoning of wells; transportation of production; and calculation and disbursement of royalty payments and production and other taxes.

The Company’s operations also are subject to conservation regulations, including the regulation of the size of drilling and spacing units or proration units; the number of wells that may be drilled in a unit; the rate of production allowable from oil and gas wells; and the unitization or pooling of oil and gas properties. In addition, conservation laws generally limit the venting or flaring of natural gas and impose certain requirements regarding the ratable purchase of production. These regulations limit the amounts of oil and gas that can produce from the Company’s wells and the number of wells or the locations that can be drilled.

Environmental and Occupational Regulations:

The Company is subject to many federal, state, provincial, local and tribal laws and regulations concerning occupational health and safety as well as the discharge of materials into, and the protection of, the environment. Environmental laws and regulations relate to:

 

   

the discharge of pollutants into federal, provincial and state waters;

   

assessing the environmental impact of seismic acquisition, drilling or construction activities;

   

the generation, storage, transportation and disposal of waste materials, including hazardous substances;

   

the emission of certain gases into the atmosphere;

   

the sourcing and disposal of water;

   

the protection of endangered species and habitat;

   

the monitoring, abandonment, reclamation and remediation of well and other sites, including sites of former operations;

   

the development of emergency response and spill contingency plans; and

   

employee health and safety.

Failure to comply with these laws and regulations may result in the assessment of sanctions, including administrative, civil, and criminal penalties; the imposition of investigatory, remedial, and corrective action obligations or the incurrence of capital expenditures; the occurrence of delays in the permitting, development or expansion of projects; and the issuance of injunctions restricting or prohibiting some or all of the Company’s activities in a particular area. Although environmental requirements have a substantial impact upon the energy industry as a whole, Encana does not believe that these requirements affect the Company differently, to any material degree, as compared to other companies in the oil and natural gas industry. For further information regarding regulations relating to environmental protection, see Item 1A. Risk Factors of this Annual Report on Form 10-K.

Operating and capital costs incurred to comply with the requirements of these laws and regulations are necessary business costs in the oil and gas industry. As a result, Encana has established policies for continuing compliance with environmental laws and regulations. The Corporate Responsibility, Environment, Health and Safety Committee of the Board of Directors reviews and recommends environmental policy to the Board of Directors for approval and oversees compliance with government laws and regulations. Monitoring and reporting programs for environmental, health and safety performance in day-to-day operations, as well as inspections and assessments, are designed to provide assurance that environmental and regulatory standards are met. The Company has established operating procedures and training programs designed to limit the environmental impact of the Company’s field facilities and identify, communicate and comply with changes in existing laws and regulations. Contingency plans are in place for a timely response to an environmental event and remediation/reclamation programs are in place and utilized to restore the environment. In addition, the Board of Directors is advised of significant contraventions thereof, and receives updates on trends, issues or events which could have a significant impact on the Company.

The Company believes that it is in material compliance with existing environmental and occupational health and safety regulations. Further, the Company believes that the cost of maintaining compliance with these existing laws and regulations will not have a material adverse effect on its business, financial condition or results of operations. In addition, Encana maintains insurance coverage for insurable risks against certain environmental and occupational health and safety risks that is consistent with insurance coverage held by other similarly situated industry participants, but the Company is not fully insured

 

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against all such risks. However, it is possible that developments, such as new or more stringently applied existing laws and regulations as well as claims for damages to property or persons resulting from the Company’s operations, could result in substantial costs and liabilities to the Company. As a result, Encana is unable to predict with any reasonable degree of certainty future exposures concerning such matters.

EXECUTIVE OFFICERS OF THE REGISTRANT

Encana’s Executive Officers are set out in the table below:

  Name    Age  (1)     

Years Served  

as Executive  

Officer  

  Corporate Office

  Douglas J. Suttles

     57      5     President & Chief Executive Officer

  Joanne L. Alexander

     51      3     Executive Vice-President & General Counsel

  Sherri A. Brillon

     58      11     Executive Vice-President & Chief Financial Officer

  David G. Hill

     56      4     Executive Vice-President, Exploration & Business Development

  Michael G. McAllister

     59      7     Executive Vice-President & Chief Operating Officer

  Michael Williams

     58      4     Executive Vice-President, Corporate Services

  Renee E. Zemljak

     53      8     Executive Vice-President, Midstream, Marketing & Fundamentals

(1) As of February 26, 2018

Mr. Suttles was appointed President & Chief Executive Officer in June 2013. Prior to that, Mr. Suttles was an independent businessman performing consulting services in the oil and gas industry and serving on the boards of Ceres, Inc. (a public energy crop company) and NEOS GeoSolutions (a privately held geosciences company) from March 2011 until June 2013. Mr. Suttles was also Chief Operating Officer at BP Exploration & Production from January 2009 until March 2011.

Ms. Alexander was appointed Executive Vice-President & General Counsel in January 2015. Prior to that, Ms. Alexander was Senior Vice President, General Counsel and Corporate Secretary of Precision Drilling Corporation (a public oil and gas services company) from April 2008 to December 2014 and General Counsel of Marathon Oil Canada Corporation (an oil and gas company) from 2007 to 2008.

Ms. Brillon was appointed Executive Vice-President & Chief Financial Officer in November 2009. Ms. Brillon joined one of Encana’s predecessor companies in 1985 and assumed a variety of leadership roles, including her previous position as Executive Vice-President, Strategic Planning and Portfolio Management in January 2007. Ms. Brillon served as a director of the Canadian Chamber of Commerce (a not-for-profit company) from 2007 to 2009, as a director of PrairieSky Royalty Ltd. (a public oil and gas royalty company) from April 2014 to September 2014 and as a director of Tim Horton’s Inc. (a public restaurant company) from November 2013 to December 2014.

Mr. Hill was appointed Executive Vice-President, Exploration & Business Development in November 2013. Mr. Hill joined Encana in November 2002 and assumed a variety of leadership roles, including his previous position as Vice-President, Natural Gas Economy Operations. Prior to these positions, Mr. Hill was President of TICORA Geosciences (a privately held geosciences company) from 2000 to 2002.

Mr. McAllister was appointed Executive Vice-President & Chief Operating Officer in November 2013. Mr. McAllister joined one of Encana’s predecessor companies in June 2000 and assumed a variety of leadership roles, including his previous position as Executive Vice-President & Senior Vice-President, Canadian Division in February 2011. Before joining Encana, Mr. McAllister worked in various technical and leadership roles for Texaco Canada and Imperial Oil Resources.

Mr. Williams was appointed Executive Vice-President, Corporate Services in March 2014. Prior to that, Mr. Williams was Executive Vice-President of Corporate Services with Tervita Corporation (a private energy services company) from 2011 to 2014 and Chief Administration Officer for TransAlta Corporation (a public power company) from 2002 to 2011.

Ms. Zemljak was appointed Executive Vice-President, Midstream, Marketing & Fundamentals in November 2009. Ms. Zemljak joined one of Encana’s predecessor companies in November 2000 and assumed a variety of leadership roles, including her previous position as Vice-President of USA Marketing in May 2002. Prior to joining Encana, Ms. Zemljak worked in various roles for Montana Power (formerly a public power company).

 

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ITEM 1A. Risk Factors

If any event arising from the risk factors set forth below occurs, Encana’s business, prospects, financial condition, results of operations, cash flows or the trading prices of securities and in some cases its reputation could be materially adversely affected. When assessing the materiality of the foregoing risk factors, Encana takes into account a number of qualitative and quantitative factors, including, but not limited to, financial, operational, environmental, regulatory, reputational and safety aspects of the identified risk factor.

A substantial or extended decline in natural gas, oil or NGLs prices and price differentials could have a material adverse effect on Encana’s financial condition.

Encana’s financial performance and condition are substantially dependent on the prevailing prices of natural gas, oil and NGLs. Low natural gas, oil or NGLs prices and significant U.S. and Canadian price differentials will have an adverse effect on the Company’s operations and financial condition and the value and amount of its reserves. Prices for natural gas, oil or NGLs fluctuate in response to changes in the supply and demand for natural gas, oil or NGLs, market uncertainty and a variety of additional factors beyond the Company’s control.

Natural gas prices realized by Encana are affected primarily by North American supply and demand, weather conditions, transportation and infrastructure constraints, prices and availability of alternate sources of energy (including refined products, coal, and renewable energy initiatives) and by technological advances affecting energy consumption. Oil prices are largely determined by international and domestic supply and demand. Factors which affect oil prices include the actions of the OPEC, world economic conditions, government regulation, political stability in the Middle East and elsewhere, the foreign and domestic supply of oil, the price of foreign imports, the availability of alternate fuel sources, transportation and infrastructure constraints and weather conditions. Historically, NGLs prices have generally been correlated with oil prices, and are determined based on supply and demand in international and domestic NGLs markets.

A substantial or extended decline in the price of natural gas, oil or NGLs could result in a delay or cancellation of existing or future drilling, development or construction programs or curtailment or shut-in of production at some properties or could result in unutilized long-term transportation and drilling commitments, all of which could have an adverse effect on the Company’s revenues, profitability and cash flows.

Natural gas and oil producers in North America, and particularly in Canada, currently receive discounted prices for their production relative to certain international prices due to constraints on their ability to transport and sell such production to international markets. A failure to resolve such constraints may result in continued discounted or reduced commodity prices realized by natural gas and oil producers, including Encana.

On at least an annual basis, Encana conducts an assessment of the carrying value of its assets in accordance with the applicable accounting standards. If natural gas, oil or NGLs prices decline further, the carrying value of Encana’s assets could be subject to financial downward revisions, and the Company’s net earnings could be adversely affected.

Encana’s ability to operate and complete projects is dependent on factors outside of its control which may have a material adverse effect on its business, financial condition or results of operations.

The Company’s ability to operate, generate sufficient cash flows, and complete projects depends upon numerous factors beyond the Company’s control. In addition to commodity prices and continued market demand for its products, these non-controllable factors include general business and market conditions, economic recessions and financial market turmoil, the overall state of the capital markets, including investor appetite for investments in the oil and gas industry generally and the Company’s securities in particular, the ability to secure and maintain cost effective financing for its commitments, legislative, environmental and regulatory matters, changes to free trade agreements, including the North American Free Trade Agreement (“NAFTA”), reliance on industry partners and service providers, unexpected cost increases, royalties, taxes, including the impact of recent U.S. tax reform and potential U.S. Treasury Department regulations and guidance, volatility in natural gas, oil or NGLs prices, the availability of drilling and other equipment, the ability to access lands, the ability to access water for hydraulic fracturing operations, physical impacts from adverse weather conditions and other natural disasters, the availability and proximity of processing and pipeline capacity, transportation interruptions and constraints, technology failures, accidents, the availability of skilled labour and reservoir quality. In addition, some of these risks may be magnified due to the concentrated nature of funding certain assets within the Company’s portfolio of oil and natural gas

 

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properties that are operated within limited geographic areas. As a result, a number of the Company’s assets could experience any of the same risks and conditions at the same time, resulting in a relatively greater impact on the Company’s financial condition and results of operations compared to other companies that may have a more geographically diversified portfolio of properties.

Fluctuations in natural gas, oil or NGLs prices can create fiscal challenges for the oil and gas industry. These conditions have impacted companies in the oil and gas industry and the Company’s spending and operating plans and may continue to do so in the future. There may be unexpected business impacts from market uncertainty, including volatile changes in currency exchange rates, inflation, interest rates, defaults of suppliers and general levels of investing and consuming activity, as well as a potential impact on the Company’s credit ratings, which could affect its liquidity and ability to obtain financing.

The Company undertakes a variety of projects including exploration and development projects and the construction or expansion of facilities and pipelines. Project delays may delay expected revenues and project cost overruns could make projects uneconomic.

All of Encana’s operations are subject to regulation and intervention by governments that can affect or prohibit the drilling, completion and tie-in of wells, production, the construction or expansion of facilities and the operation and abandonment of fields. Contract rights can be cancelled or expropriated. Changes to government regulation could impact the Company’s existing and planned projects.

Encana’s proved reserves are estimates and any material inaccuracies in our reserves estimates or assumptions underlying our reserves estimates could cause quantities and net present value of our reserves to be overstated or understated.

There are numerous uncertainties inherent in estimating quantities of natural gas, oil and NGLs reserves, including many factors beyond the Company’s control. The reserves data in this Annual Report on Form 10-K and other published reserves and resources data represents estimates only. In general, estimates of economically recoverable natural gas, oil and NGLs reserves and the future net cash flows therefrom are based upon a number of variable factors and assumptions, such as commodity prices, future operating and capital costs, availability of future capital, historical production from the properties and the assumed effects of regulation by governmental agencies, including with respect to royalty payments, all of which may vary considerably from actual results. All such estimates are to some degree uncertain, and classifications of reserves and resources are only attempts to define the degree of uncertainty involved.

For those reasons, estimates of the economically recoverable natural gas, oil and NGLs reserves attributable to any particular group of properties, classification of such reserves based on risk of recovery and estimates of future net revenues expected therefrom, prepared by different engineers or by the same engineers at different times, may vary substantially. Encana’s actual production, revenues, taxes and development and operating expenditures with respect to its reserves may vary from such estimates, and such variances could be material. Estimates with respect to reserves that may be developed and produced in the future are often based upon volumetric calculations and upon analogy to similar types of reserves, rather than upon actual production history. Estimates based on these methods generally are less reliable than those based on actual production history. Subsequent evaluation of the same reserves based upon production history will result in variations, which may be material, in the estimated reserves.

The estimates of reserves included in this Annual Report on Form 10-K are prepared in accordance with SEC regulations and require, subject to limited exceptions, that proved undeveloped reserves may only be classified as proved reserves if the related wells are scheduled to be drilled within five years after the date of booking. Reserves to be developed and produced in the future are based upon certain expectations and assumptions, including the allocation of capital, which may be subject to change. Proved undeveloped reserves may be reclassified to unproved due to delays in the development of reserves, or projects becoming uneconomical due to increases in costs to drill such reserves, or lower future net revenues from further decreases in commodity prices.

Commodity prices used to estimate reserves included in this Annual Report on Form 10-K are calculated as the average oil and natural gas price during the 12 months ending in the current reporting period, determined as the unweighted arithmetic average of prices on the first day of each month within the 12-month period. Significant future price changes can have a material effect on the quantity and value of the Company’s proved reserves. The standardized measure of discounted future net cash flows included in this Annual Report on Form 10-K will not represent the current market value of Encana’s

 

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estimated reserves. In addition, these reserve estimates do not include any value for probable or possible reserves that may exist, nor do they include any value for unproved undeveloped acreage.

If Encana fails to acquire or find additional reserves, the Company’s reserves and production will decline materially from their current levels.

Encana’s future oil, NGLs and natural gas reserves and production, and therefore its cash flows, are highly dependent upon its success in developing its current reserves base and acquiring, discovering or developing additional reserves. Without reserves additions through exploration, acquisition or development activities, the Company’s reserves and production will decline over time as reserves are depleted.

The business of exploring for, developing or acquiring reserves is capital intensive. In addition, part of Encana’s strategy is focused on a limited number of core assets which results in a concentration of capital and increased potential risks. To the extent that cash flows from the Company’s operations are insufficient and external sources of capital become limited, Encana’s ability to make the necessary capital investments to maintain and expand its natural gas, oil and NGLs reserves and production will be impaired. In addition, there can be no certainty that Encana will be able to find and develop or acquire additional reserves to replace production at acceptable costs.

In addition, Encana’s operations utilize horizontal multi-pad drilling, tighter drill spacing and completions techniques that evolve over time as learnings are captured and applied. The use of this technology may increase the risk of unintentional communication with other wells and the potential for acceleration of current reserves or an increase in recovery factor from the reservoir. If drilling and completions results are less than anticipated, the production volumes may be lower than anticipated.

The Company’s business is subject to environmental regulation in all jurisdictions in which it operates and any changes in such regulation could negatively affect its results of operations.

All phases of the natural gas, oil and NGLs businesses are subject to environmental regulation pursuant to a variety of Canadian, U.S. and other federal, provincial, territorial, tribal, state and municipal laws and regulations (collectively, “environmental regulation”).

Environmental regulation imposes, among other things, restrictions, liabilities and obligations in connection with the use, generation, handling, storage, transportation, treatment and disposal of chemicals, hazardous substances and waste associated with the finding, production, transmission and storage of the Company’s products including the hydraulic fracturing of wells, the decommissioning of facilities and in connection with spills, releases and emissions of various substances to the environment. It also imposes restrictions, liabilities and obligations in connection with the availability and management of fresh, potable or brackish water sources that are being used, or whose use is contemplated, in connection with natural gas and oil operations.

Environmental regulation also requires that wells, facility sites and other properties associated with Encana’s operations be operated, maintained, abandoned and reclaimed to the satisfaction of applicable regulatory authorities. In addition, certain types of operations, including exploration and development projects and changes to certain existing projects, may require the submission and approval of environmental impact assessments or permit applications. Compliance with environmental regulation can require significant expenditures, including expenditures for clean-up costs and damages arising out of contaminated properties and failure to comply with environmental regulation may result in the imposition of fines and penalties.

Although it is not expected that the costs of complying with environmental regulation will have a material adverse effect on Encana’s financial condition or results of operations, no assurance can be made that the costs of complying with environmental regulation in the future will not have such an effect as discussed below.

Climate Change - A number of federal, provincial and state governments have announced intentions to regulate greenhouse gases and certain air pollutants. These governments are currently developing regulatory and policy frameworks to deliver on their announcements. The Canadian federal government along with certain provinces and territories, including Alberta and British Columbia, have announced a pan-Canadian climate change framework that is consistent with the outcome reached at the 21 st Conference of the Parties in Paris and which includes imposing an economy wide cost on carbon emissions in Canada

 

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by 2023. The Alberta government outlined its Climate Leadership Plan which includes four key areas, one of which is targeting a 45 percent reduction in methane gas emissions from oil and gas operations by 2025, to be achieved through equipment replacement and leak detection and repair regulations. Both Alberta and British Columbia have implemented a provincial carbon tax; Alberta introduced a carbon levy in January 2017 of C$20 per tonne of CO 2 e, increasing to C$30 per tonne of CO 2 e in 2018 while British Columbia has an established carbon levy of C$30 per tonne of CO 2 e, increasing by C$5 per tonne of CO 2 e per year starting April 1, 2018 until it reaches C$50 per tonne of CO 2 e in 2021. In the United States, the U.S. Environmental Protection Agency (“EPA”) has proposed to delay the implementation of rules currently in effect that regulate methane emissions from the oil and gas industry. As part of the proposed delay, the EPA intends to evaluate whether to regulate oil and gas methane emissions directly or as a co-benefit of regulating volatile organic compounds. Encana’s cost of complying with emerging climate and cost of carbon regulations is not currently forecast to be material to the Company, however as these and additional federal and regional programs are in their early implementation stage or under development, Encana is unable to predict the total future impact of the potential regulations upon its business. Therefore, it is possible that the Company could face future increases in operating costs in order to comply with legislation governing emissions. Further, certain local governments, stakeholders and other groups have made claims against companies in the oil and gas industry, including the Company, relating to the purported causes and impact of climate change. These claims have, among other things, resulted in litigation, shareholder proposals and local ballot initiatives targeted against certain companies and the oil and gas industry generally. As these claims are in their early stages, the Company is unable to assess the impact of such claims on its business, but the defense of such matters may be costly and time consuming and could have a material adverse effect on the Company’s reputation.

Hydraulic Fracturing - The U.S. and Canadian federal governments and certain U.S. state and Canadian provincial governments continue to review certain aspects of the scientific, regulatory and policy framework under which hydraulic fracturing operations are conducted. Most of these governments are primarily engaged in the collection, review and assessment of technical information regarding the hydraulic fracturing process and have not provided specific details with respect to any significant actual, proposed or contemplated changes to the hydraulic fracturing regulatory construct. However, certain environmental and other groups continue to suggest that additional federal, provincial, territorial, state and municipal laws and regulations may be needed to more closely regulate the hydraulic fracturing process, and have made claims that hydraulic fracturing techniques are harmful to surface water and drinking water sources.

Further, certain governments in jurisdictions where the Company does not currently operate have considered or implemented moratoriums on hydraulic fracturing until further studies can be completed and some governments have adopted, and others have considered adopting, regulations that could impose more stringent permitting, disclosure and well construction requirements on hydraulic fracturing operations. Any new laws, regulations or permitting requirements regarding hydraulic fracturing could lead to operational delays, increased operating costs or third party or governmental claims, and could increase the Company’s cost of compliance and doing business as well as reduce the amount of natural gas and oil that the Company is ultimately able to produce from its reserves. The Company recognizes that additional hydraulic fracturing ballot initiatives and/or local rule-making limiting or restricting oil and gas development activities are a possibility in the future.

As these federal and regional programs are in their early implementation stage or under development, Encana is unable to predict the total impact of the potential regulations upon its business. Therefore, it is possible that the Company could face increases in operating costs or curtailment of production in order to comply with legislation governing hydraulic fracturing.

Seismic Activity – Some areas of North America are experiencing increasing localized frequency of seismic activity which has been associated with oil and gas operations. Although the occurrence of seismicity in relation to oil and gas operations is generally very low, it has been linked to deep disposal of wastewater in the United States and has been correlated with hydraulic fracturing in Western Canada which has prompted legislative and regulatory initiatives intended to address these concerns. These initiatives have the potential to require additional monitoring, restrict the injection of produced water in certain disposal wells and/or modify or curtail hydraulic fracturing operations which could lead to operational delays, increase compliance costs or otherwise adversely impact the Company’s operations.

Encana’s risk management activities may prevent the Company from fully benefiting from price increases and expose us to other risks.

The nature of the Company’s operations results in exposure to fluctuations in commodity prices and foreign currency exchange rates. The Company monitors its exposure to such fluctuations and, where the Company deems it appropriate,

 

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utilizes derivative financial instruments and physical delivery contracts to mitigate the potential impact of declines in natural gas, oil or NGLs prices and fluctuations in foreign currency exchange rates.

Under U.S. GAAP, derivative financial instruments that do not qualify or are not designated as hedges for accounting purposes are fair valued with the resulting changes recognized in current period net earnings. The utilization of derivative financial instruments may therefore introduce significant volatility into the Company’s reported net earnings.

The terms of the Company’s various risk management agreements and the amount of estimated production hedged may limit the benefit to the Company of commodity price increases. The Company may also suffer financial loss if the Company is unable to produce natural gas, oil or NGLs, or if counterparties to the Company’s risk management agreements fail to fulfill their obligations under the agreements, particularly during periods of declining commodity prices.

Downgrades in Encana’s credit ratings could increase its cost of capital and limit its access to capital, suppliers or counterparties.

Rating agencies regularly evaluate the Company, basing their ratings of its long-term and short-term debt on a number of factors. This includes the Company’s financial strength as well as factors not entirely within its control, including conditions affecting the oil and gas industry generally and the wider state of the economy. One of the Company’s credit ratings is below an investment-grade credit rating. There can be no assurance that the Company’s other credit ratings will not also be downgraded, including below an investment-grade credit rating.

The Company’s borrowing costs and ability to raise funds are directly impacted by its credit ratings. A downgrade may increase the cost of borrowing under the Company’s existing credit facilities, limit access to private and public markets to raise short-term and long-term debt, and negatively impact the Company’s cost of capital. Further, as a result of one of the Company’s credit ratings being below investment grade, access to the Company’s U.S. commercial paper program has been eliminated.

Credit ratings may also be important to suppliers or counterparties when they seek to engage in certain transactions. Downgrades in one or more of the Company’s credit ratings below investment-grade may require the Company to post collateral, letters of credit, cash or other forms of security as financial assurance of the Company’s performance under certain contractual arrangements with marketing counterparties, facility construction contracts, and pipeline and midstream service providers. Additionally, certain of these arrangements contain financial assurance language that may, under certain circumstances, permit the Company’s counterparties to request additional collateral.

In connection with certain over-the-counter derivatives contracts and other trading agreements, the Company could be required to provide additional collateral or to terminate transactions with certain counterparties based on its credit rating. The occurrence of any of the foregoing could adversely affect the Company’s ability to execute portions of its business strategy, including hedging, and could have a material adverse effect on its liquidity and capital position.

The Company’s level of indebtedness may limit its financial flexibility.

As at December 31, 2017, the Company had total long-term debt of $4,197 million and no outstanding balance under its revolving credit facilities. The terms of the Company’s various financing arrangements, including but not limited to the indentures relating to its outstanding senior notes and its revolving credit facilities, impose restrictions on its ability and, in some cases, the ability of the Company’s subsidiaries, to take a number of actions that it or they may otherwise desire to take, including: (i) incurring additional debt, including guarantees of indebtedness; (ii) creating liens on the Company’s or its subsidiaries’ assets; and (iii) selling certain of the Company’s or its subsidiaries’ assets.

The Company’s level of indebtedness could affect its operations by:

 

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requiring it to dedicate a portion of cash flows from operations to service its indebtedness, thereby reducing the availability of cash flow for other purposes;

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reducing its competitiveness compared to similar companies that have less debt;

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limiting its ability to obtain additional future financing for working capital, capital investments and acquisitions;

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limiting its flexibility in planning for, or reacting to, changes in its business and industry; and

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increasing its vulnerability to general adverse economic and industry conditions.

 

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The Company’s ability to meet its debt obligations and service those debt obligations depends on future performance. General economic conditions, natural gas, oil or NGLs prices, and financial, business and other factors affect the Company’s operations and future performance. Many of these factors are beyond the Company’s control. If the Company is unable to satisfy its obligations with cash on hand, the Company could attempt to refinance debt or repay debt with proceeds from a public offering of securities or selling certain assets. No assurance can be given that the Company will be able to generate sufficient cash flow to pay the interest obligations on its debt, or that funds from future borrowings, equity financings or proceeds from the sale of assets will be available to pay or refinance its debt, or on terms that will be favourable to the Company. Further, future acquisitions may decrease the Company’s liquidity by using a significant portion of its available cash or borrowing capacity to finance such acquisitions, and such acquisitions could result in a significant increase in the Company’s interest expense or financial leverage if it incurs additional debt to finance such acquisitions.

Encana’s operations are subject to the risk of business interruption, property and casualty losses. The Company’s insurance may not fully protect us against these risks and liabilities.

The Company’s business is subject to the operating risks normally associated with the exploration for, development of and production of natural gas, oil and NGLs and the operation of midstream facilities. These risks include blowouts, explosions, fire, gaseous leaks, migration of harmful substances and liquid spills, loss of well control, surface spills and uncontrolled ground releases of fluids during hydraulic fracturing or other similar activities, and acts of vandalism and terrorism, any of which could cause personal injury, result in damage to, or destruction of, natural gas and oil wells or formations or production facilities and other property, equipment and the environment, as well as interrupt operations.

In addition, all of Encana’s operations will be subject to all of the risks normally incident to the transportation, processing, storing and marketing of natural gas, oil, NGLs and other related products, drilling and completion of natural gas and oil wells, and the operation and development of natural gas and oil properties, including encountering unexpected formations or pressures, premature declines of reservoir pressure or productivity, blowouts, equipment failures and other accidents, sour gas releases, uncontrollable flows of natural gas, oil or well fluids, adverse weather conditions and other natural disasters, spills and migration of hazardous chemicals, pollution and other environmental risks.

The Company has become increasingly dependent upon information technology systems to conduct daily operations. The Company depends on various information technology systems to estimate reserve quantities, process and record financial and operating data, analyze seismic and drilling information, and communicate with employees and third-party partners. Unauthorized access to these systems by employees or third parties could lead to corruption or exposure of confidential, fiduciary or proprietary information, interruption to communications or operations or disruption to the Company’s business activities or its competitive position. The Company applies technical and process controls in line with industry-accepted standards to protect its information assets and systems and are reviewed by the appropriate senior management with oversight from the Company’s Board of Directors; however these controls may not adequately prevent cyber-security breaches. There is no assurance that the Company will not suffer losses associated with cyber-security breaches in the future, and the Company may be required to expend significant additional resources to investigate, mitigate and remediate any potential vulnerabilities.

We maintain insurance against some, but not all, of these risks and losses. The occurrence of a significant event against the Company which Encana is not fully insured could have a material adverse effect on the Company’s financial position.

Encana is dependent on partners to fund development projects conducted through joint ventures and partnerships, which if such funding is unavailable may adversely affect the Company’s operations and financial condition.

Some of Encana’s projects are conducted through joint ventures, partnerships or other arrangements, where Encana is dependent on its partners to fund their contractual share of the capital and operating expenditures related to such projects. If these partners do not approve or are unable to fund their contractual share of certain capital or operating expenditures, suspend or terminate such arrangements or otherwise fulfill their obligations, this may result in project delays or additional future costs to Encana, all of which may affect the viability of such projects.

These partners may also have strategic plans, objectives and interests that do not coincide with and may conflict with those of Encana. While certain operational decisions may be made solely at the discretion of Encana in its capacity as operator of certain projects, major capital and strategic decisions affecting such projects may require agreement among the partners. While Encana and its partners generally seek consensus with respect to major decisions concerning the direction and

 

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operation of the project assets, no assurance can be provided that the future demands or expectations of any party, including Encana, relating to such assets will be met satisfactorily or in a timely manner. Failure to satisfactorily meet such demands or expectations may affect Encana’s or its partners’ participation in the operation of such assets or the timing for undertaking various activities, which could negatively affect Encana’s operations and financial results. Further, Encana is involved from time to time in disputes with its partners and, as such, it may be unable to dispose of assets or interests in certain arrangements if such disputes cannot be resolved in a satisfactory or timely manner.

Encana may not realize anticipated benefits or be subject to unknown risks from acquisitions.

Encana has completed a number of acquisitions in order to strengthen its position and to create the opportunity to realize certain benefits, including, among other things, potential cost savings. Achieving the benefits of acquisitions depends in part on successfully consolidating functions and integrating operations and procedures in a timely and efficient manner, as well as being able to realize the anticipated growth opportunities and synergies from combining the acquired businesses and operations. Acquisitions could also result in difficulties in being able to hire, train or retain qualified personnel to manage and operate such properties.

Acquiring oil and natural gas properties requires the Company to assess reservoir and infrastructure characteristics, including estimated recoverable reserves, type curve performance and future production, commodity prices, revenues, development and operating costs and potential environmental and other liabilities. Such assessments are inexact and inherently uncertain and, as such, the acquired properties may not produce as expected, may not have the anticipated reserves and may be subject to increased costs and liabilities.

Although the acquired properties are reviewed prior to completion of an acquisition, such reviews are not capable of identifying all existing or potentially adverse conditions. This risk may be magnified where the acquired properties are in geographic areas where the Company has not historically operated or in new or emerging formations. New or emerging formations and areas often have limited or no production history and the Company may be less able to predict future drilling and production results over the life-cycles of the wells in such areas. Further, the Company also may not be able to obtain or realize upon contractual indemnities from the seller for liabilities created prior to an acquisition and it may be required to assume the risk of the physical condition of the properties that may not perform in accordance with its expectations.

The Company may be unable to dispose of certain assets and may be required to retain liabilities for certain matters.

The Company may identify certain assets for disposition, which could increase capital available for other activities or reduce the Company’s existing indebtedness. Various factors could materially affect the Company’s ability to dispose of those assets or complete announced transactions, including current commodity prices, the availability of purchasers willing to purchase certain assets at prices and on terms acceptable to the Company, approval by the Board of Directors, associated asset retirement obligations, due diligence, favourable market conditions, the assignability of joint venture, partnership or other arrangements and stock exchange, regulatory and third party approvals. These factors may also reduce the proceeds or value to Encana.

The Company may also retain certain liabilities for certain matters in a sale transaction. The magnitude of any such retained liabilities or indemnification obligations may be difficult to quantify at the time of the transaction and could ultimately be material. Further, certain third parties may be unwilling to release the Company from guarantees or other credit support provided prior to the sale of the divested assets. As a result, after the sale of certain assets, the Company may remain secondarily liable for the obligations guaranteed or supported to the extent that the purchaser of the assets fails to perform its obligations.

The decision to pay dividends and the amount of such dividends is subject to the discretion of the Board of Directors based on numerous factors and may vary from time to time.

Although the Company currently intends to pay quarterly cash dividends to its shareholders, these cash dividends may vary from time to time and could be increased, reduced or suspended. The amount of cash available to the Company to pay dividends, if any, can vary significantly from period to period for a number of reasons, including, among other things: Encana’s operational and financial performance; fluctuations in the costs to produce natural gas, oil and NGLs; the amount of cash required or retained for debt service or repayment; amounts required to fund capital expenditures and working capital

 

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requirements; access to equity markets; foreign currency exchange rates and interest rates; and the risk factors set forth in this Annual Report on Form 10-K.

The decision whether or not to pay dividends and the amount of any such dividends are subject to the discretion of the Board of Directors, which regularly evaluates the Company’s proposed dividend payments and the solvency test requirements of the CBCA. In addition, the level of dividends per common share will be affected by the number of outstanding common shares and other securities that may be entitled to receive cash dividends or other payments. Dividends may be increased, reduced or suspended depending on the Company’s operational success and the performance of its assets. The market value of the common shares may deteriorate if the Company is unable to meet dividend expectations in the future, and that deterioration may be material.

Changes to existing regulations related to income tax laws, royalty regimes, environmental laws or other regulations could adversely affect the Company’s business, financial position, cash flows or results of operations.

Income tax laws, including recent U.S. tax reform and potential U.S. Treasury Department regulations and guidance, royalty regimes, environmental laws or other laws and regulations, and free trade agreements, including NAFTA, may change or be interpreted in a manner that adversely affects the Company or its securityholders. Tax authorities having jurisdiction over the Company or its shareholders could change their administrative practices, or may disagree with the manner in which the Company calculates its tax liabilities or structures its arrangements, to the detriment of the Company or its securityholders. Changes to existing laws and regulations or the adoption of new laws and regulations could also increase the Company’s cost of compliance and adversely affect the Company’s business, financial position, cash flows or results of operations.

Encana does not operate all of its properties and assets and has limited control over factors that could adversely affect the Company’s financial performance.

Other companies operate a portion of the assets in which Encana has ownership interests. Encana may have limited ability to exercise influence over operation of these assets or their associated costs. Encana’s dependence on the operator and other working interest owners for these properties and assets, and its limited ability to influence operations and associated costs, could materially adversely affect the Company’s financial performance. The success and timing of Encana’s activities on assets operated by others therefore will depend upon factors that are outside of the Company’s control, including timing and amount of capital expenditures, timing and amount of operating and maintenance expenditures, the operator’s expertise and financial resources, approval of other participants, selection of technology and risk management practices.

Fluctuations in exchange rates could affect expenses or result in realized and unrealized losses.

Worldwide prices for natural gas and oil are set in U.S. dollars. Although Encana’s financial results are consolidated in Canadian dollars, the Company reports its financial results in U.S. dollars. As Encana operates in both Canada and the U.S., many of the Company’s expenses are incurred outside of the U.S. and are denominated in Canadian dollars. Fluctuations in the exchange rate between the U.S. dollar and the Canadian dollar could impact the Company’s revenue and expenses and have an adverse effect on the Company’s financial performance and condition.

In addition, the Company has U.S. dollar denominated long-term debt. Fluctuations in the exchange rate between the U.S. dollar and the Canadian dollar could result in realized and unrealized losses on U.S. dollar denominated long-term debt.

The inability of our customers and other contractual counterparties to satisfy their obligations to us may have a material adverse effect on us.

Encana is exposed to the risks associated with counterparty performance including credit risk and performance risk. Encana may experience material financial losses in the event of customer payment default for commodity sales and financial derivative transactions. Encana’s liquidity may also be impacted if any lender under the Company’s existing credit facilities is unable to fund its commitment. Performance risk can impact Encana’s operations by the non-delivery of contracted products or services by counterparties, which could impact project timelines or operational efficiency.

 

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The Company is subject to claims, litigation, administrative proceedings and regulatory actions that may not be resolved in the Company’s favour.

Encana may be subject to claims, litigation, administrative proceedings and regulatory actions. The outcome of these matters may be difficult to assess or quantify, and there cannot be any assurance that such matters will be resolved in the Company’s favour. If Encana is unable to resolve such matters favourably, the Company or its directors, officers or employees may become involved in legal proceedings that could result in an onerous or unfavourable decision, including fines, sanctions, monetary damages or the inability to engage in certain operations or transactions. The defence of such matters may also be costly and time consuming, and could divert the attention of management and key personnel from the Company’s operations. Encana may also be subject to adverse publicity associated with such matters, regardless of whether such allegations are valid or whether the Company is ultimately found liable. As a result, such matters could have a material adverse effect on the Company’s reputation, financial position, results of operations or liquidity. See Item 3 of this Annual Report on Form 10-K.

Encana relies on certain key personnel, and if the Company is unable to attract and retain key personnel necessary for its business, Encana’s operations may be negatively impacted.

The Company relies on certain key personnel for the development of its business. The experience, knowledge and contributions of the Company’s existing management team and directors to the immediate and near-term operations and direction of the Company are likely to continue to be of central importance for the foreseeable future. As such, the unexpected loss of services from or retirement of such key personnel could have a material adverse effect on the Company. In addition, the competition for qualified personnel in the oil and gas industry means there can be no assurance that the Company will be able to attract and retain such personnel with the required specialized skills necessary for its business.

Encana has certain indemnification obligations to certain counterparties that could have a material adverse effect on Encana.

Encana has agreed to indemnify or be indemnified by numerous counterparties for certain liabilities and obligations associated with businesses or assets retained or transferred by the Company. Specifically, in relation to a corporate reorganization to split into two independent publicly traded energy companies, Encana and Cenovus Energy Inc. (“Cenovus”) have each agreed to indemnify the other for certain liabilities and obligations associated with, among other things, in the case of Encana’s indemnity, the business and assets retained by Encana, and in the case of Cenovus’s indemnity, the business and assets transferred to Cenovus. Encana also has indemnification obligations under certain acquisition and divestiture activities it has undertaken.

Encana cannot determine whether it will be required to indemnify certain counterparties for any substantial obligations. Encana also cannot be assured that, if a counterparty is required to indemnify Encana and its affiliates for any substantial obligations, such counterparties will be able to satisfy such obligations. Any indemnification claims against Encana pursuant to the provisions of the transaction agreements could have a material adverse effect on Encana.

Item 1B. Unresolved Staff Comments

None.

Item 3. Legal Proceedings

Encana is involved in various legal claims and actions arising in the normal course of the Company’s operations. Although the outcome of these claims cannot be predicted with certainty, the Company does not expect these matters to have a material adverse effect on Encana’s financial position, cash flows or results of operations. If an unfavourable outcome were to occur, there exists the possibility of a material impact on the Company’s consolidated net earnings or loss for the period in which the effect becomes reasonably estimable. See Item 1A. Risk Factors, “The Company is subject to claims, litigation, administrative proceedings and regulatory actions that may not be resolved in the Company’s favour.” of this Annual Report on Form 10-K.

For additional information, see Note 24 of Encana’s audited Consolidated Financial Statements under Item 8 of this Annual Report on Form 10-K.

Item 4. Mine Safety Disclosures

Not applicable.

 

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PART II

Item 5. Market for Registrant’s Common Equity, Related Shareholder Matters and Issuer Purchases of Equity Securities

On February 15, 2018, the Company announced plans to spend up to US$400 million to purchase for cancellation up to 35,000,000 common shares through a NCIB, subject to and following TSX approval. On February 26, 2018, the Company announced that the TSX accepted its notice of intention to commence the NCIB beginning February 28, 2018 and ending February 27, 2019, whereby purchases will be made on the open market through the facilities of the TSX, NYSE and/or alternative trading systems at the market price at the time of acquisition, as well as by other means as may be permitted by stock exchange rules and securities laws, including by private agreements. The Company plans to fund the NCIB with cash on hand and has not purchased any of its common shares pursuant to a NCIB within the 12 months prior to such announcements.

MARKET INFORMATION, SHAREHOLDERS, AND DIVIDEND INFORMATION

Market Information

Encana’s common shares are listed and posted for trading on the TSX and NYSE under the symbol “ECA”. The following table sets forth the price range of Encana’s common shares as reported by the TSX and NYSE for the periods indicated:

 

     Toronto Stock  
Exchange  
           New York Stock  
Exchange  
 
     High              Low              High              Low    
              (C$ per share)                             ($ per share)            

   2017

             

  Three months ended:

             

  December 31, 2017

     16.93            13.03            13.52            10.16    

  September 30, 2017

     14.97            10.54            12.01            8.17    

  June 30, 2017

     16.40            10.64            12.25            8.02    

  March 31, 2017

     18.13            13.61            13.84            10.07    

   2016

             

  Three months ended:

             

  December 31, 2016

     17.70            12.03            13.40            8.96    

  September 30, 2016

     13.87            9.56            10.75            7.35    

  June 30, 2016

     11.47            7.41            9.03            5.63    

  March 31, 2016

     8.26            4.14                  6.37            3.01    

Holders

The Company is authorized to issue an unlimited number of common shares and Class A Preferred Shares limited to a number equal to not more than 20 percent of the issued and outstanding number of common shares at the time of the issuance. As at February 16, 2018, there were approximately 973 million common shares outstanding held by 24,696 shareholders of record, and no Class A Preferred Shares outstanding.

Dividend Information

In 2017, Encana paid a quarterly dividend of US$0.015 per share (US$0.06 per share annually). In 2016, Encana paid a quarterly dividend of US$0.015 per share (US$0.06 per share annually). Dividend payments are not guaranteed and the amount of cash to be distributed as dividends in the future may change. Any decision to pay dividends will be determined at the discretion of the Board of Directors after consideration of numerous factors including: (i) the earnings of the Company; (ii) financial requirements for the Company’s operations; (iii) the satisfaction by the Company of liquidity and solvency tests described in the CBCA; and (iv) any agreements relating to the Company’s indebtedness that restrict the declaration and payment of dividends. See Item 1A. Risk Factors of this Annual Report on Form 10-K, “The decision to pay dividends and the amount of such dividends is subject to the discretion of the Board of Directors based on numerous factors and may vary from time to time”. The Company currently pays dividends quarterly to shareholders of record as of the 15th day (or the previous business day) of the last month of each calendar quarter, with the last business day of the same month being the corresponding payment date. The dividends paid on the common shares are expected to be designated as “eligible dividends” for Canadian income tax purposes, unless otherwise notified.

 

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SECURITIES AUTHORIZED FOR ISSUANCE UNDER EQUITY COMPENSATION PLANS

Information concerning securities authorized for issuance under equity compensation plans is set forth in the Proxy Statement relating to the Company’s 2018 annual meeting of shareholders, which is incorporated herein by reference.

PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PERSONS

None.

RECENT SALES OF UNREGISTERED EQUITY SECURITIES

None.

PERFORMANCE GRAPH

The following performance graph and related information shall not be deemed “soliciting material” or to be “filed” with the SEC, nor shall information be incorporated by reference into any future filing under the Securities Act of 1933, as amended (the “Securities Act”) or the Exchange Act, except to the extent that the Company specifically incorporates it by reference into such filing.

The following graph compares the cumulative five-year total return to shareholders of Encana’s common shares relative to the cumulative total returns of the S&P/TSX Composite Index and a peer group of 24 companies operating in the same industry as the Company on December 31 for each of the years indicated. The companies included in the peer group are Anadarko Petroleum Corporation; Apache Corporation; Baytex Energy Corporation; Cabot Oil & Gas Corporation; Canadian Natural Resources Limited; Chesapeake Energy Corporation; Concho Resources Inc.; Continental Resources Inc.; Crescent Point Energy Corporation; Enerplus Corporation; Devon Energy Corporation; EOG Resources Inc.; Hess Corporation; Murphy Oil Corporation; Newfield Exploration Corporation; Noble Energy Inc.; Marathon Oil Corporation; Obsidian Energy Ltd.; Pengrowth Energy Corporation; Pioneer Natural Resources Company; Range Resources Corporation; Southwestern Energy Company; Vermillion Energy Inc.; and Whiting Petroleum Corporation. The graph was prepared assuming $100 was invested on December 31, 2012 in Encana’s common shares, the S&P 500, the S&P/TSX Composite Index and the peer groups, and dividends have been reinvested subsequent to the initial investment. The graph is included for historical comparative purposes only and should not be considered indicative of future share performance.

 

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Comparison of 5-Year Cumulative Total Return Among

Encana Corporation, the S&P 500, the S&P/TSX Composite Index and a Peer Group

 

LOGO

 

  Fiscal Year Ended December 31    2012      2013      2014      2015      2016      2017    

  Encana

   $      100.00      $      95.00      $      74.00      $      28.00      $      65.00      $      75.00    

  Peer Group

     100.00        129.00        99.00        59.00        87.00        79.00    

  S&P 500

     100.00        132.00        150.00        153.00        171.00        208.00    

  S&P/TSX Composite Index

     100.00        113.00        125.00        115.00        139.00        151.00    

 

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Item 6: Selected Financial Data

The following table sets forth selected financial data of the Company and its consolidated subsidiaries over the five-year period ended December 31, 2017, which has been derived from the Company’s audited Consolidated Financial Statements. The financial information below should be read in conjunction with Item 7 and Item 8 of this Annual Report on Form 10-K.

 

  Year Ended December 31 (US$ millions, unless otherwise specified)               2017                 2016                 2015                 2014                 2013  

   Statement of Earnings Data

         

  Revenues

    4,443       2,918       4,422       8,019       5,858  

  Impairments

    -       1,396       6,473       -       21  

  Operating Income (Loss)

    1,068       (1,881     (6,301     2,331       870  

  Gain (Loss) on Divestitures, Net

    404       390       14       3,426       7  

  Net Earnings (Loss) Attributable to Common Shareholders

    827       (944     (5,165     3,392       236  

   Per Share Data

         

  Net Earnings (Loss) per Common Share Basic & Diluted

    0.85       (1.07     (6.28     4.58       0.32  

  Dividends Declared per Common Share

    0.06       0.06       0.28       0.28       0.67  

  Weighted Average Common Shares Outstanding Basic & Diluted (millions)

    973.1       882.6       822.1       741.0       737.7  

 

   Balance Sheet Data

         

  Cash and Cash Equivalents

    719       834       271       338       2,566  

  Total Assets

    15,267       14,653       15,614       24,492       17,599  

  Capital Lease Obligations and The Bow Office Building

    1,639       1,570       1,591       1,959       2,175  

  Long-Term Debt, Including Current Portion

    4,197       4,198       5,333       7,301       7,078  

  Total Shareholders’ Equity

    6,728       6,126       6,167       9,685       5,147  

 

   Statement of Cash Flow Data

         

  Cash From (Used In) Operating Activities

    1,050       625       1,681       2,667       2,289  

  Non-GAAP Cash Flow (1)

    1,343       838       1,430       2,934       2,581  

  Capital Expenditures

    1,796       1,132       2,232       2,526       2,712  

  Net Acquisitions & (Divestitures)

    (682     (1,052     (1,838     (1,329     (521

 

   Foreign Exchange Rates (US$ per C$1)

         

  Average

    0.771       0.755       0.782       0.905       0.971  

  Period End

    0.797       0.745       0.723       0.862       0.940  

 

   Production Volumes

         

  Oil (Mbbls/d)

    76.3       73.7       87.0       49.4       25.8  

  Total NGLs (Mbbls/d) (2)

    52.8       48.4       46.4       37.4       28.1  

  Total Oil & NGLs (Mbbls/d)

    129.1       122.1       133.4       86.8       53.9  

  Natural Gas (MMcf/d)

    1,104       1,383       1,635       2,350       2,777  

  Total Production (MBOE/d)

    313.2       352.7       405.9       478.5       516.7  

   Commodity Prices, Including Realized Gain (Loss) on Risk Management

         

  Oil ($/bbl)

    49.76       48.68       49.68       86.03       88.19  

  Total NGLs ($/bbl) (2)

    34.72       23.90       21.66       48.09       48.95  

  Oil & NGLs ($/bbl)

    43.61       38.85       39.93       69.70       67.75  

  Natural Gas ($/Mcf)

    2.42       2.10       3.89       4.59       4.09  

  Total ($/BOE)

    26.51       21.69       28.81       35.21       29.05  

 

(1)

Non-GAAP Cash Flow is a non-GAAP measure and has no standardized meaning under U.S. GAAP. It is used by Management and investors to help assist in measuring Encana’s ability to finance capital programs and meet financial obligations. It is not intended to replace Cash From (Used In) Operating Activities as a measure. Non-GAAP Cash Flow is defined and reconciled in the Non-GAAP Measures section under Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.

(2)

Includes plant condensate.

 

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Supplemental Quarterly Financial Information (Unaudited)

See Note 26 of Encana’s audited Consolidated Financial Statements under Item 8 of this Annual Report on Form 10-K.

Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations

The MD&A is intended to provide a narrative description of Encana’s business from management’s perspective. This MD&A should be read in conjunction with the audited Consolidated Financial Statements and accompanying notes for the period ended December 31, 2017 (“Consolidated Financial Statements”), which are included in Item 8 of this Annual Report on Form 10-K. Common industry terms and abbreviations are used throughout this MD&A and are defined in the Definitions, Conversions and Conventions sections of this Annual Report on Form 10-K. This MD&A includes the following sections:

 

  ·  

Executive Overview

  ·  

Results of Operations

  ·  

Liquidity and Capital Resources

  ·  

Accounting Policies and Estimates

  ·  

Non-GAAP Measures

 

Executive Overview

 

Strategy

By executing on its strategy as outlined in Items 1 and 2 of this Annual Report on Form 10-K, Encana focuses on quality growth from high margin, scalable projects located in some of the best plays in North America, referred to as the “Core Assets”, comprising Montney and Duvernay in Canada and Eagle Ford and Permian in the U.S. These world-class assets form a multi-basin portfolio of oil, NGL and natural gas producing plays enabling flexible and efficient investment of capital. The Company rapidly deploys successful ideas and practices across these assets, becoming more efficient as innovative and sustainable technical improvements are implemented.

In executing its strategy, Encana focuses on its core values of One, Agile and Driven, which guide the organization to be flexible, responsive, determined and motivated with a commitment to excellence and a passion to succeed as a unified team.

In evaluating its operations, the Company reviews performance-based measures such as Non-GAAP Cash Flow and Non-GAAP Cash Flow Margin, which are non-GAAP measures and do not have any standardized meaning under U.S. GAAP. These measures may not be similar to measures presented by other issuers and should not be viewed as a substitute for measures reported under U.S. GAAP. Further information regarding these measures, including reconciliations to the closest GAAP measure, can be found in the Non-GAAP Measures section of this MD&A.

 

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Highlights

During 2017, Encana met or exceeded substantially all of the targets set in its full year 2017 guidance by successfully executing the Company’s 2017 capital plan, maintaining operational efficiencies achieved in 2016 and seeking new ways to reduce costs. Higher benchmark prices during 2017 compared to 2016 contributed to increases in Encana’s average realized oil, NGLs and natural gas prices of 27 percent, 46 percent and 23 percent, respectively, resulting in higher revenues.

Significant Developments

 

  ·  

Closed the sale of the Company’s Piceance natural gas assets in northwestern Colorado to Caerus Oil and Gas LLC for proceeds of approximately $605 million, after closing and other adjustments. In conjunction with the sale, Encana also reduced its midstream commitments by approximately $430 million (undiscounted).

 

  ·  

Commenced processing of production volumes in support of the Company’s liquids growth plans in Montney at the Tower, Saturn and Sunrise processing plants under a midstream agreement with Veresen Midstream Limited Partnership.

Financial Results

 

  ·  

Reported net earnings of $827 million, including before-tax amounts for net gains on risk management in revenues of $482 million, gain on divestitures of $404 million and foreign exchange gain of $279 million, as well as deferred tax expense of $666 million.

 

  ·  

Generated cash from operating activities of $1,050 million, Non-GAAP Cash Flow of $1,343 million and Non-GAAP Cash Flow Margin of $11.75 per BOE.

 

  ·  

Recovered current taxes of approximately $63 million and interest of $17 million, as well as received interest income of $33 million primarily resulting from the successful resolution of certain tax items previously assessed.

 

  ·  

Paid dividends of $0.06 per common share.

 

  ·  

Held cash and cash equivalents of $719 million and had available credit facilities of $4.5 billion for total liquidity of $5.2 billion at year end.

Capital Investment

 

  ·  

Reported total capital spending of $1,796 million which was within the full year 2017 guidance range of $1.6 billion to $1.8 billion.

 

  ·  

Directed $1,729 million, or 96 percent, of total capital spending to the Core Assets, of which 58 percent was directed to Permian.

 

  ·  

Focused on highly efficient capital activity and short-cycle high margin projects providing flexibility to respond to fluctuations in commodity prices.

Production

 

  ·  

Produced average oil and NGL volumes of 129.1 Mbbls/d which accounted for 41 percent of total production volumes and were within the full year 2017 guidance range of 127.0 Mbbls/d to 132.0 Mbbls/d. Average oil and plant condensate production volumes of 102.6 Mbbls/d were 79 percent of total liquids production volumes.

 

  ·  

Produced average natural gas volumes of 1,104 MMcf/d which accounted for 59 percent of total production volumes and were within the full year 2017 guidance range of 1,075 MMcf/d to 1,125 MMcf/d.

 

  ·  

Reported Core Assets production of 260.7 MBOE/d, or 83 percent of total production volumes, and delivered production growth of approximately 31 percent from the fourth quarter of 2016 to the fourth quarter of 2017 surpassing the top end of the full year 2017 guidance range of 25 to 30 percent.

 

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Operating Expenses

 

  ·  

Continued to benefit from operational efficiencies achieved in 2016, which contributed to further cost savings improvements in 2017.

 

  ·  

Achieved all targets set in the full year 2017 guidance range for transportation and processing expense, and upstream operating expense and administrative expense excluding long-term incentive costs.

 

  ·  

Reduced transportation and processing expense in 2017 by $56 million, or six percent, and reduced operating expense, excluding long-term incentive costs, by $78 million, or 14 percent, compared to 2016.

 

  ·  

Reduced administrative expense by $11 million, or six percent, excluding the impact of long-term incentive costs and restructuring charges compared to 2016.

2018 Outlook

 

Industry Outlook

The oil and gas industry is cyclical and commodity prices are inherently volatile. Oil prices during 2018 are expected to reflect global supply and demand dynamics as well as the geopolitical environment. At a meeting in November 2017, OPEC and certain non-OPEC countries agreed to further extend an agreement to voluntarily cut crude oil production through the end of 2018. The agreement, which was implemented in January 2017, and recent drawdowns of oil storage inventory levels, were generally supportive of oil prices in 2017; however, production growth in other countries continues to partially offset the expected benefit of the OPEC agreement. OPEC is scheduled to meet again in June 2018 to review production levels and a decision to discontinue or reduce the production cuts could negatively impact oil prices in 2018.

Natural gas prices in 2018 will be affected by the timing of supply and demand growth. Potential for improvement in U.S. natural gas prices is limited due to substantial production increases in Northeast U.S. and associated gas production in the Permian Basin, offsetting the positive impact of colder winter temperatures. Natural gas prices in Canada have seen significant negative price pressure as supply reached multi-year highs, surpassing regional demand and stressing effective pipeline capacity. Stronger condensate prices may also lend support to activity levels resulting in additional downward pressure on natural gas prices.

Company Outlook

Encana has positioned itself to be flexible and to continue to achieve strong returns from the Core Assets through this evolving price cycle. A portion of the Company’s oil, NGL and natural gas production is sold at prevailing market prices, which fluctuate as a result of factors that are outside of Encana’s control. The Company enters into derivative financial instruments which mitigate price volatility and help sustain revenues during periods of lower prices. As at February 12, 2018, the Company has hedged approximately 104,000 bbls/d of expected oil and condensate production and 790 MMcf/d of expected natural gas production for the remainder of 2018 using a variety of structures at average prices of $54.48 per bbl and $3.03 per Mcf, respectively.

Markets for crude oil and natural gas are exposed to different price risks. While the market price for crude oil tends to move in the same direction as the global market, natural gas may vary between geographic regions depending on local supply and demand conditions. Encana has proactively utilized transportation contracts to diversify the Company’s downstream markets and reduce significant exposure to any given market. Through a combination of derivative financial instruments and transportation capacity, Encana has removed the majority of its exposure to AECO pricing in 2018.

Capital Investment

Total anticipated 2018 capital investment of approximately $1.8 billion to $1.9 billion is expected to be primarily funded from 2018 cash generated from operating activities. Encana plans to focus the majority of its capital investment on its Core Assets with approximately 70 percent directed to Permian and Montney. Capital investment in Permian is expected to be focused on optimizing the cube development approach to maximize returns and recovery. Capital investment in Montney is expected to be allocated to both Cutbank Ridge and Pipestone with a focus on growing condensate. Access to liquids handling infrastructure planned for completion in the second half of 2018 is expected to support liquids growth in Montney.

 

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Encana continually strives to improve well performance by lowering drilling and completion costs through innovative techniques. Encana’s large-scale cube development model utilizes multi-well pads and advanced completion designs to access stacked pay resource to maximize returns and resource recovery from its reservoirs. The impact of Encana’s disciplined capital program and continuous innovation create flexibility and opportunity to grow cash flows and production volumes going forward.

Production

As part of the Company’s long-term growth strategy, Encana has significantly shifted its production mix to a more balanced portfolio in the recent years, thereby reducing exposure to market volatility. In 2018, Encana expects to continue to focus on growing condensate and expects liquids production volumes of 165.0 Mbbls/d to 175.0 Mbbls/d and natural gas production volumes of 1,150 MMcf/d to 1,250 MMcf/d. Liquids production is expected to be approximately 46 percent of total production in 2018. Liquids growth from Montney will be supported by the Tower, Saturn and Sunrise processing plants completed in 2017, as well as two facilities expected to be completed in the second half of 2018. Core Asset production will account for the majority of total production volumes with significant oil and condensate growth in the second half of the year. Growing production in the Core Assets is expected to increase cash flows and deliver competitive returns.

Operating Expenses

Efficiency improvements and lower service costs are expected to be maintained through the support of the Company’s culture of innovation and its focus on continuous improvement in operational execution. As activity in the industry begins to accelerate, Encana expects to continue pursuing innovative ways to reduce upstream operating and administrative expenses. Encana expects upstream operating expense of $3.00 per BOE to $3.30 per BOE and transportation and processing expense of $7.40 per BOE to $7.75 per BOE. Transportation and processing expense includes costs relating to the diversification of the Company’s downstream markets that are expected to increase overall margins through higher prices. Administrative expense is expected to be between $1.25 per BOE to $1.50 per BOE. Guidance for upstream operating expense and administrative expense excludes long-term incentive costs.

Service costs are expected to increase with higher activity in the oil and gas industry and the recovery of commodity prices. Encana continues to offset any inflationary pressures with efficiency improvements and effective supply chain management, including favorable price negotiations.

Further information on Encana’s 2018 Corporate Guidance can be accessed on the Company’s website at www.encana.com .

 

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 Results of Operations

 

Selected Financial Information

 

  ($ millions)           2017              2016            2015  

  Product Revenues

  $        2,999      $        2,443     $        3,350  

  Gains (Losses) on Risk Management, net

  482      (275)    592  

  Market Optimization

  863      647     368  

  Other

  99      103     112  

  Total Revenues

  4,443      2,918     4,422  

  Total Operating Expenses (1)

  3,375      4,799     10,723  

  Operating Income (Loss)

  1,068      (1,881)    (6,301) 

  Total Other (Income) Expenses

  (362)     (261)    1,709  

  Net Earnings (Loss) Before Income Tax

  1,430      (1,620)    (8,010) 

  Net Earnings (Loss)

  $           827      $         (944)    $       (5,165) 

 

  (1)

    Total Operating Expenses include non-cash items such as DD&A, impairments, accretion of asset retirement obligations and long-term incentive costs.

 

Revenues

Encana’s revenues are substantially derived from sales of oil, NGL and natural gas production. Increases or decreases in Encana’s revenue, profitability and future production are highly dependent on the commodity prices the Company receives. Prices are market driven and fluctuate due to factors beyond the Company’s control, such as supply and demand, seasonality and geopolitical and economic factors. Canadian Operations realized prices are closely linked to the Edmonton Condensate and AECO benchmark prices, except for production from Deep Panuke which is closely related to the Algonquin City Gate benchmark price due to the proximity of the offshore production platform to New England. The USA Operations realized prices generally reflect WTI and NYMEX benchmark prices. Realized NGL prices are significantly influenced by oil benchmark prices and the NGL production mix. Recent trends in benchmark prices relevant to Encana are shown in the table below.

Benchmark Prices

 

  (average for the period)

            2017                  2016               2015   

   Oil & NGLs

         

WTI ($/bbl)

  $         50.95        $ 43.32      $ 48.80   

Edmonton Condensate (C$/bbl)

      66.90          56.18        60.33   

   Natural Gas

         

NYMEX ($/MMBtu)

  $       3.11        $ 2.46      $ 2.66   

AECO (C$/Mcf)

      2.43          2.09        2.77   

Algonquin City Gate ($/MMBtu)

            3.68          3.10        4.74   

 

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Production Volumes and Realized Prices

 

     Production Volumes  (1)             Realized Prices  (2)  
            2017            2016            2015                   2017            2016            2015  

   Oil (Mbbls/d, $/bbl)

                    

Canadian Operations

     0.4         2.0        5.6         $ 42.33       $ 36.32      $ 43.90  

USA Operations

     75.9         71.7        81.4           49.14         38.67        43.31  

Total

     76.3         73.7        87.0           49.10         38.61        43.35  

   NGLs – Plant Condensate (Mbbls/d, $/bbl)

                    

Canadian Operations

     23.1         17.6        13.9           50.57         40.97        43.26  

USA Operations

     3.2         2.7        2.9           40.64         32.48        37.39  

Total

     26.3         20.3        16.8           49.35         39.84        42.26  

   NGLs – Other (Mbbls/d, $/bbl)

                    

Canadian Operations

     6.0         7.6        8.9           25.19         12.13        7.13  

USA Operations

     20.5         20.5        20.7           19.42         12.53        11.20  

Total

     26.5         28.1        29.6           20.72         12.42        9.98  

   Total NGLs (Mbbls/d, $/bbl)

                    

Canadian Operations

     29.1         25.2        22.8           45.35         32.32        29.21  

USA Operations

     23.7         23.2        23.6           22.30         14.86        14.37  

Total

     52.8         48.4        46.4           34.98         23.94        21.66  

   Total Oil  & NGLs (Mbbls/d, $/bbl)

                    

Canadian Operations

     29.5         27.2        28.4           45.30         32.61        32.10  

USA Operations

     99.6         94.9        105.0           42.74         32.84        36.80  

Total

     129.1         122.1        133.4           43.33         32.79        35.80  

   Natural Gas (MMcf/d, $/Mcf)

                    

Canadian Operations

     838         966        971           2.16         1.77        2.75  

USA Operations

     266         417        664           3.03         2.29        2.60  

Total

     1,104         1,383        1,635           2.37         1.93        2.69  

   Total Production (MBOE/d, $/BOE)

                    

Canadian Operations

     169.1         188.2        190.2           18.61         13.82        18.84  

USA Operations

     144.1         164.5        215.7           35.16         24.78        25.93  

Total

     313.2         352.7        405.9                 26.22         18.93        22.61    

Production Mix (%)

                    

Oil & Plant Condensate

     33         27        26              

NGLs – Other

            8        7              

Total Oil & NGLs

     41         35        33              

Natural Gas

     59         65        67                                      

   Core Asset Production

                    

Oil (Mbbls/d)

     72.6         64.1        66.5              

NGLs – Plant Condensate (Mbbls/d)

     25.8         19.2        15.1              

NGLs – Other (Mbbls/d)

     24.7         22.9        21.3              

Total NGLs (Mbbls/d)

     50.5         42.1        36.4              

Total Oil & NGLs (Mbbls/d)

     123.1         106.2        102.9              

Natural Gas (MMcf/d)

     826         887        838              

Total Production (MBOE/d)

     260.7         254.2        242.6              

% of Total Encana Production

     83         72        60                                      

 

  (1)

    Average daily.

  (2)

    Average per-unit prices, excluding the impact of risk management activities.

 

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Product Revenues

   ($ millions)          Oil       NGLs  (1)     

  Natural

Gas

        Total   

  2015 Product Revenues

   $ 1,378     $ 367      $ 1,605     $ 3,350   

  Increase (decrease) due to:

         

      Sales prices

           (128 )       33        (369     (464)  

      Production volumes

     (209 )       24        (258     (443)  

  2016 Product Revenues

   $ 1,041     $ 424      $ 978     $ 2,443   

  Increase (decrease) due to:

         

      Sales prices

     290       203        201       694   

      Production volumes

     36       47        (221     (138)  

  2017 Product Revenues

   $ 1,367     $ 674      $ 958     $ 2,999   

 

  (1)

  Includes plant condensate.

Oil Revenues

2017 versus 2016

Oil revenues increased $326 million compared to 2016 primarily due to:

 

  ·  

Higher average realized oil prices of $10.49 per bbl, or 27 percent, increased revenues by $290 million. The increase reflected a higher WTI benchmark price which was up 18 percent. The increase was also due to higher utilization of pipelines to transport oil to more favourable markets to receive a higher realized price, as well as improved regional pricing in the USA Operations; and

 

  ·  

Higher average oil production volumes of 2.6 Mbbls/d increased revenues by $36 million. Higher volumes were primarily due to a successful drilling program in Permian (11.6 Mbbls/d), partially offset by the sales of the DJ Basin and Gordondale assets in the third quarter of 2016 and the Tuscaloosa Marine Shale assets in the second quarter of 2017 (5.3 Mbbls/d), natural declines in the USA Other Upstream Operations (1.5 Mbbls/d) and Eagle Ford (1.3 Mbbls/d) and production constraints resulting from Hurricane Harvey in Eagle Ford and Permian during the third quarter of 2017 (0.5 Mbbls/d).

2016 versus 2015

Oil revenues decreased $337 million compared to 2015 primarily due to:

 

  ·  

Lower average realized oil prices of $4.74 per bbl, or 11 percent, decreased revenues by $128 million. The decrease reflected lower WTI and Edmonton Condensate benchmark prices which were down 11 percent and seven percent, respectively; and

 

  ·  

Lower average oil production volumes of 13.3 Mbbls/d decreased revenues by $209 million. Lower volumes were primarily due to natural declines in the USA Other Upstream Operations (8.3 Mbbls/d) and on Montney oil wells (1.8 Mbbls/d), a reduced capital program in Eagle Ford (4.6 Mbbls/d) and the sales of the DJ Basin and Gordondale assets in the third quarter of 2016 (3.1 Mbbls/d), partially offset by a successful drilling program in Permian (5.8 Mbbls/d).

 

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NGL Revenues

2017 versus 2016

NGL revenues increased $250 million compared to 2016 primarily due to:

 

  ·  

Higher average realized NGL prices of $11.04 per bbl, or 46 percent, increased revenues by $203 million. The increase reflected higher WTI and Edmonton Condensate benchmark prices which were up 18 percent and 19 percent, respectively. The increase was also due to a shift in the NGL production mix to higher value condensate compared to 2016; and

 

  ·  

Higher average NGL production volumes of 4.4 Mbbls/d increased revenues by $47 million. Higher volumes were primarily due to successful drilling programs in the Core Assets (12.3 Mbbls/d), partially offset by asset sales (7.0 Mbbls/d) which mainly include the Gordondale and DJ Basin assets in the third quarter of 2016, and natural declines in Other Upstream Operations (0.6 Mbbls/d).

2016 versus 2015

NGL revenues increased $57 million compared to 2015 primarily due to:

 

  ·  

Higher average realized NGL prices of $2.28 per bbl, or 11 percent, increased revenues by $33 million, mainly reflecting a shift in the NGL production mix to higher value condensate compared to 2015; and

 

  ·  

Higher average NGL production volumes of 2.0 Mbbls/d increased revenues by $24 million. Higher volumes were primarily due to successful drilling programs in the Core Assets (7.8 Mbbls/d), partially offset by the sales of the Gordondale and DJ Basin assets in the third quarter of 2016 (4.5 Mbbls/d) and natural declines in the USA Other Upstream Operations (1.1 Mbbls/d).

Natural Gas Revenues

2017 versus 2016

Natural gas revenues decreased $20 million compared to 2016 primarily due to:

 

  ·  

Lower average natural gas production volumes of 279 MMcf/d decreased revenues by $221 million. Lower volumes were primarily due to asset sales (198 MMcf/d) which mainly include the Piceance natural gas assets in the third quarter of 2017 and the Gordondale and DJ Basin assets in the third quarter of 2016, natural declines in Other Upstream Operations (77 MMcf/d) and increased downtime resulting from scheduled third-party plant maintenance in Montney (19 MMcf/d), partially offset by a successful drilling program in Permian (17 MMcf/d);

partially offset by:

 

  ·  

Higher average realized natural gas prices of $0.44 per Mcf, or 23 percent, increased revenues by $201 million. The increase reflected higher NYMEX, AECO and Algonquin City Gate benchmark prices which were up 26 percent, 16 percent and 19 percent, respectively. The increase was also due to the diversification of the Company’s downstream markets to capture a higher realized price.

 

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2016 versus 2015

Natural gas revenues decreased $627 million compared to 2015 primarily due to:

 

  ·  

Lower average realized natural gas prices of $0.76 per Mcf, or 28 percent, decreased revenues by $369 million. The decrease reflected lower NYMEX, AECO and Algonquin City Gate benchmark prices which were down eight percent, 25 percent and 35 percent, respectively; and

 

  ·  

Lower average natural gas production volumes of 252 MMcf/d decreased revenues by $258 million. Lower volumes were primarily due to the sale of the Haynesville natural gas assets in the fourth quarter of 2015 (152 MMcf/d), the sales of the Gordondale and DJ Basin assets in the third quarter of 2016 (53 MMcf/d) and natural declines in Other Upstream Operations (86 MMcf/d), partially offset by successful drilling programs in Montney and Duvernay (66 MMcf/d).

Gains (Losses) on Risk Management, Net

As a means of managing commodity price volatility, Encana enters into commodity derivative financial instruments on a portion of its expected oil, NGL and natural gas production volumes. The Company’s commodity price mitigation program reduces volatility and helps sustain revenues during periods of lower prices. Further information on the Company’s commodity price positions as at December 31, 2017 can be found in Note 22 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

The following table provides the effects of Encana’s risk management activities on revenues.

 

     $ millions            Per-Unit  
              2017             2016             2015                     2017             2016             2015   

  Realized Gains (Losses) on Risk Management

               

  Commodity Price

               

Oil ($/bbl)

   $ 18     $ 271     $ 201        $ 0.66     $ 10.07     $ 6.33  

NGLs ($/bbl) (1)

     (5     -       -          (0.26     (0.04      

Natural Gas ($/Mcf)

     20       85       718          0.05       0.17       1.20   

Other (2)

     7       5       (2        -       -        

Total ($/BOE)

     40       361       917        $ 0.29     $ 2.76     $ 6.20   

  Unrealized Gains (Losses) on Risk Management

     442       (636     (325         

  Total Gains (Losses) on Risk Management, Net

   $     482     $ (275   $ 592                                   

 

(1)

Includes plant condensate.

(2)

Other primarily includes realized gains or losses from other derivative contracts with no associated production volumes.

Encana recognizes fair value changes from its risk management activities each reporting period. The changes in fair value result from new positions and settlements that occur during each period, as well as the relationship between contract prices and the associated forward curves. Realized gains or losses on risk management activities related to commodity price mitigation are included in the Canadian Operations, USA Operations and Market Optimization revenues as the contracts are cash settled. Unrealized gains or losses on fair value changes of unsettled contracts are included in the Corporate and Other segment.

Market Optimization Revenues

Market Optimization revenues relate to activities that provide operational flexibility and cost mitigation for transportation commitments, product type, delivery points and customer diversification.

 

  ($ millions)      2017        2016      2015   

 

  Market Optimization

   $     863      $     647      $     368   

 

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Table of Contents

2017 versus 2016

Market Optimization revenues increased $216 million compared to 2016 primarily due to:

 

  ·  

Higher commodity prices ($166 million) and higher sales of third-party purchased volumes used for optimization activities ($50 million).

2016 versus 2015

Market Optimization revenues increased $279 million compared to 2015 primarily due to:

 

  ·  

Higher sales of third-party purchased volumes used for optimization activities ($290 million).

Other Revenues

Other revenues primarily includes amounts related to the sublease of office space in The Bow office building recorded in the Corporate and Other segment, as well as third party transportation and processing revenues with no associated volumes recorded in the Canadian and USA Operations segments. Further information on The Bow office sublease can be found in Note 13 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

Operating Expenses

 

Production, Mineral and Other Taxes

Production, mineral and other taxes include production and property taxes. Production taxes are generally assessed as a percentage of oil and gas production revenues. Property taxes are generally assessed based on the value of the underlying assets.

 

     $ millions             $/BOE  
            2017              2016            2015                    2017              2016            2015   

    Canadian Operations

   $ 20       $ 23      $ 28          $ 0.33       $ 0.33      $ 0.41   

    USA Operations

     92         76        116          $ 1.74       $ 1.27      $ 1.47   

    Total

   $ 112       $ 99      $ 144                $ 0.98       $ 0.77      $ 0.97   

2017 versus 2016

Production, mineral and other taxes increased $13 million compared to 2016 primarily due to:

 

  ·  

Higher commodity prices in the USA Operations and higher oil and NGL production volumes in Permian ($31 million);

partially offset by:

 

  ·  

The sales of the DJ Basin and Gordondale assets in the third quarter of 2016 and the Piceance natural gas assets in the third quarter of 2017 ($10 million) and the recovery of certain production taxes in the USA Operations ($8 million).

2016 versus 2015

Production, mineral and other taxes decreased $45 million compared to 2015 primarily due to:

 

  ·  

Lower production volumes and commodity prices primarily in the USA Operations ($23 million), and the sales of the Haynesville natural gas assets in the fourth quarter of 2015 and the DJ Basin and Gordondale assets in the third quarter of 2016 ($17 million).

 

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Transportation and Processing

Transportation and processing expense includes transportation costs incurred to move product from production points to sales points including gathering, compression, pipeline tariffs, trucking and storage costs. Encana also incurs costs related to processing provided by third parties or through ownership interests in processing facilities to bring raw production to sales-quality product.

 

     $ millions             $/BOE  
             2017              2016            2015                     2017             2016            2015   

Canadian Operations

   $ 578       $ 576     $ 654          $ 9.35      $ 8.35      $ 9.42   

USA Operations

     164         260       580          $ 3.12      $ 4.33      $ 7.37   

Upstream Transportation and Processing

     742         836       1,234          $ 6.49      $ 6.48      $ 8.33   

Market Optimization

     103         87       12               

Corporate and Other

            (22                  

Total

   $ 845       $ 901     $ 1,252                                       

2017 versus 2016

Transportation and processing expense decreased $56 million compared to 2016 primarily due to:

 

  ·  

Asset sales ($107 million) which mainly include the DJ Basin and Gordondale assets in the third quarter of 2016 and the Piceance natural gas assets in the third quarter of 2017, the renegotiation and expiration of certain transportation contracts ($32 million), lower natural gas volumes and lower gas gathering and processing fees in Montney and Other Upstream Operations ($9 million) and lower activity in Duvernay ($4 million);

partially offset by:

 

  ·  

Increased downstream processing and transportation costs primarily in Montney and Duvernay due to Encana’s focus on liquids rich wells in the plays and costs relating to the diversification of the Company’s downstream markets ($40 million), higher volumes and prices in Permian ($25 million), unrealized risk management gains on power financial derivative contracts in 2016 ($22 million) and the higher U.S./Canadian dollar exchange rate ($11 million).

2016 versus 2015

Transportation and processing expense decreased $351 million compared to 2015 primarily due to:

 

  ·  

The renegotiation and expiration of certain transportation contracts ($138 million), the sale of the Haynesville natural gas assets in the fourth quarter of 2015 ($97 million), the sales of the DJ Basin and Gordondale assets in the third quarter of 2016 ($46 million), lower activity in Other Upstream Operations ($38 million), unrealized risk management gains on power financial derivative contracts ($28 million) and the lower U.S./Canadian dollar exchange rate ($25 million);

partially offset by:

 

  ·  

Higher activity primarily in Duvernay and Permian ($24 million).

 

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Operating

Operating expense includes costs paid by Encana, net of amounts capitalized, to operate oil and gas properties in which the Company has a working interest. These costs primarily include labour, service contract fees, chemicals and fuel.

 

     $ millions             $/BOE  
             2017              2016             2015                     2017              2016             2015   

Canadian Operations

   $ 122       $ 152      $ 152          $ 1.92       $ 2.16      $ 2.17   

USA Operations

     331         394        519          $ 6.18       $ 6.44      $ 6.55   

Upstream Operating Expense (1)

     453         546        671          $ 3.88       $ 4.16      $ 4.50   

Market Optimization

     35         35        33               

Corporate and Other

     18         17        19               

Total

   $ 506       $ 598      $ 723                                       

 

    (1)    

2017 Upstream Operating Expense per BOE includes long-term incentive costs of $0.19/BOE (2016 - costs of $0.29/BOE; 2015 - a recovery of $0.04/BOE).

2017 versus 2016

Operating expense decreased $92 million compared to 2016 primarily due to:

 

  ·  

Asset sales ($66 million) which mainly include the DJ Basin and Gordondale assets in the third quarter of 2016, the Piceance natural gas assets in the third quarter of 2017 and the Tuscaloosa Marine Shale assets in the second quarter of 2017, lower salaries and benefits and long-term incentive costs due to higher headcount dedicated to the capital program and a smaller increase in Encana’s share price during 2017 compared to 2016 ($47 million) and cost-saving initiatives ($24 million);

partially offset by:

 

  ·  

Higher activity in Permian and Montney ($39 million) and the higher U.S./Canadian dollar exchange rate ($4 million).

2016 versus 2015

Operating expense decreased $125 million compared to 2015 primarily due to:

 

  ·  

Cost-saving initiatives ($101 million), lower activity primarily in Other Upstream Operations ($42 million), the sale of the Haynesville natural gas assets in the fourth quarter of 2015 ($28 million) and the sales of the DJ Basin and Gordondale assets in the third quarter of 2016 ($23 million);

partially offset by:

 

  ·  

Higher long-term incentive costs resulting from the increase in Encana’s share price ($55 million).

Further information on Encana’s long-term incentives can be found in Note 19 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

Purchased Product

Purchased product expense includes purchases of oil, NGLs and natural gas from third parties that are used to provide operational flexibility and cost mitigation for transportation commitments, product type, delivery points and customer diversification.

 

  ($ millions)          2017           2016           2015   

 

  Market Optimization

  $       788      $ 586      $ 323   

 

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2017 versus 2016

Purchased product expense increased $202 million compared to 2016 primarily due to:

 

  ·  

Higher commodity prices ($152 million) and higher third-party volumes purchased for optimization activities ($50 million).

2016 versus 2015

Purchased product expense increased $263 million compared to 2015 primarily due to:

 

  ·  

Higher third-party volumes purchased for optimization activities ($322 million), partially offset by lower commodity prices ($59 million).

Depreciation, Depletion & Amortization

Proved properties within each country cost centre are depleted using the unit-of-production method based on proved reserves as discussed in Note 1 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K. Depletion rates are impacted by impairments, acquisitions, divestitures and foreign exchange rates as well as fluctuations in 12-month average trailing prices which affect proved reserves volumes. Additional information can be found in the Critical Accounting Estimates section of this MD&A under Upstream Assets and Reserve Estimates. Corporate assets are carried at cost and depreciated on a straight-line basis over the estimated service lives of the assets.

 

    $ millions             $/BOE  
    

 

2017   

     2016      2015               2017         2016     

 

2015  

 

  Canadian Operations

  $ 236        $ 260      $ 305           $     3.82        $     3.77      $     4.39    

  USA Operations

            530                  523            1,088           $ 10.09        $ 8.68      $ 13.66    

  Upstream DD&A

    766          783        1,393           $ 6.70        $ 6.06      $ 9.31    

  Market Optimization

    1          -        -                

  Corporate and Other

    66          76        95                
       

  Total

  $ 833        $ 859      $ 1,488                                        

2017 versus 2016

DD&A decreased $26 million compared to 2016 primarily due to:

 

  ·  

Lower production volumes ($85 million) and lower straight-line depreciation on corporate assets ($12 million), partially offset by higher depletion rates primarily in the USA Operations ($63 million) and the higher U.S./Canadian dollar exchange rate ($5 million).

The depletion rate increased $0.64 per BOE compared to 2016 primarily due to:

 

  ·  

Lower reserve volumes from the sale of the Piceance natural gas assets in the third quarter of 2017, partially offset by ceiling test impairments recognized in the first six months of 2016 in the Canadian and USA Operations, and the sale of the DJ Basin assets in the third quarter of 2016. The sale of the Piceance natural gas assets resulted in the recognition of a gain on divestiture, whereas proceeds from the sale of the DJ Basin assets were deducted from the U.S. full cost pool. Additional information on the divestitures can be found in Note 3 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

2016 versus 2015

DD&A decreased $629 million compared to 2015 primarily due to:

 

  ·  

Lower depletion rates in the Canadian and USA Operations ($334 million), lower production volumes in the USA Operations ($245 million) and the lower U.S./Canadian dollar exchange rate ($17 million).

 

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The depletion rate decreased $3.25 per BOE compared to 2015 primarily due to:

 

  ·  

Ceiling test impairments recognized in the first six months of 2016 in the Canadian and USA Operations and ceiling test impairments recognized in 2015 in the USA Operations, the sale of the DJ Basin assets in the third quarter of 2016, the sale of the Haynesville natural gas assets in the fourth quarter of 2015, the sale of certain assets in Wheatland in the first quarter of 2015 and the lower U.S./Canadian dollar exchange rate.

Impairments

Under full cost accounting, the carrying amount of Encana’s oil and natural gas properties within each country cost centre is subject to a ceiling test at the end of each quarter. Ceiling test impairments are recognized when the capitalized costs, net of accumulated depletion and the related deferred income taxes, exceed the sum of the estimated after-tax future net cash flows from proved reserves as calculated under SEC requirements using the 12-month average trailing prices and discounted at 10 percent.

 

  ($ millions)   2017       2016      2015    

  Canadian Operations

  $           -      $ 493      $ -    

  USA Operations

            -            903          6,473    

  Total

  $           -      $   1,396      $     6,473    

The Company did not recognize any ceiling test impairments for 2017. The ceiling test impairments in 2016 and 2015 were primarily due to the decline in the 12-month average trailing prices, which reduced the Canadian and USA Operations proved reserves volumes and values as calculated under SEC requirements.

The 12-month average trailing prices used in the ceiling test calculations were based on the benchmark prices below. The benchmark prices were adjusted for basis differentials to determine local reference prices, transportation costs and tariffs, heat content and quality.

 

     Oil & NGLs                         Natural Gas  
     

WTI

($/bbl)

    

Edmonton

Condensate  (2)

(C$/bbl)

           

Henry Hub

($/MMBtu)

    

  AECO  

(C$/MMBtu)  

 

   12-Month Average Trailing Reserves Pricing (1)

              

2017

     51.34        67.65           2.98        2.32    

2016

     42.75        55.39           2.49        2.17    

2015

     50.28        61.94                 2.58        2.69    

 

(1)

All prices were held constant in all future years when estimating net revenues and reserves.

(2)

Edmonton Condensate benchmark price has replaced the previously disclosed Edmonton Light Sweet benchmark price.

The Company believes that the discounted after-tax future net cash flows from proved reserves required to be used in the ceiling test calculation are not indicative of the fair market value of Encana’s oil and natural gas properties or the future net cash flows expected to be generated from such properties. The discounted after-tax future net cash flows do not consider the fair market value of unamortized unproved properties, or probable or possible liquids and natural gas reserves. In addition, there is no consideration given to the effect of future changes in commodity prices. Encana manages its business using estimates of reserves and resources based on forecast prices and costs. Additional information on the ceiling test calculation can be found in the Critical Accounting Estimates section of this MD&A under Upstream Assets and Reserve Estimates.

 

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Administrative

Administrative expense represents costs associated with corporate functions provided by Encana staff in the Calgary and Denver offices. Costs primarily include salaries and benefits, general office, information technology and long-term incentive costs.

 

     2017         2016      2015    

Administrative ($ millions)

  $       254        $     309      $     275    

Administrative ($/BOE) (1)

  $ 2.22        $ 2.40      $ 1.86    

 

(1)

2017 administrative expense per BOE includes long-term incentive costs of $0.67/BOE. 2016 administrative expense per BOE includes long-term incentive costs and restructuring costs of $0.93/BOE (2015 - $0.36/BOE).

2017 versus 2016

Administrative expense in 2017 decreased $55 million from 2016 primarily due to lower restructuring costs ($34 million), lower third party payments relating to previously divested assets ($11 million) as well as lower long-term incentive costs resulting from a smaller increase in Encana’s share price during 2017 compared to 2016 ($10 million).

2016 versus 2015

Administrative expense in 2016 increased $34 million from 2015 primarily due to long-term incentive costs resulting from the increase in Encana’s share price ($99 million), partially offset by lower restructuring costs ($30 million), lower salaries and benefits as a result of a lower headcount ($13 million), lower office costs ($12 million) and the lower U.S./Canadian dollar exchange rate ($7 million).

During the first quarter of 2016, Encana completed workforce reductions announced in February 2016 to better align staffing levels and the organizational structure with its reduced capital spending program as a result of the low commodity price environment. Encana incurred restructuring costs of $34 million during 2016 compared to $64 million in 2015. Further information on restructuring costs can be found in Note 18 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

Other (Income) Expenses

 

 

  ($ millions)    2017     2016     2015     

  Interest

   $       363     $     397     $     614     

  Foreign exchange (gain) loss, net

     (279     (210     1,082     

  (Gain) loss on divestitures, net

     (404     (390     (14)    

  Other (gains) losses, net

     (42     (58     27     

  Total Other (Income) Expenses

   $ (362   $ (261   $ 1,709     

Interest

Interest expense primarily includes interest on Encana’s long-term debt arising from U.S. dollar denominated unsecured notes and balances drawn on the Company’s credit facilities. Encana also incurs interest on the Company’s long-term obligations for The Bow office building and capital leases.

2017 versus 2016

Interest expense in 2017 decreased $34 million compared to 2016 primarily due to lower interest on debt ($29 million) resulting from the early retirement of long-term debt in March 2016. Further information on the March 2016 debt retirement can be found in the Liquidity and Capital Resources section of this MD&A.

 

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2016 versus 2015

Interest expense in 2016 decreased $217 million from 2015 primarily due to a one-time payment of $165 million in the second quarter of 2015 associated with the April 2015 early redemptions of the Company’s $700 million 5.90 percent notes due December 1, 2017 and its C$750 million 5.80 percent medium-term notes due January 18, 2018 and lower interest on debt following these redemptions, as well as the early retirement of long-term debt in March 2016 as discussed in the Liquidity and Capital Resources section of this MD&A.

Foreign Exchange (Gain) Loss, Net

Foreign exchange gains and losses result from the impact of fluctuations in the Canadian to U.S. dollar exchange rate. Further details on changes in foreign exchange gains or losses can be found in Note 5 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K. Additional information on foreign exchange rates and the effects of foreign exchange rate changes can be found in Items 6 and 7A of this Annual Report on Form 10-K.

2017 versus 2016

In 2017, Encana recorded a higher net foreign exchange gain compared to 2016 ($69 million). The change was primarily due to higher unrealized foreign exchange gains on the translation of U.S. dollar financing debt issued from Canada ($113 million) and unrealized foreign exchange gains on the translation of U.S. dollar risk management contracts issued from Canada compared to losses in 2016 ($48 million), partially offset by foreign exchange losses on the settlement of U.S. dollar financing debt issued from Canada compared to gains in 2016 ($87 million). In 2017, unrealized foreign exchange on the translation of U.S. dollar financing debt issued from Canada included an out-of-period adjustment of $68 million, before tax, in respect of unrealized losses on a foreign-denominated capital lease obligation since December 31, 2013. Further information on the out-of-period adjustment can be found in Note 5 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

2016 versus 2015

In 2016, Encana recorded a net foreign exchange gain compared to a net loss in 2015 ($1,292 million). The change was primarily due to unrealized foreign exchange gains on the translation of U.S. dollar financing debt issued from Canada compared to losses in 2015 ($884 million) and foreign exchange gains on the settlement of U.S. dollar financing debt issued from Canada compared to losses in 2015 ($342 million).

(Gain) Loss on Divestitures, Net

Amounts received from the Company’s divestiture transactions are deducted from the respective Canadian and U.S. full cost pools, except for divestitures that result in a significant alteration between capitalized costs and proved reserves in a country cost centre, in which case a gain or loss is recognized. Additional information regarding gains on divestitures can be found in Note 3 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

2017

Gain on divestitures in 2017 primarily includes the before tax gain on the sale of the Piceance natural gas assets of approximately $406 million.

2016

Gain on divestitures in 2016 primarily included the gain on the sale of the Gordondale assets of approximately $394 million.

2015

Gain on divestitures in 2015 primarily included a gain on the sale of the Encana Place office building located in Calgary of approximately $12 million.

 

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Other (Gains) Losses, Net

Other (gains) losses, net primarily includes other non-recurring revenues or expenses and may also include items such as interest income on short-term investments, interest received from tax authorities, reclamation charges relating to decommissioned assets and earnings/losses from equity investments.

2017

Other gains in 2017 primarily includes interest received of $33 million resulting from the successful resolution of certain tax items previously assessed by the taxing authorities relating to prior taxation years and interest income on short-term investments of $6 million, partially offset by reclamation charges relating to decommissioned assets of $4 million.

2016

Other gains in 2016 primarily included a gain of $89 million on the early retirement of long-term debt as discussed in the Liquidity and Capital Resources section of this MD&A, partially offset by a one-time third party payment relating to a previously divested asset of $20 million and reclamation charges relating to decommissioned assets of $7 million.

2015

Other losses in 2015 primarily included reclamation charges relating to decommissioned assets of $22 million.

 

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Income Tax

 

  ($ millions)         2017        2016        2015

  Current Income Tax Expense (Recovery)

   $        (63)      $        (78)      $       (34)  

  Deferred Income Tax Expense (Recovery)

   666       (598)      (2,811)  

  Income Tax Expense (Recovery)

   $        603       $      (676)      $  (2,845)  

  Effective Tax Rate

   42.2%       41.7%      35.5%  

Income Tax Expense (Recovery)

2017 versus 2016

Total income tax in 2017 was an expense of $603 million compared to a recovery of $676 million in 2016 primarily due to:

 

  ·  

Net earnings before income tax in 2017 compared to a net loss before income tax in 2016.

Deferred income tax in 2017 was an expense of $666 million compared to a recovery of $598 million in 2016 due to:

 

  ·  

Net earnings (loss) before income tax as discussed above; and

 

  ·  

Deferred tax expense in 2017 includes a provisional adjustment of $327 million resulting from the re-measurement of the Company’s tax position due to a reduction of the U.S. federal corporate tax rate from 35 percent to 21 percent under the Tax Cuts and Jobs Act (“U.S. Tax Reform”) as enacted on December 22, 2017. The adjustment of $327 million includes a $26 million valuation allowance re-measurement with respect to U.S. foreign tax credits and U.S. charitable donations. In addition, the deferred tax expense includes a valuation allowance of $28 million against U.S. state losses; and

 

  ·  

Deferred tax recovery in 2016 was primarily due to the recognition of non-cash ceiling test impairments.

The current income tax recovery in 2017 was primarily due to the successful resolution of certain tax items previously assessed by the taxing authorities relating to prior taxation years as well as the reclassification of $10 million U.S. alternative minimum tax to a long-term receivable from a deferred tax asset due to U.S. Tax Reform.

2016 versus 2015

Total income tax recovery decreased $2,169 million compared to 2015 primarily due to:

 

  ·  

Lower non-cash ceiling test impairments and foreign exchange gains;

partially offset by:

 

  ·  

An increase to the valuation allowance recorded against the deferred tax assets in respect of U.S. foreign tax credits and U.S. charitable donations totaling $121 million.

Current income tax recoveries in 2016 and 2015 were primarily due to amounts recorded in respect of prior periods.

Effective Tax Rate

Encana’s annual effective income tax rate is impacted by earnings, income tax related to foreign operations, the effect of legislative changes including U.S. Tax Reform, non-taxable capital gains and losses, tax differences on divestitures and transactions, and partnership tax allocations in excess of funding. The Company’s effective tax rate was 42.2 percent for 2017, which is higher than the Canadian statutory rate of 27 percent primarily due to U.S. Tax Reform, which increased Encana’s effective tax rate by 22.9 percent. The effective tax rate for 2017 was also impacted by the tax reassessments discussed above as well as the valuation allowance taken against U.S. state losses. The 2016 and 2015 effective tax rates exceeded the Canadian statutory tax rate of 27 percent primarily due to the impact of the foreign jurisdictional tax rates relative to the Canadian statutory tax rate applied to jurisdictional earnings.

 

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Tax interpretations, regulations and legislation, including U.S. Tax Reform and potential Treasury Department regulations and guidance, in the various jurisdictions in which the Company and its subsidiaries operate are subject to change and interpretation. As a result, there are tax matters under review for which the timing of resolution is uncertain. The Company believes that the provision for income taxes is adequate.

Additional information on income taxes can be found in Note 6 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

 

Liquidity and Capital Resources

Sources of Liquidity

 

The Company has the flexibility to access cash equivalents and a range of funding alternatives at competitive rates through committed revolving bank credit facilities as well as debt and equity capital markets. Encana closely monitors the accessibility of cost-effective credit and ensures that sufficient liquidity is in place to fund capital expenditures and dividend payments. In addition, the Company may use cash and cash equivalents, cash from operating activities, or proceeds from asset divestitures and share issuances to fund its operations or to manage its capital structure as discussed below. At December 31, 2017, $314 million in cash and cash equivalents was held by U.S. subsidiaries. The cash held by U.S. subsidiaries is accessible and may be subject to additional Canadian income taxes and U.S. withholding taxes if repatriated.

The Company’s capital structure consists of total shareholders’ equity plus long-term debt, including the current portion. The Company’s objectives when managing its capital structure are to maintain financial flexibility to preserve Encana’s access to capital markets and its ability to meet financial obligations and finance internally generated growth, as well as potential acquisitions. Encana has a practice of maintaining capital discipline and strategically managing its capital structure by adjusting capital spending, adjusting dividends paid to shareholders, issuing new shares, purchasing shares for cancellation through a NCIB, issuing new debt or repaying existing debt.

 

  ($ millions, except as indicated)                      2017                      2016                     2015

  Cash and Cash Equivalents

           $            719              $            834            $            271  

  Available Credit Facility – Encana (1)

   3,000      3,000    2,350  

  Available Credit Facility – U.S. Subsidiary (1)

   1,500      1,500    1,500  

  Total Liquidity

   5,219      5,334    4,121  

  Long-Term Debt

   4,197      4,198    5,333  

  Total Shareholders’ Equity

   6,728      6,126    6,167  

  Debt to Capitalization (%) (2)

   38      41    46  

  Debt to Adjusted Capitalization (%) (3)

   22      23    28  

 

 (1)

Collectively, the “Credit Facilities”.

 (2)

Calculated as long-term debt, including the current portion, divided by shareholders’ equity plus long-term debt, including the current portion.

 (3)

A non-GAAP measure which is defined in the Non-GAAP Measures section of this MD&A.

Encana is currently in compliance with, and expects that it will continue to be in compliance with, all financial covenants under the Credit Facilities. Management monitors Debt to Adjusted Capitalization, which is a non-GAAP measure defined in the Non-GAAP Measures section of this MD&A, as a proxy for Encana’s financial covenant under the Credit Facilities, which requires debt to adjusted capitalization to be less than 60 percent. The definitions used in the covenant under the Credit Facilities adjust capitalization for cumulative historical ceiling test impairments that were recorded as at December 31, 2011 in conjunction with the Company’s January 1, 2012 adoption of U.S. GAAP. Additional information on financial covenants can be found in Note 12 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

 

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Sources and Uses of Cash

During 2017, Encana primarily generated cash through operating activities and proceeds from divestitures. The following table summarizes the sources and uses of the Company’s cash and cash equivalents.

 

   ($ millions)    Activity Type         2017      2016       2015   

  Sources of Cash and Cash Equivalents

           

  Cash from operating activities

     Operating                $            1,050              $            625            $            1,681  

  Proceeds from divestitures

     Investing        736      1,262    1,908  

  Issuance of common shares, net of offering costs

     Financing        -      1,129    1,088  

  Other

     Investing        77      51    -  
      1,863      3,067    4,677  

  Uses of Cash and Cash Equivalents

           

  Capital expenditures

     Investing        1,796      1,132    2,232  

  Acquisitions

     Investing        54      210    70  

  Net repayment of revolving long-term debt

     Financing        -      650    627  

  Repayment of long-term debt

     Financing        -      400    1,302  

  Dividends on common shares

     Financing        57      51    152  

  Other

     Investing/Financing        82      66    332  
      1,989      2,509    4,715  

  Foreign Exchange Gain (Loss) on Cash and Cash Equivalents
Held in Foreign Currency

            11      5    (29) 

  Increase (Decrease) in Cash and Cash Equivalents

            $           (115)             $            563            $            (67) 

Operating Activities

Cash from operating activities in 2017 was $1,050 million and was primarily impacted by recovering commodity prices, the Company’s efforts in maintaining cost efficiencies achieved in 2016, the effects of the commodity price mitigation program, changes in production volumes, a current tax recovery and interest relating to the successful resolution of certain tax items previously assessed by the taxing authorities, and changes in non-cash working capital. Additional detail on changes in non-cash working capital can be found in Note 23 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K. Encana expects it will continue to meet the payment terms of its suppliers.

Non-GAAP Cash Flow in 2017 was $1,343 million and was primarily impacted by the items affecting cash from operating activities which are discussed below and in the Results of Operations section of this MD&A.

2017 versus 2016

Net cash from operating activities increased $425 million compared to 2016 primarily due to:

 

  ·  

Higher realized commodity prices ($694 million), higher liquids production volumes ($83 million), lower operating expense, excluding non-cash long-term incentive costs ($73 million), lower transportation and processing expense ($56 million), higher interest income recorded in other gains ($39 million), lower restructuring costs ($34 million) and lower interest on long-term debt ($29 million);

partially offset by:

 

  ·  

Lower realized gains on risk management included in revenues ($321 million), lower natural gas production volumes ($221 million) and changes in non-cash working capital ($66 million).

 

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2016 versus 2015

Net cash from operating activities decreased $1,056 million compared to 2015 primarily due to:

 

  ·  

Lower realized gains on risk management included in revenues ($556 million), lower realized commodity prices ($464 million), lower production volumes ($443 million) and changes in non-cash working capital ($449 million);

partially offset by:

 

  ·  

Lower transportation and processing expense ($351 million), lower operating expenses and administrative expense, excluding non-cash long-term incentive costs ($240 million), lower interest on long-term debt ($201 million), lower production, mineral and other taxes ($45 million) and a higher current tax recovery ($44 million).

Investing Activities

Capital expenditures and divestitures have been Encana’s primary investing activities over the past three years. The capital spending program increased in 2017 compared to 2016 as commodity prices began to stabilize. Capital expenditures and divestiture activity are summarized in Note 3 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

2017

Net cash used in investing activities in 2017 was $1,037 million primarily due to capital expenditures, partially offset by proceeds from divestitures. Capital expenditures in 2017 increased $664 million compared to 2016 due to the increase in Encana’s capital program for 2017. Capital expenditures in the Core Assets totaled $1,729 million, representing 96 percent of total capital expenditures, and increased $635 million compared to 2016, primarily in Permian ($372 million), Eagle Ford ($93 million) and Montney ($205 million). Capital expenditures exceeded cash from operating activities by $746 million and the difference was funded using cash on hand and proceeds from divestitures.

Acquisitions in 2017 were $54 million, which primarily included land purchases with oil and liquids rich potential.

Divestitures in 2017 were $736 million, which primarily included the sale of the Piceance natural gas assets in northwestern Colorado, comprising approximately 550,000 net acres of leasehold and 3,100 operated wells. Divestitures also included the sale of the Tuscaloosa Marine Shale assets in Mississippi and Louisiana and the sale of certain properties that did not complement Encana’s existing portfolio of assets.

2016

Net cash used in investing activities in 2016 was $29 million primarily due to capital expenditures and acquisitions, partially offset by proceeds from divestitures. Capital expenditures in 2016 decreased $1,100 million compared to 2015 due to a reduced capital program and cost savings initiatives implemented in 2016. Capital expenditures in the Core Assets totaled $1,094 million, representing 97 percent of total capital expenditures, and decreased $756 million compared to 2015, primarily in Eagle Ford ($359 million), Permian ($287 million) and Duvernay ($92 million). Capital expenditures exceeded cash from operating activities by $507 million and the difference was funded using proceeds from divestitures.

Acquisitions in 2016 were $210 million, which primarily included $135 million for the purchase of natural gas gathering and water handling assets in Piceance located in Colorado. Acquisitions in 2016 also included the purchase of land and property in Eagle Ford with oil and liquids rich potential.

Divestitures in 2016 were $1,262 million, which primarily included the following:

 

  ·  

Proceeds of approximately $633 million, after closing and other adjustments, for the sale of the DJ Basin assets located in northern Colorado, comprising approximately 51,000 net acres;

 

  ·  

Proceeds of approximately C$600 million ($455 million), after closing adjustments, for the sale of the Gordondale assets which included approximately 54,200 net acres of land and associated infrastructure in Montney located in northwestern Alberta; and

 

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  ·  

Proceeds of approximately $135 million from the sale of certain natural gas leasehold interests in Piceance located in Colorado.

2015

Net cash used in investing activities in 2015 was $665 million primarily due to capital expenditures, partially offset by proceeds from divestitures. Capital expenditures during 2015 were $2,232 million, of which $1,850 million or 83 percent, was directed to the Core Assets. Capital expenditures exceeded cash from operating activities by $551 million with the difference being funded using proceeds from divestitures.

Divestitures in 2015 were $1,908 million, which primarily included the following:

 

  ·  

Proceeds of approximately C$557 million ($467 million), after closing adjustments, for the sale of certain assets in Wheatland located in central and southern Alberta;

 

  ·  

Proceeds of approximately C$450 million ($355 million), after closing adjustments, for the sale of certain natural gas gathering and compression assets in Montney located in northeastern British Columbia; and

 

  ·  

Proceeds of approximately $769 million, after closing adjustments, for the sale of the Haynesville natural gas assets located in northern Louisiana.

Financing Activities

Net cash used in financing activities over the past three years has been impacted by Encana’s strategy to enhance liquidity and strengthen its balance sheet through debt repayments and common share offerings. The Company has paid dividends each of the past three years, though the dividend paid per common share decreased in 2016.

2017 versus 2016

Net cash used in financing activities in 2017 increased $101 million from 2016. The change was primarily due to the issuance of common shares in 2016 ($1,129 million), partially offset by a net repayment of revolving long-term debt ($650 million) and a repayment of long-term debt ($400 million) in 2016.

2016 versus 2015

Net cash used in financing activities in 2016 decreased $1,016 million from 2015. The decrease was primarily due to a lower repayment of long-term debt ($902 million) and lower cash dividend payments ($101 million).

The transactions affecting the changes in financing activities are discussed in more detail below.

2017

Encana’s long-term debt totaled $4,197 million at December 31, 2017 and there was no current portion outstanding. At December 31, 2017, Encana has no long-term debt maturities until 2019 and over 73 percent of the Company’s debt is not due until 2030 and beyond.

The Company continues to have full access to the Credit Facilities, which remain committed through July 2020. The Credit Facilities provide financial flexibility and allow the Company to fund its operations, development activities or capital program. At December 31, 2017, Encana had no outstanding balance under the Credit Facilities.

In 2017, Encana filed a shelf registration statement in the U.S. and had access to a Canadian shelf prospectus filed in 2016, whereby the Company may issue from time to time, debt securities, common shares, Class A preferred shares, subscription receipts, warrants, units, share purchase contracts and share purchase units in Canada and/or the U.S. In 2016 and 2015, the Company filed prospectus supplements for the issuance of common shares as described below. At December 31, 2017, $4.8 billion remained accessible under the Canadian shelf prospectus. The ability to issue securities under the Canadian shelf prospectus or U.S. shelf registration statement is dependent upon market conditions.

 

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2016

Encana’s long-term debt totaled $4,198 million at December 31, 2016 and there was no current portion outstanding.

In March 2016, the Company completed tender offers (collectively, the “Tender Offers”) for certain of the Company’s outstanding senior notes (collectively, the “Notes”) and accepted for purchase $489 million aggregate principal amount of Notes. The Company paid an aggregate amount of $406 million, including accrued and unpaid interest of $6 million and an early tender premium of $14 million, which resulted in the recognition of a net gain on the early debt retirement of $89 million, before tax. The Company used cash on hand and borrowings under the Credit Facilities to fund the Tender Offers. Further information on the Tender Offers can be found in Note 12 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

On September 23, 2016, Encana completed a public offering (the “2016 Share Offering”) of 107,000,000 common shares of Encana at a price of $9.35 per common share for gross proceeds of approximately $1.0 billion ($981 million of net cash proceeds). On October 4, 2016, an over-allotment option granted to the underwriters (the “Over-Allotment Option”) to purchase up to an additional 16,050,000 common shares at a price of $9.35 per common share was exercised in full for additional gross proceeds of approximately $150 million, bringing the aggregate gross proceeds to approximately $1.15 billion ($1.13 billion of net cash proceeds). Further information on the 2016 Share Offering can be found in Note 15 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

During the third quarter of 2016, Encana used a portion of the net proceeds from the 2016 Share Offering and divestitures to repay indebtedness under the Credit Facilities. At December 31, 2016, Encana had no outstanding balance under the Credit Facilities and no longer had access to its U.S. Commercial Paper (“U.S. CP”) program as a result of a split credit rating.

2015

Encana’s long-term debt totaled $5,333 million at December 31, 2015 and there was no current portion outstanding.

During 2015, Encana implemented a U.S. CP program which was fully supported by the Credit Facilities and used proceeds from the U.S. CP program and cash on hand to repay outstanding LIBOR loan balances of approximately $1,277 million. At December 31, 2015, Encana had outstanding balances under the Credit Facilities which reflected $440 million of U.S. CP issuances and $210 million of principal obligations related to LIBOR loans.

In March 2015, the Company filed a prospectus supplement to the Company’s shelf prospectus (the “2015 Share Offering”) and issued 98,458,975 common shares of Encana, including common shares issued under an over-allotment option, for aggregate gross proceeds of approximately C$1.44 billion ($1.13 billion). After deducting underwriters’ fees and costs of the 2015 Share Offering, the net proceeds received were approximately C$1.39 billion ($1.09 billion).

Dividends

Encana pays quarterly dividends to shareholders at the discretion of the Board of Directors. Common shares issued in the 2016 Share Offering and 2015 Share Offering were not eligible to receive the dividends paid on September 30, 2016 and March 31, 2015, respectively.

 

                                                  
  ($ millions, except as indicated)    2017           2016        2015    

 

  Dividend Payments (1)

           $             58              $             52            $             225    

  Dividend Payments ($/share)

     0.06            0.06          0.28    

 

  (1)

  Dividend payments in 2017 included $1 million (2016 - $1 million; 2015 - $73 million) in common shares issued in lieu of cash dividends under Encana’s DRIP.

Dividend payments remained stable in 2017 after the Company reset its annualized dividend to $0.06 per common share during 2016 to better align the dividend with Encana’s cash flows and provide flexibility to use available cash for investment in the Company’s portfolio.

 

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The dividends paid in 2015 included $73 million in common shares issued in lieu of cash dividends under Encana’s Dividend Reinvestment Plan (“DRIP”). The common shares issued under the DRIP decreased in 2016 primarily as a result of the lower dividend paid per common share in 2016 as well as Encana’s December 14, 2015 announcement that any dividends subsequent to December 31, 2015 distributed to shareholders participating in the DRIP would no longer be issued from its treasury with a discount to the average market price of the common shares.

On February 14, 2018, the Board of Directors declared a dividend of $0.015 per common share payable on March 29, 2018 to common shareholders of record as of March 15, 2018.

Off-Balance Sheet Arrangements

The Company may enter into off-balance sheet arrangements and transactions that can give rise to material off-balance sheet obligations. Encana’s material off-balance sheet arrangements include transportation and processing agreements, drilling rig commitments, and operating leases, as outlined in the Contractual Obligations table below, as well as undrawn letters of credit, all of which are customary agreements in the oil and gas industry. Other than the items discussed above, there are no other transactions, arrangements, or relationships with unconsolidated entities or persons that are reasonably likely to materially affect the Company’s liquidity or the availability of, or requirements for, capital resources.

Contractual Obligations

Contractual obligations arising from long-term debt, capital leases, risk management liabilities, asset retirement obligations and The Bow office building are recognized on the Company’s Consolidated Balance Sheet. The following table outlines the Company’s obligations and commitments at December 31, 2017:

 

                                                                                                                  
     Expected Future Payments  
  ($ millions)    2018     2019 - 2020     2021 - 2022     Thereafter     Total    

Long-Term Debt

   $ -     $ 500     $ 600     $ 3,111     $ 4,211    

Interest Payments on Long-Term Debt

     267       485       446       2,546       3,744  

Capital Leases

     79       173       89       33       374  

Interest Payments on Capital Leases

     20       25       6       5       56  

Risk Management Liabilities

     236       13       -       -       249  

Asset Retirement Obligation (1)

     45       279       74       957       1,355  

The Bow Office Building

     11       26       31       493       561  

Interest Payments on The Bow Office Building

     65       128       125       802       1,120  

Obligations

     723       1,629       1,371       7,947       11,670  

Transportation and Processing

     604       1,371       1,100       2,315       5,390  

Drilling and Field Services

     198       60       8       -       266  

Operating Leases

     18       32       30       46       126  

Commitments (1)

     820       1,463       1,138       2,361       5,782  

Total Contractual Obligations

   $ 1,543     $ 3,092     $ 2,509     $ 10,308     $ 17,452  

The Bow Office Building Sublease Recoveries (1)

   $ (37   $ (76   $ (77   $ (636   $ (826

 

  (1)   Undiscounted.

Interest Payments on Long-Term Debt, Capital Leases and The Bow Office Building represent scheduled cash payments on the respective obligations. Further information can be found in Notes 12 and 13 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

Capital Leases relates to an office building and the obligation related to the Deep Panuke Production Field Centre. Further information can be found in Note 13 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

 

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Risk Management Liabilities represents Encana’s net liability position with counterparties. Further information can be found in Note 22 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

Asset Retirement Obligation represents estimated costs arising from the obligation to fund the disposal of long-lived assets upon their abandonment. The majority of Encana’s asset retirement obligations relate to the plugging of wells and related abandonment of oil and gas properties including an offshore production platform, processing plants and land or seabed restoration. Revisions to estimated retirement obligations can result from changes in regulatory requirements, changes in retirement cost estimates, revisions to estimated inflation rates and estimated timing of abandonment. Further information can be found in Note 14 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

The Bow Office Building relates to the 25-year lease agreement with a third party developer that commenced in 2012. Encana has recognized the accumulated construction costs for The Bow office building as an asset with a related liability. At the conclusion of the 25-year term, the remaining asset and corresponding liability are expected to be derecognized. Encana has subleased approximately 50 percent of The Bow office space under the lease agreement. The Bow Office Building Sublease Recoveries in the table above include the amounts expected to be recovered from the sublease. Further information can be found in Note 13 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

Transportation and Processing commitments relate to contractual obligations for capacity rights with third-party pipelines and processing facilities. Drilling and Field Services commitments represent minimum future expenditures for drilling, well servicing and equipment commitment rights. Significant development commitments with joint venture partners are partially satisfied by Commitments included in the table above. Operating Leases consist of various building leases used in Encana’s daily operations.

Further to the commitments disclosed above, Encana also has various obligations that become payable if certain events occur including variable interests arising from gathering and compression agreements and guarantees on transportation commitments resulting from completed property divestitures as described in Notes 17 and 24, respectively, to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

In addition, Encana has purchase orders for the purchase of inventory and other goods and services, which typically represent authorization to purchase rather than binding agreements. Encana also has obligations to fund its defined benefit pension and other post-employment benefit plans, as well as unrecognized tax benefits where the settlement is not expected within the next 12 months as described in Notes 20 and 6, respectively, to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

Encana may have potential exposures related to previously divested properties where the purchasers typically assume all obligations to plug, abandon, and decommission the associated wells, structures, and facilities acquired. One or more of the counterparties in these transactions could, either as a result of the severe decline in oil and natural gas prices or other factors related to the historical or future operations of their respective businesses, face financial problems that may have a significant impact on their solvency and ability to continue as a going concern. If a purchaser becomes the subject of a proceeding under relevant insolvency laws or otherwise fails to perform required abandonment obligations, Encana could be required to perform such actions under applicable federal laws and regulations. While the Company believes that the risk of such event occurring is low, the Company could be forced to use available cash to cover the costs of such liabilities and obligations should they arise.

Contingencies

For information on contingencies, refer to Note 24 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

 

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Accounting Policies and Estimates

Critical Accounting Estimates

 

The preparation of financial statements in accordance with U.S. GAAP requires management to make informed judgments and estimates that affect the reported amounts of assets, liabilities, revenues, and expenses. For a discussion of the Company’s significant accounting policies refer to Note 1 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K. Changes in facts and circumstances or additional information may result in revised estimates, and actual results may differ from these estimates. Management considers the following to be its most critical accounting estimates that involve judgment. The following discussion outlines the accounting policies and practices involving the use of estimates that are critical to determining Encana’s financial results. Changes in the estimates and assumptions discussed below could materially affect the amount or timing of the financial results of the Company.

 

  Description    Judgments and Uncertainties

 

Upstream Assets and Reserve Estimates

  

As Encana follows full cost accounting for oil, NGL and natural gas activities, reserves estimates are a key input to the Company’s depletion, gain or loss on divestitures and ceiling test impairment calculations. In addition, these reserves are the basis for the Company’s supplemental oil and gas disclosures.

  

Due to the inter-relationship of various judgments made to reserve estimates and the volatile nature of commodity prices, it is generally not possible to predict the timing or magnitude of ceiling test impairments.

Encana estimates its proved oil and gas reserves according to the definition of proved reserves provided by the SEC. The Company’s estimates of proved reserves are made using available geological and reservoir data as well as production performance data and must demonstrate with reasonable certainty to be economically producible in future periods from known reservoirs under existing economic conditions, operating methods and government regulations. The estimation of reserves is a subjective process.

  

Revisions to reserve estimates are necessary due to changes in and among other things, development plans, projected future rates of production, the timing of future expenditures, reservoir performance, economic conditions, governmental restrictions as well as changes in the expected recovery associated with infill drilling, all of which are subject to numerous uncertainties and various interpretations. Downward revisions in proved reserve estimates due to changes in reserve estimates may increase depletion expense and may also result in a ceiling test impairment.

Reserves are calculated using an unweighted arithmetic average of commodity prices in effect on the first day of each of the previous 12 months, held flat for the life of the production, except where prices are defined by contractual arrangements.

  

Decreases in prices may result in reductions in certain proved reserves due to reaching economic limits at an earlier projected date and impact earnings through depletion expense and ceiling test impairments.

Encana manages its business using estimates of reserves and resources based on forecast prices and costs as it gives consideration to probable and possible reserves and future changes in commodity prices.

  

Encana believes that the discounted after-tax future net cash flows from proved reserves required to be used in the ceiling test calculation are not indicative of the fair market value of Encana’s oil and natural gas properties or the future net cash flows expected to be generated from such properties.

Business Combinations

  

Encana follows the acquisition method of accounting for business combinations. Assets acquired and liabilities assumed are recognized at the date of acquisition at their respective estimated fair values. Any excess of the purchase price over the fair value amounts assigned to assets and liabilities is recorded as goodwill. Any deficiency of the purchase price over the estimated fair values of the net assets acquired is recorded as a gain in net earnings.

  

The most significant assumptions relate to the estimated fair values assigned to proved and unproved oil and natural gas properties. The assumptions made in performing these valuations include discount rates, future commodity prices and costs, the timing of development activities, projections of oil and gas reserves, estimates to abandon and reclaim producing wells and tax amortization benefits available to a market participant. Changes in key assumptions may cause the acquisition accounting to be revised, including the recognition of additional goodwill or discount on acquisition. There is no assurance the underlying assumptions or estimates associated with the valuation will occur as initially expected.

Fair value estimates are determined based on information that existed at the time of the acquisition, utilizing expectations and assumptions that would be available to and made by a market participant. When market-observable prices are not available to value assets and liabilities, the Company may use the cost, income, or market valuation approaches depending on the quality of information available to support management’s assumptions.

  

Estimated fair values assigned to assets acquired can have a significant effect on results of operations in the future through impairments of goodwill. In addition, differences between the future commodity prices when acquiring assets and the historical 12-month average trailing price to calculate ceiling test impairments of upstream assets may impact net earnings.

 

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  Description    Judgments and Uncertainties

Goodwill Impairments

  

Goodwill is assessed for impairment at least annually in December, at the reporting unit level which are Encana’s country cost centres. To assess whether goodwill is impaired, the carrying amount of each reporting unit is determined and compared to the fair value of the reporting unit. If the carrying amount of the reporting unit is higher than its related fair value, then goodwill is measured and written down to the reporting unit’s implied fair value of goodwill. The implied fair value of goodwill is determined by deducting the fair value of the reporting unit’s assets and liabilities from the fair value of the reporting unit as if the reporting entity had been acquired in a business combination. Any excess of the carrying value of goodwill over the implied fair value of goodwill is recognized as an impairment and charged to net earnings.

  

The most significant assumptions used to determine a reporting unit’s fair value include estimations of oil and natural gas reserves, including both proved reserves and risk-adjusted unproved reserves, estimates of market prices considering forward commodity price curves as of the measurement date, market discount rates and estimates of operating, administrative, and capital costs adjusted for inflation. In addition, management may support fair value estimates determined with comparable companies that are actively traded in the public market, recent comparable asset transactions, and transaction premiums. This would require management to make certain judgments about the selection of comparable companies utilized.

Because quoted market prices for the Company’s reporting units are not available, management applies judgment in determining the estimated fair value of reporting units for purposes of performing goodwill impairment tests. Encana may use a combination of the income and the market valuation approaches.

  

Downward revisions of estimated reserves quantities, increases in future cost estimates, sustained decreases in oil or natural gas prices, or divestiture of a significant component of the reporting unit could reduce expected future cash flows and fair value estimates of the reporting units and possibly result in an impairment of goodwill in future periods.

Encana has assessed its goodwill for impairment at December 31, 2017 and no impairment was recognized as there were no indicators of impairment. The reporting units’ fair values were substantially in excess of the carrying values and as a result was not at risk of failing step one of the impairment test as at December 31, 2017.

  

Asset Retirement Obligation

  

Asset retirement obligations are those legal obligations where the Company will be required to retire tangible long-lived assets such as producing well sites, an offshore production platform, processing plants, and restoring land or seabed at the end of oil and gas production operations. The fair value of estimated asset retirement obligations is recognized on the Consolidated Balance Sheet when incurred and a reasonable estimate of fair value can be made. The asset retirement cost, equal to the initially estimated fair value of the asset retirement obligation, is capitalized as part of the cost of the related long-lived asset. Changes in the estimated obligation are recognized as a change in the asset retirement obligation and the related asset retirement cost. Actual expenditures incurred are charged against the accumulated asset retirement obligation. Accretion expense is recognized over time as the discounted liability is accreted to its expected settlement value.

  

Asset removal technologies and costs are constantly changing, as are regulatory, political, environmental, safety, and public relations considerations. The asset retirement obligation is estimated by discounting the expected future cash flows of the settlement. The discounted cash flows are based on estimates of such factors as reserves lives, retirement costs, timing of settlements, credit-adjusted risk-free rates and inflation rates. Changes in these estimates impact net earnings through accretion of the asset retirement obligation in addition to depletion of the asset retirement cost included in property, plant and equipment.

Derivative Financial Instruments

  

Encana uses derivative financial instruments to manage its exposure to market risks relating to commodity prices, foreign currency exchange rates and interest rates. The Company’s policy is not to utilize derivative financial instruments for speculative purposes. Realized gains or losses from financial derivatives are recognized in net earnings as the contracts are settled. Unrealized gains and losses are recognized in net earnings at the end of each respective reporting period based on the changes in fair value of the contracts.

  

Encana’s derivative financial instruments primarily relate to commodities including oil, NGLs, natural gas and power. The most significant assumptions used in determining the fair value to the Company’s commodity derivatives financial instruments include estimates of future commodity prices, implied volatilities of commodity prices, discount rates and estimates of counterparty credit risk. These pricing and discounting variables are sensitive to the period of the contract and market volatility as well as regional price differentials. Changes in these estimates and assumptions can impact net earnings through decreased revenues or increased expenses.

Derivative financial instruments are measured at fair value with changes in fair value recognized in net earnings. Fair value estimates are determined using quoted prices in active markets, inferred based on market prices of similar assets and liabilities or valued using internally developed estimates. The Company may use various valuation techniques including the discounted cash flow or option valuation models.

  

As Encana has chosen not to elect hedge accounting treatment for the Company’s derivative financial instruments, changes in the fair values of derivative financial instruments can have a significant impact on Encana’s results of operations.

  

 

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  Description

  

Judgments and Uncertainties

Generally, changes in fair values of derivative financial instruments do not impact the Company’s liquidity or capital resources. Settlements of derivative financial instruments do have an impact on the Company’s liquidity and results of operation.

  

Income Taxes

  

Encana follows the liability method of accounting for income taxes. Under this method, deferred income taxes are recorded for the effect of any temporary difference between the accounting and income tax basis of an asset or liability, using the enacted income tax rates and laws expected to apply when the assets are realized and liabilities are settled. Current income taxes are measured at the amount expected to be recoverable from or payable to the taxation authorities based on the income tax rates and laws enacted at the end of the reporting period. The effect of a change in the enacted tax rates or laws is recognized in net earnings in the period of enactment.

  

Tax interpretations, regulations and legislation, including U.S. Tax Reform and potential Treasury Department regulations and guidance, in the various jurisdictions in which the Company and its subsidiaries operate are subject to change and interpretation. As such, income taxes are subject to measurement uncertainty and the interpretations can impact net earnings through the income tax expense arising from the changes in deferred income tax assets or liabilities.

Deferred income tax assets are routinely assessed for realizability. If it is more likely than not that deferred tax assets will not be realized, a valuation allowance is recorded to reduce the deferred tax assets.

  

Encana considers available positive and negative evidence when assessing the realizability of deferred tax assets, including historic and expected future taxable earnings, available tax planning strategies and carry forward periods. Numerous judgments and assumptions are inherent in the determination of future taxable income, including factors such as future operating conditions, particularly related to oil and gas prices. As a result, the assumptions used in determining expected future taxable earnings are consistent with those used in the goodwill impairment assessment.

Encana’s interim income tax expense is determined using an estimated annual effective income tax rate applied to year-to-date net earnings before income tax plus the effect of legislative changes and amounts in respect of prior periods.

  

The estimated annual effective income tax rate is impacted by expected annual earnings, statutory rate and other foreign differences, non-taxable capital gains and losses, tax differences on divestitures and transactions, and partnership tax allocations in excess of funding.

Encana recognizes the financial statement effects of a tax position when it is more likely than not, based on the technical merits, that the position will be sustained upon examination by a taxing authority. A recognized tax position is initially and subsequently measured as the largest amount of tax benefit that is greater than 50 percent likely of being realized upon settlement with a taxing authority. Liabilities for unrecognized tax benefits that are not expected to be settled within the next 12 months are included in other liabilities and provisions.

  

The Company routinely assesses potential uncertain tax positions and, if required, establishes accruals for such amounts. The accruals are adjusted based on changes in facts and circumstances. Material changes to Encana’s income tax accruals may occur in the future based on the progress of ongoing audits, changes in legislation or resolution of pending matters.

Encana’s unremitted earnings from its foreign subsidiaries are considered to be permanently reinvested outside of Canada, as a result the Company does not calculate a deferred tax liability for Canadian income taxes on these earnings.

  

Determination of unrecognized deferred income tax liabilities is not practicable due to the significant uncertainty in assumptions that would be required including determining the nature of any future remittances, that could be distributions in the form of non-taxable returns of capital or taxable earnings and associated withholding taxes, or determining the tax rates on any future remittances that could vary significantly depending on the available approaches to repatriate the earnings.

Recent Accounting Pronouncements

 

For recently issued accounting policies, refer to Note 1 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

 

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 Non-GAAP Measures

Certain measures in this document do not have any standardized meaning as prescribed by U.S. GAAP and, therefore, are considered non-GAAP measures. These measures may not be comparable to similar measures presented by other issuers and should not be viewed as a substitute for measures reported under U.S. GAAP. These measures are commonly used in the oil and gas industry and by Encana to provide shareholders and potential investors with additional information regarding the Company’s liquidity and its ability to generate funds to finance its operations. Non-GAAP measures include: Non-GAAP Cash Flow, Non-GAAP Cash Flow Margin and Debt to Adjusted Capitalization. Management’s use of these measures is discussed further below.

Non-GAAP Cash Flow and Non-GAAP Cash Flow Margin

 

Non-GAAP Cash Flow is a non-GAAP measure defined as cash from (used in) operating activities excluding net change in other assets and liabilities, net change in non-cash working capital and current tax on sale of assets.

Non-GAAP Cash Flow Margin is a non-GAAP measure defined as Non-GAAP Cash Flow per BOE of production.

Management believes these measures are useful to the Company and its investors as a measure of operating and financial performance across periods and against other companies in the industry, and are an indication of the Company’s ability to generate cash to finance capital programs, to service debt and to meet other financial obligations. These measures are used, along with other measures, in the calculation of certain performance targets for the Company’s management and employees.

 

  ($ millions, except as indicated)    2017         2016         2015     

 

  Cash From (Used in) Operating Activities

             $                  1,050                   $                    625                   $                1,681     

  (Add back) deduct:

        

      Net change in other assets and liabilities

     (40)          (26)          (11)    

      Net change in non-cash working capital

     (253)          (187)          262     

      Current tax on sale of assets

     -           -           -     

  Non-GAAP Cash Flow

             $                 1,343                   $                    838                   $                1,430     

  Production Volumes (MMBOE)

     114.3           129.1           148.2     

  Non-GAAP Cash Flow Margin ($/BOE) (1)

             $                  11.75                   $                   6.49                    $                  9.65      

 

  (1) Non-GAAP Cash Flow Margin was previously presented as Corporate Margin.

 

Debt to Adjusted Capitalization

 

Debt to Adjusted Capitalization is a non-GAAP measure which adjusts capitalization for historical ceiling test impairments that were recorded as at December 31, 2011. Management monitors Debt to Adjusted Capitalization as a proxy for Encana’s financial covenant under the Credit Facilities which require debt to adjusted capitalization to be less than 60 percent. Adjusted Capitalization includes debt, total shareholders’ equity and an equity adjustment for cumulative historical ceiling test impairments recorded as at December 31, 2011 in conjunction with the Company’s January 1, 2012 adoption of U.S. GAAP.

 

 

  ($ millions, except as indicated)    December 31, 2017        December 31, 2016        December 31, 2015    

 

  Debt

  

 

 

 

        $                  4,197  

 

 

  

 

 

 

        $                  4,198  

 

 

  

 

 

 

        $                  5,333  

 

 

  Total Shareholders’ Equity

         6,728          6,126          6,167    

  Equity Adjustment for Impairments at December 31, 2011

     7,746          7,746          7,746    

  Adjusted Capitalization

             $               18,671                   $               18,070                  $               19,246    

  Debt to Adjusted Capitalization

     22%          23%          28%    

 

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Item 7A: Quantitative and Qualitative Disclosures About Market Risk

The primary objective of the following information is to provide forward-looking quantitative and qualitative information about Encana’s potential exposure to market risks. The term “market risk” refers to the Company’s risk of loss arising from adverse changes in oil, NGL and natural gas prices, foreign currency exchange rates and interest rates. The following disclosures are not meant to be precise indicators of expected future losses but rather indicators of reasonably possible losses. The forward-looking information provides indicators of how the Company views and manages ongoing market risk exposures. The Company’s policy is to not use derivative financial instruments for speculative purposes.

COMMODITY PRICE RISK

Commodity price risk arises from the effect fluctuations in future commodity prices, including oil, NGLs and natural gas, may have on future revenues, expenses and cash flows. Realized pricing is primarily driven by the prevailing worldwide price for crude oil and spot market prices applicable to the Company’s natural gas production. Pricing for oil and natural gas production has been volatile and unpredictable as discussed in Item 1A. “Risk Factors” of this Annual Report on Form 10-K. To partially mitigate exposure to commodity price risk, the Company may enter into various derivative financial instruments including futures, forwards, swaps, options and costless collars. The use of these derivative instruments is governed under formal policies and is subject to limits established by the Board of Directors and may vary from time to time. Both exchange traded and over-the-counter traded derivative instruments may be subject to margin-deposit requirements, and the Company may be required from time to time to deposit cash or provide letters of credit with exchange brokers or counterparties to satisfy these margin requirements. For additional information relating to the Company’s derivative and financial instruments, see Note 22 under Part II, Item 8 of this Annual Report on Form 10-K.

The table below summarizes the sensitivity of the fair value of the Company’s risk management positions to fluctuations in commodity prices, with all other variables held constant. The Company has used a 10 percent variability to assess the potential impact of commodity price changes. Fluctuations in commodity prices could have resulted in unrealized gains (losses) impacting pre-tax net earnings as follows:

 

     December 31, 2017  
  (US$ millions)   

10% Price

Increase

    

10% Price   

Decrease   

 

  Crude oil price

       $                     (207)          $                         198   

  Natural gas price

     36       (40)    

FOREIGN EXCHANGE RISK

Foreign exchange risk arises from changes in foreign exchange rates that may affect the fair value or future cash flows of the Company’s financial assets or liabilities. As Encana operates in Canada and the United States, fluctuations in the exchange rate between the U.S. and Canadian dollars can have a significant effect on the Company’s reported results. Although Encana’s financial results are consolidated in Canadian dollars, the Company reports its results in U.S. dollars as most of its revenues are closely tied to the U.S. dollar and to facilitate a more direct comparison to other North American oil and gas companies.

 

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The table below summarizes selected foreign exchange impacts on Encana’s financial results when compared to the same periods in the prior years.

 

    2017      2016      2015  
    $ millions      $/BOE       

    $ millions

 

    

$/BOE  

 

    

    $ millions

 

    

$/BOE   

 

 
  

 

 

    

 

 

 
                     

  Increase (Decrease) in:

                

      Capital Investment

  $ 7         $ (25)         $ (168)     

      Transportation and Processing Expense (1)

    11      $     0.10          (25)      $ (0.19)        (111)      $  (0.75)   

      Operating Expense (1)

    4        0.03          (5)        (0.04)        (36)        (0.24)   

      Administrative Expense

    4        0.03          (7)        (0.05)        (24)        (0.16)   

      Depreciation, Depletion and Amortization (1)

    5        0.05          (13)        (0.10)        (84)        (0.57)   
(1)

Reflects upstream operations.

 

Foreign exchange gains and losses also arise when monetary assets and monetary liabilities denominated in foreign currencies are translated and settled, and primarily include:

 

  ·  

U.S. dollar denominated financing debt issued from Canada

  ·  

U.S. dollar denominated risk management assets and liabilities held in Canada

  ·  

U.S. dollar denominated cash and short-term investments held in Canada

  ·  

Foreign denominated intercompany loans

To partially mitigate the effect of foreign exchange fluctuations on future commodity revenues and expenses, the Company may enter into foreign currency derivative contracts. As at December 31, 2017, Encana has entered into $650 million notional U.S. dollar denominated currency swaps at an average exchange rate of US$0.7597 to C$1, which mature monthly throughout 2018.

As at December 31, 2017, Encana had $4.2 billion in U.S. dollar long-term debt and $314 million in U.S. dollar capital leases issued from Canada that were subject to foreign exchange exposure.

The table below summarizes the sensitivity to foreign exchange rate fluctuations, with all other variables held constant. The Company has used a 10 percent variability to assess the potential impact from Canadian to U.S. foreign currency exchange rate changes. Fluctuations in foreign currency exchange rates could have resulted in unrealized gains (losses) impacting pre-tax net earnings as follows:

 

    December 31, 2017  
  (US$ millions)  

10% Rate  

Increase  

    

10% Rate  

Decrease  

 

  Foreign currency exchange

           $                     (233)                 $                     285    

INTEREST RATE RISK

Interest rate risk arises from changes in market interest rates that may affect the fair value or future cash flows from the Company’s financial assets or liabilities. The Company may partially mitigate its exposure to interest rate changes by holding a mix of both fixed and floating rate debt and may also enter into interest rate derivatives to partially mitigate effects of fluctuations in market interest rates.

As at December 31, 2017, the Company had no floating rate debt and there were no interest rate derivatives outstanding.

 

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Item 8: Financial Statements and Supplementary Data

Management Report

 

Management’s Responsibility for Consolidated Financial Statements

The accompanying Consolidated Financial Statements of Encana Corporation (the “Company”) are the responsibility of Management. The Consolidated Financial Statements have been prepared by Management in United States dollars in accordance with generally accepted accounting principles in the United States and include certain estimates that reflect Management’s best judgments.

The Company’s Board of Directors has approved the information contained in the Consolidated Financial Statements. The Board of Directors fulfills its responsibility regarding the financial statements mainly through its Audit Committee, which has a written mandate that complies with the requirements of Canadian and United States securities legislation and the Audit Committee guidelines of the New York Stock Exchange. The Audit Committee meets at least on a quarterly basis.

Management’s Assessment of Internal Control over Financial Reporting

Management is also responsible for establishing and maintaining adequate internal control over the Company’s financial reporting. The internal control system was designed to provide reasonable assurance to the Company’s Management regarding the preparation and presentation of the Consolidated Financial Statements.

Internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

Management has assessed the design and effectiveness of the Company’s internal control over financial reporting as at December 31, 2017. In making its assessment, Management has used the Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission to evaluate the effectiveness of the Company’s internal control over financial reporting. Based on our evaluation, Management has concluded that the Company’s internal control over financial reporting was effective as at that date.

PricewaterhouseCoopers LLP, an independent firm of chartered professional accountants, was appointed by a vote of shareholders at the Company’s last annual meeting to audit and provide independent opinions on both the Consolidated Financial Statements and the Company’s internal control over financial reporting as at December 31, 2017, as stated in their Auditor’s Report. PricewaterhouseCoopers LLP has provided such opinions.

 

/s/ Douglas J. Suttles    /s/ Sherri A. Brillon
Douglas J. Suttles    Sherri A. Brillon
President &    Executive Vice-President &
Chief Executive Officer    Chief Financial Officer

February 26, 2018

 

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Auditor’s Report

 

Report of Independent Registered Public Accounting Firm

To the Board of Directors and Shareholders of Encana Corporation

Opinions on the Financial Statements and Internal Control over Financial Reporting

We have audited the accompanying Consolidated Balance Sheet of Encana Corporation and its subsidiaries as of December 31, 2017 and 2016, and the related Consolidated Statements of Earnings, Comprehensive Income, Changes in Shareholders’ Equity and Cash Flows for each of the three years in the period ended December 31, 2017, including the related notes (collectively referred to as the “Consolidated Financial Statements”). We also have audited the Company’s internal control over financial reporting as of December 31, 2017, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).

In our opinion, the Consolidated Financial Statements referred to above present fairly, in all material respects, the financial position of the Company as of December 31, 2017 and 2016, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2017 in conformity with accounting principles generally accepted in the United States of America. Also, in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2017, based on criteria established in Internal Control - Integrated Framework (2013) issued by the COSO.

Basis for Opinions

The Company’s management is responsible for these Consolidated Financial Statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management’s Assessment of Internal Control over Financial Reporting. Our responsibility is to express opinions on the Company’s Consolidated Financial Statements and on the Company’s internal control over financial reporting based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the Consolidated Financial Statements are free of material misstatement, whether due to error or fraud, and whether effective internal control over financial reporting was maintained in all material respects.

Our audits of the Consolidated Financial Statements included performing procedures to assess the risks of material misstatement of the Consolidated Financial Statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the Consolidated Financial Statements.

Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the Consolidated Financial Statements. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.

 

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Definition and Limitations of Internal Control over Financial Reporting

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that: (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

/s/ PricewaterhouseCoopers LLP

PricewaterhouseCoopers LLP

Chartered Professional Accountants

Calgary, Alberta, Canada

February 26, 2018

We have served as the auditor of the Company or its predecessor since 1958.

 

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Consolidated Statement of Earnings

                                
For the years ended December 31 (US$ millions, except per share amounts)         2017     2016     2015  

Revenues

     (Note 2)            

     Product revenues

     $           2,999     $           2,443     $           3,350  

     Gains (losses) on risk management, net

     (Note 22)       482     (275     592  

     Market optimization

       863     647       368  

     Other

       99     103       112  
         

     Total Revenues

             4,443     2,918       4,422

Operating Expenses

     (Note 2)        

     Production, mineral and other taxes

       112       99       144

     Transportation and processing

     (Note 22)       845     901       1,252

     Operating

     (Notes 19, 20)       506     598       723

     Purchased product

       788       586       323

     Depreciation, depletion and amortization

       833     859       1,488

     Impairments

     (Note 8)       -       1,396       6,473

     Accretion of asset retirement obligation

     (Note 14)       37       51       45

     Administrative

     (Notes 18, 19, 20)       254       309       275
         

     Total Operating Expenses

             3,375     4,799       10,723

Operating Income (Loss)

             1,068     (1,881     (6,301

Other (Income) Expenses

        

     Interest

     (Notes 4, 12)       363       397       614

     Foreign exchange (gain) loss, net

     (Notes 5, 22)       (279     (210     1,082

     (Gain) loss on divestitures, net

     (Note 3)       (404     (390     (14

     Other (gains) losses, net

     (Notes 12, 20)       (42     (58     27
         

     Total Other (Income) Expenses

             (362     (261     1,709

Net Earnings (Loss) Before Income Tax

       1,430     (1,620     (8,010

     Income tax expense (recovery)

     (Note 6)       603       (676     (2,845
         

Net Earnings (Loss)

           $ 827     $ (944   $ (5,165

Net Earnings (Loss) per Common Share

        

     Basic & Diluted

     (Note 15)     $ 0.85     $ (1.07   $ (6.28

Dividends Declared per Common Share

     (Note 15)     $ 0.06     $ 0.06     $ 0.28

Weighted Average Common Shares Outstanding (millions)

        

     Basic & Diluted

     (Note 15)       973.1       882.6       822.1

Consolidated Statement of Comprehensive Income

For the years ended December 31 (US$ millions)

             2017       2016     2015

Net Earnings (Loss)

     $ 827   $ (944   $ (5,165

Other Comprehensive Income (Loss), Net of Tax

        

     Foreign currency translation adjustment

     (Note 16)       (171     (183     668

     Pension and other post-employment benefit plans

     (Notes 16, 20)       3     3       33
         

Other Comprehensive Income (Loss)

             (168     (180     701
 

Comprehensive Income (Loss)

           $ 659   $ (1,124   $ (4,464

See accompanying Notes to Consolidated Financial Statements

 

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Consolidated Balance Sheet

 

 

As at December 31 (US$ millions)                       2017                   2016  

Assets

       

   Current Assets

       

        Cash and cash equivalents

     $             719      $ 834  

        Accounts receivable and accrued revenues

     (Note 7   774        663  

        Risk management

     (Notes 21, 22   205        -  

        Income tax receivable

           573        426  
     2,271        1,923  

   Property, Plant and Equipment, at cost:

     (Note 8     

        Oil and natural gas properties, based on full cost accounting

       

          Proved properties

     40,228        39,610  

          Unproved properties

     4,480        5,198  

        Other

     2,302        2,194  
       

        Property, plant and equipment

     47,010        47,002  

        Less: Accumulated depreciation, depletion and amortization

           (38,056)       (38,863

        Property, plant and equipment, net

     (Note 2   8,954        8,139  

   Other Assets

     (Note 9   144        138  

   Risk Management

     (Notes 21, 22   246        16  

   Deferred Income Taxes

     (Note 6   1,043        1,658  

   Goodwill

     (Notes 2, 3, 10   2,609        2,779  
       
       (Note 2   $        15,267      $ 14,653  

Liabilities and Shareholders’ Equity

       

     Current Liabilities

       

        Accounts payable and accrued liabilities

     (Note 11   $          1,415      $ 1,303  

        Income tax payable

     7        5  

        Risk management

     (Notes 21, 22   236        254  
     1,658        1,562  

   Long-Term Debt

     (Note 12   4,197        4,198  

   Other Liabilities and Provisions

     (Note 13   2,167        2,047  

   Risk Management

     (Notes 21, 22   13        35  

   Asset Retirement Obligation

     (Note 14   470        654  

   Deferred Income Taxes

     (Note 6   34        31  
       
             8,539        8,527  

   Commitments and Contingencies

     (Note 24     

   Shareholders’ Equity

       

Share capital - authorized unlimited common shares
2017 issued and outstanding: 973.1 million shares (2016: 973.0 million shares)

     (Note 15   4,757        4,756  

Paid in surplus

     1,358        1,358  

Accumulated deficit

     (429)       (1,198

Accumulated other comprehensive income

     (Note 16   1,042        1,210  
       

     Total Shareholders’ Equity

     6,728        6,126  
       
             $        15,267      $ 14,653  

See accompanying Notes to Consolidated Financial Statements

Approved by the Board of Directors

 

/s/ Clayton H. Woitas    /s/ Bruce G. Waterman
Clayton H. Woitas    Bruce G. Waterman
Director    Director

 

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Consolidated Statement of Changes in Shareholders’ Equity

 

 

For the year ended December 31, 2017 (US$ millions)           Share
        Capital
     Paid in
        Surplus
             Accumulated
Deficit
            Accumulated
Other
Comprehensive
Income
    Total
        Shareholders’
Equity
 

Balance, December 31, 2016

     $ 4,756      $ 1,358      $ (1,198   $ 1,210     $ 6,126  

Net Earnings (Loss)

       -        -        827       -       827  

Dividends on Common Shares

     (Note 15     -        -        (58     -       (58

Common Shares Issued Under

  Dividend Reinvestment Plan

     (Note 15     1        -        -       -       1  

Other Comprehensive Income (Loss)

     (Note 16     -        -        -       (168     (168
             

Balance, December 31, 2017

           $ 4,757      $ 1,358      $ (429   $ 1,042     $ 6,728  
For the year ended December 31, 2016 (US$ millions)           Share
Capital
     Paid in
Surplus
     Accumulated
Deficit
    Accumulated
Other
Comprehensive
Income
    Total
Shareholders’
Equity
 

Balance, December 31, 2015

     $ 3,621      $ 1,358    $ (202   $ 1,390     $ 6,167  

Net Earnings (Loss)

       -        -        (944     -       (944

Dividends on Common Shares

     (Note 15     -        -        (52     -       (52

Common Shares Issued

     (Note 15     1,134        -        -       -       1,134  

Common Shares Issued Under

  Dividend Reinvestment Plan

     (Note 15     1      -        -       -       1  

Other Comprehensive Income (Loss)

     (Note 16     -        -        -       (180     (180
             

Balance, December 31, 2016

           $ 4,756      $ 1,358    $ (1,198   $ 1,210     $ 6,126  
For the year ended December 31, 2015 (US$ millions)           Share
Capital
     Paid in
Surplus
     Accumulated
Deficit
    Accumulated
Other
Comprehensive
Income
    Total
Shareholders’
Equity
 

Balance, December 31, 2014

     $ 2,450    $ 1,358    $ 5,188     $ 689   $ 9,685  

Net Earnings (Loss)

       -        -        (5,165     -       (5,165

Dividends on Common Shares

     (Note 15     -        -        (225     -       (225

Common Shares Issued

     (Note 15     1,098      -        -       -       1,098  

Common Shares Issued Under

  Dividend Reinvestment Plan

     (Note 15     73      -        -       -       73  

Other Comprehensive Income (Loss)

     (Note 16     -        -        -       701     701  
             

Balance, December 31, 2015

           $ 3,621    $ 1,358    $ (202   $ 1,390     $ 6,167  

See accompanying Notes to Consolidated Financial Statements

 

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Consolidated Statement of Cash Flows

 

 

For the years ended December 31 (US$ millions)          2017     2016     2015  

Operating Activities

       

    Net earnings (loss)

    $                 827       $                (944     $                (5,165

    Depreciation, depletion and amortization

      833       859       1,488

    Impairments

    (Note 8     -       1,396       6,473

    Accretion of asset retirement obligation

    (Note 14     37       51       45

    Deferred income taxes

    (Note 6     666       (598     (2,811

    Unrealized (gain) loss on risk management

    (Note 22     (442     614       331

    Unrealized foreign exchange (gain) loss

    (Note 5     (291     (140     687

    Foreign exchange on settlements

    (Note 5     24       (68     358

    (Gain) loss on divestitures, net

    (Note 3     (404     (390     (14

    Other

      93       58       38

    Net change in other assets and liabilities

      (40     (26     (11

    Net change in non-cash working capital

    (Note 23     (253     (187     262
         

    Cash From (Used in) Operating Activities

            1,050       625       1,681

Investing Activities

       

    Capital expenditures

    (Note 2     (1,796     (1,132     (2,232

    Acquisitions

    (Note 3     (54     (210     (70

    Proceeds from divestitures

    (Note 3     736       1,262       1,908

    Net change in investments and other

      77       51       (271
         

    Cash From (Used in) Investing Activities

            (1,037     (29     (665

Financing Activities

       

    Net issuance (repayment) of revolving long-term debt

    (Note 12     -       (650     (627

    Repayment of long-term debt

    (Note 12 )     -       (400     (1,302

    Issuance of common shares, net of offering costs

    (Note 15     -       1,129       1,088

    Dividends on common shares

    (Note 15     (57     (51     (152

    Capital lease payments and other financing arrangements

    (Note 13 )       (82     (66     (61
         

    Cash From (Used in) Financing Activities

            (139     (38     (1,054

Foreign Exchange Gain (Loss) on Cash and Cash Equivalents Held in Foreign Currency

            11       5       (29

Increase (Decrease) in Cash and Cash Equivalents

      (115     563       (67

Cash and Cash Equivalents, Beginning of Year

      834       271       338
         

Cash and Cash Equivalents, End of Year

          $ 719     $ 834     $ 271

Cash, End of Year

    $ 51     $ 78     $ 58

Cash Equivalents, End of Year

      668       756       213
         

Cash and Cash Equivalents, End of Year

          $ 719     $ 834     $ 271

Supplementary Cash Flow Information

    (Note 23      

See accompanying Notes to Consolidated Financial Statements

 

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 1.     Summary of Significant Accounting Policies

 

A)

NATURE OF OPERATIONS

Encana is in the business of the exploration for, the development of, and the production and marketing of oil, NGLs and natural gas.

 

B)

BASIS OF PRESENTATION

The Consolidated Financial Statements include the accounts of Encana and are presented in conformity with U.S. GAAP and the rules and regulations of the SEC.

In these Consolidated Financial Statements, unless otherwise indicated, all dollar amounts are expressed in U.S. dollars. Encana’s financial results are consolidated in Canadian dollars; however, the Company has adopted the U.S. dollar as its reporting currency to facilitate a more direct comparison to other North American oil and gas companies. All references to US$ or to $ are to United States dollars and references to C$ are to Canadian dollars.

 

C)

PRINCIPLES OF CONSOLIDATION

The Consolidated Financial Statements include the accounts of Encana and entities in which it holds a controlling interest. All intercompany balances and transactions are eliminated on consolidation. Undivided interests in oil and natural gas exploration and production joint ventures and partnerships are consolidated on a proportionate basis. Investments in non-controlled entities over which Encana has the ability to exercise significant influence are accounted for using the equity method.

 

D)

FOREIGN CURRENCY TRANSLATION

Monetary assets and liabilities of the Company that are denominated in foreign currencies are translated at the rates of exchange in effect at the period end date. Any gains or losses are recorded in the Consolidated Statement of Earnings. Foreign currency revenues and expenses are translated at the rates of exchange in effect at the time of the transaction.

Assets and liabilities of foreign operations are translated at period end exchange rates, while the related revenues and expenses are translated using average rates during the period. Translation gains and losses relating to the foreign operations are included in accumulated other comprehensive income (“AOCI”). Recognition of Encana’s accumulated translation gains and losses into net earnings occurs upon complete or substantially complete liquidation of the Company’s investment in the foreign operation.

For financial statement presentation, assets and liabilities are translated into the reporting currency at period end exchange rates, while revenues and expenses are translated using average rates over the period. Gains and losses relating to the financial statement translation are included in AOCI.

 

E)

USE OF ESTIMATES

Preparation of the Consolidated Financial Statements in conformity with U.S. GAAP requires Management to make informed estimates and assumptions and use judgments that affect reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the Consolidated Financial Statements and the reported amounts of revenues and expenses during the period. Such estimates primarily relate to unsettled transactions and events as of the date of the Consolidated Financial Statements. Accordingly, actual results may differ from estimated amounts as future events occur.

 

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Significant items subject to estimates and assumptions are:

 

  ·  

Estimates of proved reserves used for depletion and ceiling test impairment calculations

  ·  

Estimated fair value of long-term assets used for impairment calculations

  ·  

Fair value of reporting units used for the assessment of goodwill

  ·  

Estimates of future taxable earnings used to assess the realizable value of deferred tax assets

  ·  

Fair value of asset retirement costs and related obligations

  ·  

Fair value of derivative instruments

  ·  

Fair value attributed to assets acquired and liabilities assumed in business combinations

  ·  

Tax interpretations, regulations and legislation in the various jurisdictions in which the Company and its subsidiaries operate

  ·  

Accruals for long-term performance-based compensation arrangements, including whether or not the performance criteria will be met and measurement of the ultimate payout amount

  ·  

Recognized values of pension assets and obligations, as well as the pension costs charged to net earnings, depend on certain actuarial and economic assumptions

  ·  

Accruals for legal claims, environmental risks and exposures

 

F)

REVENUE RECOGNITION

Revenues associated with Encana’s oil, NGLs and natural gas are recognized when production is sold to a purchaser at a fixed or determinable price, delivery has occurred, title has transferred and collectability of the revenue is probable. Revenues are presented on an after-royalties basis. Realized gains and losses from the Company’s financial derivatives related to oil and natural gas commodity prices are recognized in revenues when the contract is settled. Unrealized gains and losses related to these contracts are recognized in revenues based on the changes in fair value of the contracts at the end of the respective periods.

Market optimization revenues and purchased product expenses are recorded on a gross basis when Encana takes title to the product and has the risks and rewards of ownership. Purchases and sales of products that are entered into in contemplation of each other with the same counterparty are recorded on a net basis. Revenues associated with the services provided where Encana acts as agent are recorded as the services are provided.

Other revenues primarily include sublease rentals. Sublease rentals are recognized straight-line over the lease term.

 

G)

PRODUCTION, MINERAL AND OTHER TAXES

Costs paid by Encana for taxes based on production or revenues from oil, NGLs and natural gas are recognized when the product is produced. Costs paid by Encana for taxes on the valuation of upstream assets and reserves are recognized when incurred.

 

H)

TRANSPORTATION AND PROCESSING

Costs paid by Encana for the transportation and processing of oil, NGLs and natural gas are recognized when the product is delivered and the services made available or provided.

 

I)

OPERATING

Operating costs paid by Encana, net of amounts capitalized, for oil and natural gas properties in which the Company has a working interest.

 

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J)

EMPLOYEE BENEFIT PLANS

The Company sponsors defined contribution and defined benefit plans, providing pension and other post-employment benefits to its employees in Canada and the U.S. As of January 1, 2003, the defined benefit pension plan was closed to new entrants.

Pension expense for the defined contribution pension plan is recorded as the benefits are earned by the employees covered by the plans. Encana accrues for its obligations under its employee defined benefit plans, net of plan assets. The cost of defined benefit pensions and other post-employment benefits is actuarially determined using the projected benefit method based on length of service and reflects Management’s best estimate of salary escalation, mortality rates, retirement ages of employees and expected future health care costs. The expected return on plan assets is based on historical and projected rates of return for assets in the investment plan portfolio. The actual return is based on the fair value of plan assets. The projected benefit obligation is discounted using the market interest rate on high-quality corporate debt instruments as at the measurement date.

Pension expense for the defined benefit pension plan includes the cost of pension benefits earned during the current year, the interest cost on pension obligations, the expected return on pension plan assets, the amortization of adjustments arising from pension plan amendments, the amortization of net prior service costs, and the amortization of the excess of the net actuarial gains or losses over 10 percent of the greater of the benefit obligation and the fair value of plan assets. Amortization is on a straight-line basis over a period covering the expected average remaining service lives of employees covered by the plans. Actuarial gains and losses related to the change in the over-funded or under-funded status of the defined benefit pension plan and other post-employment benefit plans are recognized in other comprehensive income.

 

K)

INCOME TAXES

Encana follows the liability method of accounting for income taxes. Under this method, deferred income taxes are recorded for the effect of any temporary difference between the accounting and income tax basis of an asset or liability, using the enacted income tax rates and laws expected to apply when the assets are realized and liabilities are settled. Current income taxes are measured at the amount expected to be recoverable from or payable to the taxing authorities based on the income tax rates and laws enacted at the end of the reporting period. The effect of a change in the enacted tax rates or laws is recognized in net earnings in the period of enactment. Income taxes are recognized in net earnings except to the extent that they relate to items recognized directly in shareholders’ equity, in which case the income taxes are recognized directly in shareholders’ equity.

Deferred income tax assets are assessed routinely for realizability. If it is more likely than not that deferred tax assets will not be realized, a valuation allowance is recorded to reduce the deferred tax assets. Encana considers available positive and negative evidence when assessing the realizability of deferred tax assets including historic and expected future taxable earnings, available tax planning strategies and carry forward periods. The assumptions used in determining expected future taxable earnings are consistent with those used in the goodwill impairment assessment.

Encana recognizes the financial statement effects of a tax position when it is more likely than not, based on the technical merits, that the position will be sustained upon examination by a taxing authority. A recognized tax position is initially and subsequently measured as the largest amount of tax benefit that is greater than 50 percent likely of being realized upon settlement with a taxing authority. Liabilities for unrecognized tax benefits that are not expected to be settled within the next 12 months are included in other liabilities and provisions. Interest related to unrecognized tax benefits is recognized in interest expense.

 

L)

EARNINGS PER SHARE AMOUNTS

Basic net earnings per common share is computed by dividing the net earnings by the weighted average number of common shares outstanding during the period. Diluted net earnings per common share amounts are calculated giving effect to the potential dilution that would occur if stock options were exercised or other contracts to issue common shares were exercised, fully vested, or converted to common shares. The treasury stock method is used to determine the dilutive effect of stock options and other dilutive instruments. The treasury stock method assumes that proceeds received from the exercise of in-the-money stock options and other dilutive instruments are used to repurchase common shares at the average market price.

 

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M)

CASH AND CASH EQUIVALENTS

Cash and cash equivalents include cash on hand and short-term investments, such as money market deposits or similar type instruments, with a maturity of three months or less when purchased. Outstanding disbursements issued in excess of applicable bank account balances are excluded from cash and cash equivalents and are recorded in accounts payable and accrued liabilities.

 

N)

PROPERTY, PLANT AND EQUIPMENT

UPSTREAM

Encana uses the full cost method of accounting for its acquisition, exploration and development activities. Accordingly, all costs directly associated with the acquisition of, the exploration for, and the development of oil, NGLs and natural gas reserves, including costs of undeveloped leaseholds, dry holes and related equipment, are capitalized on a country-by-country cost centre basis. Capitalized costs exclude costs relating to production, general overhead or similar activities.

Capitalized costs accumulated within each cost centre are depleted using the unit-of-production method based on proved reserves. Depletion is calculated using the capitalized costs, including estimated retirement costs, plus the undiscounted future expenditures, based on current costs, to be incurred in developing proved reserves.

Costs associated with unproved properties are excluded from the depletion calculation until it is determined that proved reserves are attributable or impairment has occurred. Unproved properties are assessed separately for impairment on a quarterly basis. Costs that have been impaired are included in the costs subject to depletion within the full cost pool.

Under the full cost method of accounting, the carrying amount of Encana’s oil and natural gas properties within each country cost centre is subject to a ceiling test at the end of each quarter. A ceiling test impairment is recognized in net earnings when the carrying amount of a country cost centre exceeds the country cost centre ceiling. The carrying amount of a cost centre includes capitalized costs of proved oil and natural gas properties, net of accumulated depletion and the related deferred income taxes.

The cost centre ceiling is the sum of the estimated after-tax future net cash flows from proved reserves, using the 12-month average trailing prices and unescalated future development and production costs, discounted at 10 percent, plus unproved property costs. The 12-month average trailing price is calculated as the average of the price on the first day of each month within the trailing 12-month period. Any excess of the carrying amount over the calculated ceiling amount is recognized as an impairment in net earnings.

Proceeds from the divestiture of properties are normally deducted from the full cost pool without recognition of a gain or loss unless the deduction significantly alters the relationship between capitalized costs and proved reserves in the cost centre, in which case a gain or loss is recognized in net earnings. Generally, a gain or loss on a divestiture would be recognized when 25 percent or more of the Company’s proved reserves quantities in a particular country are sold. For divestitures that result in the recognition of a gain or loss on the sale and constitute a business, goodwill is allocated to the divestiture.

CORPORATE

Costs associated with office furniture, fixtures, leasehold improvements, information technology and aircraft are carried at cost and depreciated on a straight-line basis over the estimated service lives of the assets, which range from three to 25 years. Costs associated with The Bow office building are carried at cost and depreciated on a straight-line basis over the 60-year estimated life of the building. Assets under construction are not subject to depreciation until put into use. Land is carried at cost.

 

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O)

CAPITALIZATION OF COSTS

Expenditures related to renewals or betterments that improve the productive capacity or extend the life of an asset are capitalized. Maintenance and repairs are expensed as incurred. Interest on borrowings associated with major development projects is capitalized during the construction phase.

 

P)

BUSINESS COMBINATIONS

Business combinations are accounted for using the acquisition method. The acquired identifiable net assets are measured at fair value at the date of acquisition. Deferred taxes are recognized for any differences between the fair value of net assets acquired and the related tax bases. Any excess of the purchase price over the fair value of the net assets acquired is recognized as goodwill. Any deficiency of the purchase price below the fair value of the net assets acquired is recorded as a gain in net earnings. Associated transaction costs are expensed when incurred.

 

Q)

GOODWILL

Goodwill represents the excess of purchase price over fair value of net assets acquired and is assessed for impairment at least annually at December 31. Goodwill and all other assets and liabilities are allocated to reporting units, which are Encana’s country cost centres. To assess impairment, the carrying amount of each reporting unit is determined and compared to the fair value of the reporting unit. If the carrying amount of the reporting unit, including goodwill, is higher than its related fair value then goodwill is written down to the reporting unit’s implied fair value of goodwill. The implied fair value of goodwill is determined by deducting the fair value of the reporting unit’s assets and liabilities from the fair value of the reporting unit as if the reporting entity had been acquired in a business combination. Any excess of the carrying value of goodwill over the implied fair value of goodwill is recognized as an impairment and charged to net earnings. Subsequent measurement of goodwill is at cost less any accumulated impairments.

 

R)

IMPAIRMENT OF LONG-TERM ASSETS

The carrying value of long-term assets, excluding goodwill and upstream assets included in property, plant and equipment, is assessed for impairment when indicators suggest that the carrying value of an asset or asset group may not be recoverable. If the carrying amount exceeds the sum of the undiscounted cash flows expected to result from the continued use and eventual disposition of the asset or asset group, an impairment is recognized for the excess of the carrying amount over its estimated fair value.

 

S)

ASSET RETIREMENT OBLIGATION

Asset retirement obligations are those legal obligations where the Company will be required to retire tangible long-lived assets such as producing well sites, an offshore production platform, processing plants, and restoring land or seabed at the end of oil and gas production operations. The asset retirement obligation is initially measured at its fair value and recorded as a liability with an offsetting retirement cost that is capitalized as part of the related long-lived asset on the Consolidated Balance Sheet. The estimated fair value is measured by reference to the expected future cash flows required to satisfy the obligation, discounted at the Company’s credit-adjusted risk-free rate. Changes in the estimated obligation resulting from revisions to estimated timing or amount of future cash flows are recognized as a change in the asset retirement obligation and the related asset retirement cost.

Amortization of asset retirement costs are included in depreciation, depletion and amortization in the Consolidated Statement of Earnings. Increases in the asset retirement obligations resulting from the passage of time are recorded as accretion of asset retirement obligation in the Consolidated Statement of Earnings.

Actual expenditures incurred are charged against the accumulated asset retirement obligation.

 

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T)

STOCK-BASED COMPENSATION

Obligations for payments of cash or common shares under Encana’s stock-based compensation plans are accrued over the vesting period, net of forfeitures, using fair values. Fair values are determined using observable share prices and/or pricing models such as the Black-Scholes-Merton option-pricing model. For equity-settled stock-based compensation plans, fair values are determined at the grant date and are recognized over the vesting period as compensation costs with a corresponding credit to shareholders’ equity. For cash-settled stock-based compensation plans, fair values are determined at each reporting date and periodic changes are recognized as compensation costs, with a corresponding change to liabilities.

 

U)

LEASES

Leases entered into for the use of an asset are classified as either capital or operating leases. Capital leases transfer to the Company substantially all of the risks and benefits incidental to ownership of the leased item. Capital leases are capitalized upon commencement of the lease term at the lower of the fair value of the leased asset or the present value of the minimum lease payments. Capitalized leased assets are amortized over the estimated useful life of the asset if the lease arrangement contains a bargain purchase option or ownership of the leased asset transfers at the end of the lease term. Otherwise, the leased assets are amortized over the lease term. Amortization of capitalized leased assets is included in depreciation, depletion and amortization in the Consolidated Statement of Earnings. All other leases are classified as operating leases and the payments are recognized on a straight-line basis over the lease term.

 

V)

FAIR VALUE MEASUREMENTS

Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Valuation techniques include the market, income and cost approach. The market approach uses information generated by market transactions involving identical or comparable assets or liabilities; the income approach converts estimated future amounts to a present value; the cost approach is based on the amount that currently would be required to replace an asset.

Inputs used in determining fair value are characterized according to a hierarchy that prioritizes those inputs based on the degree to which they are observable. The three input levels of the fair value hierarchy are as follows:

 

  ·  

Level 1 - Inputs represent quoted prices in active markets for identical assets or liabilities, such as exchange-traded commodity derivatives.

 

  ·  

Level 2 - Inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly, such as quoted market prices for similar assets or liabilities in active markets or other market corroborated inputs.

 

  ·  

Level 3 - Inputs that are not observable from objective sources, such as forward prices supported by little or no market activity or internally developed estimates of future cash flows used in a present value model.

In determining fair value, the Company utilizes the most observable inputs available. If a fair value measurement reflects inputs at multiple levels within the hierarchy, the fair value measurement is characterized based on the lowest level of input that is significant to the fair value measurement.

The carrying amount of cash and cash equivalents, accounts receivable and accounts payable reported on the Consolidated Balance Sheet approximates fair value. The fair value of long-term debt is disclosed in Note 12. Fair value information related to pension plan assets is included in Note 20. Recurring fair value measurements are performed for risk management assets and liabilities and other derivative contracts as discussed in Note 21.

Certain non-financial assets and liabilities are initially measured at fair value, such as asset retirement obligations and assets and liabilities acquired in business combinations or certain non-monetary exchange transactions.

 

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W)

RISK MANAGEMENT ASSETS AND LIABILITIES

Risk management assets and liabilities are derivative financial instruments used by Encana to manage economic exposure to market risks relating to commodity prices, foreign currency exchange rates and interest rates. The use of these derivative instruments is governed under formal policies and is subject to limits established by the Board of Directors. The Company’s policy is not to utilize derivative financial instruments for speculative purposes.

Derivative instruments that do not qualify for the normal purchases and sales exemption are measured at fair value with changes in fair value recognized in net earnings. The fair values recorded in the Consolidated Balance Sheet reflect netting the asset and liability positions where counterparty master netting arrangements contain provisions for net settlement. Realized gains or losses from financial derivatives related to oil and natural gas commodity prices are recognized in revenues as the contracts are settled. Realized gains or losses from financial derivatives related to power commodity prices are recognized in transportation and processing expense as the related power contracts are settled. Realized gains or losses from foreign currency exchange swaps are recognized in foreign exchange (gain) loss as the contracts are settled. Realized gains or losses from other derivative contracts related to certain payment obligations are recognized in revenues as the obligations are settled. Unrealized gains and losses are recognized in revenues, transportation and processing expense and foreign exchange (gain) loss accordingly, at the end of each respective reporting period based on the changes in fair value of the contracts.

 

X)

COMMITMENTS AND CONTINGENCIES

Liabilities for loss contingencies arising from claims, assessments, litigation, environmental and other sources are recorded when it is probable that a liability has been incurred and the amount can be reasonably estimated. These accruals are adjusted as additional information becomes available or circumstances change.

 

Y)

RECENT ACCOUNTING PRONOUNCEMENTS

NEW STANDARDS ISSUED NOT YET ADOPTED

As of January 1, 2018, Encana will be required to adopt ASU 2014-09, “Revenue from Contracts with Customers” under Topic 606 and the related subsequent updates and clarifications issued, which will replace Topic 605, “Revenue Recognition”, and other industry-specific guidance in the Accounting Standards Codification. The new standard is based on the principle that revenue is recognized on the transfer of promised goods or services to customers in an amount that reflects the consideration the company expects to be entitled to in exchange for those goods or services. In August 2015, the FASB issued ASU 2015-14, “Deferral of Effective Date for Revenue from Contracts with Customers”, which deferred the effective date of ASU 2014-09. The standard can be applied using either the full retrospective approach or a modified retrospective approach at the date of adoption. Encana has substantially completed evaluating the impact of ASU 2014-09 and currently expects that the standard will not have a material impact on the Company’s Consolidated Financial Statements other than enhanced disclosures related to the disaggregation of revenues from contracts with customers, the Company’s performance obligations and any significant judgments. Encana intends to adopt the new standard using the modified retrospective approach at the date of adoption.

As of January 1, 2018, Encana will be required to adopt ASU 2017-07, “Improving the Presentation of Net Periodic Pension Cost and Net Periodic Postretirement Benefit Cost”. The amendment requires the service cost component to be presented with the related employee compensation costs, while the other components of net benefit costs are required to be presented separately from the service cost component and outside the subtotal of income from operations. In addition, the amendment allows only the service cost to be eligible for capitalization. The amendment will be applied retrospectively and provides certain practical expedients for the presentation of net periodic pension costs and net periodic postretirement benefit cost, while the capitalization of the service cost component will be applied prospectively, at the date of adoption. Encana does not expect the amendment to have a material impact on the Company’s Consolidated Financial Statements.

 

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As of January 1, 2019, Encana will be required to adopt ASU 2016-02, “Leases” under Topic 842, which will replace Topic 840 “Leases”. The new standard will require lessees to recognize right-of-use assets and related lease liabilities for all leases, including leases classified as operating leases, on the Consolidated Balance Sheet. The dual classification model was retained for the purpose of subsequent measurement and presentation of leases in the Consolidated Statement of Earnings and Consolidated Statement of Cash Flows. The new standard also expands disclosures related to the amount, timing and uncertainty of cash flows arising from leases. The standard will be applied using a modified retrospective approach, in addition Encana plans to elect certain practical expedients which will allow the Company to retain the classification of leases assessed under Topic 840 that commenced prior to adoption. Throughout 2017, Encana has been reviewing and analyzing contracts, identifying its portfolio of leased assets, and more recently has begun gathering the necessary terms and data elements that will be used to determine the impact of this standard upon adoption. The Company has also been actively identifying and evaluating the system requirements as well as processes and controls required to support the accounting for leases and related disclosures. In addition, Encana has been monitoring FASB’s proposed amendments and tentative decisions for applicability and impact to the Company. Although Encana is not able to reasonably estimate the financial impact of ASU 2016-02 at this time, the Company anticipates there will be a material impact on the Company’s Consolidated Financial Statements resulting from the recognition of assets and liabilities related to operating lease activities.

As of January 1, 2020, Encana will be required to adopt ASU 2017-04, “Simplifying the Test for Goodwill Impairment”. The amendment eliminates the second step of the goodwill impairment test which requires the Company to measure the impairment based on the excess amount of the carrying value of the reporting unit’s goodwill over the implied fair value of its goodwill. Under this amendment, the goodwill impairment will be measured based on the excess amount of the reporting unit’s carrying value over its respective fair value. The amendment will be applied prospectively at the date of adoption. Encana is currently in the early stages of reviewing the amendment, but does not expect the amendment to have a material impact on the Company’s Consolidated Financial Statements.

 

2.     Segmented Information

Encana’s reportable segments are determined based on the Company’s operations and geographic locations as follows:

 

·  

Canadian Operations includes the exploration for, development of, and production of oil, NGLs and natural gas and other related activities within the Canadian cost centre.

 

·  

USA Operations includes the exploration for, development of, and production of oil, NGLs and natural gas and other related activities within the U.S. cost centre.

 

·  

Market Optimization is primarily responsible for the sale of the Company’s proprietary production. These results are reported in the Canadian and USA Operations. Market optimization activities include third party purchases and sales of product to provide operational flexibility and cost mitigation for transportation commitments, product type, delivery points and customer diversification. These activities are reflected in the Market Optimization segment. Market Optimization sells substantially all of the Company’s upstream production to third party customers. Transactions between segments are based on market values and are eliminated on consolidation.

Corporate and Other mainly includes unrealized gains or losses recorded on derivative financial instruments. Once the instruments are settled, the realized gains and losses are recorded in the reporting segment to which the derivative instruments relate. Corporate and Other also includes amounts related to sublease rentals.

 

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Results of Operations

Segment and Geographic Information

 

      Canadian Operations      USA Operations     Market Optimization  
  For the years ended December 31    2017      2016     2015      2017      2016     2015     2017     2016     2015   
   

   Revenues

                     

    Product revenues

   $     1,150       $      952     $     1,309      $     1,849       $     1,491     $     2,041     $           -      $           -     $           -   

    Gains (losses) on risk management, net

     22         107       495        18         255       425             (1     (3)  

    Market optimization

            -       -               -       -       863        647       368   

    Other

     19         8       18        11         24       25             -        

    Total Revenues

     1,191         1,067       1,822        1,878         1,770       2,491       863        646       365   
   

Operating Expenses

                     

    Production, mineral and other taxes

     20         23       28        92         76       116             -        

    Transportation and processing

     578         576       654        164         260       580       103        87       12   

    Operating

     122         152       152        331         394       519       35        35       33   

    Purchased product

            -       -               -       -       788        586       323   

    Depreciation, depletion and amortization

     236         260       305        530         523       1,088             -        

    Impairments

            493       -               903       6,473             -        

    Total Operating Expenses

     956         1,504       1,139        1,117         2,156       8,776       927        708       368   

  Operating Income (Loss)

   $ 235       $ (437   $ 683      $ 761       $ (386   $ (6,285   $ (64)     $ (62   $ (3)  
            
                             Corporate & Other     Consolidated  
                             2017      2016     2015     2017     2016     2015   
 

   Revenues

                     

    Product revenues

           $ -      $ -     $ -     $ 2,999     $ 2,443     $ 3,350   

    Gains (losses) on risk management, net

             442        (636     (325     482       (275     592   

    Market optimization

             -        -       -       863       647       368   

    Other

             69        71       69       99       103       112   

    Total Revenues

                               511        (565     (256     4,443       2,918       4,422   
 

   Operating Expenses

                     

    Production, mineral and other taxes

             -        -       -       112       99       144   

    Transportation and processing

             -        (22     6       845       901       1,252   

    Operating

             18        17       19       506       598       723   

    Purchased product

             -        -       -       788       586       323   

    Depreciation, depletion and amortization

             66        76       95       833       859       1,488   

    Impairments

             -        -       -       -       1,396       6,473   

    Accretion of asset retirement obligation

             37        51       45       37       51       45   

    Administrative

             254        309       275       254       309       275   

    Total Operating Expenses

                               375        431       440       3,375       4,799       10,723   

   Operating Income (Loss)

                             $ 136      $ (996   $ (696     1,068       (1,881     (6,301)  
 

   Other (Income) Expenses

                     

    Interest

                    363       397       614   

    Foreign exchange (gain) loss, net

                    (279     (210     1,082   

    (Gain) loss on divestitures, net

                    (404     (390     (14)  

    Other (gains) losses, net

                    (42     (58     27   

    Total Other (Income) Expenses

                                                        (362     (261     1,709   

   Net Earnings (Loss) Before Income Tax

                    1,430       (1,620     (8,010)  

    Income tax expense (recovery)

                    603       (676     (2,845)  

   Net Earnings (Loss)

                                                      $ 827     $ (944   $ (5,165)  

 

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Intersegment Information

 

      Market Optimization  
      Marketing Sales     Upstream Eliminations     Total  
  For the years ended December 31    2017     2016     2015     2017     2016     2015     2017     2016     2015   
   

   Revenues

   $     3,939     $     3,304     $     4,309     $   (3,076   $  (2,658   $  (3,944   $     863     $      646     $      365   
   

   Operating Expenses

                  

    Transportation and processing

     291       279       348       (188     (192     (336     103       87       12   

    Operating

     35       35       33       -       -       -       35       35       33   

    Purchased product

     3,676       3,052       3,931       (2,888     (2,466     (3,608     788       586       323   

    Depreciation, depletion and amortization

     1       -       -       -       -       -       1       -        

    Operating Income (Loss)

   $ (64   $ (62   $ (3   $ -     $ -     $ -     $ (64   $ (62   $ (3)  

Capital Expenditures

 

For the years ended December 31    2017      2016      2015   

Canadian Operations

   $                 426      $                 256      $             380   

USA Operations

     1,358        873        1,847   

Market Optimization

     1        1         

Corporate & Other

     11        2         
     $ 1,796      $ 1,132      $ 2,232   

Goodwill, Property, Plant and Equipment and Total Assets by Segment

 

     Goodwill      Property, Plant and Equipment        Total Assets  
As at December 31    2017      2016      2017      2016      2017      2016   
   

Canadian Operations

   $             696      $             650      $             862      $             602      $             1,908      $             1,542   

USA Operations

     1,913        2,129        6,555        6,050        9,301        9,535   

Market Optimization

     -        -        2        2        152        105   

Corporate & Other

     -        -        1,535        1,485        3,906        3,471   
     $ 2,609      $ 2,779      $ 8,954      $ 8,139      $ 15,267      $ 14,653   

 

Goodwill, Property, Plant and Equipment and Total Assets by Geographic Region

 

 

     Goodwill      Property, Plant and Equipment        Total Assets  
As at December 31    2017      2016      2017      2016      2017      2016   
   

Canada

   $ 696      $ 650      $ 2,319      $ 2,000      $ 5,412      $ 4,732   

United States

     1,913        2,129        6,635        6,139        9,811        9,902   

Other Countries

     -        -        -        -        44        19   
     $ 2,609      $ 2,779      $ 8,954      $ 8,139      $ 15,267      $ 14,653   

Export Sales

Sales of oil, NGLs and natural gas produced or purchased in Canada delivered to customers outside of Canada were $64 million for the year ended December 31, 2017 (2016 - $50 million; 2015 - $153 million).

Major Customers

In connection with the marketing and sale of Encana’s own and purchased oil, NGLs and natural gas for the year ended December 31, 2017, the Company had two customers which individually accounted for more than 10 percent of Encana’s product revenues. Sales to these customers, which have investment grade credit ratings, were approximately $709 million and $412 million which comprised $144 million in Canada and $977 million in the United States (2016 - two customers with sales of approximately $434 million and $343 million, respectively; 2015 - two customers with sales of approximately $447 million and $414 million, respectively).

 

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3.

Acquisitions and Divestitures

 

For the years ended December 31    2017     2016      2015  

Acquisitions

       

   Canadian Operations

   $                         31         $                         1        $                         9

   USA Operations

     23       209        27

   Corporate & Other

     -       -        34

   Total Acquisitions

     54       210        70

Divestitures

       

   Canadian Operations

     (41     (456      (959

   USA Operations

     (695     (806      (896

   Corporate & Other

     -       -        (53

   Total Divestitures

     (736     (1,262      (1,908

Net Acquisitions & (Divestitures)

   $ (682       $ (1,052      $ (1,838

ACQUISITIONS

Acquisitions in 2017 in the Canadian and USA Operations primarily included land purchases with oil and liquids rich potential. Acquisitions in 2016 in the USA Operations primarily included the purchase of natural gas gathering and water handling assets in Piceance located in Colorado and the purchase of land and property in Eagle Ford with oil and liquids rich potential.

DIVESTITURES

In 2017, amounts received from the sale of assets were $736 million (2016 - $1,262 million; 2015 - $1,908 million). In 2017, divestitures were $41 million in the Canadian Operations and $695 million in the USA Operations.

Amounts received from the Company’s divestiture transactions have been deducted from the respective Canadian and U.S. full cost pools, except for divestitures that result in a significant alteration between capitalized costs and proved reserves in a country cost centre. For divestitures that result in a gain or loss and constitute a business, goodwill is allocated to the divestiture.

Canadian Operations

In 2017, divestitures in the Canadian Operations primarily included the sale of certain properties that did not complement Encana’s existing portfolio of assets.

In 2016, divestitures in the Canadian Operations primarily included the sale of the Gordondale assets in Montney located in northwestern Alberta for proceeds of approximately C$600 million ($455 million), after closing adjustments. For the year ended December 31, 2016, Encana recognized a gain of approximately $394 million, before tax, on the sale of the Company’s Gordondale assets in the Canadian cost centre and allocated goodwill of $32 million.

In 2015, divestitures in the Canadian Operations primarily included the sale of certain assets in Wheatland located in central and southern Alberta for proceeds of approximately C$557 million ($467 million), after closing adjustments, the sale of certain natural gas gathering and compression assets in Montney located in northeastern British Columbia for proceeds of approximately C$450 million ($355 million), after closing adjustments, and the sale of certain properties that did not complement Encana’s existing portfolio of assets.

 

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USA Operations

In 2017, divestitures in the USA Operations primarily included the sale of the Piceance natural gas assets located in northwestern Colorado for proceeds of approximately $605 million, after closing and other adjustments, and the sale of the Tuscaloosa Marine Shale assets in Mississippi and Louisiana. For the year ended December 31, 2017, Encana recognized a gain of approximately $406 million, before tax, on the sale of the Company’s Piceance assets in the U.S. cost centre and allocated goodwill of $216 million.

In 2016, divestitures in the USA Operations primarily included the sale of the DJ Basin assets located in northern Colorado for proceeds of approximately $633 million, after closing and other adjustments, as well as the sale of certain natural gas leasehold interests in Piceance located in Colorado for proceeds of approximately $135 million, after closing and other adjustments.

In 2015, divestitures in the USA Operations primarily included the sale of the Haynesville natural gas assets located in northern Louisiana for proceeds of approximately $769 million, after closing adjustments, and the sale of certain properties that did not complement Encana’s existing portfolio of assets.

Corporate and Other

For the year ended December 31, 2015, Corporate and Other acquisitions and divestitures primarily included the purchase and subsequent sale of the Encana Place office building located in Calgary, which resulted in a gain on divestiture of approximately $12 million.

 

 4.    Interest

 

For the years ended December 31    2017      2016      2015  

Interest Expense on:

        

    Debt

   $                         267          $                     296          $                     497  

    The Bow office building

     63        62        65  

    Capital leases

     20        24        28  

    Other

     13        15        24  
     $ 363          $ 397          $ 614  

Interest Expense on Debt for the year ended December 31, 2015 included a one-time interest payment of approximately $165 million resulting from the April 2015 early redemption of the Company’s $700 million 5.90 percent notes due December 1, 2017 and C$750 million 5.80 percent medium-term notes due January 18, 2018 as discussed in Note 12.

 

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 5.

Foreign Exchange (Gain) Loss, Net

 

For the years ended December 31    2017     2016     2015  

Unrealized Foreign Exchange (Gain) Loss on:

      

    Translation of U.S. dollar financing debt issued from Canada

   $                 (243   $                 (130   $                 754  

    Translation of U.S. dollar risk management contracts issued from Canada

     (44     4       (67

    Translation of intercompany notes

     (4     (14     -  
     (291     (140     687  

Foreign Exchange on Settlements of:

      

    U.S. dollar financing debt issued from Canada

     14       (73     269  

    U.S. dollar risk management contracts issued from Canada

     (15     -       -  

    Intercompany notes

     10       5       89  

Other Monetary Revaluations

     3       (2     37  
     $                 (279   $                 (210   $                 1,082  

The unrealized foreign exchange (gain) loss on translation of U.S. dollar financing debt issued from Canada for the year ended December 31, 2017 disclosed in the table above includes an out-of-period adjustment in respect of unrealized losses on a foreign-denominated capital lease obligation since December 2013. The cumulative impact recognized within foreign exchange (gain) loss in the Company’s Consolidated Statement of Earnings for the year ended December 31, 2017 was $68 million, before tax ($47 million, after tax). Encana has determined that the adjustment is not material to the Consolidated Financial Statements for the year ended December 31, 2017 or any prior periods. Accordingly, comparative periods presented in the Consolidated Financial Statements have not been restated.

 

 6.

Income Taxes

The provision for income taxes is as follows:

 

For the years ended December 31    2017     2016     2015  

Current Tax

      

    Canada

   $                     (59   $                     (82   $                 (25

    United States

     (9     -       (17

    Other Countries

     5       4       8

Total Current Tax Expense (Recovery)

     (63     (78     (34

Deferred Tax

      

    Canada

     55       (163     (316

    United States

     611       (435     (2,495

    Other Countries

     -       -       -  

Total Deferred Tax Expense (Recovery)

     666       (598     (2,811

Income Tax Expense (Recovery)

   $                 603     $ (676   $ (2,845

During the year ended December 31, 2017, the current tax recovery was primarily due to the successful resolution of certain tax items previously assessed by the taxing authorities relating to prior taxation years. During the years ended December 31, 2016 and December 31, 2015, the current tax recoveries were primarily due to amounts recorded in respect of prior periods.

On December 22, 2017, the Tax Cuts and Jobs Act (“U.S. Tax Reform”) was signed into law making significant changes to the U.S. tax code, including a reduction of the U.S. federal corporate tax rate from 35 percent to 21 percent. During the year ended December 31, 2017, the deferred tax expense of $666 million includes a provisional adjustment of $327 million resulting from the re-measurement of the Company’s tax position due to U.S. Tax Reform. The adjustment of $327 million includes a $26 million valuation allowance re-measurement with respect to U.S. foreign tax credits and U.S. charitable donations.

The SEC Staff Accounting Bulletin No. 118 addresses the application of U.S. GAAP in situations when a registrant does not have the necessary information available, prepared, or analyzed (including computations) in reasonable detail to complete the

 

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accounting for certain income tax effects of U.S. Tax Reform. The ultimate impact of U.S. Tax Reform may differ from the provisional amount recognized of $327 million due to additional analysis, changes in interpretations and assumptions made by the Company, additional regulatory guidance that may be issued, and actions the Company may take as a result of U.S. Tax Reform. Any subsequent adjustments to the provisional amount will be recorded in income tax expense in the period in which the analysis is complete.

U.S. Tax Reform also included new rules to limit the deductibility for related party interest amounts. As at December 31, 2017, the Company has a carryforward balance of deferred interest deductions for which a deferred income tax asset of $28 million has been recorded. It is unclear whether the new rules would limit the realizability of this carryforward interest amount. Further clarification is required of the transition rules through potential Treasury Department regulations and guidance before a final determination can be made.

During the years ended December 31, 2016 and December 31, 2015, the deferred tax recoveries were primarily due to the ceiling test impairments recognized in the Canadian and USA Operations as disclosed in Note 8.

The following table reconciles income taxes calculated at the Canadian statutory rate with the actual income taxes:

 

For the years ended December 31    2017          2016         2015     

Net Earnings (Loss) Before Income Tax

        

    Canada

   $                 512         $                 (627)        $                 (2,014)    

    United States

     476           (1,522)          (6,963)    

    Other Countries

     442           529           967     

Total Net Earnings (Loss) Before Income Tax

     1,430           (1,620)          (8,010)    

Canadian Statutory Rate

     27.0%           27.0%           26.4%     

Expected Income Tax

     386           (437)          (2,115)    

Effect on Taxes Resulting From:

        

    Income tax related to foreign operations

     (73)          (266)          (776)    

    Effect of legislative changes

     299           -           (11)    

    Non-taxable capital (gains) losses

     (39)          (29)          132     

    Tax differences on divestitures and transactions

     77           9           (8)    

    Partnership tax allocations in excess of funding

     (54)          (17)          (21)    

    Amounts in respect of prior periods

     (49)          (11)          (8)    

    Change in valuation allowance

     54           121           -     

    Other

     2           (46)          (38)    
     $

 

                603   

 

 

 

   $

 

                (676)  

 

 

 

   $

 

                (2,845)  

 

 

 

Effective Tax Rate

     42.2%           41.7%          35.5%    

For the year ended December 31, 2017, the effective tax rate was 42.2 percent, which is higher than the Canadian statutory tax rate of 27 percent primarily due to U.S. Tax Reform, which increased Encana’s effective tax rate by 22.9 percent. The effective tax rate for the years ended December 31, 2016 and December 31, 2015 exceeded the Canadian statutory tax rate of 27 percent and 26.4 percent, respectively, primarily due to the impact of the foreign jurisdictional tax rates relative to the Canadian statutory tax rate applied to jurisdictional earnings.

 

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The net deferred income tax asset (liability) consists of:

 

As at December 31    2017     2016  

Deferred Income Tax Assets

    

    Property, plant and equipment

   $                 281     $                 256  

    Risk management

     34       81  

    Compensation plans

     99       100  

    Interest and other deferred deductions

     28       48  

    Unrealized foreign exchange losses

     -       20  

    Non-capital and net capital losses carried forward

     1,014       1,149  

    Foreign tax credits

     198       198  

    Other

     53       82  

    Less: valuation allowance

     (187     (133

Deferred Income Tax Liabilities

    

    Property, plant and equipment

     (386     (155

    Risk management

     (97     -  

    Unrealized foreign exchange gains

     (18     -  

    Other

     (10     (19

Net Deferred Income Tax Asset (Liability)

     $                 1,009       $                 1,627  

As at December 31, 2017, Encana has recorded a valuation allowance against U.S. foreign tax credits and U.S. charitable donations in the amounts of $156 million (2016 - $129 million) and $3 million (2016 - $4 million), respectively, as it is more likely than not that these benefits will not be realized based on expected future taxable earnings as determined in accordance with the Company’s accounting policies. This change in the valuation allowance of $26 million arose from the re-measurement due to U.S. Tax Reform as noted above. In addition, a valuation allowance of $28 million (2016 - nil) was taken against U.S. state losses as it is more likely than not that these benefits will not be realized based on expected future taxable state earnings.

The net deferred income tax asset (liability) for the following jurisdictions is reflected in the Consolidated Balance Sheet as follows:

 

As at December 31    2017     2016  

Deferred Income Tax Assets

    

    Canada

   $                 555     $                 568  

    United States

     488       1,090  
     1,043       1,658  

Deferred Income Tax Liabilities

    

    Canada

     (34     (31

    United States

     -       -  
       (34     (31

Net Deferred Income Tax Asset (Liability)

     $                 1,009       $                 1,627  

 

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Tax pools, loss carryforwards, charitable donations and tax credits available are as follows:

 

As at December 31                     2017        Expiration Date  

Canada

    

    Tax pools

  $                     1,520          Indefinite  

    Net capital losses

    15          Indefinite  

    Non-capital losses

    982          2027 - 2037  

    Charitable donations

    1          2022  

United States

    

    Tax basis

  $                 4,703          Indefinite  

    Non-capital losses (Federal)

    3,407          2031 - 2037  

    Charitable donations

    13          2019 - 2023  

    Foreign tax credits

    198          2021 - 2025  

As at December 31, 2017, approximately $3.2 billion of Encana’s unremitted earnings from its foreign subsidiaries were considered to be permanently reinvested outside of Canada and, accordingly, Encana has not recognized a deferred income tax liability for Canadian income taxes in respect of such earnings. If such earnings were to be remitted to Canada, Encana may be subject to Canadian income taxes and foreign withholding taxes. However, determination of any potential amount of unrecognized deferred income tax liabilities is not practicable.

The following table presents changes in the balance of Encana’s unrecognized tax benefits excluding interest:

 

For the years ended December 31                   2017      2016   

Balance, Beginning of Year

  $                      (286)          $                 (317)  

    Additions for tax positions taken in the current year

    -          -    

    Additions for tax positions of prior years

    (1)        (1)  

    Reductions for tax positions of prior years

           -    

    Lapse of statute of limitations

    -          42    

    Settlements

    -          -    

    Foreign currency translation

    (20)        (10)  

Balance, End of Year

  $                 (306)          $                       (286)  

The unrecognized tax benefit is reflected in the Consolidated Balance Sheet as follows:

 

For the years ended December 31   2017        2016    

Income tax receivable

  $                      (45)            $                 (21)    

Other liabilities and provisions (See Note 13)

    (202)          (193)    

Deferred income tax asset

    (59)          (72)    

Balance, End of Year

  $                 (306)            $                     (286)    

If recognized, all of Encana’s unrecognized tax benefits as at December 31, 2017 would affect Encana’s effective income tax rate. Encana does not anticipate that the amount of unrecognized tax benefits will significantly change during the next 12 months.

Encana recognizes interest accrued in respect of unrecognized tax benefits in interest expense. During 2017, Encana recognized $12 million (2016 - $1 million; 2015 - $2 million) in interest expense. As at December 31, 2017, Encana had a liability of $16 million (2016 - $4 million) for interest accrued in respect of unrecognized tax benefits.

 

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Included below is a summary of the tax years, by jurisdiction, that remain subject to examination by the taxing authorities.

 

Jurisdiction      Taxation Year    

Canada - Federal

     2009 - 2017       

Canada - Provincial

     2009 - 2017       

United States - Federal

     2014 - 2017       

United States - State

     2013 - 2017       

Other

     2016 - 2017       

Encana and its subsidiaries file income tax returns primarily in Canada and the United States. Issues in dispute for audited years and audits for subsequent years are ongoing and in various stages of completion.

 

 7.       Accounts Receivable and Accrued Revenues

 

As at December 31    2017      2016  

Trade Receivables and Accrued Revenues

     

  Oil, NGLs and natural gas

       $                425            $                394  

  Midstream and marketing

   284      161  

  Derivative financial instruments

   3      4  

  Corporate and other

   9      81  

Total Trade Receivables and Accrued Revenues

   721      640  

Prepaids

   21      18  

Deposits and Other

   37      11  
   779      669  

Allowance for Doubtful Accounts

   (5)     (6) 
     $                774      $                663  

Encana’s trade receivables balance primarily consists of oil, NGLs and natural gas sales receivables, marketing revenues and joint interest receivables. Trade receivables are non-interest bearing. In determining the recoverability of trade receivables, the Company considers the age of the outstanding receivable and the credit worthiness of the counterparties. The Company charges uncollectible trade receivables to the allowance for doubtful accounts when it is determined no longer collectible. See Note 22 for further information about credit risk.

 

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 8.       Property, Plant and Equipment, Net

 

As at December 31    2017     2016  
              Cost      Accumulated   
DD&A   
          Net               Cost      Accumulated
        DD&A  
              Net  
 

Canadian Operations

                
 

   Proved properties

   $ 14,555      $ (14,047 )     $ 508       $ 13,159      $ (12,896 )     $ 263   
 

   Unproved properties

     311        -       311       285        -       285  
 

   Other

     43        -       43       54        -       54  
 
       14,909        (14,047     862       13,498        (12,896     602  
 

USA Operations

                
 

   Proved properties

     25,610        (23,240     2,370       26,393        (25,300     1,093  
 

   Unproved properties

     4,169        -       4,169       4,913        -       4,913  
 

   Other

     16        -       16       44        -       44  
 
       29,795        (23,240     6,555       31,350        (25,300     6,050  
 

Market Optimization

     7        (5     2       6        (4     2  
 

Corporate & Other

     2,299        (764     1,535       2,148        (663     1,485  
 
     $       47,010      $ (38,056   $ 8,954     $ 47,002      $ (38,863   $ 8,139  

Canadian and USA Operations property, plant and equipment include internal costs directly related to exploration, development and construction activities of $208 million, which have been capitalized during the year ended December 31, 2017 (2016 - $161 million). Included in Corporate and Other are $63 million (2016 - $58 million) of international property costs, which have been fully impaired.

For the year ended December 31, 2017, the Company did not recognize any ceiling test impairments in the Canadian or U.S. cost centres. For the year ended December 31, 2016, the Company recognized before-tax ceiling test impairments of $493 million (2015 - nil) in the Canadian cost centre and $903 million (2015 - $6,473 million) in the U.S. cost centre. The impairments recognized in 2016 are included with accumulated DD&A in the table above and resulted primarily from the decline in the 12-month average trailing prices which reduced proved reserves volumes and values.

The 12-month average trailing prices used in the ceiling test calculations reflect benchmark prices adjusted for basis differentials to determine local reference prices, transportation costs and tariffs, heat content and quality. The benchmark prices are disclosed in Note 25.

Capital Lease Arrangements

The Company has several lease arrangements that are accounted for as capital leases including an office building and an offshore production platform.

As at December 31, 2017, the total carrying value of assets under capital lease was $46 million (2016 - $51 million), net of accumulated amortization of $684 million (2016 - $648 million). Liabilities for the capital lease arrangements are included in other liabilities and provisions in the Consolidated Balance Sheet and are disclosed in Note 13.

Other Arrangement

As at December 31, 2017, Corporate and Other property, plant and equipment and total assets include a carrying value of $1,255 million (2016 - $1,194 million) related to The Bow office building, which is under a 25-year lease agreement. The Bow asset is being depreciated over the 60-year estimated life of the building. At the conclusion of the 25-year term, the remaining asset and corresponding liability are expected to be derecognized as disclosed in Note 13.

 

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 9.        Other Assets

As at December 31                 2017                    2016  

Long-Term Investments

   $                     26      $ 26  

Long-Term Receivables

     72       71  

Deferred Charges

     7       9  

Other (1)

     39       32  
     $ 144      $ 138  

 

(1)

Includes $2 million previously reported as Cash in Reserve in the 2016 Consolidated Balance Sheet.

 

 10.       Goodwill

As at December 31                 2017                    2016  

Canada

    

  Balance, Beginning of Year

   $                     650      $ 661  

  Divested During the Year (See Note 3)

     -       (32

  Foreign Currency Translation Adjustment

     46       21  

  Balance, End of Year

     696       650  

United States

    

  Balance, Beginning of Year

     2,129       2,129  

  Divested During the Year (See Note 3)

     (216     -  

  Balance, End of Year

     1,913       2,129  

Total Goodwill

   $ 2,609     $ 2,779  

During 2017, the Company derecognized goodwill of $216 million upon the divestiture of the Piceance assets as described in Note 3. During 2016, the Company derecognized goodwill of $32 million upon the divestiture of the Gordondale assets as described in Note 3.

Goodwill was assessed for impairment as at December 31, 2017 and December 31, 2016. The fair values of the Canada and United States reporting units were determined to be greater than the respective carrying values of the reporting units. Accordingly, no goodwill impairments were recognized. The Company has not recognized any historical cumulative goodwill impairments.

 

 11.       Accounts Payable and Accrued Liabilities

As at December 31

                 2017                   2016

Trade Payables

   $                     258      $ 240   

Capital Accruals

     319       280  

Royalty and Production Accruals

     278       300  

Other Accruals

     216       234  

Interest Payable

     69       69  

Current Portion of Long-Term Incentive Costs (See Note 19)

     152       88  

Current Portion of Capital Lease Obligations (See Note 13)

     79       59  

Current Portion of Asset Retirement Obligation (See Note 14)

     44       33  
     $ 1,415     $ 1,303  

Payables and accruals are non-interest bearing. Interest payable represents amounts accrued related to Encana’s unsecured notes as disclosed in Note 12.

 

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12.       Long-Term Debt

As at December 31

             Note                          2017             2016

U.S. Dollar Denominated Debt

       

  Revolving credit and term loan borrowings

     A      $ -      $ -   

  U.S. Unsecured Notes:

     B       

    6.50% due May 15, 2019

        500       500  

    3.90% due November 15, 2021

        600       600  

    8.125% due September 15, 2030

        300       300  

    7.20% due November 1, 2031

        350       350  

    7.375% due November 1, 2031

        500       500  

    6.50% due August 15, 2034

        750       750  

    6.625% due August 15, 2037 (1)

        462       462  

    6.50% due February 1, 2038 (1)

        505       505  

    5.15% due November 15, 2041 (1)

              244       244  

Total Principal

     F        4,211       4,211  

Increase in Value of Debt Acquired

     C        26       26  

Unamortized Debt Discounts and Issuance Costs

     D        (40     (39

Current Portion of Long-Term Debt

     E        -       -  
              $ 4,197     $ 4,198  

 

(1)

Notes accepted for purchase in the March 2016 Tender Offers.

 

A)

REVOLVING CREDIT AND TERM LOAN BORROWINGS

At December 31, 2017, Encana had in place committed revolving U.S. dollar denominated bank credit facilities totaling $4.5 billion which included $3.0 billion on a revolving bank credit facility for Encana and $1.5 billion on a revolving bank credit facility for a U.S. subsidiary. The facilities are extendible from time to time, but not more than once per year, for a period not longer than five years plus 90 days from the date of the extension request, at the option of the lenders and upon notice from Encana. The facilities mature in July 2020, and are fully revolving up to maturity.

Encana is subject to a financial covenant in its credit facility agreements whereby financing debt to adjusted capitalization cannot exceed 60 percent. Financing debt primarily includes total long-term debt and capital lease obligations. Adjusted capitalization is calculated as the sum of total financing debt, shareholders’ equity and a $7.7 billion equity adjustment for cumulative historical ceiling test impairments recorded as at December 31, 2011 in conjunction with the Company’s January 1, 2012 adoption of U.S. GAAP. As at December 31, 2017, the Company is in compliance with all financial covenants.

The Encana facility, which remained unused at December 31, 2017, is unsecured and bears interest at the lenders’ rates for Canadian prime, U.S. base rate, Bankers’ Acceptances or LIBOR, plus applicable margins. The U.S. subsidiary facility, which remained unused as at December 31, 2017, bears interest at either the lenders’ U.S. base rate or LIBOR, plus applicable margins.

Standby fees paid in 2017 relating to revolving credit and term loan agreements were approximately $15 million (2016 - $14 million; 2015 - $11 million).

 

B)

UNSECURED NOTES

Shelf Prospectuses

Encana filed a shelf prospectus in Canada and a shelf registration statement in the U.S., in 2016 and 2017, respectively, whereby the Company may issue from time to time, debt securities, common shares, Class A preferred shares, subscription receipts, warrants, units, share purchase contracts and share purchase units in Canada and/or the U.S. In September 2016 and March 2015, the Company filed prospectus supplements for the issuance of common shares as described in Note 15. At

 

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December 31, 2017, $4.8 billion remained accessible under the Canadian shelf prospectus. The availability of issuing securities under the Canadian shelf prospectus and U.S. shelf registration statement is dependent upon market conditions.

U.S. Unsecured Notes

Unsecured notes include medium-term notes and senior notes that are issued from time to time under trust indentures and have equal priority with respect to the payment of both principal and interest.

On March 16, 2016, Encana announced tender offers (collectively, the “Tender Offers”) for certain of the Company’s outstanding senior notes (collectively, the “Notes”). The Tender Offers were for an aggregate purchase price of $250 million, excluding accrued and unpaid interest. The consideration for each $1,000 principal amount of Notes validly tendered and accepted for purchase included an early tender premium of $30 per $1,000 principal amount of Notes accepted for purchase, provided the Notes were validly tendered at or prior to the early tender date of March 29, 2016. All Notes validly tendered and accepted for purchase also received accrued and unpaid interest up to the settlement date.

On March 30, 2016, Encana announced an increase in the aggregate purchase price of the Tender Offers to $400 million, excluding accrued and unpaid interest, and accepted for purchase: i) $156 million aggregate principal amount of 5.15 percent notes due 2041; ii) $295 million aggregate principal amount of 6.50 percent notes due 2038; and iii) $38 million aggregate principal amount of 6.625 percent notes due 2037. The Company paid an aggregate amount of $406 million, including accrued and unpaid interest of $6 million and an early tender premium of $14 million, for Notes accepted for purchase. The Company used cash on hand and borrowings under its revolving credit facility to fund the Tender Offers.

Encana also recognized a gain on the early debt retirement of $103 million, before tax, representing the difference between the carrying amount of the Notes accepted for purchase and the consideration paid. The gain on the early debt retirement net of the early tender premium totaled $89 million, which is included in other (gains) losses in the Consolidated Statement of Earnings.

On March 5, 2015, Encana provided notice to noteholders that it would redeem the Company’s $700 million 5.90 percent notes due December 1, 2017 and C$750 million 5.80 percent medium-term notes due January 18, 2018. On April 6, 2015, the Company used net proceeds from the common shares issued, as disclosed in Note 15, and cash on hand to complete the note redemptions. In conjunction with the early note redemptions, the Company incurred a one-time interest payment of approximately $165 million as discussed in Note 4.

 

C)

INCREASE IN VALUE OF DEBT ACQUIRED

Certain of the notes and debentures of the Company were acquired in business combinations and were accounted for at their fair value at the dates of acquisition. The difference between the fair value and the principal amount of the debt is being amortized over the remaining life of the outstanding debt acquired, which is approximately 13 years.

 

D)

UNAMORTIZED DEBT DISCOUNTS AND ISSUANCE COSTS

Long-term debt premiums and discounts are capitalized within long-term debt and are being amortized using the effective interest method. During 2017 and 2016, no debt premiums or discounts were capitalized. Issuance costs are amortized over the term of the related debt.

 

E)

CURRENT PORTION OF LONG-TERM DEBT

As at December 31, 2017 and 2016, there was no current portion of long-term debt.

 

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F)

MANDATORY DEBT PAYMENTS

 

As at December 31                    Principal
                 Amount
                 Interest 
             Amount 

2018

   $ -      $ 267  

2019

     500      251

2020

     -        234

2021

     600      235

2022

     -        211

Thereafter

     3,111      2,546

Total

   $                     4,211    $ 3,744

As at December 31, 2017, total long-term debt had a carrying value of $4,197 million and a fair value of $5,042 million (2016 - carrying value of $4,198 million and a fair value of $4,553 million). The estimated fair value of long-term borrowings is categorized within Level 2 of the fair value hierarchy and has been determined based on market information of long-term debt with similar terms and maturity, or by discounting future payments of interest and principal at interest rates expected to be available to the Company at period end.

 

13.       Other Liabilities and Provisions

As at December 31

                     2017                   2016

The Bow Office Building

   $                       1,344     $ 1,266   

Capital Lease Obligations

     295     304  

Unrecognized Tax Benefits (See Note 6)

     202     193  

Pensions and Other Post-Employment Benefits

     116     124  

Long-Term Incentive Costs (See Note 19)

     175     120  

Other Derivative Contracts (See Notes 21, 22)

     14     14  

Other

     21     26  
     $ 2,167   $ 2,047  

The Bow Office Building

As described in Note 8, Encana has recognized the accumulated costs for The Bow office building, which is under a 25-year lease agreement. At the conclusion of the lease term, the remaining asset and corresponding liability are expected to be derecognized. Encana has also subleased approximately 50 percent of The Bow office space under the lease agreement. The total expected future principal and interest payments related to the 25-year lease agreement and the total undiscounted future amounts expected to be recovered from the sublease are outlined below.

 

              2018             2019             2020             2021             2022             Thereafter             Total  

Expected Future Lease Payments

   $ 76   $ 77   $ 77   $ 78   $ 78   $ 1,295   $ 1,681  

Less: Amounts Representing Interest

     65     65     63     63     62     802     1,120  

Present Value of Expected Future

              

    Lease Payments

   $ 11   $ 12   $ 14   $ 15   $ 16   $ 493   $ 561  

Sublease Recoveries (undiscounted)

   $ (37 )     $ (38   $ (38   $ (38   $ (39   $ (636   $ (826

Capital Lease Obligations

As described in Note 8, the Company has several lease arrangements that are accounted for as capital leases including an office building and the Deep Panuke offshore Production Field Centre (“PFC”). Variable interests related to the PFC are described in Note 17.

 

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The total expected future lease payments related to the Company’s capital lease obligations are outlined below.

 

      2018      2019      2020      2021      2022      Thereafter      Total    

Expected Future Lease Payments

   $         99    $         99    $         99    $         87    $         8    $         38    $         430    

Less: Amounts Representing Interest

     20      15      10      4      2      5      56    

 

Present Value of Expected Future

                    

  Lease Payments

   $ 79    $ 84    $ 89    $ 83    $ 6    $ 33    $ 374    

 

14.    Asset Retirement Obligation

 

As at December 31    2017     2016  

Asset Retirement Obligation, Beginning of Year

   $                 687     $                 814  

Liabilities Incurred and Acquired

     11       18  

Liabilities Settled and Divested

     (333     (107

Change in Estimated Future Cash Outflows

     88       (99

Accretion Expense

     37       51  

Foreign Currency Translation

     24       10  

Asset Retirement Obligation, End of Year

   $ 514     $ 687  

Current Portion (See Note 11)

   $ 44     $ 33  

Long-Term Portion

     470       654  
     $ 514     $ 687  

 

15.    Share Capital

AUTHORIZED

The Company is authorized to issue an unlimited number of no par value common shares and Class A Preferred Shares limited to a number equal to not more than 20 percent of the issued and outstanding number of common shares at the time of issuance. No Class A Preferred Shares are outstanding.

ISSUED AND OUTSTANDING

 

As at December 31    2017      2016      2015  
     

Number

(millions)

     Amount       

Number

(millions)

     Amount       

Number

(millions)

     Amount  
   

Common Shares Outstanding, Beginning of Year

     973.0      $         4,756          849.8      $         3,621          741.2      $         2,450  
   

Common Shares Issued

     -        -          123.1        1,134          98.4        1,098  
   

Common Shares Issued Under Dividend Reinvestment Plan

     0.1        1          0.1        1          10.2        73  
   

Common Shares Outstanding, End of Year

     973.1      $ 4,757          973.0      $ 4,756          849.8      $ 3,621  

On September 19, 2016, Encana filed prospectus supplements (the “2016 Share Offering”) to the Company’s shelf prospectuses for the issuance of 107,000,000 common shares and granted an over-allotment option for up to an additional 16,050,000 common shares at a price of $9.35 per common share, pursuant to an underwriting agreement. The aggregate gross proceeds from the 2016 Share Offering, including the exercise in full of the over-allotment option, were approximately $1.15 billion. After deducting underwriters’ fees and costs of the 2016 Share Offering, the net cash proceeds received were approximately $1.13 billion.

On March 5, 2015, Encana filed a prospectus supplement (the “2015 Share Offering”) to the Company’s shelf prospectus for the issuance of 85,616,500 common shares and granted an over-allotment option for up to an additional 12,842,475 common shares at a price of C$14.60 per common share, pursuant to an underwriting agreement. The aggregate gross proceeds from the 2015 Share Offering, including the exercise in full of the over-allotment option, were approximately C$1.44 billion

 

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($1.13 billion). After deducting underwriters’ fees and costs of the 2015 Share Offering, the net cash proceeds received were approximately C$1.39 billion ($1.09 billion).

During the year ended December 31, 2017, Encana issued 58,480 common shares totaling $0.6 million under the Company’s dividend reinvestment plan (“DRIP”) (2016 - issued 121,249 common shares totaling $0.9 million; 2015 - issued 10,246,221 common shares totaling $73 million).

On February 15, 2018, the Company announced plans to spend up to $400 million to purchase, for cancellation, up to 35 million common shares through a NCIB, subject to and following TSX approval. On February 26, 2018, the Company announced that the TSX accepted its notice of intention to commence the NCIB beginning February 28, 2018 and ending February 27, 2019.

DIVIDENDS

For the year ended December 31, 2017, Encana paid dividends of $0.06 per common share totaling $58 million (2016 - $0.06 per common share totaling $52 million; 2015 - $0.28 per common share totaling $225 million). The Company’s quarterly dividend payment in 2017 and 2016 was $0.015 per common share. The Company’s quarterly dividend payment in 2015 was $0.07 per common share. Common shares issued as part of the 2016 Share Offering and 2015 Share Offering described above were not eligible to receive the dividends paid on September 30, 2016 and March 31, 2015, respectively.

For the year ended December 31, 2017, the dividends paid included $0.6 million in common shares as disclosed above, which were issued in lieu of cash dividends under the DRIP (2016 - $0.9 million; 2015 - $73 million).

On February 14, 2018, the Board of Directors declared a dividend of $0.015 per common share payable on March 29, 2018 to common shareholders of record as of March 15, 2018.

EARNINGS PER COMMON SHARE

The following table presents the computation of net earnings (loss) per common share:

 

For the years ended December 31 (US$ millions, except per share amounts)    2017        2016      2015   

Net Earnings (Loss)

   $                 827          $             (944)       $             (5,165)  

Number of Common Shares:

       

  Weighted average common shares outstanding - Basic

     973.1          882.6        822.1 

  Effect of dilutive securities

     -                 

Weighted average common shares outstanding - Diluted

     973.1          882.6        822.1 

Net Earnings (Loss) per Common Share

       

  Basic & Diluted

   $ 0.85          $ (1.07     $ (6.28)  

ENCANA STOCK OPTION PLAN

Encana has share-based compensation plans that allow employees to purchase common shares of the Company. Option exercise prices are not less than the market value of the common shares on the date the options are granted. Options granted are exercisable at 30 percent of the number granted after one year, an additional 30 percent of the number granted after two years, are fully exercisable after three years and expire five years after the date granted. Options granted after February 2015 expire seven years after the date granted.

All options outstanding as at December 31, 2017 have associated Tandem Stock Appreciation Rights (“TSARs”) attached. In lieu of exercising the option, the associated TSARs give the option holder the right to receive a cash payment equal to the excess of the market price of Encana’s common shares at the time of the exercise over the original grant price. In addition, certain stock options granted are performance-based. The Performance TSARs vest and expire under the same terms and conditions as the underlying option. Vesting is also subject to Encana attaining prescribed performance relative to predetermined key measures. Historically, most holders of options with TSARs have elected to exercise their stock options as a Stock Appreciation Right (“SAR”) in exchange for a cash payment. As a result, outstanding TSARs are not considered potentially dilutive securities. See Note 19 for further information on Encana’s outstanding and exercisable TSARs and Performance TSARs.

At December 31, 2017, there were 33.3 million common shares reserved for issuance under stock option plans (2016 - 32.2 million; 2015 - 30.3 million).

 

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ENCANA RESTRICTED SHARE UNITS (“RSUs”)

Encana has a share-based compensation plan whereby eligible employees are granted RSUs. An RSU is a conditional grant to receive the equivalent of an Encana common share upon vesting of the RSUs and in accordance with the terms of the RSU Plan and Grant Agreement. RSUs vest three years from the date granted, provided the employee remains actively employed with Encana on the vesting date. The Company intends to settle vested RSUs in cash on the vesting date. As a result, RSUs are not considered potentially dilutive securities. See Note 19 for further information on Encana’s outstanding RSUs.

 

16.    Accumulated Other Comprehensive Income

 

For the years ended December 31    2017     2016     2015  

Foreign Currency Translation Adjustment

      

Balance, Beginning of Year

   $             1,200     $             1,383     $ 715  

Change in Foreign Currency Translation Adjustment

     (171     (183     668  

Balance, End of Year

   $             1,029     $             1,200     $             1,383  

Pension and Other Post-Employment Benefit Plans

      

Balance, Beginning of Year

   $ 10     $ 7     $ (26

Net Actuarial Gains and (Losses) (See Note 20)

     7       6       46

    Income Taxes

     (2     (2     (15

Reclassification of Net Actuarial (Gains) and Losses to Net Earnings (See Note 20)

     -       (1     2

    Income Taxes

     -       -       -  

Reclassification of Net Prior Service Costs to Net Earnings (See Note 20)

     (1     -       -  

    Income Taxes

     -       -       -  

Curtailment in Net Defined Periodic Benefit Cost (See Note 20)

     (1     -       -  

    Income Taxes

     -       -       -  

Balance, End of Year

   $ 13     $ 10     $ 7

Total Accumulated Other Comprehensive Income

   $ 1,042     $ 1,210     $ 1,390

 

17.    Variable Interest Entities

Production Field Centre

In 2008, Encana entered into a contract for the design, construction and operation of the PFC at its Deep Panuke facility. Upon commencement of operations in December 2013, Encana recognized the PFC as a capital lease asset. Under the lease contract, Encana has a purchase option and the option to extend the lease for 12 one-year terms at fixed prices after the initial lease term expires in 2021.

As a result of the purchase option and fixed price renewal options, Encana has determined it holds variable interests and that the related leasing entity qualifies as a variable interest entity (“VIE”). Encana is not the primary beneficiary of the VIE as the Company does not have the power to direct the activities that most significantly impact the VIE’s economic performance. Encana is not required to provide any financial support or guarantees to the leasing entity or its affiliates, other than the contractual payments under the lease and operating agreements. Encana’s maximum exposure is the expected lease payments over the initial contract term. As at December 31, 2017, Encana had a capital lease obligation of $314 million (2016 - $299 million) related to the PFC.

 

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Veresen Midstream Limited Partnership

Veresen Midstream Limited Partnership (“VMLP”) provides gathering, compression and processing services under various agreements related to the Company’s development of liquids and natural gas production in the Montney play. As at December 31, 2017, VMLP provides approximately 630 MMcf/d of natural gas gathering and compression and 772 MMcf/d of natural gas processing under long-term service agreements with remaining terms ranging from up to 15 to 28 years and have various renewal terms providing up to a potential maximum of 10 years.

Encana has determined that VMLP is a VIE and that Encana holds variable interests in VMLP. Encana is not the primary beneficiary as the Company does not have the power to direct the activities that most significantly impact VMLP’s economic performance. These key activities relate to the construction, operation, maintenance and marketing of the assets owned by VMLP. The variable interests arise from certain terms under the various long-term service agreements and include: i) a take or pay for volumes in certain agreements; ii) an operating fee of which a portion can be converted into a fixed fee once VMLP assumes operatorship of certain assets; and iii) a potential payout of minimum costs in certain agreements. The potential payout of minimum costs will be assessed in the eighth year of the assets’ service period and is based on whether there is an overall shortfall of total system cash flows from natural gas gathered and compressed under certain agreements. The potential payout amount can be reduced in the event VMLP markets unutilized capacity to third party users. Encana is not required to provide any financial support or guarantees to VMLP.

As a result of Encana’s involvement with VMLP, the maximum total exposure, which represents the potential exposure to Encana in the event the assets under the agreements are deemed worthless, is estimated to be $2,344 million as at December 31, 2017. The estimate comprises the take or pay volume commitments and the potential payout of minimum costs. The take or pay volume commitments associated with certain gathering and processing assets are included in Note 24 under Transportation and Processing. The potential payout requirement is highly uncertain as the amount is contingent on future production estimates, pace of development and the amount of capacity contracted to third parties. As at December 31, 2017, there were no accounts payable and accrued liabilities outstanding related to the take or pay commitment.

 

18.     Restructuring Charges

In 2013 and 2015, Encana recognized employee and other related costs associated with workforce reductions as a result of organizational restructurings to support changes in the Company’s strategy. During 2015, transition and severance costs of $64 million, before tax, were incurred, of which $2 million related to the 2013 restructuring plan. As at December 31, 2015, $13 million remained accrued.

In February 2016, Encana announced workforce reductions to better align staffing levels and the organizational structure with the Company’s reduced capital spending program as a result of the low commodity price environment. During 2016, the Company incurred total restructuring charges of $34 million, before tax, primarily related to severance costs, of which $7 million remained accrued as at December 31, 2016. As at December 31, 2017, all restructuring costs have been paid.

Restructuring charges are included in administrative expense presented in the Corporate & Other segment in the Consolidated Statement of Earnings.

 

For the years ended December 31    2017        2016        2015  

Employee Severance and Benefits

   $                         -        $                         33        $                         58

Consultants and Building Sublease Brokerage Fees

     -          -          4

Outplacement, Moving and Other Expenses

     -          1          2
     $                 -        $                 34        $ 64

 

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For the years ended December 31    2017     2016     2015  

Outstanding Restructuring Accrual, Beginning of Year

     $                         7       $                         13       $                         4  

Current Year Restructuring Expenses Incurred

     -       34       62  

Charges Related to Prior Years’ Restructuring

     -       -       2  

Restructuring Costs Paid

     (7     (40     (55

Outstanding Restructuring Accrual, End of Year (1)

     $ -       $ 7       $ 13  

(1)    Included in accounts payable and accrued liabilities in the Consolidated Balance Sheet.

 

19.    Compensation Plans

Encana has a number of compensation arrangements under which the Company awards various types of long-term incentive grants to eligible employees. They include TSARs, Performance TSARs, SARs, Performance Share Units (“PSUs”), Deferred Share Units (“DSUs”) and RSUs. These compensation arrangements are share-based.

Encana accounts for TSARs, Performance TSARs, SARs, PSUs, and RSUs held by employees as cash-settled share-based payment transactions and, accordingly, accrues compensation costs over the vesting period based on the fair value of the rights determined using the Black-Scholes-Merton and other fair value models. TSARs and SARs granted vest and are exercisable at 30 percent of the number granted after one year, an additional 30 percent of the number granted after two years, are fully exercisable after three years and expire five years after the date granted. TSARs and SARs granted after February 2015 expire seven years after the date granted. Performance TSARs vest over a four-year period based on prescribed performance targets and expire if not eligible to vest after that time. PSUs and RSUs vest three years from the date of grant, provided the employee remains actively employed with Encana on the vesting date.

The following weighted average assumptions were used to determine the fair value of the share units held by employees:

 

      US$ Share Units  

 

As at December 31

   2017       2016      2015    

Risk Free Interest Rate

     1.67%         0.75%        0.48%    

Dividend Yield

     0.45%         0.51%        1.18%    

Expected Volatility Rate (1)

     57.87%         57.18%        39.16%    

Expected Term

     1.4 yrs         1.9 yrs        1.4 yrs    

Market Share Price

                 US$13.33                     US$11.74                    US$5.09    
      C$ Share Units  

 

As at December 31

   2017       2016      2015    

Risk Free Interest Rate

     1.67%         0.75%        0.48%    

Dividend Yield

     0.46%         0.50%        1.09%    

Expected Volatility Rate (1)

     54.10%         53.24%        36.45%    

Expected Term

     1.5 yrs         1.9 yrs        1.5 yrs    

Market Share Price

     C$16.77         C$15.76        C$7.03    

 

(1)

Volatility was estimated using historical rates.

 

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The Company has recognized the following share-based compensation costs:

 

For the years ended December 31   2017                                  2016                                  2015  

Total Compensation Costs of Transactions Classified as Cash-Settled

  $                        165             $ 174             $ (29

Less: Total Share-Based Compensation Costs Capitalized

  (55)      (40     10

Total Share-Based Compensation Expense (Recovery)

  $                         110             $ 134             $ (19

Recognized on the Consolidated Statement of Earnings in:

     

    Operating

  $                          34             $ 48             $ (7

    Administrative

  76       86       (12
    $                         110             $ 134             $ (19

As at December 31, 2017, the liability for share-based payment transactions totaled $327 million (2016 - $208 million), of which $152 million (2016 - $88 million) is recognized in accounts payable and accrued liabilities and $175 million (2016 - $120 million) is recognized in other liabilities and provisions in the Consolidated Balance Sheet.

 

 

For the years ended December 31   2017                         2016                         2015   

Liability for Cash-Settled Share-Based Payment Transactions:

     

  Unvested

  $                        274             $ 171             $ 47 

  Vested

  53       37      
    $                         327             $ 208             $ 51 

The following sections outline certain information related to Encana’s compensation plans as at December 31, 2017.

 

A)

TANDEM STOCK APPRECIATION RIGHTS

All options to purchase common shares issued under the Encana Stock Option Plan have associated TSARs attached. In lieu of exercising the option, the associated TSARs give the option holder the right to receive a cash payment equal to the excess of the market price of Encana’s common shares at the time of exercise over the original grant price. The TSARs vest and expire under the same terms and conditions as the underlying option.

The following tables summarize information related to the TSARs held by employees:

 

As at December 31   2017       2016   
(thousands of units)   Outstanding
TSARs
    Weighted 
Average 
Exercise 
Price (C$) 
     Outstanding
TSARs 
    Weighted 
Average 
Exercise 
Price (C$) 
 

Outstanding, Beginning of Year

    15,482       14.92         17,369       20.21   

  Granted

    850       15.43         4,277       5.56   

  Exercised - SARs

    (316     5.56         -        

  Exercised - Options

    -              -        

  Forfeited

    (218     19.55         (2,108     19.62   

  Expired

    (528     20.99         (4,056     25.26   

Outstanding, End of Year

    15,270       14.87         15,482       14.92   

Exercisable, End of Year

    10,736       17.42         8,523       18.66   

 

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As at December 31, 2017    Outstanding TSARs              Exercisable TSARs        
Range of Exercise Price (C$)   

Number

of TSARs
(thousands

of units)

   Weighted
Average
Remaining
Contractual
Life (years)
     Weighted
Average
Exercise
Price (C$)
    

Number

of TSARs
(thousands

of units)

     Weighted  
Average  
Exercise  
Price (C$)  
 

0.00 to 9.99

   3,910      5.17        5.56        952        5.56    

10.00 to 19.99

   7,816      1.74        16.93        6,241        17.43    

20.00 to 29.99

   3,544      1.15        20.57        3,543        20.57    
     15,270      2.48        14.87        10,736        17.42    

During the year, Encana recorded compensation costs of $12 million related to the TSARs (2016 - compensation costs of $39 million; 2015 - reduction of compensation costs of $12 million).

As at December 31, 2017, there was approximately $8 million of total unrecognized compensation costs (2016 - $17 million) related to unvested TSARs held by employees. The costs are expected to be recognized over a weighted average period of 1.9 years.

 

B)

PERFORMANCE TANDEM STOCK APPRECIATION RIGHTS

In 2013, Encana granted Performance TSARs to the President & Chief Executive Officer. The Performance TSARs vested and expired over the same terms and conditions as the underlying option. Under this 2013 grant, vesting was also subject to Encana achieving prescribed performance targets over a four-year period based on Encana’s share price performance. As at December 31, 2017, all remaining Performance TSARs have expired and there are no remaining obligations associated with this grant.

During the year, Encana recorded a reduction of compensation costs of $2 million related to the Performance TSARs (2016 - compensation costs of $2 million; 2015 - reduction of compensation costs of $1 million).

 

C)

STOCK APPRECIATION RIGHTS

Since 2010, U.S. dollar denominated SARs have been granted to eligible U.S. based employees, which entitle the employee to receive a cash payment equal to the excess of the market price of Encana’s common shares at the time of exercise over the original grant price of the right.

The following tables summarize information related to U.S. dollar denominated SARs held by employees:

 

As at December 31    2017          2016  
(thousands of units)    Outstanding
SARs
    Weighted
Average
Exercise
Price (US$)
     Outstanding
SARs
    Weighted
Average
Exercise
Price (US$)
 

Outstanding, Beginning of Year

     6,721       14.55         10,137       20.26  

    Granted

     349       11.75         1,453       4.06  

    Exercised

     (147     4.69         -       -  

    Forfeited

     (418     17.94         (1,464     18.65  

    Expired

     (162     20.57         (3,405     25.32  

Outstanding, End of Year

     6,343       14.25         6,721       14.55  

Exercisable, End of Year

     4,611       16.85         3,782       18.02  

 

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As at December 31, 2017    Outstanding SARs      Exercisable SARs  
Range of Exercise Price (US$)   

Number

of SARs

(thousands

of units)

    

Weighted

Average

Remaining

Contractual

Life (years)

    

Weighted

Average

Exercise

Price (US$)

    

Number

of SARs

(thousands

of units)

    

Weighted

Average

Exercise

Price (US$)

 

0.00 to 9.99

     1,311         5.17         4.06         301         4.06   

10.00 to 19.99

     4,707         1.59         16.52         3,985         17.36   

20.00 to 29.99

     325         1.58         22.46         325         22.46   
       6,343         2.33         14.25         4,611         16.85   

During the year, Encana recorded compensation costs of $6 million related to the SARs (2016 - compensation costs of $13 million; 2015 - reduction of compensation costs of $5 million).

As at December 31, 2017, there was approximately $4 million of unrecognized compensation costs (2016 - $7 million) related to unvested SARs held by employees. The costs are expected to be recognized over a weighted average period of 1.5 years.

 

D)

PERFORMANCE SHARE UNITS

Since 2010, PSUs have been granted to eligible employees, which entitle the employee to receive, upon vesting, a cash payment equal to the value of one common share of Encana for each PSU held, depending upon the terms of the PSU Plan. PSUs vest three years from the date granted, provided the employee remains actively employed with Encana on the vesting date. Based on the performance assessment, up to a maximum of two times the original PSU grant may be eligible to vest in respect of the year being measured. The respective proportion of the original PSU grant deemed eligible to vest for each year will be valued and the notional cash value deposited to a PSU account, with payout deferred to the final vesting date.

The ultimate value of the PSUs will depend upon Encana’s performance relative to predetermined corresponding performance targets measured over a three-year period. For grants commencing in 2013, performance is measured over a three-year period relative to a specified peer group.

The following table summarizes information related to the PSUs:

 

(thousands of units)  

Canadian Dollar Denominated  

Outstanding PSUs

   

U.S. Dollar Denominated

Outstanding PSUs

 

 

As at December 31

  2017     2016     2017     2016  
 

Unvested and Outstanding, Beginning of Year

    5,218       2,603       2,907       1,025  
 

  Granted

    1,234       3,559       704       2,245  
 

  Vested and Released

    (433     -       (123     -  
 

  Units, in Lieu of Dividends

    33       38       18       21  
 

  Forfeited

    (50     (982     (131     (384
 

Unvested and Outstanding, End of Year

    6,002       5,218       3,375       2,907  

During the year, Encana recorded compensation costs of $48 million related to the outstanding PSUs (2016 - compensation costs of $29 million; 2015 - compensation costs of $1 million).

As at December 31, 2017, there was approximately $53 million of total unrecognized compensation costs (2016 - $60 million) related to unvested PSUs held by employees. The costs are expected to be recognized over a weighted average period of 1.1 years.

 

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E)

DEFERRED SHARE UNITS

The Company has in place a program whereby Directors and certain key employees are issued DSUs, which vest immediately, are equivalent in value to a common share of the Company and are settled in cash.

Under the DSU Plan, employees have the option to convert either 25 or 50 percent of their annual High Performance Results (“HPR”) award into DSUs. The number of DSUs converted is based on the value of the award divided by the closing value of Encana’s share price at the end of the performance period of the HPR award.

For both Directors and employees, DSUs can only be redeemed following departure from Encana in accordance with the terms of the respective DSU Plan and must be redeemed prior to December 15 th of the year following the departure from Encana.

The following table summarizes information related to the DSUs:

 

(thousands of units)  

Canadian Dollar Denominated        

Outstanding DSUs

 

 

As at December 31

  2017      2016  

Outstanding, Beginning of Year

  920       753  

  Granted

  134       139  

  Converted from HPR awards

  16       43  

  Units, in Lieu of Dividends

  5       6  

  Redeemed

  (180)      (21

Outstanding, End of Year

  895       920  

During the year, Encana recorded compensation costs of $3 million related to the outstanding DSUs (2016 - compensation costs of $7 million; 2015 - reduction of compensation costs of $5 million).

 

F)

RESTRICTED SHARE UNITS

Since 2011, RSUs have been granted to eligible employees. An RSU is a conditional grant to receive the equivalent of an Encana common share upon vesting of the RSUs and in accordance with the terms of the RSU Plan and Grant Agreement. RSUs vest three years from the date granted, provided the employee remains actively employed with Encana on the vesting date. As at December 31, 2017, Encana intends to settle the RSUs in cash on the vesting date.

The following table summarizes information related to the RSUs:

 

(thousands of units)  

Canadian Dollar Denominated

Outstanding RSUs

   

U.S. Dollar Denominated

Outstanding RSUs

 

 

As at December 31

  2017      2016              2017             2016  
 

Unvested and Outstanding, Beginning of Year

  10,998       8,114       10,418       5,909  
 

  Granted

  2,411       7,209       2,434       7,826  
 

  Units, in Lieu of Dividends

  60       82       59       80  
 

  Vested and Released

  (2,088)      (2,840     (1,268     (1,446
 

  Forfeited

  (352)      (1,567     (1,109     (1,951
 

Unvested and Outstanding, End of Year

  11,029       10,998       10,534       10,418  

During the year, Encana recorded compensation costs of $98 million related to the outstanding RSUs (2016 - compensation costs of $84 million; 2015 - reduction of compensation costs of $7 million).

As at December 31, 2017, there was approximately $99 million of total unrecognized compensation costs (2016 - $117 million) related to unvested RSUs held by employees. The costs are expected to be recognized over a weighted average period of 1.1 years.

 

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 20.

Pension and Other Post-Employment Benefits

The Company sponsors defined benefit and defined contribution plans and provides pension and other post-employment benefits (“OPEB”) to its employees in Canada and the U.S. As of January 1, 2003, the defined benefit pension plan was closed to new entrants. The average remaining service period of active employees participating in the defined benefit pension plan is seven years and the average remaining life expectancy of inactive employees is 15 years. The average remaining service period of the active employees participating in the OPEB plan is 13 years.

The Company is required to file an actuarial valuation of its pension plans with the provincial regulator at least every three years, or more frequently if directed by the regulator. The most recent filing was dated December 31, 2016 and the next required filing is expected to be as at December 31, 2019.

The following tables set forth changes in the benefit obligations and fair value of plan assets for the Company’s defined benefit pension and other post-employment benefit plans for the years ended December 31, 2017 and 2016, as well as the funded status of the plans and amounts recognized in the Consolidated Financial Statements as at December 31, 2017 and 2016.

 

     Pension Benefits     OPEB  
As at December 31               2017                             2016                     2017                             2016  
 

Change in Benefit Obligations

         
 

Projected Benefit Obligation, Beginning of Year

  $                         211     $ 212     $                             92     $ 96  
 

Service Cost

    1       2       8       10  
 

Interest Cost

    7       8       3       4  
 

Actuarial (Gains) Losses

    7       6       (8     (14
 

Exchange Differences

    15       6       -       2  
 

Employee Contributions

    -       -       1       1  
 

Benefits Paid

    (15     (23     (6     (7
 

Curtailment

    -       -       (5     -  
 

Projected Benefit Obligation, End of Year

  $ 226     $ 211     $ 85     $ 92  
 

Change in Plan Assets

         
 

Fair Value of Plan Assets, Beginning of Year

  $ 194     $ 208     $ -     $ -  
 

Actual Return on Plan Assets

    15       9       -       -  
 

Exchange Differences

    14       7       -       -  
 

Employee Contributions

    -       -       1       1  
 

Employer Contributions

    2       -       5       6  
 

Benefits Paid

    (15     (23     (6     (7
 

Transfers to Defined Contribution Plan

    -       (7     -       -  
 

Fair Value of Plan Assets, End of Year

  $ 210     $ 194     $ -     $ -  
 

Funded Status of Plan Assets, End of Year

  $ (16   $ (17   $ (85   $ (92
 

Total Recognized Amounts in the Consolidated Balance Sheet Consist of:

         
 

Other Assets

  $ 4     $ 1     $ -     $ -  
 

Current Liabilities

    -       -       (7     (7
 

Non-Current Liabilities

    (20     (18     (78     (85
 

Total

  $ (16   $ (17   $ (85   $ (92
 

Total Recognized Amounts in Accumulated Other Comprehensive Income Consist of:

         
 

Net Actuarial (Gains) Losses

  $ 28     $ 28     $ (35   $ (28
 

Net Prior Service Costs

    (5     (5     (5     (7
 

Total Recognized in Accumulated Other Comprehensive Income, Before Tax

  $ 23     $ 23     $ (40   $ (35

 

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The accumulated defined benefit obligation for all defined benefit plans was $310 million as at December 31, 2017 (2016 - $300 million).

The following table sets forth the defined benefit plans with accumulated benefit obligation and projected benefit obligation in excess of the fair value of the plan assets:

 

                                                                                                                           
     Pension Benefits   OPEB  
As at December 31                        2017                         2016                             2017                            2016  
 

Projected Benefit Obligation

  $ (77)     $                  (211)    $ (85)     $ (92)  
 

Accumulated Benefit Obligation

      (76)       (208)      (85)         (92)  
 

Fair Value of Plan Assets

    57      194              

Following are the weighted average assumptions used by the Company in determining the defined benefit pension and other post-employment benefit obligations:

 

 

     Pension Benefits   OPEB  
As at December 31   2017     2016     2017     2016  
 

Discount Rate

    3.25%     3.50%      3.44%        3.80%  
 

Rates of Increase in Compensation Levels

    3.49%     3.49%      5.04%       5.04%  

 

                                                                                                                 

The following sets forth total benefit plans expense recognized by the Company:

 

 

     Pension Benefits     OPEB  
For the years ended December 31               2017                 2016                 2015                 2017                 2016                 2015  
 

Net Defined Periodic Benefit Cost

  $ -     $ (1   $ 1   $ 3     $ 13     $ 14
 

Defined Contribution Plan Expense

    24       25       33     -       -       -  
 

Total Benefit Plans Expense

  $ 24     $ 24     $ 34   $ 3     $ 13     $ 14

Of the total benefit plans expense, $25 million (2016 - $28 million; 2015 - $39 million) was included in operating expense, $8 million (2016 - $9 million; 2015 - $9 million) was included in administrative expense and a gain of $6 million (2016 - nil; 2015 - nil) was included in other (gains) losses, net.

 

The net defined periodic benefit cost is as follows:

           
                                  Pension Benefits                                  OPEB  
For the years ended December 31               2017                 2016                 2015                 2017                 2016                 2015  
 

Service Cost

  $ 1     $ 2     $ 2   $             8     $ 10     $ 10
 

Interest Cost

    7       8       9     3       4       4
 

Expected Return on Plan Assets

    (9     (11     (12     -       -       -  
 

Amounts Reclassified from Accumulated

           
 

   Other Comprehensive Income:

           
 

     Amortization of net actuarial

         (gains) and losses

    1       -       2     (1     (1     -  
 

     Amortization of net prior service costs

    -       -       -       (1     -       -  
 

     Curtailment

    -       -       -       (1     -       -  
 

Curtailment

    -       -       -       (5     -       -  
 

Total Net Defined Periodic Benefit Cost

  $ -     $ (1   $ 1   $             3     $ 13     $ 14

 

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The amounts recognized in other comprehensive income are as follows:

 

     Pension Benefits     OPEB  
For the years ended December 31               2017                 2016                 2015                 2017                 2016                 2015  
 

Net Actuarial (Gains) Losses

  $ 1     $ 8     $ (22   $ (8   $ (14   $ (24
 

Amortization of Net Actuarial Gains and (Losses)

    (1     -       (2     1       1       -  
 

Amortization of Net Prior Service Costs

    -       -       -       1       -       -  
 

Curtailment

    -       -       -       1       -       -  
 

Total Amounts Recognized in Other Comprehensive (Income)
Loss, Before Tax

  $ -     $ 8     $ (24   $ (5   $ (13   $ (24
 

Total Amounts Recognized in Other Comprehensive (Income)
Loss, After Tax

  $ -     $ 6     $ (17   $ (3   $ (9   $ (16

The estimated net actuarial loss and net prior service costs for the pension and other post-retirement plans that will be amortized from accumulated other comprehensive income into the defined periodic benefit plan expense in 2018 is $2 million.

 

Following are the weighted average assumptions used by the Company in determining the net periodic pension and other post-retirement benefit costs:

 

 

 

     Pension Benefits     OPEB  
For the years ended December 31               2017                 2016                 2015                 2017                 2016                 2015  
 

Discount Rate

    3.50%       3.75%       3.75%       3.76%       4.05%       3.66%  
 

Long-Term Rate of Return on Plan Assets

    5.25%       6.25%       6.25%       -       -       -  
 

Rates of Increase in Compensation Levels

    3.49%       3.49%       3.99%       6.10%       6.43%       6.47%  

The Company’s assumed health care cost trend rates are as follows:

 

For the years ended December 31           2017             2016             2015  

Health Care Cost Trend Rate for Next Year

    6.98%       7.30%       7.41%  

Rate to Which the Cost Trend Rate is Assumed to Decline (Ultimate Trend Rate)

    5.00%       5.00%       5.00%  

Year that the Rate Reaches the Ultimate Trend Rate

    2025       2026     2026

A one percent change in the assumed health care cost trend rate over the projected period would have the following effects:

 

     1% Increase     1% Decrease
 

Effect on Total of Service and Interest Cost Components

  $         1     $                        (1)
 

Effect on Other Post-Retirement Benefit Obligations

  $                          6     $                         (5)

The Company expects to contribute $2 million to its defined benefit pension plans in 2018. The Company’s OPEB plans are funded on an as required basis.

 

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The following provides an estimate of benefit payments for the next 10 years. These estimates reflect benefit increases due to continuing employee service.

 

    

 

Defined Benefit  
Pension Payments  

  Other Benefit  
Payments  
 
 

2018

  $                        15      $                             6    
 

2019

  15       7    
 

2020

  15       7    
 

2021

  14       7    
 

2022

  14       7    
 

2023 - 2027

  66       27    

The Company’s registered and other defined benefit pension plan assets are presented by investment asset category and input level within the fair value hierarchy as follows:

 

As at December 31   2017  
     Level 1                Level 2                  Level 3                  Total    

Investments:

          

Cash and Cash Equivalents

  $            27    $         1      $         -      $         28    

Fixed Income - Canadian Bond Funds

  -      67        -        67    

Equity - Domestic

  13      41        -        54    

Equity - International

  -      50        -        50    

Real Estate and Other

  -      -        11        11    
         

Fair Value of Plan Assets, End of Year

  $            40    $ 159      $ 11      $ 210    
As at December 31   2016  
     Level 1    Level 2      Level 3      Total    

Investments:

          

Cash and Cash Equivalents

  $            27    $ 1      $ -      $ 28    

Fixed Income - Canadian Bond Funds

  -      61        -        61    

Equity - Domestic

  12      38        -        50    

Equity - International

  -      45        -        45    

Real Estate and Other

  -      -        10        10    
         

Fair Value of Plan Assets, End of Year

  $            39    $ 145      $ 10      $ 194    

Fixed Income investments consist of Canadian bonds issued by investment grade companies. Equity investments consist of both domestic and international securities. The fair values of these securities are based on dealer quotes, quoted market prices and net asset values. Real Estate and Other consists mainly of commercial properties and is valued based on a discounted cash flow model.

A summary in changes in Level 3 fair value measurements is presented below:

 

     Real Estate and Other  
As at December 31                           2017                  2016    

Balance, Beginning of Year

  $             10      $             10    

Purchases, Sales and Settlements

    

    Purchases and sales

    -        -    

    Settlements

    -        -    

Actual Return on Plan Assets

    

    Relating to assets sold during the reporting period

    -        -    

    Relating to assets still held at the reporting date

    1        -    

Transfers In and Out of Level 3

    -        -    
     

Balance, End of Year

  $ 11      $ 10    

 

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Encana’s registered pension plan assets were invested by the Company in the following as at December 31, 2017: 27 percent Domestic Equity (2016 - 26 percent), 23 percent Foreign Equity (2016 - 23 percent), 43 percent Bonds (2016 - 44 percent), and 7 percent Real Estate and Other (2016 - 7 percent). The expected long-term rate of return is 4.25 percent. The expected rate of return on pension plan assets is based on historical and projected rates of return for each asset class in the plan investment portfolio. The actual return on plan assets was $15 million (2016 - $9 million). The asset allocation structure is subject to diversification requirements and constraints, which reduce risk by limiting exposure to individual equity investment, credit rating categories and foreign currency exposure.

 

21.    Fair Value Measurements

The fair values of cash and cash equivalents, accounts receivable and accrued revenues, and accounts payable and accrued liabilities approximate their carrying amounts due to the short-term maturity of those instruments. Fair value information related to pension plan assets is included in Note 20.

Recurring fair value measurements are performed for risk management assets and liabilities and other derivative contracts, as discussed further in Note 22. These items are carried at fair value in the Consolidated Balance Sheet and are classified within the three levels of the fair value hierarchy in the following tables. There have been no significant transfers between the hierarchy levels during the period.

Fair value changes and settlements for amounts related to risk management assets and liabilities are recognized in revenues, transportation and processing expense, and foreign exchange gains and losses according to their purpose.

 

As at December 31, 2017   Level 1
Quoted
Prices in
Active
Markets
     Level 2
Other
Observable
Inputs
    

Level 3 
Significant 

Unobservable 
Inputs 

    Total Fair
Value
     Netting  (1)     Carrying
Amount
 
   

Risk Management Assets

                  
   

Commodity Derivatives:

                  
   

  Current assets

  $ -      $ 189      $     $ 189      $ (15   $ 174  
   

  Long-term assets

    -        248              248        (2     246  
   

Foreign Currency Derivatives:

                  
   

  Current assets

    -        31              31        -       31  
   

Risk Management Liabilities

                  
   

Commodity Derivatives:

                  
   

  Current liabilities

  $ 3      $ 196      $ 51      $ 250      $ (15   $ 235  
   

  Long-term liabilities

    -        15              15        (2     13  
   

Foreign Currency Derivatives:

                  
   

  Current liabilities

    -        1              1        -       1  
   

Other Derivative Contracts

                  
   

  Current in accounts payable and accrued liabilities

  $ -      $ 5      $     $ 5      $ -     $ 5  
   

  Long-term in other liabilities and provisions

    -        14              14        -       14  

 

(1)

Netting to offset derivative assets and liabilities where the legal right and intention to offset exists, or where counterparty master netting arrangements contain provisions for net settlement.

 

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As at December 31, 2016   

Level 1

Quoted

     Prices in

Active

Markets

    

Level 2

Other

      Observable

Inputs

    

Level 3

Significant

      Unobservable

Inputs

    Total Fair    
Value    
         Netting  (1)     Carrying
Amount
 
   

Risk Management Assets

                   
   

Commodity Derivatives:

                   
   

Current assets

   $ -      $ 11      $ -     $            11        $ (11   $ -  
   

Long-term assets

     -        19        -     19          (3     16  
   

Risk Management Liabilities

                   
   

Commodity Derivatives:

                   
   

Current liabilities

   $ -      $ 228      $ 36     $          264        $ (11   $ 253  
   

Long-term liabilities

     -        38        -     38          (3     35  
   

Foreign Currency Derivatives:

                   
   

Current liabilities

     -        1        -     1          -       1  
   

Other Derivative Contracts

                   
   

Current in accounts payable and accrued liabilities

   $ -      $ 5      $ -     $              5        $ -     $ 5  
   

Long-term in other liabilities and provisions

     -        14        -     14          -       14  

 

(1)

Netting to offset derivative assets and liabilities where the legal right and intention to offset exists, or where counterparty master netting arrangements contain provisions for net settlement.

The Company’s Level 1 and Level 2 risk management assets and liabilities consist of commodity fixed price contracts, NYMEX call options, foreign currency swaps and basis swaps with terms to 2023. Level 2 also includes financial guarantee contracts as discussed in Note 22. The fair values of these contracts are based on a market approach and are estimated using inputs which are either directly or indirectly observable at the reporting date, such as exchange and other published prices, broker quotes and observable trading activity.

Level 3 Fair Value Measurements

As at December 31, 2017, the Company’s Level 3 risk management assets and liabilities consist of WTI three-way options and WTI costless collars with terms to 2018. The WTI three-way options are a combination of a sold call, bought put and a sold put. The WTI costless collars are a combination of a sold call and a bought put. These contracts allow the Company to participate in the upside of commodity prices to the ceiling of the call option and provide the Company with complete (collars) or partial (three-way) downside price protection through the put options. The fair values of the WTI three-way options and WTI costless collars are based on the income approach and are modelled using observable and unobservable inputs such as implied volatility. The unobservable inputs are obtained from third parties whenever possible and reviewed by the Company for reasonableness.

A summary of changes in Level 3 fair value measurements is presented below:

    Risk Management  
       2017                 2016  

Balance, Beginning of Year

  $                 (36   $ 16  

Total Gains (Losses)

    (21     (16

Purchases, Sales, Issuances and Settlements:

   

Purchases, sales and issuances

    -       -  

Settlements

    6       (26

Transfers Out of Level 3 (1)

    -       (10

Balance, End of Year

  $ (51   $ (36

Change in Unrealized Gains (Losses) Related to Assets and Liabilities Held at End of Year

  $ (51   $ (27

 

(1)

The Company’s policy is to recognize transfers out of Level 3 on the date of the event of change in circumstances that caused the transfer.

 

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Quantitative information about unobservable inputs used in Level 3 fair value measurements is presented below:

 

As at December 31    Valuation Technique      Unobservable Input        2017      2016  

Risk Management - WTI Options

     Option Model            Implied Volatility          17% - 76%           18% - 64%  

A 10 percent increase or decrease in implied volatility for the WTI options would cause a corresponding $2 million (2016 - $3 million) increase or decrease to net risk management assets and liabilities.

 

22.     Financial Instruments and Risk Management

 

A)

FINANCIAL INSTRUMENTS

Encana’s financial assets and liabilities are recognized in cash and cash equivalents, accounts receivable and accrued revenues, accounts payable and accrued liabilities, risk management assets and liabilities, other liabilities and provisions and long-term debt.

 

B)

RISK MANAGEMENT ACTIVITIES

Encana uses derivative financial instruments to manage its exposure to cash flow variability from commodity prices and fluctuating foreign currency exchange rates. The Company does not apply hedge accounting to any of its derivative financial instruments. As a result, gains and losses from changes in the fair value are recognized in net earnings.

COMMODITY PRICE RISK

Commodity price risk arises from the effect that fluctuations in future commodity prices may have on future cash flows. To partially mitigate exposure to commodity price risk, the Company has entered into various derivative financial instruments. The use of these derivative instruments is governed under formal policies and is subject to limits established by the Board of Directors. The Company’s policy is to not use derivative financial instruments for speculative purposes.

Crude Oil and NGLs - To partially mitigate crude oil and NGL commodity price risk, the Company uses WTI-based contracts such as fixed price contracts, options and costless collars. Encana has also entered into basis swaps to manage against widening price differentials between various production areas and benchmark price points.

Natural Gas - To partially mitigate natural gas commodity price risk, the Company uses NYMEX-based contracts such as fixed price contracts, options and costless collars. Encana has also entered into basis swaps to manage against widening price differentials between various production areas and benchmark price points.

FOREIGN EXCHANGE RISK

Foreign exchange risk arises from changes in foreign currency exchange rates that may affect the fair value or future cash flows of the Company’s financial assets or liabilities. To partially mitigate the effect of foreign exchange fluctuations on future commodity revenues and expenses, the Company may enter into foreign currency derivative contracts. As at December 31, 2017, Encana has entered into $650 million notional U.S. dollar denominated currency swaps at an average exchange rate of US$0.7597 to C$1, which mature monthly throughout 2018.

 

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RISK MANAGEMENT POSITIONS AS AT DECEMBER 31, 2017

 

      Notional Volumes      Term      Average Price           Fair Value  

 

Crude Oil and NGL Contracts

           US$/bbl     

Fixed Price Contracts

           

  WTI Fixed Price

     71.2 Mbbls/d        2018        53.28      $                 (152

WTI Three-Way Options

           

  Sold call / bought put / sold put

     16.0 Mbbls/d        2018        54.49 / 47.17 / 36.88        (35

WTI Costless Collars

           

  Sold call / bought put

     10.0 Mbbls/d        2018        57.08 / 45.00        (16

Basis Contracts (1)

 

       

 

2018 - 2020

 

 

       

 

(41

 

 

Crude Oil and NGLs Fair Value Position

                                (244

Natural Gas Contracts

           US$/Mcf     

Fixed Price Contracts

           

  NYMEX Fixed Price

     673 MMcf/d        2018        3.07        59

NYMEX Call Options

           

  Sold call price

     230 MMcf/d        2018        3.75        (3

  Sold call price

     230 MMcf/d        2019        3.75        (6

Basis Contracts (2)

        2018           118
        2019           107
        2020           83
       

 

2021 - 2023

 

 

 

       

 

58

 

 

Natural Gas Fair Value Position

                                416

Other Derivative Contracts

           

Fair Value Position

                                (19

Foreign Currency Contracts

           

Fair Value Position (3)

              2018                 30

Total Fair Value Position

                              $ 183

 

(1)

Encana has entered into swaps to protect against widening Midland, Magellan East Houston, Louisiana Light Sweet and Edmonton Condensate differentials to WTI.

(2)

Encana has entered into swaps to protect against widening AECO, Dawn, Malin and Waha basis to NYMEX.

(3)

Encana has entered into U.S. dollar denominated fixed-for-floating average currency swaps to protect against fluctuations between the Canadian and U.S. dollars.

 

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EARNINGS IMPACT OF REALIZED AND UNREALIZED GAINS (LOSSES) ON RISK MANAGEMENT POSITIONS

 

For the years ended December 31                          2017                               2016                              2015    

Realized Gains (Losses) on Risk Management

        

Commodity and Other Derivatives:

        

   Revenues (1)

     $ 40            $ 361            $ 917     

   Transportation and processing

     (4)         (8)         (16)    

Foreign Currency Derivatives:

        

   Foreign exchange

     15          -          -     
       $ 51            $ 353            $ 901     

Unrealized Gains (Losses) on Risk Management

        

Commodity and Other Derivatives:

        

   Revenues (2)

     $ 442            $ (636)           $ (325)    

   Transportation and processing

     -          22          (6)    

Foreign Currency Derivatives:

        

   Foreign exchange

     32          (1)         -    
       $ 474            $ (615)           $ (331)    

Total Realized and Unrealized Gains (Losses) on Risk Management, net

        

Commodity and Other Derivatives:

        

   Revenues (1) (2)

     $ 482            $ (275)           $ 592     

   Transportation and processing

     (4)         14          (22)    

Foreign Currency Derivatives:

        

   Foreign exchange

     47          (1)         -     
       $ 525            $ (262)           $ 570     

 

(1)

Includes a realized gain of $7 million for the year ended December 31, 2017 (2016 - gain of $6 million; 2015 - gain of $1 million) related to other derivative contracts.

(2)

Includes an unrealized loss of $2 million for the year ended December 31, 2017 (2016 - gain of $5 million; 2015 - nil) related to other derivative contracts.

RECONCILIATION OF UNREALIZED RISK MANAGEMENT POSITIONS FROM JANUARY 1 TO DECEMBER 31

 

     2017     2016     2015  
           Fair Value     Total
Unrealized
    Gain (Loss)
   

Total
Unrealized

    Gain (Loss)

   

Total
Unrealized

    Gain (Loss)

 
 

Fair Value of Contracts, Beginning of Year

  $ (292        
 

Change in Fair Value of Contracts in Place at Beginning of Year and Contracts Entered into During the Year

    525     $ 525     $ (262   $ 570
 

Settlement of Other Derivative Contracts

    7          
 

Fair Value of Other Derivative Contracts Entered into During the Year

    (6        
 

Fair Value of Contracts Realized During the Year

    (51     (51     (353     (901
 

Fair Value of Contracts, End of Year

  $ 183     $ 474     $ (615   $ (331

Risk management assets and liabilities arise from the use of derivative financial instruments and are measured at fair value. See Note 21 for a discussion of fair value measurements.

 

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UNREALIZED RISK MANAGEMENT POSITIONS

 

As at December 31           2017                 2016  

Risk Management Assets

    

   Current

  $                 205        $ -  

   Long-term

    246          16  
      451          16  

Risk Management Liabilities

    

   Current

    236          254  

   Long-term

    13          35  
      249          289  

Other Derivative Contracts

    

   Current in accounts payable and accrued liabilities

    5          5  

   Long-term in other liabilities and provisions

    14          14  

Net Risk Management Assets (Liabilities) and Other Derivative Contracts

  $ 183        $ (292

SUMMARY OF UNREALIZED RISK MANAGEMENT POSITIONS

 

As at December 31    2017               2016  
      Risk Management                Risk Management  
              Asset              Liability              Net                  Asset              Liability              Net    
 

Commodity Price Positions

                   
 

   Crude oil and NGLs

   $ -      $ 244      $ (244)      $ 2      $ 100      $ (98)   
 

   Natural gas

     420        4        416         14        188        (174)   
 

Other Positions

                   
 

   Other derivative contracts

     -        19        (19)        -        19        (19)   
 

   Foreign currency contracts

     31        1        30         -        1        (1)   
 

Total Fair Value Position

   $ 451      $ 268      $ 183       $ 16      $ 308      $ (292)   

 

C)

CREDIT RISK

Credit risk arises from the potential that the Company may incur a loss if a counterparty to a financial instrument fails to meet its obligation in accordance with agreed terms. While exchange-traded contracts are subject to nominal credit risk due to the financial safeguards established by the New York Stock Exchange and Toronto Stock Exchange, over-the-counter traded contracts expose Encana to counterparty credit risk. This credit risk exposure is mitigated through the use of credit policies approved by the Board of Directors governing the Company’s credit portfolio including credit practices that limit transactions according to counterparties’ credit quality. Mitigation strategies may include master netting arrangements, requesting collateral and/or transacting credit derivatives. The Company executes commodity derivative financial instruments under master agreements that have netting provisions that provide for offsetting payables against receivables. As a result of netting provisions, the Company’s maximum exposure to loss under derivative financial instruments due to credit risk is limited to the net amounts due from the counterparties under the derivative contracts, as disclosed in Note 21. As at December 31, 2017, the Company had no significant credit derivatives in place and held no collateral.

As at December 31, 2017, cash equivalents include high-grade, short-term securities, placed primarily with financial institutions and companies with strong investment grade ratings. Any foreign currency agreements entered into are with major financial institutions that have investment grade credit ratings.

A substantial portion of the Company’s accounts receivable are with customers in the oil and gas industry and are subject to normal industry credit risks. As at December 31, 2017, approximately 92 percent (2016 - 90 percent) of Encana’s accounts receivable and financial derivative credit exposures were with investment grade counterparties.

As at December 31, 2017, Encana had three counterparties whose net settlement position individually accounted for more than 10 percent of the fair value of the outstanding in-the-money net risk management contracts by counterparty. As at

 

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December 31, 2017, these counterparties accounted for 56 percent, 11 percent and 11 percent of the fair value of the outstanding in-the-money net risk management contracts. As at December 31, 2016, Encana had one counterparty whose net settlement position accounted for 84 percent of the fair value of the outstanding in-the-money net risk management contracts.

During 2015 and 2017, Encana entered into agreements resulting from divestitures, which may require Encana to fulfill certain payment obligations on the take or pay volume commitments assumed by the purchasers. The circumstances that would require Encana to perform under the agreements include events where a purchaser fails to make payment to the guaranteed party and/or a purchaser is subject to an insolvency event. The agreements have remaining terms from four to seven years with a fair value recognized of $19 million as at December 31, 2017 (2016 - $19 million). The maximum potential amount of undiscounted future payments is $347 million as at December 31, 2017, and is considered unlikely.

 

23.   Supplementary Information

Supplemental disclosures to the Consolidated Statement of Cash Flows are presented below:

 

A)

NET CHANGE IN NON-CASH WORKING CAPITAL

 

For the years ended December 31        2017        2016     2015     

Operating Activities

          

  Accounts receivable and accrued revenues

  $     (21 )      $ 86     $ 314   

  Accounts payable and accrued liabilities

              (226                    (233     (14)    

  Income tax receivable and payable

        (6        (40                 (38)    
    $     (253      $ (187   $ 262   

B)   NON-CASH ACTIVITIES

          
For the years ended December 31        2017        2016     2015     

Non-Cash Investing Activities

          

  Asset retirement obligation incurred (See Note 14)

  $     11        $ 18     $ 19     

  Asset retirement obligation change in estimated future cash outflows (See Note 14)

      88          (99     115     

  Property, plant and equipment accruals

      19          5       (346)    

  Capitalized long-term incentives (See Note 19)

      55          40       (10)    

  Property additions/dispositions

      194          100       12     

Non-Cash Financing Activities

          

  Common shares issued under dividend reinvestment plan (See Note 15)

  $     1        $ 1     $ 73     

C)   SUPPLEMENTARY CASH FLOW INFORMATION

          

For the years ended December 31

        2017        2016       2015   

Interest Paid

  $     370        $ 397     $ 602   

Income Taxes Paid, net of Amounts (Recovered)

  $     (77 )      $ (19   $ (105)    

 

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24.     Commitments and Contingencies

COMMITMENTS

The following table outlines the Company’s commitments as at December 31, 2017:

 

      Expected Future Payments  

(undiscounted)

             2018              2019              2020              2021              2022      Thereafter        Total

Transportation and Processing

   $     604    $     701    $     670    $     571    $     529    $ 2,315    $         5,390 

Drilling and Field Services

     198      39      21      8      -        -        266 

Operating Leases

     18      16      16      15      15      46      126 

Total

   $     820    $     756    $     707    $     594    $     544    $ 2,361    $         5,782 

Included within transportation and processing in the table above are certain commitments associated with midstream service agreements with VMLP as described in Note 17. Divestiture transactions can reduce certain commitments disclosed above.

CONTINGENCIES

Encana is involved in various legal claims and actions arising in the normal course of the Company’s operations. Although the outcome of these claims cannot be predicted with certainty, the Company does not expect these matters to have a material adverse effect on Encana’s financial position, cash flows or results of operations. Management’s assessment of these matters may change in the future as certain of these matters are in early stages or are subject to a number of uncertainties. For material matters that the Company believes an unfavourable outcome is reasonably possible, the Company discloses the nature and a range of potential exposures. If an unfavourable outcome were to occur, there exists the possibility of a material impact on the Company’s consolidated net earnings or loss for the period in which the effect becomes reasonably estimable. The Company accrues for such items when a liability is both probable and the amount can be reasonably estimated. Such accruals are based on the Company’s information known about the matters, estimates of the outcomes of such matters and experience in handling similar matters.

 

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25.   Supplementary Oil and Gas Information (unaudited)

The unaudited supplementary information on oil and gas exploration and production activities for 2017, 2016 and 2015 has been presented in accordance with the FASB’s ASC Topic 932, “Extractive Activities - Oil and Gas” and the SEC’s final rule, “Modernization of Oil and Gas Reporting”. Disclosures by geographic area include Canada and the United States.

Proved Oil and Gas Reserves

The following reserves disclosures reflect estimates of proved reserves, proved developed reserves, and proved undeveloped reserves, net of third-party royalty interests of oil, NGLs and natural gas owned at each year end and changes in proved reserves during each of the last three years.

The Company’s estimates of proved reserves are made using available geological and reservoir data as well as production performance data. These estimates are reviewed annually by internal reservoir engineers and revised, either upward or downward, as warranted by additional data. The results of infill drilling are treated as positive revisions due to increases to expected recovery. Other revisions are due to changes in, among other things, development plans, reservoir performance, commodity prices, economic conditions, and government restrictions. Estimates of proved reserves are inherently imprecise and are continually subject to revision based on production history, results of additional exploration and development, price changes and other factors.

The following reference prices were utilized in the determination of reserves and future net revenue:

 

 

   Oil & NGLs        Natural Gas  
     

WTI

            ($/bbl)

    

Edmonton  

Condensate  (2)   
             (C$/bbl)  

    

Henry Hub

            ($/MMBtu)

    

AECO  

            (C$/MMBtu)  

 
 

   Reserves Pricing (1)

           
 

       2017

     51.34        67.65          2.98        2.32    
 

       2016

     42.75        55.39          2.49        2.17    
 

       2015

     50.28        61.94          2.58        2.69    

 

(1)

All prices were held constant in all future years when estimating net revenues and reserves.

(2)

Edmonton Condensate benchmark price has replaced the previously disclosed Edmonton Light Sweet benchmark price.

 

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PROVED RESERVES (1)

(12-MONTH AVERAGE TRAILING PRICES)

 

    

Oil

(MMbbls)

    

NGLs

(MMbbls)

    

Natural Gas

(Bcf)

    

Total

(MMBOE)

 
      Canada     

United

States

     Total      Canada     

United

States

     Total      Canada     

United

States

     Total          

  2015

                             

  Beginning of year

     10.9        194.1        205.0        66.6        90.2        156.7        3,229        2,265        5,494        1,277.4  

    Revisions and improved recovery (2)

     (0.9      (73.6      (74.6      (14.8      (41.1      (55.9      (801      (342      (1,144      (321.1

    Extensions and discoveries

     -        68.4        68.4        19.8        24.9        44.7        313        159        472        191.7  

    Purchase of reserves in place

     -        -        -        -        -        -        -        -        -        -  

    Sale of reserves in place

     (1.6      (1.2      (2.8      (0.4      (3.6      (4.0      (434      (728      (1,163      (200.6

    Production

     (2.0      (29.7      (31.8      (8.3      (8.6      (16.9      (354      (241      (596      (148.0
                     

  End of year

     6.4        157.9        164.3        62.8        61.7        124.5        1,952        1,112        3,064        799.4  

  Developed

     5.0        91.6        96.6        31.8        37.8        69.5        1,295        928        2,223        536.6  

  Undeveloped

     1.3        66.3        67.7        31.0        24.0        55.0        657        184        841        262.8  
                     

  Total

     6.4        157.9        164.3        62.8        61.7        124.5        1,952        1,112        3,064        799.4  

  2016

                             

  Beginning of year

     6.4        157.9        164.3        62.8        61.7        124.5        1,952        1,112        3,064        799.4  

    Revisions and improved recovery (2)

     (0.3      (15.6      (15.9      (6.4      (1.6      (8.0      (422      177        (244      (64.7

    Extensions and discoveries

     -        52.2        52.2        58.1        17.7        75.8        796        91        887        275.7  

    Purchase of reserves in place

     -        9.6        9.6        -        2.6        2.6        -        16        16        14.9  

    Sale of reserves in place

     (5.4      (22.2      (27.6      (11.3      (15.5      (26.8      (163      (150      (313      (106.5

    Production

     (0.7      (26.2      (27.0      (9.2      (8.5      (17.7      (354      (153      (506      (129.1
                     

  End of year

     -        155.6        155.6        94.0        56.4        150.4        1,810        1,093        2,902        789.7  

  Developed

     -        82.5        82.5        25.6        31.8        57.4        903        951        1,853        448.8  

  Undeveloped

     -        73.1        73.1        68.4        24.6        93.0        907        142        1,049        341.0  
                     

  Total

     -        155.6        155.6        94.0        56.4        150.4        1,810        1,093        2,902        789.7  

  2017

                             

  Beginning of year

     -        155.6        155.6        94.0        56.4        150.4        1,810        1,093        2,902        789.7  

    Revisions and improved recovery (2)

     0.2        (16.0      (15.8      (14.6      (3.6      (18.1      (31      (27      (58      (43.6

    Extensions and discoveries

     0.2        84.9        85.1        46.4        26.5        72.9        727        144        871        303.1  

    Purchase of reserves in place

     -        0.8        0.8        -        0.4        0.4        -        2        2        1.5  

    Sale of reserves in place

     -        (5.4      (5.4      (0.2      (3.6      (3.8      (65      (729      (795      (141.6

    Production

     (0.2      (27.7      (27.8      (10.6      (8.7      (19.3      (306      (97      (403      (114.3
                     

  End of year

     0.2        192.3        192.5        115.0        67.5        182.5        2,135        384        2,519        794.9  

  Developed

     0.2        104.7        104.9        40.5        41.6        82.1        1,082        243        1,325        407.8  

  Undeveloped

     -        87.7        87.7        74.5        25.8        100.3        1,053        141        1,195        387.1  

  Total

     0.2        192.3        192.5        115.0        67.5        182.5        2,135        384        2,519        794.9  

 

(1)

Numbers may not add due to rounding.

(2)

Changes in reserve estimates resulting from application of improved recovery techniques are nil and are included in revisions of previous estimates.

Definitions:

a.

“Proved” oil and gas reserves are those quantities of oil and gas which, by analysis of geoscience and engineering data, can be estimated with reasonable certainty to be economically producible from a given date forward, from known reservoirs, and under existing economic conditions, operating methods and government regulations.

b.

“Developed” oil and gas reserves are reserves of any category that are expected to be recovered through existing wells with existing equipment and operating methods or in which the cost of the required equipment is relatively minor compared to the cost of a new well.

c.

“Undeveloped” oil and gas reserves are reserves of any category that are expected to be recovered from new wells on undrilled acreage, or from existing wells where a relatively major expenditure is required for recompletion.

 

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Total Proved reserves increased 5.2 MMBOE in 2017 due to the following:

 

  ·  

Revisions and improved recovery of oil, NGLs and natural gas were negative primarily due to negative revisions of 83.3 MMBOE resulting from changes in the approved development plan, which was partially offset by positive revisions of 32.6 MMBOE due to higher 12-month average trailing oil, NGL and natural gas prices.

 

  ·  

Extensions and discoveries of oil, NGLs and natural gas increased proved reserves by 303.1 MMBOE due to the extension of proved acreage primarily from successful drilling in the Permian, Montney and Eagle Ford assets.

 

  ·  

Sale of reserves in place decreased proved developed reserves by 141.6 MMBOE primarily due to the divestiture of the Piceance assets located in northwestern Colorado.

Total Proved reserves decreased 9.7 MMBOE in 2016 due to the following:

 

  ·  

Revisions and improved recovery of oil and NGLs included reductions of 6.5 MMbbls and 6.6 MMbbls, respectively, due to lower 12-month average trailing oil and NGL prices. Revisions and improved recovery of natural gas included a reduction of 462 Bcf due to a lower 12-month average trailing natural gas price.

 

  ·  

Extensions and discoveries of oil, NGLs and natural gas increased proved reserves by 275.7 MMBOE due to the extension of proved acreage primarily from successful drilling in the Permian and Montney assets.

 

  ·  

Sale of reserves in place decreased proved developed reserves by 65.4 MMBOE and proved undeveloped reserves by 41.2 MMBOE due to the divestitures of the DJ Basin assets located in northern Colorado and the Gordondale assets located in northwestern Alberta.

Total Proved reserves decreased 478.0 MMBOE in 2015 due to the following:

 

  ·  

Revisions and improved recovery of oil and NGLs included reductions of 59.9 MMbbls and 52.6 MMbbls, respectively, due to significantly lower 12-month average trailing oil and NGL prices. Revisions and improved recovery of natural gas included a reduction of 1,106 Bcf due to a significantly lower 12-month average trailing natural gas price.

 

  ·  

Extensions and discoveries of oil, NGLs and natural gas increased proved reserves by 191.7 MMBOE due to the extension of proved acreage primarily from successful drilling in the Montney and Permian assets.

 

  ·  

Sale of reserves in place decreased proved developed reserves by 137.4 MMBOE and proved undeveloped reserves by 63.2 MMBOE due to the divestitures of the Haynesville natural gas assets located in northern Louisiana and certain assets in Wheatland located in central and southern Alberta.

 

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STANDARDIZED MEASURE OF DISCOUNTED FUTURE NET CASH FLOWS RELATING TO PROVED OIL AND GAS RESERVES

In calculating the standardized measure of discounted future net cash flows, constant price and cost assumptions were applied to Encana’s annual future production from proved reserves to determine cash inflows. Estimates of future net cash flows from proved reserves are computed based on the average beginning-of-the-month prices during the 12-month period for the year. Future production and development costs include estimates for abandonment and dismantlement costs associated with asset retirement obligations and assume the continuation of existing economic, operating and regulatory conditions. Future income taxes are calculated by applying statutory income tax rates to future pre-tax cash flows after provision for the tax cost of the oil and natural gas properties based upon existing laws and regulations. The effect of tax credits is also considered in determining the income tax expense. The discount was computed by application of a 10 percent discount factor to the future net cash flows.

Encana cautions that the discounted future net cash flows relating to proved oil and gas reserves are an indication of neither the fair market value of Encana’s oil and gas properties, nor the future net cash flows expected to be generated from such properties. The discounted future net cash flows do not include the fair market value of exploratory properties and probable or possible oil and gas reserves, nor is consideration given to the effect of anticipated future changes in oil and natural gas prices, development, asset retirement and production costs, and possible changes to tax and royalty regulations. The prescribed discount rate of 10 percent may not appropriately reflect future interest rates.

 

     Canada  (1)      United States  (1)  
      2017      2016      2015      2017      2016      2015  
 

  Future cash inflows

   $         7,850      $         5,341      $         6,284      $         11,459      $         8,537      $         9,462  
 

  Less future:

                 
 

      Production costs

     3,516        2,876        3,800        3,661        3,539        3,959  
 

      Development costs

     2,058        1,949        1,742        3,042        2,805        3,130  
 

      Income taxes

     76        -        -        -        -        -  
 

  Future net cash flows

     2,200        516        742        4,756        2,193        2,373  
 

      Less 10% annual discount for estimated

          timing of cash flows

     618        77        107        2,025        957        960  
 

  Discounted future net cash flows

   $ 1,582      $ 439      $ 635      $ 2,731      $ 1,236      $ 1,413  
                          Total  (1)  
                              2017      2016      2015  

  Future cash inflows

            $ 19,309      $ 13,878      $ 15,746  

  Less future:

                 

      Production costs

              7,177        6,415        7,759  

      Development costs

              5,100        4,754        4,872  

      Income taxes

                                76        -        -  

  Future net cash flows

              6,956        2,709        3,115  

      Less 10% annual discount for estimated

          timing of cash flows

                                2,643        1,034        1,067  

  Discounted future net cash flows

                              $ 4,313      $ 1,675      $ 2,048  

 

(1)

The standardized measure of future net cash flows relating to proved oil and gas reserves was amended to include estimated abandonment and reclamation costs associated with proved undeveloped locations, which reduced the standardized measure by $13 million and $16 million in 2016 and 2015, respectively.

 

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CHANGES IN STANDARDIZED MEASURE OF DISCOUNTED FUTURE NET CASH FLOWS RELATING TO PROVED OIL AND GAS RESERVES

      Canada  (1)     United States  (1)  
      2017     2016     2015     2017     2016     2015  
 

 Balance, beginning of year

   $             439     $             635     $             4,476     $             1,236     $             1,413     $             7,074  
 

 Changes resulting from:

              

Sales of oil and gas produced during the year

     (471     (316     (988     (1,291     (1,040     (1,276

Discoveries and extensions, net of related costs

     582       211       109       1,141       267       504  

Purchases of proved reserves in place

     -       -       -       13       47       -  

Sales and transfers of proved reserves in place

     (12     (71     (674     (413     (220     (1,604

Net change in prices and production costs

     893       20       (3,075     2,183       325       (3,239

Revisions to quantity estimates

     (22     (124     (1,355     (203     39       (2,183

Accretion of discount

     44       64       565       124       141       833  

Development costs incurred during the period

     454       286       460       1,366       873       1,874  

Changes in estimated future development costs

     (279     (304     (13     (1,433     (456     (1,809

Other

     7       38       (45     8       (153     (16

Net change in income taxes

     (53     -       1,175       -       -       1,255  

  Balance, end of year

   $ 1,582     $ 439     $ 635     $ 2,731     $ 1,236     $ 1,413  
                           Total  (1)  
                           2017     2016     2015  

 Balance, beginning of year

         $ 1,675     $ 2,048     $ 11,550  

 Changes resulting from:

            

Sales of oil and gas produced during the year

           (1,762     (1,356     (2,264

Discoveries and extensions, net of related costs

           1,723       478       613  

Purchases of proved reserves in place

           13       47       -  

Sales and transfers of proved reserves in place

           (425     (291     (2,278

Net change in prices and production costs

           3,076       345       (6,314

Revisions to quantity estimates

           (225     (85     (3,538

Accretion of discount

           168       205       1,398  

Development costs incurred during the period

           1,820       1,159       2,334  

Changes in estimated future development costs

           (1,712     (760     (1,822

Other

           15       (115     (61

Net change in income taxes

                             (53 )       -       2,430  

  Balance, end of year

                           $ 4,313     $ 1,675     $ 2,048  

 

(1)

The standardized measure of future net cash flows relating to proved oil and gas reserves was amended to include estimated abandonment and reclamation costs associated with proved undeveloped locations, which reduced the standardized measure by $13 million, $16 million and $7 million in 2016, 2015 and 2014, respectively.

 

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RESULTS OF OPERATIONS

The following table sets forth revenue and direct cost information relating to the Company’s oil and gas exploration and production activities.

 

      Canada      United States  
      2017      2016     2015      2017      2016     2015  
 

 Oil, NGL and natural gas revenues, net of transportation and processing

   $ 613      $ 491     $ 1,168      $ 1,714      $ 1,510     $ 1,911  
 

 Less:

                 
 

Operating costs, production, mineral and other taxes, and accretion of asset retirement obligation

     164        197       199        438        499       661  
 

Depreciation, depletion and amortization

     236        260       305        530        523       1,088  
 

Impairments

     -        493       -        -        903       6,473  
 

 Operating income (loss)

     213        (459     664        746        (415     (6,311
 

 Income taxes

     58        (123     179        161        (150     (2,285
 

  Results of operations

   $ 155      $ (336   $ 485      $ 585      $ (265   $ (4,026
              Total  
                             2017      2016     2015  

 Oil, NGL and natural gas revenues, net of transportation and processing

           $ 2,327      $ 2,001     $ 3,079  

 Less:

               

Operating costs, production, mineral and other taxes, and accretion of asset retirement obligation

             602        696       860  

Depreciation, depletion and amortization

             766        783       1,393  

Impairments

                               -        1,396       6,473  

 Operating income (loss)

             959        (874     (5,647

 Income taxes

                               219        (273     (2,106

 Results of operations

                             $ 740      $ (601   $ (3,541
               

CAPITALIZED COSTS

 

Capitalized costs include the cost of properties, equipment and facilities for oil and natural gas producing activities. Capitalized costs for proved properties include costs for oil and natural gas leaseholds where proved reserves have been identified, development wells and related equipment and facilities, including development wells in progress. Capitalized costs for unproved properties include costs for acquiring oil and gas leaseholds where no proved reserves have been identified.

 

 

 

      Canada      United States  
      2017      2016     2015      2017      2016     2015  
 

 Proved oil and gas properties

   $         14,555      $         13,159     $         14,866      $         25,610      $         26,393     $         25,723  
 

 Unproved oil and gas properties

     311        285       334        4,169        4,913       5,282  
 

 Total capital cost

     14,866        13,444       15,200        29,779        31,306       31,005  
 

 Accumulated DD&A

     14,047        12,896       14,170        23,240        25,300       23,822  
 

 Net capitalized costs

   $ 819      $ 548     $ 1,030      $ 6,539      $ 6,006     $ 7,183  
       
      Other      Total  
      2017      2016     2015      2017      2016     2015  
 

 Proved oil and gas properties

   $ 63      $ 58     $ 58      $ 40,228      $ 39,610     $ 40,647  
 

 Unproved oil and gas properties

     -        -       -        4,480        5,198       5,616  
 

 Total capital cost

     63        58       58        44,708        44,808       46,263  
 

 Accumulated DD&A

     63        58       58        37,350        38,254       38,050  
 

 Net capitalized costs

   $ -      $ -     $ -      $ 7,358      $ 6,554     $ 8,213  

 

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COSTS INCURRED

Costs incurred includes both capitalized costs and costs charged to expense when incurred. Costs incurred also includes internal costs directly related to acquisition, exploration, and development activities, new asset retirement costs established in the current year as well as increases or decreases to the asset retirement obligations resulting from changes to cost estimates during the year.

 

     Canada     United States  
                     2017                     2016                     2015                     2017                     2016                     2015  
 

 Acquisition costs

             

       Unproved

  $ 31     $ -     $ 2     $ 21     $ 4     $ 15  

       Proved

    -       1       7       2       205       12  

 Total acquisition costs

    31       1       9       23       209       27  

 Exploration costs

    1       1       3       4       13       3  

 Development costs

    425       255       377       1,354       860       1,844  

 Total costs incurred

  $ 457     $ 257     $ 389     $ 1,381     $ 1,082     $ 1,874  
                          Total  
                          2017     2016     2015  

 Acquisition costs

           

       Unproved

        $ 52     $ 4     $ 17  

       Proved

                            2       206       19  

 Total acquisition costs

          54       210       36  

 Exploration costs

          5       14       6  

 Development costs

          1,779       1,115       2,221  

 Total costs incurred

                          $ 1,838     $ 1,339     $ 2,263  

COSTS NOT SUBJECT TO DEPLETION OR AMORTIZATION

Upstream costs in respect of significant unproved properties are excluded from the country cost centre’s depletable base as follows:

 

 As at December 31                           2017                             2016  

 Canada

  $                                    311     $ 285  

 United States

    4,169       4,913  
    $ 4,480     $ 5,198  

The following is a summary of the costs related to Encana’s unproved properties as at December 31, 2017:

 

                      2017                          2016                          2015          Prior to 2015                       Total  

 Acquisition Costs

   $ 245          $ 104          $ 29          $ 3,965         $ 4,343  

 Exploration Costs

     2        5        8        122         137  
     $ 247          $ 109          $ 37          $ 4,087         $ 4,480  

Acquisition costs primarily include costs incurred to acquire or lease properties. Exploration costs primarily include costs related to geological and geophysical studies and costs of drilling and equipping exploratory wells. Ultimate recoverability of these costs and the timing of inclusion within the applicable country cost centre’s depletable base is dependent upon either the finding of proved oil, NGL and natural gas reserves, expiration of leases or recognition of impairments.

Included in the $4.5 billion of oil and gas properties not subject to depletion or amortization are approximately $4.0 billion of acquired leasehold and mineral costs in the Permian related to the Company’s acquisition of Athlon Energy Inc. in 2014. These acquisition costs are associated with acquired acreage for which proved reserves have yet to be assigned from future development. The Company continually assesses the development timeline of the acquired acreage. The timing and amount of the transfer of property acquisition costs into the depletable base are based on several factors and may be subject to changes over time from drilling plans, drilling results, availability of capital, project economics and other assessments of the

 

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property. The inclusion of these acquisition costs in the depletable base is expected to occur within 8 to 12 years. The remaining costs excluded from depletion are related to properties which are not individually significant.

 

 26.        Supplemental Quarterly Financial Information (unaudited)

The following summarizes quarterly financial data for the fiscal years of 2017 and 2016:

 

     2017  
(US$ millions, except per share amounts)                   Q4                         Q3                         Q2                         Q1  (1)  

Revenues

  $ 1,210     $ 861     $ 1,083     $ 1,289  

Impairments

    -       -       -       -  

Operating Income (Loss)

    262       (4     321       489  

Gain (Loss) on Divestitures, net

    (1     406       -       (1

Net Earnings (Loss) Before Income Tax

  $ 147     $ 522     $ 327     $ 434  

Income Tax Expense (Recovery)

    376       228       (4     3  

Net Earnings (Loss)

  $ (229   $ 294     $ 331     $ 431  

Net Earnings (Loss) per Common Share - Basic & Diluted

  $ (0.24   $ 0.30     $ 0.34     $ 0.44  

 

(1)

Corporate interest income of $8 million previously reported in revenues and operating income (loss) in Q1 2017 has been reclassified to other (gains) losses, net.

 

     2016  
(US$ millions, except per share amounts)                       Q4                         Q3                          Q2                             Q1  

Revenues

  $     822     $ 979      $ 364     $ 753

Impairments

    -       -        484       912

Operating Income (Loss)

    (54     128        (912     (1,043

Gain (Loss) on Divestitures, net

    (3     395        (2     -  

Net Earnings (Loss) Before Income Tax

  $ (251   $ 379      $ (1,068   $ (680

Income Tax Expense (Recovery)

    30       62        (467     (301

Net Earnings (Loss)

  $ (281   $ 317      $ (601   $ (379

Net Earnings (Loss) per Common Share - Basic & Diluted

  $ (0.29   $ 0.37      $ (0.71   $ (0.45 )

 

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Item 9: Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

The financial statements for the fiscal years ended December 31, 2017, 2016, and 2015, included in this Annual Report on Form 10-K, have been audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm, as stated in their audit report appearing herein. There have been no changes in or disagreements with the accountants during the periods presented.

Item 9A: Controls and Procedures

EVALUATION AND DISCLOSURE CONTROLS AND PROCEDURES

Encana’s Chief Executive Officer and Chief Financial Officer performed an evaluation of the Company’s disclosure controls and procedures as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act. The Company’s disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in reports it files or submits under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the rules and forms of the SEC, and to ensure that the information required to be disclosed by the Company in reports that it files or submits under the Exchange Act, is accumulated and communicated to the Company’s management, including the principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure. Based on this evaluation, the Chief Executive Officer and Chief Financial Officer have concluded that the Company’s disclosure controls and procedures are effective as of December 31, 2017.

MANAGEMENT’S ANNUAL REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING

See “Management’s Assessment of Internal Control Over Financial Reporting” under Item 8 of this Annual Report on Form 10-K.

ATTESTATION REPORT OF THE REGISTERED PUBLIC ACCOUNTING FIRM

See “Report of Independent Registered Public Accounting Firm” under Item 8 of this Annual Report on Form 10-K.

CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING

There were no changes in Encana’s internal control over financial reporting during the fourth quarter of 2017 that materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting. See “Management’s Assessment of Internal Control Over Financial Reporting” under Item 8 of this Annual Report on Form 10-K.

Item 9B. Other Information

None.

 

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PART III

Item 10. Directors, Executive Officers and Corporate Governance

DIRECTORS AND EXECUTIVE OFFICERS

Information regarding the Board of Directors is set forth in the Proxy Statement relating to the Company’s 2018 annual meeting of shareholders, which is incorporated herein by reference.

Information regarding the Company’s executive officers is located under “Executive Officers of the Registrant” under Item 1 and 2 of this Annual Report on Form 10-K.

CODE OF ETHICS

Encana has adopted a code of ethics entitled the “Business Code of Conduct” (the “Code of Ethics”), that applies to its principal executive officer, principal financial officer, principal accounting officer or controller, and persons performing similar functions. The Code of Ethics is available for viewing on Encana’s website at www.encana.com , and is available in print to any shareholder who requests it. Requests for copies of the Code of Ethics should be made by contacting Encana’s Corporate Secretary, 4400, 500 Centre Street S.E., P.O. Box 2850, Calgary, Alberta T2P 2S5, Canada, telephone: (403) 645-2000. Encana intends to disclose and summarize any amendment to, or waiver from, any provision of the Code of Ethics that is required to be so disclosed and summarized, on its website at www.encana.com .

Item 11. Executive Compensation

The information required by this Item 11 is set forth in the Proxy Statement relating to the Company’s 2018 annual meeting of shareholders, which is incorporated herein by reference.

The executive compensation and related information incorporated by reference herein shall not be deemed “soliciting material” or to be “filed” with the SEC, nor shall such information be incorporated by reference into any future filing under the Securities Act or Exchange Act, except to the extent that the Company specifically incorporates it by reference into such filing.

Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters

The information required by this Item 12 is set forth in the Proxy Statement relating to the Company’s 2018 annual meeting of shareholders, which is incorporated herein by reference.

Item 13. Certain Relationships and Related Transactions, and Director Independence

The information required by this Item 13 is set forth in the Proxy Statement relating to the Company’s 2018 annual meeting of shareholders, which is incorporated herein by reference.

Item 14. Principal Accounting Fees and Services

The information required by this Item 14 is set forth in the Proxy Statement relating to the Company’s 2018 annual meeting of shareholders, which is incorporated herein by reference.

 

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PART IV

Item 15. Exhibits and Financial Statement Schedules

The following documents are filed as part of this Annual Report on Form 10-K or incorporated by reference:

1. Consolidated Financial Statements

Reference is made to the Consolidated Financial Statements and notes thereto appearing in Item 8 of this Annual Report on Form 10-K.

2. Consolidated Financial Statement Schedules

All financial statement schedules are omitted as they are inapplicable, or the required information has been included in the Consolidated Financial Statements or notes thereto.

3. Exhibits

Exhibits are listed in the exhibit index below. The exhibits include management contracts, compensatory plans and arrangements required to be filed as exhibits to the Annual Report on Form 10-K by Item 601(b)(10)(iii) of Regulation S-K.

 

Exhibit No

 

Description

3.1  

Restated Certificate of Incorporation and Restated Articles of Incorporation dated November 30, 2009 (incorporated by reference to Exhibit 99.2 to Encana’s Report on Form 6-K filed on December 2, 2009, SEC File No. 001-15226).

3.2  

Certificate of Amendment and Articles of Amendment dated May 12, 2015 (incorporated by reference to Exhibit 99.1 to Encana’s Report on Form 6-K filed on May 19, 2015, SEC File No. 001-15226).

3.3  

By-Law No. 1 of Encana Corporation effective February 11, 2014 (incorporated by reference to Exhibit 99.1 to Encana’s Report on Form 6-K filed on May  15, 2014, SEC File No. 001-15226).

4.1  

Amended and Restated Shareholder Rights Plan Agreement dated as of May 3, 2016 between Encana Corporation and CST Trust Company as Rights Agent (incorporated by reference to Exhibit 99.1 to Encana’s Report on Form 6-K filed on May 5, 2016, SEC File No. 001-15226).

4.2  

Amended and Restated Dividend Reinvestment Plan dated as of March 25, 2013 (incorporated by reference to Exhibit 4.2 to Encana’s Registration Statement on Form F-3 filed on March 25, 2013, SEC File No. 333-187492).

4.3  

6.50% Notes due 2019 (incorporated by reference to Exhibit 4.3 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.4  

3.90% Notes due 2021 (incorporated by reference to Exhibit 4.4 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.5  

8.125% Notes due 2030 (incorporated by reference to Exhibit 4.5 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.6  

7.2% Notes due 2031 (incorporated by reference to Exhibit 4.6 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.7  

7.375% Notes due 2031 (incorporated by reference to Exhibit 4.7 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.8  

6.50% Notes due 2034 (incorporated by reference to Exhibit 4.8 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.9  

6.625% Notes due 2037 (incorporated by reference to Exhibit 4.9 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.10  

6.50% Notes due 2038 (incorporated by reference to Exhibit 4.10 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.11  

5.15% Notes due 2041 (incorporated by reference to Exhibit 4.11 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.12  

Indenture dated as of August 13, 2007 between Encana Corporation and The Bank of New York (incorporated by reference to Exhibit 4.12 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.13  

Indenture dated as of November 14, 2011 between Encana Corporation and The Bank of New York Mellon (incorporated by reference to Exhibit 7.1 to Encana’s Registration Statement on Form F-10 filed on May 7, 2012, SEC File No. 333-181196).

4.14  

Indenture dated as of September 15, 2000 between Encana Corporation (as successor by amalgamation to Alberta Energy Company Ltd.) and The Bank of New York (incorporated by reference to Exhibit 4.14 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.15  

First Supplemental Indenture dated as of January 1, 2003 to the Indenture dated as of September 15, 2000 between Encana Corporation and The Bank of New York (incorporated by reference to Exhibit 4.15 to Encana’s Annual Report

 

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on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.16  

Second Supplemental Indenture dated as of November 20, 2012 to the Indenture dated as of September 15, 2000 between Encana Corporation and The Bank of New York (incorporated by reference to Exhibit 4.16 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.17  

Indenture dated as of November 5, 2001 between Encana Corporation (as successor by amalgamation to PanCanadian Petroleum Limited) and The Bank of Nova Scotia Trust Company of New York (incorporated by reference to Exhibit 4.17 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.18  

First Supplemental Indenture dated as of January 1, 2002 to the Indenture dated as of November 5, 2001 between Encana Corporation (as successor by amalgamation to PanCanadian Petroleum Limited) and The Bank of Nova Scotia Trust Company of New York (incorporated by reference to Exhibit 4.18 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.19  

Second Supplemental Indenture dated as of January 1, 2003 to the Indenture dated as of November 5, 2001 between Encana Corporation and The Bank of Nova Scotia Trust Company of New York (incorporated by reference to Exhibit 4.19 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.20  

Third Supplemental Indenture as of November 20, 2012 to the Indenture dated as of November 5, 2001 between Encana Corporation and The Bank of Nova Scotia Trust Company of New York (incorporated by reference to Exhibit 4.20 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.21  

Fourth Supplemental Indenture dated as of July 24, 2013 to the Indenture dated as of November 5, 2001 between Encana Corporation and The Bank of Nova Scotia Trust Company of New York (incorporated by reference to Exhibit 4.21 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.22  

Indenture dated as of October 2, 2003 between Encana Corporation and The Bank of New York (incorporated by reference to Exhibit 4.22 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

4.23  

Specimen Common Share Certificate (incorporated by reference to Exhibit 4.2 to Encana’s Registration Statement on Form F-3 filed on July 25, 2016, SEC File No. 333-212667).

10.1  

Restated Credit Agreement dated as of July 16, 2015 among Encana Corporation as Borrower, the financial and other institutions named therein as Lenders and Royal Bank of Canada as Agent (incorporated by reference to Exhibit 10.1 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.2  

Second Amended and Restated Credit Agreement dated as of October 20, 2011 among Alenco Inc. as Borrower, the banks, financial institutions and other institutional lenders party thereto and Citibank N.A. as Administrative Agent (incorporated by reference to Exhibit 10.2 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.3  

A letter amendment to the Second Amended and Restated Credit Agreement dated as of October 20, 2011 among Alenco Inc. as Borrower, the banks, financial institutions and other institutional lenders party thereto and Citibank N.A. as Administrative Agent, dated as of June 15, 2012 (incorporated by reference to Exhibit 10.3 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.4  

Amendment No.  2 to the Second Amended and Restated Credit Agreement dated as of October  20, 2011 among Alenco Inc. as Borrower, the banks, financial institutions and other institutional lenders party thereto and Citibank N.A. as Administrative Agent, dated as of June  28, 2013 (incorporated by reference to Exhibit 10.4 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.5  

Amendment No.  3 to the Second Amended and Restated Credit Agreement dated as of October  20, 2011 among Alenco Inc. as Borrower, the banks, financial institutions and other institutional lenders party thereto and Citibank N.A. as Administrative Agent, dated as of July  16, 2015 (incorporated by reference to Exhibit 10.5 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226)

10.6*  

Encana Corporation Employee Stock Option Plan reflective with amendments made as of April 27, 2005, as of April 25, 2007, as of April 22, 2008, as of October 22, 2008, as of November 30, 2009, as of July 20, 2010, as of February 24, 2015 and as of February 22, 2016 (incorporated by reference to Exhibit 10.6 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.7*  

Form of Executive Stock Option Grant Agreement.

10.8*  

Encana Corporation Employee Stock Appreciation Rights Plan, adopted with effect from February 12, 2008, as amended December 9, 2008, November 30, 2009, April 20, 2010, July 20, 2010, February 24, 2015, February 22, 2016 and February 14, 2018.

10.9*  

Form of Executive Stock Appreciation Rights Grant Agreement (incorporated by reference to Exhibit 10.9 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.10*  

Performance Share Unit Plan for Employees of Encana Corporation Amended and restated with effect from January 1, 2010, and reflective with amendments made as of July 20, 2010, February 24, 2015, February 22, 2016 and February 14, 2018.

10.11*  

Form of Canadian Executive PSU Grant Agreement.

10.12*  

Form of U.S. Executive PSU Grant Agreement.

10.13*  

Restricted Share Unit Plan for Employees of Encana Corporation established with effect from February 8, 2011, and

 

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reflective with amendments made as of February 24,  2015, February 22, 2016 and February 14, 2018.

10.14*  

Form of Canadian Executive RSU Grant Agreement (incorporated by reference to Exhibit 10.14 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.15*  

Form of U.S. Executive RSU Grant Agreement (incorporated by reference to Exhibit 10.15 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.16*  

Deferred Share Unit Plan for Employees of Encana Corporation adopted with effect from December 18, 2002 and reflective of amendments made as of October 23, 2007, October 22, 2008, and July 20, 2010 (incorporated by reference to Exhibit 10.16 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.17*  

Deferred Share Unit Plan for Directors of Encana Corporation adopted with effect from December 18, 2002 and reflective with amendments made as of April 26, 2005, October 22, 2008, December 8, 2009, July 20, 2010, February 13, 2013, December 1, 2014 and February 14, 2018.

10.18*  

Amended and Restated Change in Control Agreement between Encana Corporation and Sherri A. Brillon effective February 14, 2018.

10.19*  

Amended and Restated Change in Control Agreement between Encana Corporation and Renee E. Zemljak effective February 14, 2018.

10.20*  

Amended and Restated Change in Control Agreement between Encana Corporation and Michael G. McAllister effective February 14, 2018.

10.21*  

Amended and Restated Change in Control Agreement between Encana Corporation and Douglas J. Suttles effective February 14, 2018.

10.22*  

Amended and Restated Change in Control Agreement between Encana Corporation and David G. Hill effective February 14, 2018.

10.23*  

Amended and Restated Change in Control Agreement between Encana Corporation and Michael Williams effective February 14, 2018.

10.24*  

Amended and Restated Change in Control Agreement between Encana Corporation and Joanne L. Alexander effective February 14, 2018.

10.25*  

Form of Director and Officer Indemnification Agreement effective as of July 20, 2016 between Encana Corporation and each of its directors and officers (incorporated by reference to Exhibit 10.25 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.26*  

Encana Corporation Canadian Pension Plan Amended and Restated as of January 1, 2011 (incorporated by reference to Exhibit 10.26 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.27*  

Amendment No.  1 to the Encana Corporation Canadian Pension Plan amended and restated as of January 1, 2011, dated as of May  29, 2014 (incorporated by reference to Exhibit 10.27 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.28*  

Amendment No.  2 to the Encana Corporation Canadian Pension Plan amended and restated as of January 1, 2011, dated as of November  24, 2014 (incorporated by reference to Exhibit 10.28 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.29*  

Amendment No.  3 to the Encana Corporation Canadian Pension Plan amended and restated as of January 1, 2011, dated as of November  30, 2015 (incorporated by reference to Exhibit 10.29 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.30*  

Encana Corporation Canadian Supplemental Pension Plan amended and restated effective April 1, 2015 (incorporated by reference to Exhibit 10.30 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.31*  

Encana Corporation Canadian Investment Plan effective September 1, 2002 (incorporated by reference to Exhibit 10.31 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.32*  

Encana (USA) Retirement Plan amended and restated effective March 14, 2014 (incorporated by reference to Exhibit 10.32 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.33*  

Amendment No.  1 to Encana (USA) Retirement Plan amended and restated effective March 14, 2014, dated May  1, 2014 (incorporated by reference to Exhibit 10.33 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.34*  

Amendment No.  2 to Encana (USA) Retirement Plan amended and restated effective March 14, 2014, dated August  7, 2014 (incorporated by reference to Exhibit 10.34 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.35*  

Amendment No.  3 to Encana (USA) Retirement Plan amended and restated effective March  14, 2014, dated December 28, 2015 (incorporated by reference to Exhibit 10.35 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No.  001-15226).

10.36*  

Alenco Inc. Deferred Compensation Plan amended and restated effective January 1, 2009 (incorporated by reference to Exhibit 10.36 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.37*  

Amendment No.  1 to Alenco Inc. Deferred Compensation Plan amended and restated effective January 1, 2009, effective January  1, 2012 (incorporated by reference to Exhibit 10.37 to Encana’s Annual Report on Form 10-K filed on February 27, 2017, SEC File No. 001-15226).

10.38*  

Restricted Share Unit Plan for Directors of Encana Corporation effective February  14, 2018.

10.39*  

Form of Director RSU Grant Agreement.

12.1  

Consolidated Statement of Computation of Ratio of Earnings to Fixed Charges.

 

130


Table of Contents
14.1  

Business Code  of Conduct effective March 27, 2013 (incorporated by reference to Exhibit 99.1 to Encana’s Report  on Form 6-K filed on March 27, 2013, SEC File No. 001-15226).

21.1  

Encana Corporation Significant Subsidiaries.

23.1  

Consent of PricewaterhouseCoopers LLP.

23.2  

Consent of McDaniel & Associates Consultants Ltd.

23.3  

Consent of Netherland, Sewell & Associates, Inc.

24.1  

Power of Attorney (included on the signature page of this report).

31.1  

Certification of Chief Executive Officer pursuant to Rule  13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934.

31.2  

Certification of Chief Financial Officer pursuant to Rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934.

32.1  

Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350.

32.2  

Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350.

99.1  

Report of McDaniel & Associates Consultants Ltd.

99.2  

Report of Netherland, Sewell & Associates, Inc.

101.INS  

XBRL Instance Document.

101.SCH  

XBRL Taxonomy Schema Document.

101.CAL  

XBRL Calculation Linkbase Document.

101.LAB  

XBRL Label Linkbase Document.

101.DEF  

XBRL Definition Linkbase Document.

101.PRE  

XBRL Presentation Linkbase Document.

* Management contract or compensatory arrangement.

Item 16. Form 10-K Summary

None.

 

131


Table of Contents

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.

 

ENCANA CORPORATION
By:  

/s/ Sherri A. Brillon

  Name: Sherri A. Brillon
  Title: Executive Vice-President & Chief Financial Officer

Dated: February 26, 2018

 

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Table of Contents

SIGNATURES WITH RESPECT TO ENCANA CORPORATION

POWERS OF ATTORNEY

Each person whose signature appears below hereby constitutes and appoints Douglas J. Suttles and Sherri A. Brillon, and each of them, any of whom may act without the joinder of the other, the true and lawful attorney-in-fact and agent of the undersigned, with full power of substitution and resubstitution, for and in the name, place and stead of the undersigned, in any and all capacities, to sign any and all amendments, including any post-effective amendments, and supplements to this Annual Report on Form 10-K, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, and hereby grants to such attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together shall constitute one instrument.

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this Annual Report on Form 10-K has been signed by the following persons in the capacities and on the dates indicated.

Signature                       Capacity                       

Date

/s/ Clayton H. Woitas        

Clayton H. Woitas

  

Chairman of the Board

of Directors

  February 26, 2018

/s/ Douglas J. Suttles         

Douglas J. Suttles

  

President & Chief Executive Officer and

Director (Principal Executive Officer)

  February 26, 2018

/s/ Sherri A. Brillon           

Sherri A. Brillon

  

Executive Vice-President

& Chief Financial Officer (Principal Financial

Officer and Principal Accounting Officer)

  February 26, 2018

/s/ Peter A. Dea                  

Peter A. Dea

   Corporate Director   February 26, 2018

/s/ Fred J. Fowler               

Fred J. Fowler

   Corporate Director   February 26, 2018

/s/ Howard J. Mayson        

Howard J. Mayson

   Corporate Director   February 26, 2018

/s/ Lee A. McIntire             

Lee A. McIntire

   Corporate Director   February 26, 2018

/s/ Margaret A. McKenzie  

Margaret A. McKenzie

   Corporate Director   February 26, 2018

/s/ Suzanne P. Nimocks     

Suzanne P. Nimocks

   Corporate Director   February 26, 2018

/s/ Brian G. Shaw               

Brian G. Shaw

   Corporate Director   February 26, 2018

/s/ Bruce G. Waterman       

Bruce G. Waterman

   Corporate Director   February 26, 2018

 

133

Exhibit 10.7

ENCANA CORPORATION

EMPLOYEE STOCK OPTION PLAN

[EXECUTIVE] 20 STOCK OPTION GRANT AGREEMENT

 

Participant:    ###PARTICIPANT_NAME###
Grant Name:    ###GRANT_NAME###
Grant Date:    ###GRANT_DATE###
Expiry Date:    ###EXPIRY_DATE###, subject to the terms and conditions contained herein
Grant Price:    CDN###GRANT_PRICE###
Total Options with TSARs:    ###TOTAL_AWARDS###

THIS OPTION AND TANDEM STOCK APPRECIATION RIGHTS AGREEMENT including Schedules “A” and “B” hereto (collectively, this “ Agreement ”) is made between Encana Corporation (the “ Corporation ”) and the Participant listed above (the “ Participant ”), an eligible employee of the Corporation or one of its Related Corporations.

WHEREAS the Corporation has established an Employee Stock Option Plan (the “ Plan ”) for employees of the Corporation and its Related Corporations (collectively, the “ Affiliated Entities ” or, individually, an “ Affiliated Entity ”);

AND WHEREAS the Board of Directors of the Corporation (the “ Board ”) has approved the grant to the Participant under the Plan of an option to purchase the number of Shares set out above (collectively, the “ Options ” and individually, an “ Option ”), upon and subject to the terms and conditions of the Plan and this Agreement;

NOW THEREFORE in consideration of other good and valuable consideration and the sum of one dollar ($1.00) now paid to the Corporation (the receipt whereof by the Corporation is hereby acknowledged) it is agreed by and between the parties hereto as follows:

 

1.

DEFINITIONS

In this Agreement, capitalized terms shall have the meanings set forth in Schedule “A” hereto unless specified.

 

2.

GRANT OF OPTIONS AND TANDEM STOCK APPRECIATION RIGHTS

Subject to the terms and conditions of the Plan and this Agreement, the Corporation hereby grants the Options to the Participant. Each Option granted, once vested hereunder, shall entitle the Participant to acquire one Share, subject to and in accordance with the terms and conditions of the Plan and this Agreement. Each Option granted hereunder shall have associated with it a TSAR. Except as otherwise provided in the Plan or this Agreement, each associated TSAR shall be subject to the same terms and conditions as the Option to which it relates.

 

3.

EVIDENCE OF GRANT AND ACKNOWLEDGEMENT

This Agreement shall evidence the grant by the Corporation to the Participant of the Options effective as of the Grant Date.


The Participant further acknowledges nothing in the Plan or this Agreement shall be construed to require the Corporation to grant to the Participant an additional option or options beyond the Options granted hereunder. The grant of an additional option or options to the Participant by the Corporation shall, in each case, constitute a new and separate agreement between the Participant and the Corporation in respect of same.

 

4.

CLASSIFICATION OF OPTIONS

The Options granted to the Participant hereunder are classified as “Time-Based Options” and shall hereinafter be referred to as “ Time-Based Options ”.

 

5.

VESTING OF TIME-BASED OPTIONS

 

(a)

Subject to Section 5(b) and Sections 6 to 11 hereof, Time-Based Options shall become Vested Options as follows:

 

  (i)

30 percent on the first Anniversary Date;

 

  (ii)

an additional 30 percent on the second Anniversary Date; and

 

  (iii)

an additional 40 percent on the third Anniversary Date.

 

(b)

The number of Time-Based Options that become Vested Options under Section 5(a) shall be determined by rounding the result up to the nearest whole number of Time-Based Options, if necessary, to an aggregate maximum of the total number of Time-Based Options granted under this Agreement. No fractional Time-Based Options shall become Vested Options. No cash or other compensation shall be paid to the Participant at any time in lieu thereof any fractional Time-Based Options.

 

(c)

Subject to Sections 3 and 6 to 11, the Participant shall be entitled to exercise or surrender all or any number of the Vested Options, in accordance with Section 13, during the period from the Vesting Date of such Vested Option pursuant to Section 5(a) to the Expiry Date, or such earlier termination date as provided herein.

 

(d)

As an alternative to the exercise of a Vested Option, the Participant may surrender any Vested Option as to an associated TSAR in accordance with Section 13 hereof. Upon surrendering to the Corporation the Vested Options to purchase a specified number of Shares, the Participant shall receive a cash payment equal to the Appreciated Value multiplied by the number of Vested Options surrendered, less required applicable statutory and other withholdings. Thereafter the number of Vested Options so surrendered with respect to such specified number of Shares will be cancelled and terminated by the Corporation and the Participant shall have no further right, title or interest in such surrendered Vested Options or the underlying Shares.

 

6.

TERMINATION OF EMPLOYMENT

 

(a)

Upon a Termination of Employment, the Participant shall be entitled to exercise or surrender any Vested Options during the Termination Exercise Period, but only to the extent such Vested Options have become Vested Options pursuant to Sections 5(a) or 11 on or prior to the Date Employment Ceases.

 

(b)

Notwithstanding Section 5(a), Time-Based Options which do not become Vested Options on or prior to the Date Employment Ceases shall not thereafter become Vested Options.

 

-2-


7.

DEATH OR RETIREMENT OF PARTICIPANT

 

(a)

In the event the Participant ceases to be an employee of the Corporation or an Affiliated Entity by reason of the Participant’s death or Retirement on a date prior to the date he or she reaches age 60:

 

  (i)

the Participant shall be entitled to exercise or surrender any Vested Options during the Death or Retirement Exercise Period, but only to the extent they have become Vested Options pursuant to Sections 5(a) or 11 on or prior to the date of such death or Date of Retirement, as applicable; and

 

  (ii)

notwithstanding Section 5(a), Time-Based Options which do not become Vested Options on or prior to the date of such death or Date of Retirement, as applicable, shall not thereafter become Vested Options.

 

(b)

In the event the Participant ceases to be an employee of the Corporation or an Affiliated Entity by reason of his or her death or Retirement on a date that occurs on or after the date he or she reaches the age 60, but before age 65, his or her Time-Based Options shall continue to become Vested Options in accordance with the provisions of this Agreement including, without limitation, Section 5(a), and the Participant shall be entitled to exercise or surrender any such Vested Options until the Expiry Date.

 

(c)

In the event the Participant ceases to be an employee of the Corporation or an Affiliated Entity by reason of his or her death or Retirement on a date that occurs on or after the date he or she reaches age 65, the Participant shall be entitled, during the period extending from the date of such death or Date of Retirement, as applicable, to the Expiry Date, to exercise or surrender, in full or in part, any unexercised Time-Based Option (irrespective of whether such Time-Based Option has become a Vested Option in accordance with the provisions of this Agreement including, without limitation Section 5(a)).

 

8.

DISABILITY OF PARTICIPANT

In the event of the Participant’s Short-Term Disability or Long-Term Disability, Time-Based Options shall continue to be and become Vested Options in accordance with the provisions of this Agreement including, without limitation, Section 5(a) and the Participant shall be entitled to exercise or surrender any Vested Options during the period of such Short-Term Disability or Long-Term Disability and thereafter, unless there occurs a Termination of Employment during such period, in which case the provisions of Section 6 shall apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 7 shall apply.

 

9.

LEAVES OF ABSENCE AND FAMILY LEAVE

 

(a)

In the event the Participant is on a Paid Leave of Absence or on Family Leave, Time-Based Options shall continue to be and become Vested Options in accordance with the provisions of this Agreement including, without limitation, Section 5(a), and the Participant shall be entitled to exercise or surrender any Vested Options during the period of such Paid Leave of Absence or Family Leave and thereafter, unless there occurs a Termination of Employment during such period, in which case the provisions of Section 6 shall apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 7 shall apply.

 

-3-


(b)

In the event the Participant is on an Unpaid Leave of Absence:

 

  (i)

Time-Based Options shall continue to be and become Vested Options in accordance with the provisions of Section 5(a) during the period commencing on the Date of Unpaid Leave of Absence and ending on the 31 st calendar day following the Date of Unpaid Leave of Absence, unless there occurs a Termination of Employment during such period, in which case the provisions of Section 6 shall apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 7 shall apply;

 

  (ii)

notwithstanding Section 5(a), Time-Based Options which do not become Vested Options on or prior to the 31 st calendar day following the Date of Unpaid Leave of Absence shall not become Vested Options during the balance of the Participant’s Unpaid Leave of Absence, unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 7 shall apply;

 

  (iii)

notwithstanding Section 5(a), Time-Based Options which do not become Vested Options on or prior to the 31 st calendar day following the Date of Unpaid Leave of Absence shall become Vested Options on the Participant’s Return to Service Date, but only to the extent that such Time-Based Options would have become Vested Options pursuant to Section 5(a) on or prior to the Return to Service Date if the period of Unpaid Leave of Absence had not occurred and provided that the Return to Service Date occurs prior to the Expiry Date;

 

  (iv)

in the event that the Participant’s Return to Service Date occurs prior to the Expiry Date, any Time-Based Options which did not become Vested Options on or prior to the 31 st calendar day following the Date of Unpaid Leave of Absence or pursuant to Section 9(b)(iii) shall become Vested Options solely in accordance with the provisions of Section 5(a); and

 

  (v)

from the Date of Unpaid Leave of Absence until the Expiry Date, the Participant shall be entitled to exercise or surrender any Vested Options which become Vested Options in accordance with the provisions hereof, unless there occurs a Termination of Employment during such period of Unpaid Leave of Absence, in which case the provisions of Section 6 shall apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 7 shall apply.

 

10.

FORFEITURE AND TERMINATION OF TIME-BASED OPTIONS

Except as provided for in Section 11:

 

(a)

Unless previously forfeited in accordance with the provisions hereof, upon the occurrence of a Termination of Employment, Time-Based Options which have not become Vested Options on or prior to the Date Employment Ceases shall be forfeited by the Participant and shall terminate on the Date Employment Ceases and, thereafter, the Participant will have no further right, title or interest in such Time-Based Options.

 

(b)

Upon the occurrence of a Termination of Employment, Vested Options which are not exercised or surrendered by the end of the Termination Exercise Period shall be forfeited by the Participant and shall terminate on the last day of the Termination Exercise Period and, thereafter, the Participant will have no further right, title or interest in such Vested Options.

 

-4-


(c)

Where the Participant ceases to be an employee of the Corporation or an Affiliated Entity by reason of the Participant’s death or Retirement on a date that is prior to the date that the Participant reaches age 60, unless previously forfeited in accordance with the provisions hereof, Time-Based Options which have not become Vested Options on or prior to the date of death or Date of Retirement, as applicable, shall be forfeited by the Participant and shall terminate on the date of death or Date of Retirement, as applicable, and, thereafter, the Participant will have no further right, title or interest in such Time-Based Options.

 

(d)

Where the Participant ceases to be an employee of the Corporation or an Affiliated Entity by reason of the Participant’s death or Retirement on a date that is prior to the date that the Participant reaches age 60, Vested Options which are not exercised or surrendered by the end of the Death or Retirement Exercise Period shall be forfeited by the Participant and shall terminate on the last day of the Death or Retirement Exercise Period and, thereafter, the Participant will have no further right, title or interest in such Vested Options.

 

(e)

On the Expiry Date, all Time-Based Options which have not been exercised or surrendered or otherwise terminated pursuant to the provisions hereof shall expire and be of no further force or effect whatsoever.

 

(f)

After the occurrence of any of the events in Sections 10(a) – (e), this Agreement shall terminate and be of no further force or effect whatsoever with respect to those Time-Based Options which have been forfeited and terminated or have expired and the Participant shall have no cause of action nor make any claim against the Corporation or any Affiliated Entity for damages or for loss of opportunity arising from the forfeiture and termination or expiry of such Time-Based Options or the termination of this Agreement insofar as it relates to such Time-Based Options pursuant to this Section 10.

 

11.

EARLY EXERCISE AND ACCELERATED VESTING

 

(a)

Notwithstanding any other provision of this Agreement, but subject to Section 11(b), the Committee or the Board may pass a resolution which accelerates the vesting of a Time-Based Option and which permits the Participant to exercise or surrender in full or in part any unexercised Time-Based Option, whether or not the Time-Based Option has otherwise become a Vested Option, at such time or times and/or in such manner following the passing of such resolution as is specified in the resolution, which resolution may be passed for any reason which, in the sole opinion of the Committee or the Board, warrants altering the provisions pursuant to which a Time-Based Option vests or is exercisable or can be surrendered upon the occurrence of a Change in Control, including a Take-Over Bid which would, if successful, result in a Change in Control.

 

(b)          (i)     

In the event of a Change in Control, all Time-Based Options granted to the Participant hereunder that are outstanding and are not Vested Options immediately prior to such Change in Control shall become Vested Options immediately prior to the occurrence of such Change in Control, and the Participant shall be entitled, commencing as of the time immediately prior to the occurrence of such Change in Control, to exercise in full or in part such Vested Options until the Expiry Date, and Section 11(b)(iii) shall apply, if applicable, except to the extent that an award of Options meeting the requirements set out below in this Section 11(b)(i) (such award, a “ Replacement Award ”) is provided to the Participant to replace such award of Time-Based Options (each award of Options intended to be replaced by a Replacement Award, a “ Replaced Award ”) effective on or immediately after the time of such Change in Control. An award of options shall meet the requirements of this Section 11(b)(i) (and hence qualify as a Replacement Award) if (A) it has an intrinsic value equal to the intrinsic value of the Replaced Award as of the

 

-5-


 

date of the Change in Control, (B) it relates to publicly traded equity securities of the Corporation, the entity surviving the Corporation following the Change in Control or the parent company of such surviving entity, (C) it contains terms relating to vesting that are substantially identical to those of the Replaced Award, and (D) its other terms and conditions are not less favorable to the Participant than the terms and conditions of the Replaced Award (including the provisions that would apply in the event of a subsequent Change in Control) as of the date of the Change in Control. Without limiting the generality of the foregoing, a Replacement Award may take the form of a continuation of the applicable Replaced Award if the requirements of the preceding sentence are satisfied. If a Replacement Award is granted, the Replaced Award shall not immediately vest prior to the occurrence of the Change in Control giving rise to the replacement. The determination whether the conditions of this Section 11(b)(i) are satisfied shall be made by the Committee, as constituted immediately before the Change in Control, in its sole discretion. All Time-Based Options that become Vested Options pursuant to this Section 11(b)(i) shall entitle the Participant, commencing as of the time immediately prior to the occurrence of the Change in Control, to exercise or surrender in full or in part such Vested Options until the Expiry Date.

 

  (ii)

Notwithstanding any other provision of this Agreement to the contrary, upon the Participant’s Termination of Employment by the Corporation or an Affiliated Entity, as applicable, without CIC Cause, or by the Participant for Good Reason, within the Specified Period following a Change in Control, the Participant shall be entitled, commencing as of the time immediately prior to such Termination of Employment, to exercise or surrender in full or in part any unexercised Time-Based Option (irrespective of whether such Time-Based Option has become a Vested Option in accordance with Section 5(a)) or Replacement Award, as applicable, until the Expiry Date.

 

  (iii)

If a “take-over bid” (within the meaning of applicable securities legislation) made by any person for the voting securities of the Corporation (a “ Take-over Bid ”) would, if successful, result in a Change in Control, and if a Replacement Award is not granted in accordance with Section 11(b)(i), then:

 

  (A)

the Corporation will promptly notify the Participant of the Take-over Bid and the Participant’s rights under this Section 11(b)(iii);

 

  (B)

vesting of all Time-Based Options that have not yet become Vested Options pursuant to Section 5(a) at the time a formal Take-over Bid offer has been made will be accelerated so as to be and become Vested Options (irrespective of whether such Time-Based Options have become Vested Options in accordance with Section 5(a)) on the date the formal Take-over Bid offer is made;

 

  (C)

the Participant shall be entitled to exercise, in full or in part, the Time-Based Options in the manner set out in this Agreement, with any necessary modifications (or such other manner as may be prescribed by the Committee or the Board including, but not limited to, a form of cashless exercise), during the period ending on the earlier of the expiration of the Take-over Bid and the Expiry Date, for the purpose of tendering the Shares acquired pursuant to the exercise of the Time-Based Options to the Take-over Bid;

 

  (D)

the Participant shall be entitled to deal with the Time-Based Options in such other manner (in addition to the exercise set out in paragraph 11(b)(iii)(C)) as may be prescribed by the Committee or the Board, in its discretion; and

 

-6-


  (E)

if the Shares acquired pursuant to the exercise of the Time-Based Options are not deposited by the Participant pursuant to the Take-over Bid or, if deposited, are subsequently withdrawn by the Participant or not all taken up and paid for by the offeror or if the offeror fails to take-up and pay for the Shares pursuant to the terms of the Take-over Bid or if the Take-over Bid fails to close for any other reason, then the Participant shall promptly return such Shares (or the portion that are not taken up and paid for) to the Corporation for cancellation. Such Shares shall be deemed not to have been issued and the related Time-Based Options shall be deemed not to have been exercised, and the Corporation shall refund to the Participant, if applicable, the aggregate Exercise Price for the Time-Based Options. In such event, Time-Based Options will become Vested Options solely in accordance with Sections 5(a) or 11(b)(ii), and any other action by the Participant permitted in accordance with Section 11(b)(iii)(D) shall be deemed not to have occurred.

 

12.

EFFECTS OF ALTERATION OF SHARE CAPITAL

In the event of any change in the Shares by reason of any stock dividend, split, recapitalization, merger, consolidation, combination or exchange of shares or other similar corporate change, equitable adjustments may be made in the number of Time-Based Options, the type of shares or securities subject to the Time-Based Options, the Exercise Price and the formula for determining the cash payable upon the surrender of Time-Based Options pursuant to associated TSARs. The Committee shall determine which adjustments shall be made in any such event in its sole discretion and its determination shall be conclusive and binding for all purposes of this Agreement; provided that such adjustments shall not result in any adverse Canadian or United States federal income tax consequences. Without limiting the generality of the foregoing, it is expressly intended that no Time-Based Option or TSAR shall become subject to Section 409A and no adjustment shall be made to the Exercise Price, the formula for determining the cash payable upon the surrender of Time-Based Options pursuant to associated TSARs, or any other term or condition of this Agreement if to do so would cause the Time-Based Option or TSAR to become deferred compensation subject to Section 409A.

 

13.

METHOD OF EXERCISE OR SURRENDER OF TIME-BASED OPTIONS

Any Vested Option may be exercised or surrendered by the Participant or, after death or incapacitation, by the Participant’s duly appointed legal guardian or legal personal representative, in a manner prescribed by the Corporation from time to time as published on the Corporation’s internal employee website or otherwise communicated in writing to the Participant from time to time.

 

14.

OBLIGATIONS OF THE PARTICIPANT

Nothing contained in this Agreement or done pursuant to this Agreement shall oblige the Participant to purchase and pay for any Shares except those Shares underlying the Time-Based Options that the Participant has exercised in the manner provided in this Agreement.

The Participant agrees and acknowledges (and shall be conclusively deemed to have so acknowledged and agreed by participating in the Plan) that the Participant will, at all times, act in strict compliance with Applicable Law and all Corporation Policies applicable to the Participant in connection with the Plan. Such Applicable Law and Corporation Policies shall include, without limitation, those governing “insiders” or “reporting issuers” as those terms are construed for the purposes of applicable securities laws, regulations, and rules.

 

-7-


15.

SUBJECT TO APPLICABLE LAW

The grant of any Time-Based Option hereunder and the obligation to make any payment (including the delivery of Shares) in respect of any Time-Based Option is subject to compliance with Applicable Law including, without limitation, Sections 26 and 27 hereof. As a condition of participating in the Plan, each Participant agrees to comply with all such Applicable Law and agrees to furnish to the Corporation all information and undertakings as may be required to permit compliance with Applicable Law.

 

16.

WITHHOLDINGS

The Corporation or any Affiliated Entity may withhold or cause to be withheld from any amount payable to a Participant, either under the Plan or this Agreement, or otherwise, such amount as may be necessary so as to ensure that the Corporation or any Affiliated Entity, as applicable, will be able to comply with the applicable provisions of any federal, provincial, state or local law relating to the withholding of tax or other required deductions, including on the amount, if any, includable in the income of a Participant.

The Participant acknowledges that all taxes which may be payable by the Participant as a result of the granting, exercise, or surrender of the Time-Based Options are the Participant’s sole responsibility and that it is the Participant’s duty and responsibility to comply with all provisions of the law in relation to the reporting of the acquisition or exercise or surrender of the Time-Based Options and the trading of any Shares issued pursuant to this Agreement.

 

17.

NO AGREEMENT TO EMPLOY

Nothing contained in this Agreement or done pursuant to this Agreement shall constitute or be construed to constitute or to be evidence of an agreement or understanding, express or implied, on the part of the Corporation or an Affiliated Entity to retain the Participant in the Participant’s employment for any specific period of time or in any specific capacity or position.

 

18.

NON-QUALIFIED STOCK OPTIONS

The Time-Based Options granted to the Participant hereunder are non-qualified stock options for United States tax purposes.

 

19.

NO REPRESENTATION AS TO PRICE

The Corporation makes no representation nor gives any warranty as to the price of the Shares and shall not be held liable for any fluctuation in the price of the Shares either before or after the exercise of any right conferred under this Agreement.

 

20.

NON-ASSIGNABILITY

The Time-Based Option and the rights conferred hereby are not assignable, negotiable or otherwise transferable by the Participant other than by will or the laws of descent and distribution. The Time-Based Option is exercisable only during the Participant’s lifetime and only by the Participant, except in the event of the Participant’s death or incapacity, in which case the Time-Based Option may be exercised or surrendered by the Participant’s duly appointed legal guardian or legal personal representative as provided herein.

 

-8-


21.

SUBJECT TO CLAWBACK POLICY

You acknowledge and agree that all Options granted hereunder (and the grant thereof), including any payment in respect thereof, are expressly subject to the terms and conditions of the Corporation’s “Incentive Compensation Clawback Policy”, attached hereto as Schedule “B”, as same may be amended by the Corporation from time to time.

 

22.

SUBJECT TO PLAN

The provisions of this Agreement shall be interpreted so as to be expressly subject to the provisions of the Plan. The Participant acknowledges that the Committee or the Board has full and complete authority to interpret the Plan and to prescribe such rules and regulations and make such other determinations as it deems necessary or desirable for the administration of the Plan in its sole discretion and that any such rules, regulations or determinations shall be final and binding on the parties to this Agreement.

 

23.

AMENDMENT AND TERMINATION

Subject to Applicable Law and to Section 11 of the Plan, this Agreement and the Plan may be amended or terminated at any time by the Board in whole or in part.

 

24.

TIME OF ESSENCE

Time shall be of the essence of this Agreement.

 

25.

NOTICES

Any notice to be given by the Participant hereunder shall be sent to the Corporation at:

Encana Corporation

500 Centre Street SE

P.O. Box 2850

Calgary, Alberta T2P 2S5

Fax: (403) 645-3400

Attention :   Vice-President, Human Resources

and any notice from the Corporation to the Participant shall be sent to the Participant at the Participant’s office or residence address last known to the Corporation. Either party may change the address to which notice may be given by mailing the same, postage prepaid, or delivering the same to the Corporation or to the Participant, as the case may be, in accordance with the foregoing. Any such notice if delivered shall be deemed to have been given or made on the date on which it was delivered or if mailed shall be deemed to have been given or made on the third business day following the date on which it was mailed. In the event of a general postal disruption, notice shall be delivered.

The Participant hereby consents to the exchange of information and documents between the Participant and the Corporation electronically over the Internet or by e-mail (if to the Participant at the e-mail address most recently provided by the Participant to the Corporation) and it is hereby agreed and acknowledged that any such information and documents sent or received in electronic form shall be the equivalent of original written paper documents.

 

-9-


26.

GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws in force in the Province of Alberta and the federal laws of Canada as applicable herein. In the event of a dispute, the Participant agrees to submit to the jurisdiction of the Alberta courts.

 

27.

COMPLIANCE WITH SECTION 409A

Notwithstanding any provision of the Plan or this Agreement to the contrary, where applicable, it is intended that the provisions of the Plan and this Agreement comply with, or be exempt from, Section 409A, and all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. Each US Participant is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or for the account of such US Participant in connection with the Plan or any other Plan maintained by the Corporation or an Affiliated Entity (including any taxes and penalties under Section 409A), and neither the Corporation nor any Affiliated Entity shall have any obligation to indemnify or otherwise hold such US Participant (or any beneficiary) harmless from any or all of such taxes or penalties.

 

28.

EXECUTION BY THE CORPORATION

This Agreement may be executed by application of the facsimile or authorized electronic signature of the Executive Vice-President, Corporate Services of the Corporation (or his or her written designate) and such signature shall be as valid and effective as if such officer signed this Agreement in person.

 

29.

ACCEPTANCE BY PARTICIPANT

The Participant shall confirm acceptance of the terms and conditions of this Agreement by electronically selecting and clicking on the button beside the words “I Accept” from the options provided below. By indicating such acceptance, the Participant agrees to be legally bound by the terms and conditions of this Agreement, and hereby agrees that such acceptance shall be as valid and effective as of the Date of Grant as if the Participant signed this Agreement in person on that date. In the event the Participant does not accept the terms and conditions of this Agreement because an error exists in the Option information provided at the outset of this Agreement, the Participant must electronically select and click on the button beside the words “I Do Not Accept” from the options provided below, in which case the parties shall take such steps as may be necessary to correct any such error.

IN WITNESS WHEREOF this Agreement has been executed effective as of the Grant Date.

ENCANA CORPORATION

Mike Williams

Executive Vice-President, Corporate Services

 

-10-


SCHEDULE “A”

DEFINITIONS

In this Agreement, the following terms shall have the meanings respectively set forth below:

 

(a)

Agreement ” means this Option and Tandem Stock Appreciation Rights Agreement between the Corporation and the Participant;

 

(b)

Anniversary Date ” means, in respect of the Time-Based Options, each anniversary of the Date of Grant;

 

(c)

Applicable Law ” means any applicable provision of law, domestic or foreign, including, without limitation, applicable securities legislation, together with all regulations, rules, policy statements, rulings, notices, orders or other instruments promulgated thereunder, and any rules of the Toronto Stock Exchange;

 

(d)

Appreciated Value ” means, in respect of each TSAR associated with an Time-Based Option, an amount equal to the excess of the closing price of a Share on the Toronto Stock Exchange on the last Trading Day preceding the date of the surrender of the Time-Based Option, over the Exercise Price;

 

(e)

CIC Cause ” following a Change in Control for purposes of this Agreement means “cause” as defined in any employment agreement, change in control agreement or similar arrangement with the Corporation to which the Participant is a party as of the Date Employment Ceases;

 

(f)

Change in Control ” shall be deemed to have occurred for purposes of this Agreement if:

 

  (i)

any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing (each, a “Person”), is or becomes the beneficial owner directly or indirectly of 30% or more of either (A) the then-outstanding shares of common stock of the Corporation (the “Outstanding Corporation Common Stock”) or (B) the combined voting power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “Outstanding Corporation Voting Securities”); provided, however, that, for purposes of this Section (f), the following acquisitions of shares or other voting securities of the Corporation shall not constitute a Change in Control: (i) any acquisition directly from the Corporation, (ii) any acquisition made by the Corporation, (iii) any acquisition by any employee plan (or related trust) sponsored or maintained by the Corporation or any of its subsidiaries, or (iv) any acquisition pursuant to a transaction that complies with Sections (f)(ii)(1), (f)(ii)(2) and (f)(ii)(3) of this Schedule “A”;

 

  (ii)

consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Corporation or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Corporation, or the acquisition of assets or securities of another entity by the Corporation or any of its subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) and the combined voting power of the then-

 

A-1


 

outstanding voting securities entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such Business Combination or any employee plan (or related trust) of the Corporation or of such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting from such Business Combination were members of the Incumbent Board (as defined below) at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination;

 

  (iii)

individuals who, as of February 14, 2018, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to February 14, 2018 whose election, or nomination for election by the Corporation’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person or entity other than the Board; or

  (iv)

approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation.

For the purposes of this Section (f) of this Schedule “A”:

 

  (i)

the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

  (ii)

the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining the percentage of beneficial ownership of any Person;

 

(g)

Close of Business ” means the close of trading on the Toronto Stock Exchange on any Trading Day;

 

(h)

Committee ” means the Human Resources and Compensation Committee of the Board, or such other committee of the board, as constituted from time to time, which may be designated by the Board to, inter alia , interpret, administer and implement the Plan and this Agreement, and any reference in this Agreement to action by the Committee means action by or under the authority of the Committee or, if no Committee has been designated, by the Board;

 

A-2


(i)

Corporation Policies ” means, at a particular time, the policies and practices of the Corporation (or, if applicable, the Affiliated Entity which employs the Participant or which employed the Retired Participant), as published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Retired Participant) of the Corporation and/or its Affiliated Entities;

 

(j)

Date Employment Ceases ” means:

 

  (i)

in the case of voluntary Termination of Employment initiated by the Participant, the last date the Participant is, for the purposes of receiving his or her regular salary, on the payroll of the Corporation or an Affiliated Entity;

 

  (ii)

in the case of involuntary Termination of Employment of the Participant by the Corporation or an Affiliated Entity for cause (as determined by the Corporation or the Affiliated Entity, as applicable), the date written notification of dismissal from employment is delivered to the Participant;

 

  (iii)

in the case of involuntary Termination of Employment of the Participant by the Corporation or an Affiliated Entity other than for cause (as determined by the Corporation or the Affiliated Entity, as applicable), the date identified in the written notification of Termination of Employment delivered to the Participant as the “Termination Date” or “Departure Date” and, where both dates are so referred to, the earlier thereof, and, where such date is not identified in the written notification, the date written notification of dismissal from employment is delivered to the Participant; and

 

  (iv)

in the case where the Participant is employed by an Affiliated Entity and for any reason including, without limitation, by reason of sale, disposition or other divestiture thereof, in whole or in part, such employer ceases to be an Affiliated Entity of the Corporation, the effective date (in the case of a sale, disposition or other divestiture, the closing date of such transaction or series of transactions, as determined by the Corporation) upon which the Participant’s employer ceases to be an Affiliated Entity;

but, for greater certainty, shall not include any notice period which arises or may be deemed to arise upon the Termination of Employment of the Participant, and shall not include the date the Participant ceases to be an employee of the Corporation or an Affiliated Entity upon the Participant’s death or Retirement, or the date the Participant commences Short-Term Disability, Long-Term Disability, a Paid Leave of Absence, an Unpaid Leave of Absence, or Family Leave;

 

(k)

Date of Grant ” means the date upon which the Corporation grants the Time-Based Options to the Participant, and as evidenced by this Agreement, which term is sometimes referenced as “Grant Date”;

 

(l)

Date of Retirement ” means the last day the Participant is, for the purposes of receiving his or her regular salary, on the payroll of the Corporation or an Affiliated Entity immediately prior to commencing Retirement;

 

(m)

Death or Retirement Exercise Period ” means the period of time extending from the date of the Participant’s death or Date of Retirement, as applicable, to the earlier of: (i) the date that is six months following the date of the Participant’s death or Date of Retirement, as applicable; and (ii) the Expiry Date. Should the Death or Retirement Exercise Period terminate on a date other than a Trading Day, the Death or Retirement Exercise Period shall terminate on the Close of Business on the last Trading Day prior to that date;

 

A-3


(n)

Exercise Price ” means the price payable per Share on the exercise by the Participant of a Time-Based Option determined on the basis of the Grant Price;

 

(o)

Expiry Date ” means the Close of Business on the seventh Anniversary Date, subject to any Blackout Extension Period (as defined and set forth in the Plan). Should the Expiry Date fall on a date other than a Trading Day, the Expiry Date shall be the Close of Business on the last Trading Day prior to that date;

 

(p)

Family Leave ” means a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on family leave, and does not provide employment services to the Corporation or an Affiliated Entity;

 

(q)

Good Reason ” means “Good Reason” as defined in any employment agreement, change in control agreement or similar arrangement with the Corporation or an Affiliated Entity to which the Participant is a party as of the Date Employment Ceases;

 

(r)

Long-Term Disability ” means any period of time during which the Participant receives, or is determined to be entitled to receive, disability benefits under the Corporation’s or an Affiliated Entity’s long-term disability plans;

 

(s)

Paid Leave of Absence ” means a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on a leave of absence and continues to receive his or her normal salary, but does not provide employment services to the Corporation or an Affiliated Entity;

 

(t)

Related Corporation ” means a corporation that is related, within the meaning of the Income Tax Act (Canada), to the Corporation;

 

(u)

Retired Participant ” means a Participant who ceases to be an employee of the Corporation or an Affiliated Entity by reason of his or her Retirement;

 

(v)

Retirement ” means the early or normal retirement of the Participant from employment with the Corporation or an Affiliated Entity in accordance with the Corporation Policies;

 

(w)

Return to Service Date ” means the date, following an Unpaid Leave of Absence, that the Participant recommences the provision of employment services to the Corporation or an Affiliated Entity, in full or in part;

 

(x)

Section 409A ” means section 409A of the United States Internal Revenue Code of 1986, as amended, and any applicable United States Treasury Regulations and other binding regulatory guidance promulgated thereunder;

 

(y)

Share ” means a common share in the capital of the Corporation as is traded on the Toronto Stock Exchange;

 

(z)

Short-Term Disability ” means any period of time during which the Participant receives disability benefits under the Corporation’s or an Affiliated Entity’s short-term disability plans;

 

(aa)

Specified Period ” means 24 months, inclusive of the date on which the Change in Control occurs;

 

(bb)

Take-over Bid ” has the meaning assigned by Section 11(b)(iii);

 

A-4


(cc)

Termination Exercise Period ” means the period of time extending from the Date Employment Ceases to the earlier of: (i) the Close of Business on the 60 th Trading Day after the Date Employment Ceases; and (ii) the Expiry Date;

 

(dd)

Termination of Employment ” means an event by which the Participant ceases to be an employee of the Corporation or an Affiliated Entity but, for greater certainty, shall not include an event whereby the Participant ceases to be an employee of the Corporation or an Affiliated Entity upon the Participant’s death or Retirement or where the Participant commences Short-Term Disability, Long-Term Disability, a Paid Leave of Absence, an Unpaid Leave of Absence, or Family Leave;

 

(ee)

Time-Based Options ” has the meaning assigned by Section 4(a);

 

(ff)

Trading Day ” means a day on which the Toronto Stock Exchange is open for trading;

 

(gg)

TSAR ” means a tandem stock appreciation right which is associated with a Time-Based Option and which entitles the Participant to surrender a Vested Option in accordance with Section 5(d), subject to the terms and conditions hereof;

 

(hh)

Unpaid Leave of Absence ” means a period of time during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on a leave of absence and does not continue to receive his or her salary or provide employment services to the Corporation or an Affiliated Entity which, for the purposes of this Agreement, shall be deemed to commence on the “ Date of Unpaid Leave of Absence ”, being the first day of the Participant’s Unpaid Leave of Absence, as communicated in writing to the Participant by the Corporation or an Affiliated Entity in accordance with the Corporation Policies;

 

(ii)

US Participant ” means, where applicable, a Participant whose income in respect of services performed for the Corporation or an Affiliated Entity is subject to Section 409A;

 

(jj)

Vested Option ” means a Time-Based Option which has vested and can be exercised by the Participant to purchase a Share or, alternatively, can be surrendered by the Participant in accordance with Section 5(d), subject to the terms and conditions hereof; and

 

(kk)

Vesting Date ” means the date on which a Time-Based Option becomes a Vested Option in accordance with the provisions of this Agreement including, without limitation, Section 5(a) hereof.

 

A-5


Schedule “B”

INCENTIVE COMPENSATION CLAWBACK POLICY:

By resolution of the Board of Directors (the “ Board ”) of Encana Corporation (“ Encana ” or the “ Corporation ”), this Policy is effective as of this 22 nd day of October, 2012 (the “ Effective Date ”).

This Policy applies to the President & Chief Executive Officer and each Executive-Vice President of the Corporation and any individual who serves in either such capacity on or following the Effective Date (collectively, the “ Executive ”). References in this Policy to the “Corporation” include, where applicable, any affiliate thereof.

This Policy has been adopted to enhance the Corporation’s alignment with best practices in respect of risk management and executive compensation and shall be, at all times, subject to and interpreted in a manner consistent with applicable laws or the rules of any applicable stock exchange (collectively, “ Applicable Rules ”).

This Policy applies to “Incentive-Based Compensation” which, for the purposes of this Policy, means compensation relating to the achievement of performance goals or similar conditions, excluding salary, perquisites, benefits and pension entitlements, and including, without limitation, any award or grant of or any eligibility, entitlement or gain of, an Executive under the Corporation’s: (i) High Performance Results Plan, or any other short-term incentive plan; or (ii) Long-Term Incentive (“ LTI ”) program including, without limitation, Employee Stock Option Plan, Employee Stock Appreciation Rights Plan, Performance Share Unit Plan, Restricted Share Unit Plan and Deferred Share Unit Plan, as each may be amended from time to time (including any performance-based grants under any such plans). For greater clarity, this Policy shall not apply to any Incentive-Based Compensation awarded, granted or paid to an Executive prior to the Effective Date.

Where:

 

   

the Corporation is required to prepare an accounting restatement due to its material non-compliance with any financial reporting requirement under applicable securities laws (the “ Restatement ”), (the date upon which the Corporation is required to prepare such Restatement is hereinafter the “ Restatement Date ”);

 

   

the Executive received Incentive-Based Compensation referable to the financial years subject to the Restatement in excess of what the Executive would have been paid under the Restatement (the “ Overcompensation Amount ”); and

 

   

the Executive engaged in gross negligence, intentional misconduct or fraud which caused or significantly contributed to the Corporation’s material non-compliance with applicable securities laws which resulted in the requirement for the Restatement;

the Board shall be entitled:

 

   

where and to the extent the Overcompensation Amount has been previously paid, transferred or otherwise made available to the Executive, to require the Executive, by written demand, to reimburse the Corporation for the Overcompensation Amount; and

 

   

where all or a portion of the Overcompensation Amount has not been paid, transferred or otherwise made available to the Executive, the right of the Executive to be so paid or have such benefit transferred or otherwise made available to him or her shall, to the extent required to reimburse the Corporation for such Overcompensation Amount, immediately terminate and be

 

B-1


 

forfeited by the Executive and where required, cancelled by the Corporation to such extent and upon such date as may be specified by the Board; and

 

   

to the extent the Overcompensation Amount is not immediately recovered upon demand from the Executive, whether via direct reimbursement, forfeiture and/or cancellation, to require a sufficient quantity or value of any compensation owing by the Corporation to the Executive including, without limitation, any unvested or unexercised awards under the LTIs (the “ Outstanding LTIs ”), be immediately withheld and/or irrevocably cancelled by the Corporation to compensate for (or set off the value of same against) the Overcompensation Amount or any unrecovered portion thereof, and to bring any other actions against the Executive which the Board may deem necessary to recover the Overcompensation Amount.

The period of time during which the Corporation shall be entitled to seek recovery of the Overcompensation Amount from the Executive shall be three (3) years from the Restatement Date. Recoupment of Overcompensation Amounts under this Policy shall be initiated by the Corporation at the request of the Board, and all amounts recoverable or payable hereunder shall be paid to the Corporation or as directed by the Board.

If Applicable Rules require the Corporation to adopt a policy or provisions relating to the recoupment or recovery of incentive-based or other compensation based on restated financial statements which are inconsistent with or materially differ from this Policy and the Board adopts such policy or provisions to comply with Applicable Rules (the “ New Policy ”), such New Policy shall replace and supersede this Policy and shall apply to Incentive-Based Compensation granted or awarded to the Executive following the effective date of the New Policy. Subject to Applicable Rules, this Policy shall continue to apply to Incentive-Based Compensation granted or awarded to the Executive prior to the effective date of the New Policy. This Policy may be terminated at any time by the Board.

 

B-2

Exhibit 10.8

 

LOGO

ENCANA CORPORATION

EMPLOYEE STOCK APPRECIATION RIGHTS PLAN

Adopted with effect from February 12, 2008, as amended December 9, 2008,

November 30, 2009, April 20, 2010, July 20, 2010, February 24, 2015, February 22, 2016 and

February 14, 2018.


TABLE OF CONTENTS

 

Section

       Page  

1.

 

PREAMBLE AND DEFINITIONS

     1  

2.

 

ADMINISTRATION

     12  

3.

 

GRANT OF SARS

     13  

4.

 

VESTING OF SARS

     14  

5.

 

TERMINATION OF EMPLOYMENT, DISABILITY, LEAVES OF ABSENCE, ETC.

     17  

6.

 

EARLY EXERCISE AND ACCELERATED VESTING

     21  

7.

 

EFFECTS OF ALTERATION OF SHARE CAPITAL

     24  

8.

 

METHOD OF EXERCISE OF SARS

     24  

9.

 

NO OTHER RIGHTS

     25  

10.

 

GENERAL

     26  


ENCANA CORPORATION

EMPLOYEE STOCK APPRECIATION RIGHTS PLAN

(Adopted with effect from February 12, 2008, as amended December 9, 2008,

November 30, 2009, April 20, 2010, July 20, 2010, February 24, 2015, February 22, 2016 and February 14, 2018)

 

1.

PREAMBLE AND DEFINITIONS

 

1.1

Title

The Plan described in this document shall be called the “Encana Corporation Employee Stock Appreciation Rights Plan” (the “Plan”).

 

1.2

Purposes of the Plan

The principal purposes of the Plan are to advance the interests of Corporation and its Affiliates by:

 

  (a)

promoting a proprietary interest in the Corporation among employees;

 

  (b)

attracting and retaining qualified employees the Corporation requires;

 

  (c)

providing a long-term incentive element in overall compensation of employees; and

 

  (d)

to promoting an alignment of interests between employees and shareholders of the Corporation.

 

1.3

Effective Date of the Plan

The Plan shall have effect from and after February 12, 2008.

 

1.4

Definitions

In the Plan, the following terms shall have the meanings respectively set forth below:

 

  (a)

Achieved Performance Criteria ” means the Performance Criteria which have been satisfied, as and when determined by the Committee, in respect of any particular Performance Period, and which shall be published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Retired Participant) of the Corporation and its Affiliates;

 

  (b)

Affiliate ” means any corporation, partnership or other entity in which the Corporation, directly or indirectly, has a majority ownership interest;

 

  (c)

Anniversary Date ” means, in respect of each SAR, each anniversary of the Date of Grant;


Encana Corporation

Employee Stock Appreciation Rights Plan

(With amendments as of February 14, 2018)

 

  Page 2

 

  (d)

Applicable Law ” means any applicable provision of law, domestic or foreign, including, without limitation, applicable securities legislation, together with all regulations, rules, policy statements, rulings, notices, orders or other instruments promulgated thereunder, and, in respect of a Non-Canadian Participant, unless otherwise provided in a Grant Agreement, any rules of the New York Stock Exchange and, in respect of a Canadian Participant, unless otherwise provided in a Grant Agreement, any rules of the Toronto Stock Exchange;

 

  (e)

Appreciation Value ” means, in respect of each SAR, an amount equal to the closing price per Share, in respect of a Non-Canadian Participant, unless otherwise specified in a Grant Agreement, on the New York Stock Exchange and, in respect of a Canadian Participant, unless otherwise specified in a Grant Agreement, on the Toronto Stock Exchange, on the immediately preceding Trading Day the SAR is exercised, less the Base Value of the SAR; provided that if, in respect of a Non-Canadian Participant, the Shares are not listed and posted for trading on the New York Stock Exchange on the immediately preceding Trading Day the SAR is exercised, or, in respect of a Canadian Participant, are not listed and posted for trading on the Toronto Stock Exchange on the immediately preceding Trading Day the SAR is exercised, then “Appreciation Value” shall be the fair market value per Share as determined by the Board in its sole discretion, less the Base Value of the SAR;

 

  (f)

Base Value ” means, in respect of each SAR, the amount set by the Committee pursuant to Section 3.5;

 

  (g)

Blackout Period ” means a trading blackout period imposed by the Corporation under the Corporation’s Securities Trading and Insider Reporting Policy (as amended, supplemented or replaced by the Corporation from time to time);

 

  (h)

Board ” means the Board of Directors of the Corporation;

 

  (i)

Bonus SAR ” means any SAR that is granted to a Participant and is designated as a Bonus SAR pursuant to Section 4.1;

 

  (j)

Canadian Participant ” means a Participant who is a resident of Canada for the purposes of the Income Tax Act (Canada) or a Participant who is granted a SAR in respect of employment services to be rendered to the Corporation or an Affiliate in Canada;

 

  (k)

CIC Cause ” following a Change in Control for purposes of this Plan means, unless otherwise provided in an Grant Agreement, (i) “cause” as defined in any employment agreement, change in control agreement or similar arrangement with the Corporation to which the Participant is a party as of the Date Employment Ceases, or (ii) if there is no such arrangement or if it does not define “cause” or CIC Cause: (A) conviction of, or plea of guilty or nolo contendere (or its equivalent) by, the Participant for committing an indictable offence in Canada or a felony under U.S. federal law or the law of the state in which such action occurred, (B) willful and deliberate failure on the part of the Participant in the performance of his or her employment duties in any material respect that remains uncured thirty (30) days after receipt of written notice from the Corporation specifying in reasonable detail the alleged failure, (C) dishonesty in the course of


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fulfilling the Participant’s employment duties that results in material harm to the Corporation, or (D) a material violation of the Corporation Policies. For purposes of this Plan, any determination by the Committee as to whether CIC Cause exists shall be subject to de novo review;

 

  (l)

Change in Control ” shall be deemed to have occurred for purposes of this Plan if:

 

  (i)

any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing (each, a “ Person ”), is or becomes the beneficial owner directly or indirectly of 30% or more of either (A) the then-outstanding shares of common stock of the Corporation (the “ Outstanding Corporation Common Stock ”) or (B) the combined voting power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “ Outstanding Corporation Voting Securities ”); provided, however, that, for purposes of this Section 1.4(l)(i), the following acquisitions of shares or other voting securities of the Corporation shall not constitute a Change in Control: (i) any acquisition directly from the Corporation, (ii) any acquisition made by the Corporation, (iii) any acquisition by any employee plan (or related trust) sponsored or maintained by the Corporation or any of its subsidiaries, or (iv) any acquisition pursuant to a transaction that complies with Sections 1.4(l)(ii)(1), 1.4(l)(ii)(2) and 1.4(l)(ii)(3);

 

  (ii)

consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Corporation or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Corporation, or the acquisition of assets or securities of another entity by the Corporation or any of its subsidiaries (each, a “ Business Combination ”), in each case unless, following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such Business Combination or any employee plan (or related trust) of the Corporation or of such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then-outstanding shares of common stock (or,


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for a non-corporate entity, equivalent securities) of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting from such Business Combination were members of the Incumbent Board (as defined below) at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination;

 

  (iii)

individuals who, as of Effective Date, constitute the Board (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to Effective Date whose election, or nomination for election by the Corporation’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person or entity other than the Board; or

 

  (iv)

approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation.

For the purposes of this Section 1.4(l):

 

  (i)

the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (ii)

the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Plan, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining the percentage of beneficial ownership of any Person.

Notwithstanding the foregoing, with respect to SARs granted prior to February 14, 2018, any event or transaction that would have constituted a “Change in Control” under the definition of such term in effect immediately prior to the February 14, 2018 amendment of the Plan shall also be deemed to constitute a “Change in Control” for purposes of this Plan, regardless of whether it would constitute a “Change in Control” within the meaning of the definition set forth in this Section 1.4(l);

 

  (m)

Close of Business ” means, on any Trading Day, in respect of a Non-Canadian Participant, unless otherwise provided in a Grant Agreement, the close of trading on the New York Stock Exchange and, in respect of a Canadian Participant, unless otherwise provided in a Grant Agreement, the close of trading on the Toronto Stock Exchange;


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  (n)

Committee ” means the Human Resources and Compensation Committee of the Board or such other committee of the Board, as constituted from time to time, which may be designated by the Board to, among other things, interpret, administer and implement the Plan, and any reference in the Plan to action by the Committee means action by or under the authority of the Committee or, if no Committee has been designated, by the Board;

 

  (o)

Committee Meeting Date ” means the date of the meeting of the Committee held to review matters related to the SARs, including the determination of whether and the degree to which the Performance Criteria for a particular Performance Period have been satisfied and constitute “Achieved Performance Criteria”, which meeting shall occur at least once annually and by no later than June 1 of the year immediately following the relevant Performance Period;

 

  (p)

Corporation ” means Encana Corporation and any successor corporation whether by amalgamation, merger or otherwise;

 

  (q)

Corporation Policies ” means, at a particular time, the policies and practices of the Corporation (or, where applicable, the Affiliate that employs the Participant), as published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Retired Participant) of the Corporation and/or its Affiliates;

 

  (r)

Date Employment Ceases ” means, in respect of a Participant:

 

  (i)

in the case of voluntary Termination of Employment initiated by the Participant, the last date the Participant is, for the purposes of receiving his or her regular salary, on the payroll of the Corporation or an Affiliate;

 

  (ii)

in the case of involuntary Termination of Employment of the Participant by the Corporation or an Affiliate for cause (as determined by the Corporation or the Affiliate, as applicable), the date written notification of dismissal from employment is delivered to the Participant;

 

  (iii)

in the case of involuntary Termination of Employment of the Participant by the Corporation or an Affiliate other than for cause (as determined by the Corporation or the Affiliate, as applicable), the date identified in the written notification of Termination of Employment delivered to the Participant as the “Termination Date” or “Departure Date” and, where both dates are so referred to, the earlier thereof, and, where such date is not identified in the written notification, the date written notification of dismissal from employment is delivered to the Participant; and

 

  (iv)

in the case where the Participant is employed by an Affiliate and for any reason including, without limitation, by reason of sale, disposition or other divestiture thereof, in whole or in part, such employer ceases to be an Affiliate of the Corporation, the effective date (in the case of a sale, disposition or other divestiture, the closing date of such transaction or series of transactions, as determined by the Corporation) upon which the Participant’s employer ceases to be an Affiliate;


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but, for greater certainty, shall not include any notice period which arises or may be deemed to arise upon the Termination of Employment of the Participant, and shall not include the date the Participant ceases to be an employee of the Corporation or an Affiliate upon the Participant’s death or Retirement, or the date the Participant commences Short-Term Disability, Long-Term Disability, a Paid Leave of Absence, an Unpaid Leave of Absence, or Family Leave;

 

  (s)

Date of Grant ” means, in respect of a particular SAR, the date upon which the Committee grants the SAR to the Participant. Where the Committee determines to grant any SAR on a date which is within a Blackout Period or where, for any reason: (i) a grant of a SAR falls on a day that is within a Blackout Period; or (ii) the Fair Market Value of the grant of a SAR is calculated using a Trading Day that is within a Blackout Period, then the Date of Grant shall automatically occur and be effective on the sixth Trading Day immediately following the end of such Blackout Period to permit the Fair Market Value to be determined based on Trading Days which occur immediately following the end of any of such Blackout Period;

 

  (t)

Date of Retirement ” means, in respect of a Participant, the last day the Participant is, for the purposes of receiving his or her regular salary, on the payroll of the Corporation or an Affiliate immediately prior to commencing Retirement;

 

  (u)

Death or Retirement Exercise Period ” means, in respect of a particular SAR granted to a Participant, the period of time extending from the date of the Participant’s death or Date of Retirement, as applicable, to the earlier of: (i) the date that is six months following the date of the Participant’s death or Date of Retirement, as applicable; and (ii) the Expiry Date of the SAR. Should the Death or Retirement Exercise Period terminate on a date other than a Trading Day, the Death or Retirement Exercise Period shall terminate on the Close of Business on the last Trading Day prior to that date;

 

  (v)

Expiry Date ” means:

 

  (i)

in respect of a particular SAR granted to a Canadian Participant on or following February 24, 2015, the earlier of: (A) December 15 th of the calendar year in which the Vesting Date of such SAR occurs; and (B) the Close of Business on the seventh anniversary of the Date of Grant of such SAR. In respect of SAR granted to a Canadian Participant prior to February 24, 2015, the earlier of: (A) December 15 th of the calendar year in which the Vesting Date of such SAR occurs; and (B) the Close of Business on the fifth anniversary of the Date of Grant of such SAR; and

 

  (ii)

in respect of a particular SAR granted to a Non-Canadian Participant on or following February 24, 2015, the Close of Business on the seventh anniversary of the Date of Grant of such SAR. In respect of a SAR granted to a Canadian Participant prior to February, 24, 2015, the Close of Business on the fifth anniversary of the Date of Grant of such SAR;

Should the Expiry Date of a SAR fall on a date other than a Trading Day, the Expiry Date shall be the Close of Business on the last Trading Day prior to that


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date. Should the Expiry Date fall on a date which is within a Blackout Period, the provisions of Section 8.3 hereof shall apply;

 

  (w)

Fair Market Value ” means, with respect to a particular date:

 

  (i)

in respect of a Non-Canadian Participant, unless otherwise provided in a Grant Agreement, the volume-weighted average (rounded to two decimal places) of the trading price of a Share on the New York Stock Exchange during the immediately preceding five (5) Trading Day period prior to that particular date or, if the Shares did not trade on the New York Stock Exchange on a particular day during such period, the volume-weighted average (rounded to two decimal places) of the trading price of a Share on the New York Stock Exchange during the immediately preceding five (5) days on which the Shares were traded;

 

  (ii)

in respect of a Canadian Participant, unless otherwise provided in a Grant Agreement, the volume-weighted average (rounded to two decimal places) of the trading price of a Share on the Toronto Stock Exchange during the immediately preceding five (5) Trading Day period prior to that particular date or, if the Shares did not trade on the Toronto Stock Exchange on a particular day during such period, the volume-weighted average (rounded to two decimal places) of the trading price of a Share on the Toronto Stock Exchange during the immediately preceding five (5) days on which the Shares were traded;

 

  (iii)

if, in respect of a Non-Canadian Participant, the Shares are not then listed and posted for trading on the New York Stock Exchange or, in respect of a Canadian Participant, are not listed and posted for trading on the Toronto Stock Exchange, then it shall be the fair market value per Share as determined by the Board in its sole discretion;

 

  (x)

Family Leave ” means, in respect of a Participant, a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on family leave, and does not provide employment services to the Corporation or an Affiliate;

 

  (y)

Good Reason ” means (i) “Good Reason” as defined in any employment agreement, change in control agreement or similar arrangement with the Corporation or an Affiliate to which the Participant is a party as of the Date Employment Ceases, or (ii) if there is no such arrangement or if it does not define Good Reason, and the Participant holds the title of “Vice-President” or above as of immediately prior to the Change in Control, the occurrence of any of the following on or after the Change in Control, unless the Participant shall have given express written consent thereto: (A) a material diminution in the scope of the Participant’s duties or responsibilities from those in effect immediately prior to the Change in Control, provided that any change in the Participant’s duties or responsibilities resulting solely from the fact that the Corporation is no longer publicly traded, or no longer the ultimate parent company of its affiliated group, due to the Change in Control shall not be deemed to be a material diminution in the scope of the Participant’s duties or responsibilities; (B) a reduction in the Participant’s annual base salary as in effect immediately prior to the Change in


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Control; (C) a material reduction in the Participant’s short-term or long-term incentive compensation opportunity (measured based on grant date fair value of any equity-based awards) in effect immediately prior to the Change in Control; (D) the failure by the Corporation or an Affiliate to pay the Participant (1) any portion of the Participant’s then current compensation, except pursuant to an across-the-board compensation deferral similarly affecting other such Vice-Presidents and required by applicable law, or (2) any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation or an Affiliate; or (E) a requirement that the Participant be based more than 50 miles from where the Participant is based immediately prior to the Change in Control, except for: (1) required travel on the Corporation’s or Affiliate’s business to an extent substantially consistent with the Participant’s business travel obligations in the ordinary course of business immediately prior to the Change in Control; or (2) if the Participant has been relocated or repatriated by the Corporation or an Affiliate prior to the Change in Control, such relocation as may be required by applicable law or performed in accordance with an agreement (whether written or unwritten) entered into between the Corporation (or an Affiliate) and the Participant prior to the Change in Control; provided, that, a Participant may only resign for Good Reason under this clause (ii) if the Participant has provided written notice to the Corporation and, if the Participant is employed by an Affiliate, such Affiliate, of the event or circumstance alleged to constitute Good Reason within ninety (90) days following the initial existence thereof, the Corporation or Affiliate, as applicable, has failed to cure such event or circumstance within thirty (30) days after receipt of such notice, and the Participant resigns within thirty (30) days after the expiration of such cure period. If the Participant is not covered by clause (i) or (ii) above, then Good Reason shall not be applicable to such Participant;

 

  (z)

Grant Agreement ” means a written agreement between the Corporation and a Participant under which a SAR is granted, as contemplated by Section 3.3, together with such schedules, amendments, deletions or changes thereto as are permitted under the Plan;

 

  (aa)

Long-Term Disability ” means, in respect of a Participant, any period of time during which the Participant receives, or is determined to be entitled to receive, disability benefits under the Corporation’s or an Affiliate’s long-term disability plans;

 

  (bb)

Maximum Performance Criteria ” means, in respect of the SARs granted pursuant to a particular Grant Agreement, that maximum Performance Criteria determined by the Committee, the achievement of which in a particular Performance Period shall entitle all of the Performance SARs and Bonus SARs granted to a Participant which are eligible to become Vested SARs in respect of such Performance Period to become Vested SARs, subject to the provisions of the Plan, and which shall be published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Retired Participant) of the Corporation and its Affiliates;

 

  (cc)

Median Performance Criteria ” means, in respect of the SARs granted pursuant to a particular Grant Agreement, that median Performance Criteria determined by


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the Committee, the achievement of which in a particular Performance Period shall entitle all of the Performance SARs granted to a Participant which are eligible to become Vested SARs in respect of such Performance Period to become Vested SARs, and the over-achievement of which in a particular Performance Period shall entitle at least a portion of the Bonus SARs granted to a Participant which are eligible to become Vested SARs in respect of such Performance Period to become Vested SARs, and which shall be published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Retired Participant) of the Corporation and its Affiliates;

 

  (dd)

Minimum Performance Criteria ” means, in respect of the SARs granted pursuant to a particular Grant Agreement, that minimum Performance Criteria determined by the Committee, the over-achievement of which in a particular Performance Period shall entitle at least a portion of the Performance SARs granted to a Participant which are eligible to become Vested SARs in respect of such Performance Period to become Vested SARs, and which shall be published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Retired Participant) of the Corporation and its Affiliates;

 

  (ee)

Non-Canadian Participant ” means a Participant who is a non-resident of Canada for the purposes of the Income Tax Act (Canada) and who is granted a SAR in respect of employment services to be rendered to the Corporation or an Affiliate outside Canada;

 

  (ff)

Paid Leave of Absence ” means, in respect of a Participant, a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on a leave of absence and continues to receive his or her normal salary, but does not provide employment services to the Corporation or an Affiliate;

 

  (gg)

Participant ” means any employee of the Corporation or an Affiliate as the Committee may designate from time to time as being eligible to participate in the Plan, and which includes a Canadian Participant and a Non-Canadian Participant;

 

  (hh)

Performance Criteria ” means, in respect of a Performance SAR or a Bonus SAR, that performance criteria determined by the Committee and which shall be published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Retired Participant) of the Corporation and its Affiliates;

 

  (ii)

Performance Period ” means, in respect of a Performance SAR or a Bonus SAR, the period in which the Performance Criteria must be satisfied in order for such SAR to become a Vested SAR and, except as otherwise provided:

 

  (i)

the “ First Performance Period ” shall be the period extending from January 1 to December 31 of the year in which the Date of Grant occurs;


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  (ii)

the “ Second Performance Period ” shall be the period extending from January 1 to December 31 of the year immediately following the year in which the Date of Grant occurs; and

 

  (iii)

the “ Third Performance Period ” shall be the period extending from January 1 to December 31 of the second year immediately following the year in which the Date of Grant occurs;

 

  (jj)

Performance SAR ” means any SAR that is granted to a Participant and is designated as a Performance SAR pursuant to Section 4.1;

 

  (kk)

Plan ” means this Encana Corporation Employee Stock Appreciation Rights Plan, including any schedules or appendices hereto, as amended from time to time;

 

  (ll)

Retired Participant ” means a Participant who ceases to be an employee of the Corporation or an Affiliate by reason of his or her Retirement;

 

  (mm)

Retirement ” means, in respect of a Participant, the early or normal retirement of the Participant from employment with the Corporation or an Affiliate in accordance with the Corporation Policies;

 

  (nn)

Return to Service Date ” means, in respect of a Participant, the date, following an Unpaid Leave of Absence, that the Participant recommences the provision of employment services to the Corporation or an Affiliate, in full or in part;

 

  (oo)

SAR ” means a stock appreciation right granted to a Participant that is represented by a bookkeeping entry on the books of the Corporation, which entitles the Participant, upon exercise of a Vested SAR, and subject to the terms and conditions of the Plan and the applicable Grant Agreement, to a payment equal to the Appreciation Value;

 

  (pp)

SAR Period ” means, in respect of a particular Vested SAR, the period of time during which such Vested SAR may be exercised by a Participant, which shall be, subject to Section 8.3, the period of time extending from the Vesting Date of such Vested SAR to the Expiry Date of such Vested SAR;

 

  (qq)

Section  409A ” means section 409A of the United States Internal Revenue Code of 1986, as amended, and any applicable United States Treasury Regulations and other binding regulatory guidance promulgated thereunder;

 

  (rr)

Share ” means, in respect of a Non-Canadian Participant, unless otherwise provided in a Grant Agreement, one or more common shares in the capital of the Corporation as are currently traded on the New York Stock Exchange and, in respect of a Canadian Participant, unless otherwise provided in a Grant Agreement, one or more common shares of the Corporation as are currently traded on the Toronto Stock Exchange;


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  (ss)

Short-Term Disability ” means, in respect of a Participant, any period of time during which the Participant receives disability benefits under the Corporation’s or an Affiliate’s short-term disability plans;

 

  (tt)

Specified Period ” means (i) for a Participant who is an executive officer of the Corporation as of immediately prior to the Change in Control, 24 months, (ii) for a Participant who is not an executive officer of the Corporation and holds the title of “Vice-President” or above as of immediately prior to the Change in Control, 18 months, and (iii) for any Participant not covered by clauses (i) and (ii), 12 months, in each case, inclusive of the date on which the Change in Control occurs, or, in each case, such longer period specified in the Grant Agreement or as provided for in any employment agreement, change in control agreement or similar arrangement with the Corporation or an Affiliate to which the Participant is a party as of the Date Employment Ceases;

 

  (uu)

Time-Based SAR ” means any SAR that is granted to a Participant and designated as a Time-Based SAR pursuant to Section 4.1;

 

  (vv)

Termination Exercise Period ” means, in respect of a particular SAR granted to a Participant, the period of time extending from the Date Employment Ceases to the earlier of: (i) the Close of Business on the 60 th Trading Day after the Date Employment Ceases; and (ii) the Expiry Date of the SAR;

 

  (ww)

Termination of Employment ” means, in respect of a Participant, an event by which the Participant ceases to be an employee of the Corporation or an Affiliate but, for greater certainty, shall not include an event whereby the Participant ceases to be an employee of the Corporation or an Affiliate upon the Participant’s death or Retirement or where the Participant commences Short-Term Disability, Long-Term Disability, a Paid Leave of Absence, an Unpaid Leave of Absence, or Family Leave;

 

  (xx)

Trading Day ” means, subject to Section 1.4(r), in respect of a Non-Canadian Participant, unless otherwise specified in a Grant Agreement, a day on which the New York Stock Exchange is open for trading and, in respect of a Canadian Participant, unless otherwise specified in a Grant Agreement, a day upon which the Toronto Stock Exchange is open for trading;

 

  (yy)

Unpaid Leave of Absence ” means, in respect of a Participant, a period of time during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on a leave of absence and does not continue to receive his or her salary or provide employment services to the Corporation or an Affiliate which, for the purposes of the Plan, shall be deemed to commence on the “ Date of Unpaid Leave of Absence ”, being the first day of the Participant’s Unpaid Leave of Absence, as communicated in writing to the Participant by the Corporation or an Affiliate in accordance with the Corporation Policies;

 

  (zz)

US Participant ” means a Participant whose income in respect of services performed for the Corporation or an Affiliate is subject to Section 409A;

 

  (aaa)

Vested SAR ” has the meaning assigned by Section 4.2; and


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  (bbb)

Vesting Date ” means, in respect of a particular SAR, the date on which the SAR becomes a Vested SAR.

 

1.5

Construction and Interpretation

 

  (a)

In the Plan, references to the masculine include the feminine, and references to the singular shall include the plural and vice versa, as the context shall require.

 

  (b)

The Plan shall be governed and interpreted in accordance with the laws of the Province of Alberta and any actions, proceedings or claims in any way pertaining to the Plan shall be commenced in the courts of the Province of Alberta.

 

  (c)

If any provision of the Plan or part hereof is determined to be void or unenforceable all or in part, such determination shall not affect the validity or enforcement of any other provision or part thereof.

 

  (d)

Headings wherever used herein are for reference purposes only and do not limit or extend the meaning of the provisions herein contained. A reference to a section or schedule shall, except where expressly stated otherwise, mean a section or schedule of the Plan, as applicable.

 

2.

ADMINISTRATION

 

2.1

Administration by Committee

 

  (a)

The Plan shall be administered by the Committee.

 

  (b)

Without limiting the generality of Section 2.1(a), subject to the terms and conditions set forth herein, the Committee is authorized to grant SARs, determine the time or times when SARs will be granted, vest and be exercisable, determine whether SARs will be subject to any restrictions or conditions, including conditions regarding the financial and other performance of the Corporation or its Affiliates all on such terms (which may vary between Participants and SARs) as it shall determine. In addition, the Committee shall have full and complete authority to

 

  (i)

construe and interpret the Plan;

 

  (ii)

prescribe, amend and rescind rules, regulations or policies relating to the Plan; and

 

  (iii)

make all other determinations necessary or advisable for the administration of the Plan.

 

2.2

Delegation

The Committee shall also have the right to delegate the administration and operation of this Plan, in whole or in part, to any director, officer or employee of the Corporation or an Affiliate.


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2.3

Determinations Binding

All determinations and interpretations made by the Committee shall be binding on all Participants and on their legal personal representatives and beneficiaries.

 

3.

GRANT OF SARS

 

3.1

Designation of SAR Recipients

The Committee may from time to time designate individuals who are employees of the Corporation or an Affiliate and to whom, in the opinion of the Committee, SARs should be granted.

 

3.2

SARs to be Granted in Respect of Future Employment Services

For greater certainty and notwithstanding anything in the Plan or in a Grant Agreement, a SAR shall be granted solely in respect of the employment services of a Participant to be rendered subsequent to the Date of Grant to the Corporation and its Affiliates. The Committee may only grant a SAR to a Participant so long as none of the main purposes of such grant is to provide the Participant with a payment that is in lieu of salary or wages for the Participant for services rendered by such Participant in a previous calendar year.

 

3.3

Grant Agreement

Each grant of SARs and participation of an employee in the Plan shall be evidenced by a Grant Agreement between the Corporation and the Participant in the form approved by the Committee. A Participant may hold SARs granted under more than one Grant Agreement at any time.

 

3.4

Terms and Conditions

Subject to the provisions of the Plan, the Committee shall determine the number of SARs to be granted to each Participant and all other terms, conditions and limitations of the grant of SARs, including any conditions with respect to the vesting of SARs, in whole or in part, or the payment of cash under the Plan, and any other terms and conditions the Committee may in its discretion determine, which terms and conditions shall, to the extent not contained in the Plan, be set out in the Grant Agreement.

 

3.5

Base Value

The Base Value for each SAR that is granted pursuant to the Plan shall be set by the Committee at the Date of Grant but, for greater certainty and notwithstanding anything in the Plan or in a Grant Agreement, the Base Value of any SAR shall not be less than the Fair Market Value of a Share at the Date of Grant.


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3.6

No Value Prior to Vesting

For greater certainty, no SAR granted hereunder shall have any value prior to becoming a Vested SAR and the commencement of the SAR Period.

 

3.7

No Certificates

No certificates shall be issued with respect to SARs.

 

3.8

No Right to Additional SARs

Each Participant agrees and acknowledges (and shall be conclusively deemed to have so acknowledged and agreed by participating in the Plan) that nothing in the Plan or a Grant Agreement nor the grant of any SARs hereunder shall be construed to require the Corporation to grant an additional SAR or SARs. The grant of additional SARs by the Corporation shall, in each case, be evidenced by a new and separate Grant Agreement between the Corporation and the Participant in respect of such additional SARs.

 

4.

VESTING OF SARS

 

4.1

Designation of SARs as Time-Based SARs, Performance SARs, and Bonus SARs

 

  (a)

The Committee shall specify, at the time SARs are granted to a Participant pursuant to the Plan, whether such SARs are Time-Based SARs, Performance SARs, Bonus SARs, or a combination thereof.

 

  (b)

The type (or types) of SARs granted to a Participant, whether Time-Based SARs, Performance SARs and/or Bonus SARs (or, any combination thereof), shall be determined by the Committee and specified in the Participant’s corresponding Grant Agreement.

 

4.2

Vesting Conditions

The Committee shall specify, at the time SARs are granted to a Participant pursuant to the Plan, the vesting conditions for such SARs. If no specific determination is made by the Committee at the time SARs are granted to a Participant, and unless otherwise provided in the Grant Agreement relating to such SARs and subject to Sections 6.3 and 6.4, the SARs shall vest in the applicable Participant and each shall become a “Vested SAR” in accordance with the following:

 

  (a)

In respect of the Time-Based SARs granted to a Participant:

 

  (i)

30 percent of the Time-Based SARs shall vest on the first Anniversary Date;

 

  (ii)

an additional 30 percent of the Time-Based SARs shall vest on the second Anniversary Date; and


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  (iii)

an additional 40 percent of the Time-Based SARs shall vest on the third Anniversary Date;

 

  (b)

In respect of the Performance SARs granted to a Participant:

 

  (i)

a number of Performance SARs shall vest on the later of the first Anniversary Date and the day immediately following the Committee Meeting Date in the year immediately following the First Performance Period equal to:

 

  (A)

where the Achieved Performance Criteria for the First Performance Period is equal to or less than the Minimum Performance Criteria, nil;

 

  (B)

where the Achieved Performance Criteria for the First Performance Period is greater than the Minimum Performance Criteria but is less than the Median Performance Criteria, the amount calculated in accordance with the following formula: 30 percent of the Performance SARs X (Achieved Performance Criteria – Minimum Performance Criteria); and

 

  (C)

where the Achieved Performance Criteria for the First Performance Period is equal to or greater than the Median Performance Criteria, 30 percent of the Performance SARs;

 

  (ii)

an additional number of Performance SARs shall vest on the later of the second Anniversary Date and the day immediately following the Committee Meeting Date in the year immediately following the Second Performance Period equal to:

 

  (A)

where the Achieved Performance Criteria for the Second Performance Period is equal to or less than the Minimum Performance Criteria, nil;

 

  (B)

where the Achieved Performance Criteria for the Second Performance Period is greater than the Minimum Performance Criteria but is less than the Median Performance Criteria, the amount calculated in accordance with the following formula: 30 percent of the Performance SARs X (Achieved Performance Criteria – Minimum Performance Criteria); and

 

  (C)

where the Achieved Performance Criteria for the Second Performance Period is equal to or greater than the Median Performance Criteria, 30 percent of the Performance SARs;

 

  (iii)

an additional number of Performance SARs shall vest on the later of the third Anniversary Date and the day immediately following the Committee Meeting Date in the year immediately following the Third Performance Period equal to:


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  (A)

where the Achieved Performance Criteria for the Third Performance Period is equal to or less than the Minimum Performance Criteria, nil;

 

  (B)

where the Achieved Performance Criteria for the Third Performance Period is greater than the Minimum Performance Criteria but is less than the Median Performance Criteria, the amount calculated in accordance with the following formula: 40 percent of the Performance SARs X (Achieved Performance Criteria – Minimum Performance Criteria); and

 

  (C)

where the Achieved Performance Criteria for the Third Performance Period is equal to or greater than the Median Performance Criteria, 40 percent of the Performance SARs;

 

  (c)

In respect of the Bonus SARs granted to a Participant:

 

  (i)

a number of Bonus SARs shall vest on the later of the first Anniversary Date and the day immediately following the Committee Meeting Date in the year immediately following the First Performance Period equal to:

 

  (A)

where the Achieved Performance Criteria for the First Performance Period is equal to or less than the Median Performance Criteria, nil;

 

  (B)

where the Achieved Performance Criteria for the First Performance Period is greater than the Median Performance Criteria but is less than the Maximum Performance Criteria, the amount calculated in accordance with the following formula: 30 percent of the Bonus SARs X (Achieved Performance Criteria – Median Performance Criteria); and

 

  (C)

where the Achieved Performance Criteria for the First Performance Period is equal to or greater than the Maximum Performance Criteria, 30 percent of the Bonus SARs;

 

  (ii)

an additional number of Bonus SARs shall vest on the later of the second Anniversary Date and the day immediately following the Committee Meeting Date in the year immediately following the Second Performance Period equal to:

 

  (A)

where the Achieved Performance Criteria for the Second Performance Period is equal to or less than the Median Performance Criteria, nil;

 

  (B)

where the Achieved Performance Criteria for the Second Performance Period is greater than the Median Performance Criteria but is less than the Maximum Performance Criteria, the amount calculated in accordance with the following formula: 30


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percent of the Bonus SARs X (Achieved Performance Criteria – Median Performance Criteria); and

 

  (C)

where the Achieved Performance Criteria for the Second Performance Period is equal to or greater than the Maximum Performance Criteria, 30 percent of the Bonus SARs;

 

  (iii)

an additional number of Bonus SARs shall vest on the later of the third Anniversary Date and the day immediately following the Committee Meeting Date in the year immediately following the Third Performance Period equal to:

 

  (A)

where the Achieved Performance Criteria for the Third Performance Period is equal to or less than the Median Performance Criteria, nil;

 

  (B)

where the Achieved Performance Criteria for the Third Performance Period is greater than the Median Performance Criteria but is less than the Maximum Performance Criteria, the amount calculated in accordance with the following formula: 40 percent of the Bonus SARs X (Achieved Performance Criteria – Median Performance Criteria); and

 

  (C)

where the Achieved Performance Criteria for the Third Performance Period is equal to or greater than the Maximum Performance Criteria, 40 percent of the Bonus SARs.

 

4.3

Waiver by Participant of Vesting

At the discretion of the Committee, the Committee may specify in any Grant Agreement relating to SARs that the Participant is entitled to waive vesting of any particular SAR at any time before the date that would otherwise be the Vesting Date of such SAR pursuant to Section 4.2. Where such right has been granted to a Participant in the Grant Agreement, the Grant Agreement shall specify all terms and conditions pursuant to which the waiver right may be exercised, including the time and manner of the waiver, and the future characterization, treatment and terms and conditions of a SAR, the vesting of which has been waived pursuant to this Section 4.3 and the applicable Grant Agreement.

 

5.

TERMINATION OF EMPLOYMENT, DISABILITY, LEAVE OF ABSENCE, ETC.

 

5.1

Termination of Employment

Unless otherwise determined by the Committee, and unless otherwise provided in the Grant Agreement relating to a SAR, upon the occurrence of a Termination of Employment of a Participant:

 

  (a)

The Participant shall be entitled to exercise any Vested SARs during the Termination Exercise Period, but only to the extent that such Vested SARs have


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become Vested SARs pursuant to Sections 4.2, 6.3 or 6.4 on or prior to the Date Employment Ceases; and

 

  (b)

For greater certainty, notwithstanding Section 4.2, SARs which do not become Vested SARs on or prior to the Date Employment Ceases shall not thereafter become Vested SARs.

 

5.2

Death or Retirement of Participant

Unless otherwise determined by the Committee, and unless otherwise provided in the Grant Agreement relating to a SAR, in the event a Participant ceases to be an employee of the Corporation or an Affiliate by reason of the Participant’s death or Retirement:

 

  (a)

Where the Participant’s death or Retirement occurs on a date that is prior to the date that the Participant attains the age of 60 years, then:

 

  (i)

the Participant shall be entitled to exercise any Vested SARs during the Death or Retirement Exercise Period, but only to the extent that such Vested SARs have become Vested SARs pursuant to Sections 4.2, 6.3 or 6.4 on or prior to the date of the Participant’s death or Date of Retirement, as applicable; and

 

  (ii)

for greater certainty, notwithstanding Section 4.2, SARs which do not become Vested SARs on or prior to the date of the Participant’s death or Date of Retirement, as applicable, shall not thereafter become Vested SARs;

 

  (b)

Where the Participant’s death or Retirement occurs on or after the date the Participant attains the age of 60 years but before the date that the Participant attains the age of 65 years, then:

 

  (i)

Time-Based SARS shall continue to be and become Vested SARs in accordance with the provisions of Section 4.2(a) and the Participant shall be entitled to exercise any Time-Based SARs which become Vested SARs until the Expiry Date; and

 

  (ii)

Performance SARs and Bonus SARs shall continue to be and become Vested SARs in accordance with the provisions of Sections 4.2(b) and (c), respectively, and the Participant shall be entitled to exercise any Performance SARs or Bonus SARs which become Vested SARs until the Expiry Date;

 

  (c)

Where the Participant’s death or Retirement occurs on or after the date the Participant attains the age of 65 years, then:

 

  (i)

the Participant shall be entitled, during the period extending from the date of the Participant’s death or Date of Retirement, as applicable, to the Expiry Date, to exercise in full or in part any unexercised Time-Based SAR (irrespective of whether such SAR has become a Vested SAR in accordance with Section 4.2(a)); and


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  (ii)

Performance SARs and Bonus SARs shall continue to be and become Vested SARs in accordance with the provisions of Sections 4.2(b) and (c), respectively, and the Participant shall be entitled to exercise any Performance SARs or Bonus SARs which become Vested SARs until the Expiry Date.

 

5.3

Disability of a Participant

Unless otherwise determined by the Committee, and unless otherwise provided in the Grant Agreement relating to a SAR, in the event of a Participant’s Short-Term Disability or Long-Term Disability, SARs shall continue to be and become Vested SARs in accordance with the provisions of Section 4.2 and the Participant shall be entitled to exercise any Vested SARs during the period of such Short-Term Disability or Long-Term Disability and thereafter, unless there occurs a Termination of Employment during such period, in which case the provisions of Section 5.1 shall apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 5.2 shall apply.

 

5.4

Paid Leave of Absence and Family Leave

Unless otherwise determined by the Committee, and unless otherwise provided in the Grant Agreement relating to a SAR, in the event a Participant is on a Paid Leave of Absence or is on Family Leave, SARs shall continue to be and become Vested SARs in accordance with the provisions of Section 4.2 and the Participant shall be entitled to exercise any Vested SARs during the period of such Paid Leave of Absence or Family Leave and thereafter, unless there occurs a Termination of Employment during such period, in which case the provisions of Section 5.1 shall apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 5.2 shall apply.

 

5.5

Unpaid Leave of Absence

Unless otherwise determined by the Committee, and unless otherwise provided in the Grant Agreement relating to a SAR, in the event a Participant is on an Unpaid Leave of Absence:

 

  (a)

SARs shall continue to be and become Vested SARs in accordance with the provisions of Section 4.2 during the period commencing on the Date of Unpaid Leave of Absence and ending on the 31 st calendar day following the Date of Unpaid Leave of Absence, unless there occurs a Termination of Employment during such period, in which case the provisions of Section 5.1 shall apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 5.2 shall apply;

 

  (b)

Notwithstanding Section 4.2, SARs which do not become Vested SARs on or prior to the 31 st calendar day following the Date of Unpaid Leave of Absence shall not become Vested SARs during the balance of the Participant’s Unpaid Leave of Absence, unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 5.2 shall apply;


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  (c)

Notwithstanding Section 4.2, SARs which do not become Vested SARs on or prior to the 31 st calendar day following the Date of Unpaid Leave of Absence shall become Vested SARs on the Participant’s Return to Service Date, but only to the extent that such SARs would have become Vested SARs pursuant to Section 4.2 on or prior to the Return to Service Date if the period of Unpaid Leave of Absence had not occurred and provided that the Return to Service Date occurs prior to the Expiry Date;

 

  (d)

In the event that a Participant’s Return to Service Date occurs prior to the Expiry Date, any SARs which did not become Vested SARs on or prior to the 31 st calendar day following the Date of Unpaid Leave of Absence or pursuant to Section 5.5(c) shall become Vested SARs solely in accordance with the provisions of Section 4.2; and

 

  (e)

From the Date of Unpaid Leave of Absence until the Expiry Date, the Participant shall be entitled to exercise any Vested SARs which become Vested SARs in accordance with the provisions hereof, unless there occurs a Termination of Employment during such period of Unpaid Leave of Absence, in which case the provisions of Section 5.1 shall apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 5.2 shall apply.

 

5.6

Forfeiture and Termination of SARs

Except as provided for in Sections 6.3 or 6.4, unless otherwise determined by the Committee, and unless otherwise provided in the Grant Agreement relating to a SAR, and subject to the passing by the Committee of a resolution pursuant to Sections 6.1 or 6.2:

 

  (a)

A Performance SAR which does not become a Vested SAR by a Vesting Date contemplated in Section 4.2(b) as a result of the Achieved Performance Criteria for the particular Performance Period being equal to or less than the Minimum Performance Criteria shall be forfeited by the Participant and shall terminate on the day that would otherwise be the Vesting Date for such Performance SAR and, thereafter, the Participant will have no further right, title or interest in such Performance SAR;

 

  (b)

A Bonus SAR which does not become a Vested SAR by a Vesting Date contemplated in Section 4.2(c) as a result of the Achieved Performance Criteria for the particular Performance Period being equal to or less than the Median Performance Criteria shall be forfeited by the Participant and shall terminate on the day that would otherwise be the Vesting Date for such Bonus SAR and, thereafter, the Participant will have no further right, title or interest in such Bonus SAR;

 

  (c)

Unless previously forfeited in accordance with the provisions hereof, upon the occurrence of a Participant’s Termination of Employment, SARs which have not become Vested SARs on or prior to the Date Employment Ceases shall be forfeited by the Participant and shall terminate on the Date Employment Ceases and, thereafter, the Participant will have no further right, title or interest in such SARs;


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  (d)

Upon the occurrence of a Participant’s Termination of Employment, Vested SARs which are not exercised by the end of the Termination Exercise Period shall be forfeited by the Participant and shall terminate on the last day of the Termination Exercise Period and, thereafter, the Participant will have no further right, title or interest in such Vested SARs;

 

  (e)

Where a Participant ceases to be an employee of the Corporation or an Affiliate by reason of the Participant’s death or Retirement on a date that is prior to the date that the Participant attains the age of 60 years, unless previously forfeited in accordance with the provisions hereof, SARs which have not become Vested SARs on or prior to the date of death or Date of Retirement, as applicable, shall be forfeited by the Participant and shall terminate on the date of death or Date of Retirement, as applicable, and, thereafter, the Participant will have no further right, title or interest in such SARs;

 

  (f)

Where a Participant ceases to be an employee of the Corporation or an Affiliate by reason of the Participant’s death or Retirement on a date that is prior to the date that the Participant attains the age of 60 years, Vested SARs which are not exercised by the end of the Death or Retirement Exercise Period shall be forfeited by the Participant and shall terminate on the last day of the Death or Retirement Exercise Period and, thereafter, the Participant will have no further right, title or interest in such Vested SARs;

 

  (g)

On the Expiry Date, any SAR which has not been exercised or otherwise forfeited and terminated pursuant to the provisions hereof shall expire and be of no further force or effect whatsoever; and

 

  (h)

After the occurrence of any of the events in Sections 5.6(a) – (g), the Grant Agreement shall terminate and be of no further force or effect whatsoever with respect to those SARs which have been forfeited and terminated or have expired and the Participant shall have no cause of action nor make any claim against the Corporation or any Affiliate for damages or for loss of opportunity arising from the forfeiture and termination or expiry of such SARs or the termination of the Grant Agreement insofar as it relates to such SARs pursuant to this Section 5.6.

 

6.

EARLY EXERCISE AND ACCELERATED VESTING

 

6.1

Extension of Performance Period

Notwithstanding any other provision of the Plan, prior to the date on which a Performance Period in respect of a particular Performance SAR or Bonus SAR ends, the Committee may pass a resolution which extends such Performance Period; provided that, subject to Section 8.3, no such extension shall be past the Close of Business on the seventh anniversary of the Date of Grant of such SAR; and further provided that no such extension shall be made if such extension would result in any adverse Canadian or US federal income tax consequences.

 

6.2

Waiver of Vesting Conditions


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Notwithstanding any other provision of the Plan, the Committee may, at any time prior to the Vesting Date of a particular Performance SAR or Bonus SAR, pass a resolution which waives, in whole or in part, the requirements of Section 4.2 that there be a specified Achieved Performance Criteria prior to a Performance SAR or Bonus SAR becoming a Vested SAR.

 

6.3

Accelerated Vesting

Notwithstanding any other provision of the Plan, but subject to Section 6.4, the Committee may pass a resolution which accelerates the vesting of a SAR and which permits a Participant to exercise in full or in part any unexercised SAR, whether or not the SAR has otherwise become a Vested SAR, at such time or times and/or in such manner following the passing of such resolution as is specified in the resolution, which resolution may be passed for any reason as determined by the Committee which, in the sole opinion of the Committee, warrants altering the provisions pursuant to which a SAR vests or is exercisable.

 

6.4

Accelerated Vesting on Change in Control

 

  (a)

With respect to SARs granted to a Participant prior to February 14, 2018, notwithstanding any other provision of the Plan, in the event of a Change in Control, (i) all Time-Based SARs, Performance SARs and Bonus SARs credited to the Participant that are outstanding and are not Vested SARs immediately prior to such Change in Control shall become Vested SARs immediately prior to the occurrence of a Change in Control, with, if applicable, the Achieved Performance Criteria in respect of the applicable Performance Period deemed to be (x) in the case of Performance SARs, the Median Performance Criteria, and (y) in the case of Bonus SARs, the Maximum Performance Criteria, and (ii) such Participant shall be entitled, commencing as of the time immediately prior to the occurrence of a Change in Control, to exercise in full or in part all Vested SARs (including, but not limited to, those SARs that became vested pursuant to Section 6.4(a)(i)) during the SAR Period in accordance with Section 8.

 

  (b)

With respect to SARs granted to the Participant on or after February 14, 2018, notwithstanding any other provision of the Plan, in the event of a Change in Control:

 

  (i)

all Time-Based SARs, Performance SARs and Bonus SARs credited to the Participant that are outstanding and are not Vested SARs immediately prior to such Change in Control shall become Vested SARs immediately prior to the occurrence of a Change in Control, with, if applicable, the Achieved Performance Criteria in respect of the applicable Performance Period deemed to be (x) in the case of Performance SARs, the Median Performance Criteria, and (y) in the case of Bonus SARs, the Maximum Performance Criteria, and such Participants shall be entitled, commencing as of the time immediately prior to the occurrence of a Change in Control, to exercise in full or in part such Vested SARs during the SAR Period, except to the extent that an award of Time-Based SARs, Performance SARs and Bonus SARs, as the case may be, meeting the requirements set out below in this Section 6.4(b)(i) (such award, a “ Replacement Award ”) is provided to the Participant to replace such


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award of SARs (each award of SARs intended to be replaced by a Replacement Award, a “ Replaced Award ”) effective on or immediately after the time of such Change in Control. An award of SARs shall meet the requirements of this Section 6.4(b)(i) (and hence qualify as a Replacement Award) if (A) it has an intrinsic value equal to the intrinsic value of the Replaced Award as of the date of the Change in Control, (B) it relates to publicly traded equity securities of the Corporation, the entity surviving the Corporation following the Change in Control or the parent company of such surviving entity, (C) it contains terms relating to vesting that are substantially identical to those of the Replaced Award (except that for any Replaced Award that is performance-based, the Replacement Award shall be subject solely to time-based vesting for the remainder of the applicable Performance Period (or such shorter period as determined by the Committee) and the Achieved Performance Criteria in respect of the applicable Performance Period shall be deemed to be (x) in the case of Performance SARs, the Median Performance Criteria, and (y) in the case of Bonus SARs, the Maximum Performance Criteria), and (D) its other terms and conditions are not less favorable to the Participant than the terms and conditions of the Replaced Award (including the provisions that would apply in the event of a subsequent Change in Control) as of the date of the Change in Control. Without limiting the generality of the foregoing, a Replacement Award may take the form of a continuation of the applicable Replaced Award if the requirements of the preceding sentence are satisfied. If a Replacement Award is granted, the Replaced Award shall not immediately vest prior to the occurrence of the Change in Control giving rise to the replacement. The determination whether the conditions of this Section 6.4(b)(i) are satisfied shall be made by the Committee, as constituted immediately before the Change in Control, in its sole discretion. All SARs that become Vested SARs pursuant to this Section 6.4(b)(i) shall entitle the Participant, commencing as of the time immediately prior to the occurrence of the Change in Control, to exercise in full or in part such Vested SARs during the SAR Period in accordance with Section 8.

 

  (ii)

Notwithstanding any other provision of this Plan to the contrary, upon the Participant’s Termination of Employment by the Corporation or an Affiliate, as applicable, without CIC Cause, or by the Participant for Good Reason, within the Specified Period following a Change in Control, all Replacement Awards held by such Participant shall become Vested SARs immediately prior to the time of such Termination of Employment, and such Participant shall be entitled, as of the time immediately prior to such Termination of Employment, to exercise in full or in part all Vested SARs (including, but not limited to, those SARs that became vested pursuant to this Section 6.4(b)(ii)) during the SAR Period in accordance with Section 8. For clarity, in this Section 6.4(b)(ii), the defined terms “Vested SARs” and “SAR Period” shall be deemed to apply, mutatis mutandis , to Replacement Awards that are not a continuation of Replaced Awards.


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7.

EFFECTS OF ALTERATION OF SHARE CAPITAL

 

7.1

General

In the event of any change in the Shares by reason of any stock dividend, split, recapitalization, merger, consolidation, combination or exchange of shares or other similar corporate change, equitable adjustments may be made in: (i) the number of SARs, (ii) in the manner of determining the Base Value, Fair Market Value and Appreciation Value of the SARs, (iii) the type of SAR, and (iv) the SAR Period. The Committee shall determine which adjustments shall be made in any such event in its sole discretion and its determination shall be conclusive and binding for all purposes of the Plan and any applicable Grant Agreement; provided that such adjustments shall not result in any adverse Canadian or United States federal income tax consequences.

 

8.

METHOD OF EXERCISE OF SARS

 

8.1

Exercise of SAR

Each Vested SAR may be exercised, during the SAR Period (unless terminated earlier pursuant to the provisions of the Plan or the Grant Agreement), by a Participant (or, in the event of the Participant’s death or incapacity, by the Participant’s duly appointed legal guardian or legal personal representative) in a manner prescribed by the Corporation from time to time as published on the Corporation’s internal employee website or otherwise communicated in writing to the Participant from time to time.

 

8.2

Exercises only during SAR Period

For greater certainty, no SAR may be exercised after the expiry of the SAR Period.

 

8.3

Blackout Period

Notwithstanding Section 8.2, if the SAR Period of a SAR expires during, or within ten (10) business days following a Blackout Period, then the SAR Period of such SAR shall be extended to the date which is ten (10) business days after the last day of the Blackout Period, after which time such SAR shall expire and terminate; provided that, under no circumstances, shall the SAR Period for a SAR granted or held by a Canadian Participant extend beyond December 15 th of the calendar year containing the Vesting Date of such SAR; and further provided that the SAR Period for a SAR granted or held by a US Participant shall not be extended under this Section 8.3 if and to the extent that such extension would cause the acceleration of taxes due or the imposition of additional taxes by operation of Section 409A.

 

8.4

Payment in Respect of SAR

 

  (a)

Subject to Section 8.4(b) and (c), as soon as practicable after a Participant has exercised a Vested SAR, the Participant will be paid the Appreciation Value of that SAR, in cash, less any applicable tax or other source withholdings.


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  (b)

The Corporation may, in its sole discretion, elect to satisfy, in whole or part, the cash payment obligation in Section 8.4(a) by instructing an independent broker to acquire a number of fully paid Shares on the open market on behalf of the Participant the number of such Shares being the result obtained when the amount of cash which would have otherwise been paid pursuant to Section 8.4(a) is divided by an amount equal to the closing price per Share, in respect of a Non-Canadian Participant, unless otherwise specified in a Grant Agreement, on the New York Stock Exchange and, in respect of a Canadian Participant, unless otherwise specified in a Grant Agreement, on the Toronto Stock Exchange, on the last Trading Day immediately preceding the date of payment. In such a case, the independent broker will purchase such Shares on the open market as soon as practicable thereafter and within the limits imposed by Section 8.4(c), if applicable, and the broker will deliver such Shares to the Participant. The Corporation will pay all brokerage fees arising in connection with the acquisition of the Shares of the Corporation by the broker on the open market. Notwithstanding the foregoing or any other provision of the Plan, in respect of Vested SARs, the Corporation shall not elect to satisfy, in whole or part, the cash payment obligation in Section 8.4(a) with Shares delivered to the Participant as it relates to any SARs originally granted to the Participant after May 2, 2017 unless all approvals of such SARs and/or the issuance of Shares in settlement of such SARs, by shareholders or otherwise, as are required under Applicable Laws, are received prior to the applicable Vesting Date.

 

  (c)

For greater certainty, any amount payable to a Canadian Participant in respect of the exercise of a Vested SAR shall be paid no later than December 31 of the calendar year in which such SAR was exercised.

 

  (d)

All payments and benefits under the Plan shall, in respect of a Non-Canadian Participant, unless otherwise specified in a Grant Agreement, be determined and paid in the lawful currency of the United States and, in respect of a Canadian Participant, unless otherwise specified in a Grant Agreement, be determined and paid in the lawful currency of Canada.

 

  (e)

Thereafter, for greater certainty, such number of Vested SARs as are exercised shall be cancelled and terminated and the Participant will have no further right, title or interest in such exercised SARs.

 

9.

NO OTHER RIGHTS

 

9.1

No Rights of Shareholder

SARs are not Shares and no SAR granted hereunder shall entitle any Participant to any Shares in the capital of the Corporation. For greater certainty, a Participant shall not have the right or be entitled to exercise any voting rights, receive dividends or have or be entitled to any other rights of a shareholder of the Corporation with respect to any SAR held.

 

9.2

No Right to Employment


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Nothing in the Plan or any SAR shall constitute or be construed to constitute or be evidence of an agreement or understanding, express or implied, on the part of the Corporation or an Affiliate to retain the Participant in the Participant’s employment for any specific period or in any specific capacity or position or affect in any way the right of the Corporation or an Affiliate to terminate the employment of the Participant.

 

9.3

No Rights Unless Vested SARs Exercised

For greater certainty, no Participant or any other person claiming through a Participant shall be entitled to any benefit hereunder in respect of any SARs prior to the date on which such SARs become Vested SARs and are exercised.

 

10.

GENERAL

 

10.1

Compliance with Applicable Law

Each Participant acknowledges and agrees (and shall be conclusively deemed to have so acknowledged and agreed by participating in the Plan) that the Participant will, at all times, act in strict compliance with Applicable Law and all Corporation Policies applicable to the Participants in connection with the Plan. Such Applicable Law and Corporation Policies shall include, without limitation, those governing “insiders” of “reporting issuers” as those terms are construed for the purposes of applicable securities laws, regulations and rules.

 

10.2

Subject to Applicable Law

The Corporation’s grant of any SAR and the obligation to make any payments under the Plan or a Grant Agreement is subject to compliance with Applicable Law. As a condition of participating in the Plan, each Participant agrees to comply with all such Applicable Law and agrees to furnish to the Corporation all information and undertakings as may be required to permit compliance with Applicable Law.

 

10.3

Withholdings

 

  (a)

The Corporation or any Affiliate may withhold or cause to be withheld from any amount payable to a Participant, either under the Plan, a Grant Agreement, or otherwise, such amount as may be necessary so as to ensure that the Corporation or any Affiliate, as applicable, will be able to comply with the applicable provisions of any federal, provincial, state or local law relating to the withholding of tax or other required deductions, including on the amount, if any, includable in the income of a Participant.

 

  (b)

Each Participant acknowledges and agrees (and shall be conclusively deemed to have so acknowledged and agreed by participating in the Plan) that all taxes which may be payable by the Participant as a result of the grant, holding or exercise of the SARs are the Participant’s sole responsibility.


Encana Corporation

Employee Stock Appreciation Rights Plan

(With amendments as of February 14, 2018)

 

  Page 27

 

10.4

Amendment and Termination

 

  (a)

Subject to Applicable Law and to Sections 10.4(b) and (c), the Board (or the Committee, as applicable) may, at any time, suspend, terminate, amend or revise the Plan, the terms of any Grant Agreement, or the terms of any SAR granted, provided, however, that, no such amendment may, except with the consent of a Participant, alter or impair any SAR previously granted to such Participant under the Plan. The Board (or the Committee, as applicable) may, with the consent of the Participant, cancel the unexercised balance of an SAR.

 

  (b)

Notwithstanding Section 10.4(a), the Board (or the Committee, as applicable) shall retain the power and authority to amend or modify the Plan and any Grant Agreement entered into hereunder to the extent the Committee in its sole discretion deems necessary or advisable to comply with any guidance issued under Section 409A. Such amendments may be made without the approval of any US Participant.

 

  (c)

Notwithstanding Section 10.4(a), no amendment may be made to the Plan, a Grant Agreement, or the terms of any SAR granted to a Canadian Participant which would result in a material risk (as determined by the Corporation or its advisors, in their sole discretion) that the Plan or any SARs granted thereunder would constitute a “salary deferral arrangement” within the meaning of subsection 248(1) of the Income Tax Act (Canada), or any successor provision thereto.

 

10.5

Administration Costs

Except as otherwise provided herein, the Corporation will be responsible for all costs relating to the administration of the Plan and any SARs granted thereunder.

 

10.6

Assignment

No SAR or any other rights conferred by a SAR or the Plan or a Grant Agreement is assignable, negotiable or otherwise transferable by any Participant other than by will or the laws of descent and distribution. All SARs are exercisable only during the Participant’s lifetime and only by the Participant, except in the event of the Participant’s death or incapacity, in which case the SAR may be exercised by the Participant’s duly appointed legal guardian or legal personal representative.

 

10.7

Unfunded Obligation

The Plan shall be an unfunded obligation of the Corporation and its Affiliates. Neither the establishment of the Plan nor the grant of any SARs or the setting aside of any funds by the Corporation or an Affiliate, as the case may be, (if, either in their sole discretion, choose to do so) shall be deemed to create a trust. Legal and equitable title to any funds set aside for the purposes of the Plan shall remain in the Corporation or the Affiliate, as the case may be, and no Participant shall have any security or other interest in such funds. Any funds so set aside shall remain subject to the claims of creditors of the Corporation or the Affiliate, as the case may be, present or future. Amounts payable to any Participant under the Plan shall be a general, unsecured obligation of the


Encana Corporation

Employee Stock Appreciation Rights Plan

(With amendments as of February 14, 2018)

 

  Page 28

 

Corporation or Affiliate, as the case may be. The right of the Participant to receive payment pursuant to the Plan shall be no greater than the right of other unsecured creditors of the Corporation or Affiliate, as the case may be.

 

10.8

No Representation as to Price

Neither the Corporation nor any Affiliate makes any representation or gives any warranty as to the Fair Market Value of the Shares and shall not be held liable for any fluctuation in the value of the Shares either before or after the exercise of any SAR or other right conferred under the Plan.

 

10.9

Compliance with Section  409A

Notwithstanding any provision of the Plan to the contrary, it is intended that the provisions of the Plan comply with, or be exempt from, Section 409A, and all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. Each US Participant is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or for the account of such US Participant in connection with the Plan or any other Plan maintained by the Corporation or an Affiliate (including any taxes and penalties under Section 409A), and neither the Corporation nor any Affiliate shall have any obligation to indemnify or otherwise hold such US Participant (or any beneficiary) harmless from any or all of such taxes or penalties.

* * * *

Exhibit 10.10

 

LOGO

PERFORMANCE SHARE UNIT PLAN FOR EMPLOYEES

OF ENCANA CORPORATION

Amended and restated with effect from January 1, 2010,

and reflective with amendments made as of July 20, 2010, February 24, 2015, February 22, 2016 and February 14, 2018


TABLE OF CONTENTS

 

Section

       Page  

1.

 

PREAMBLE AND DEFINITIONS

     1  

2.

 

CONSTRUCTION AND INTERPRETATION

     10  

3.

 

EFFECTIVE DATE AND EMPLOYMENT RIGHTS

     11  

4.

 

PSU GRANTS AND PERFORMANCE PERIODS

     11  

5.

 

ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION

     12  

6.

 

OPTIONAL FUNDING OF PSU AWARDS

     13  

7.

 

ELIGIBLE PSUs AND PERFORMANCE CRITERIA

     14  

8.

 

VESTING AND PAYMENT OF PSU AWARDS

     14  

9.

 

CURRENCY

     20  

10.

 

SHAREHOLDER RIGHTS

     20  

11.

 

ADMINISTRATION

     21  

12.

 

ASSIGNMENT

     23  


PERFORMANCE SHARE UNIT PLAN FOR EMPLOYEES

OF ENCANA CORPORATION

(Amended and restated with effect from January 1, 2010,

and reflective with amendments made as of July 20, 2010, February 24, 2015, February 22, 2016 and February 14, 2018)

 

1.

PREAMBLE AND DEFINITIONS

 

  1.1

Title .

The Plan described in this document shall be called the “Performance Share Unit Plan for Employees of Encana Corporation”.

 

  1.2

Purpose of the Plan .

The purposes of the Plan are:

 

  (a)

to promote an alignment of interests between employees and shareholders of the Corporation;

 

  (b)

to associate a portion of eligible employees’ compensation with the performance of the Corporation over the medium to longer term; and

 

  (c)

to attract and retain employees with the knowledge, experience and expertise required by the Corporation.

 

  1.3

Definitions .

 

  1.3.1

Achieved Performance Criteria ” means the Performance Criteria which have been satisfied, as, when and to the extent determined by the Committee in respect of any particular Performance Period, and which shall be published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Participant who has retired, or to the legal representative of a Participant who is deceased) of the Corporation and its Affiliates.

 

  1.3.2

Affiliate ” means any corporation, partnership or other entity in which the Corporation, directly or indirectly, has a majority ownership interest.

 

  1.3.3

Applicable Law ” means any applicable provision of law, domestic or foreign, including, without limitation, applicable securities legislation, together with all regulations, rules, policy statements, rulings, notices, orders or other instruments promulgated thereunder, and Stock Exchange Rules.

 

  1.3.4

Blackout Period ” means a trading blackout period imposed by the Corporation under the Corporation’s Securities Trading and Insider Reporting Policy (as amended, supplemented or replaced by the Corporation from time to time).

 

  1.3.5

Board ” means the Board of Directors of the Corporation.


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 14, 2018 )

 

  Page 2

 

  1.3.6

Business Day ” means any day other than a Saturday or a Sunday, a statutory holiday in Alberta or any day on which the principal chartered banks located in Calgary are not open for business during normal banking hours.

 

  1.3.7

CIC Cause ” following a Change in Control for purposes of this Plan means, unless otherwise provided in an Grant Agreement, (i) “cause” as defined in any employment agreement, change in control agreement or similar arrangement with the Corporation to which the Participant is a party as of the Date Employment Ceases, or (ii) if there is no such arrangement or if it does not define “cause” or CIC Cause: (A) conviction of, or plea of guilty or nolo contendere (or its equivalent) by, the Participant for committing an indictable offence in Canada or a felony under U.S. federal law or the law of the state in which such action occurred, (B) willful and deliberate failure on the part of the Participant in the performance of his or her employment duties in any material respect that remains uncured thirty (30) days after receipt of written notice from the Corporation specifying in reasonable detail the alleged failure, (C) dishonesty in the course of fulfilling the Participant’s employment duties that results in material harm to the Corporation, or (D) a material violation of the Corporation Policies. For purposes of this Plan, any determination by the Committee as to whether CIC Cause exists shall be subject to de novo review.

 

  1.3.8

Change in Control ” shall be deemed to have occurred for purposes of this Plan if:

 

  (a)

any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing (each, a “Person”), is or becomes the beneficial owner directly or indirectly of 30% or more of either (A) the then-outstanding shares of common stock of the Corporation (the “Outstanding Corporation Common Stock”) or (B) the combined voting power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “Outstanding Corporation Voting Securities”); provided, however, that, for purposes of this Section 1.3.8(a), the following acquisitions of shares or other voting securities of the Corporation shall not constitute a Change in Control: (i) any acquisition directly from the Corporation, (ii) any acquisition made by the Corporation, (iii) any acquisition by any employee plan (or related trust) sponsored or maintained by the Corporation or any of its subsidiaries, or (iv) any acquisition pursuant to a transaction that complies with Sections 1.3.8(b)(1), 1.3.8(b)(2) and 1.3.8(b)(3);

 

  (b)

consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Corporation or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Corporation, or the acquisition of assets or securities of another entity by the Corporation or any of its subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (1) all or substantially all of the individuals and entities that


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 14, 2018 )

 

  Page 3

 

 

were the beneficial owners of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such Business Combination or any employee plan (or related trust) of the Corporation or of such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting from such Business Combination were members of the Incumbent Board (as defined below) at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination;

 

  (c)

individuals who, as of Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to Effective Date whose election, or nomination for election by the Corporation’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person or entity other than the Board; or

 

  (d)

approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation.

For the purposes of this Section 1.3.8:

 

  (a)

the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 14, 2018 )

 

  Page 4

 

  (b)

the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Plan, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining the percentage of beneficial ownership of any Person.

 

   

Notwithstanding the foregoing, with respect to PSUs granted prior to February 14, 2018, any event or transaction that would have constituted a “Change in Control” under the definition of such term in effect immediately prior to the February 14, 2018 amendment of the Plan shall also be deemed to constitute a “Change in Control” for purposes of this Plan, regardless of whether it would constitute a “Change in Control” within the meaning of the definition set forth in this Section 1.3.8.

 

  1.3.9

Change in Control Value ” has the meaning set out in Section 8.5.1(b).

 

  1.3.10

Code ” means the United States Internal Revenue Code , as amended from time to time.

 

  1.3.11

Committee ” means the Human Resources and Compensation Committee of the Board or such other committee of the Board, as constituted from time to time, which may be appointed by the Board to, among other things, interpret, administer and implement the Plan, including any corresponding Grant Agreement. Any reference in this Plan or corresponding Grant Agreement to action by the Committee means action by or under the authority of: (i) the Committee; or (ii) if no such Committee has been designated, or such authority has not been delegated by the Board, the Board.

 

  1.3.12

Committee Meeting Date ” means the date of the meeting of the Committee held to review matters related to the PSUs, including the Committee’s determination of whether and, where applicable, the degree to which the Performance Criteria for a particular Performance Period have been satisfied and constitute Achieved Performance Criteria, which meeting shall occur at least once annually and by no later than June 1 of the year immediately following the applicable Performance Period.

 

  1.3.13

Corporation ” means Encana Corporation and any successor corporation whether by amalgamation, merger or otherwise.

 

  1.3.14

Corporation Policies” means, at a particular time, the applicable policies, plans and practices of the Corporation or an Affiliate, as applicable, which employs the Participant, as published on the Corporation’s or an Affiliate’s, as applicable, internal website or as otherwise communicated to employees of the Corporation or an Affiliate, as applicable from time to time.

 

  1.3.15

Date Employment Ceases ” means:


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 14, 2018 )

 

  Page 5

 

  (i)

in the case of voluntary Termination of Employment initiated by the Participant, the last date the Participant is, for the purposes of receiving his regular salary, on the payroll of the Corporation or an Affiliate;

 

  (ii)

in the case of involuntary Termination of Employment by the Corporation or an Affiliate for cause (as determined by the Corporation or the Affiliate, as applicable), the date written notification of dismissal from employment is delivered to the Participant;

 

  (iii)

in the case of involuntary Termination of Employment by the Corporation or an Affiliate other than for cause (as determined by the Corporation or the Affiliate, as applicable), the date identified in the written notification of Termination of Employment delivered to the Participant as the “Termination Date” or “Departure Date” and, where both dates are so referred to, the earlier thereof, and, where such date is not identified in the written notification, the date written notification of dismissal from employment is delivered to the Participant;

 

  (iv)

in the case where the Participant is employed by an Affiliate and for any reason including, without limitation, by reason of the sale, disposition or other divestiture thereof, in whole or in part, such employer ceases to be an Affiliate of the Corporation, the effective date (in the case of a sale, disposition or other divestiture, the closing date of such transaction or series of transactions, as determined by the Corporation) upon which the Participant’s employer ceases to be an Affiliate;

 

   

but, for greater certainty, shall not include the date the Participant ceases to be an employee of the Corporation or an Affiliate upon the Participant’s death or Retirement, or the date the Participant commences a Period of Absence or an Unpaid Leave of Absence in accordance with the provisions hereof.

 

  1.3.16

Date of Retirement ” means the last day the Participant is, for the purposes of receiving his regular salary, on the payroll of the Corporation or an Affiliate immediately prior to the date the Participant commences Retirement.

 

  1.3.17

Disability ” means the Participant’s physical or mental incapacity that prevents the Participant from substantially fulfilling his duties and responsibilities on behalf of the Corporation or an Affiliate, and in respect of which the Participant commences receiving disability benefits under the Corporation’s or an Affiliate’s short-term or long-term disability plan, as applicable, in respect of such incapacity.

 

  1.3.18

Dividend Equivalent PSU ” has the meaning set out in Section 5.2.

 

  1.3.19

Eligible PSUs ” means, in respect of a grant of PSUs under this Plan,


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 14, 2018 )

 

  Page 6

 

 

those PSUs that are determined by the Committee as being eligible to vest on the Vesting Date pursuant to Sections 7 and 8, based upon the Corporation’s achievement of the Performance Criteria in respect of a particular Performance Period, as set out in the applicable, Grant Agreement.

 

  1.3.20

Eligible PSU Amount ” means, where applicable, the notional value of the Eligible PSUs (including any related Dividend Equivalent PSUs), as determined by the Committee, credited by the Corporation to the Participant’s PSU Account in respect of a particular Performance Period in accordance with Section 7, which amount shall be used to determine the value of any Vested PSUs relating to such Performance Period which may vest and become payable to the Participant on the Vesting Date in accordance with Section 8.

 

  1.3.21

Family Leave ” means, a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on family leave, and does not provide employment services to the Corporation or an Affiliate.

 

  1.3.22

Good Reason ” means (i) “Good Reason” as defined in any employment agreement, change in control agreement or similar arrangement with the Corporation or an Affiliate to which the Participant is a party as of the Date Employment Ceases, or (ii) if there is no such arrangement or if it does not define Good Reason, and the Participant holds the title of “Vice-President” or above as of immediately prior to the Change in Control, the occurrence of any of the following on or after the Change in Control, unless the Participant shall have given express written consent thereto: (A) a material diminution in the scope of the Participant’s duties or responsibilities from those in effect immediately prior to the Change in Control, provided that any change in the Participant’s duties or responsibilities resulting solely from the fact that the Corporation is no longer publicly traded, or no longer the ultimate parent company of its affiliated group, due to the Change in Control shall not be deemed to be a material diminution in the scope of the Participant’s duties or responsibilities; (B) a reduction in the Participant’s annual base salary as in effect immediately prior to the Change in Control; (C) a material reduction in the Participant’s short-term or long-term incentive compensation opportunity (measured based on grant date fair value of any equity-based awards) in effect immediately prior to the Change in Control; (D) the failure by the Corporation or an Affiliate to pay the Participant (1) any portion of the Participant’s then current compensation, except pursuant to an across-the-board compensation deferral similarly affecting other such Vice-Presidents and required by applicable law, or (2) any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation or an Affiliate; or (E) a requirement that the Participant be based more than 50 miles from where the Participant is based immediately prior to the Change in Control, except for: (1) required travel on the Corporation’s or Affiliate’s business to an extent substantially consistent with the Participant’s business travel obligations in the ordinary course of business immediately prior to the


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 14, 2018 )

 

  Page 7

 

 

Change in Control; or (2) if the Participant has been relocated or repatriated by the Corporation or an Affiliate prior to the Change in Control, such relocation as may be required by applicable law or performed in accordance with an agreement (whether written or unwritten) entered into between the Corporation (or an Affiliate) and the Participant prior to the Change in Control; provided, that, a Participant may only resign for Good Reason under this clause (ii) if the Participant has provided written notice to the Corporation and, if the Participant is employed by an Affiliate, such Affiliate, of the event or circumstance alleged to constitute Good Reason within ninety (90) days following the initial existence thereof, the Corporation or Affiliate, as applicable, has failed to cure such event or circumstance within thirty (30) days after receipt of such notice, and the Participant resigns within thirty (30) days after the expiration of such cure period. If the Participant is not covered by clause (i) or (ii) above, then Good Reason shall not be applicable to such Participant.

 

  1.3.23

Grant Agreement ” means an agreement between the Corporation and the Participant under which a PSU is granted, as contemplated by Section 4.1, together with such schedules, amendments, deletions or changes thereto as are permitted under the Plan, subject to the terms and conditions of such Grant Agreement and the Plan.

 

  1.3.24

Grant Date ” means the effective date of a grant of PSUs to a Participant by the Corporation or an Affiliate, as applicable, as stated in the Participant’s applicable Grant Agreement. Where the Corporation determines to grant any PSUs on a date which is within a Blackout Period or where, for any reason: (i) the grant of PSUs falls on a day that is within a Blackout Period; or (ii) the Market Value of the grant of PSUs would be calculated using a Trading Day that is within a Blackout Period, then the Grant Date of any such PSUs shall automatically occur and be effective on the sixth Trading Day immediately following the end of such Blackout Period to permit the Market Value of such PSUs to be determined based on Trading Days which occur immediately following the end of any such Blackout Period.

 

  1.3.25

Market Value ” means, with respect to any particular date, the volume-weighted average (rounded to two decimal places) of the trading price per Share on the applicable Stock Exchange during the immediately preceding five (5) Trading Day period prior to that particular date.

 

  1.3.26

Maximum Performance Criteria ” means, in respect of each PSU grant under this Plan, the maximum Performance Criteria applicable to a Performance Period, as determined by the Committee, and as set forth in the applicable Grant Agreement.

 

  1.3.27

Median Performance Criteria means, in respect of each PSU grant under this Plan, the median Performance Criteria applicable to a Performance Period, as determined by the Committee, and as set forth in the applicable Grant Agreement.


Performance Share Unit Plan for Employees

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(With amendments as of February 14, 2018 )

 

  Page 8

 

  1.3.28

Military Leave ” means a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on a military leave, and does not provide employment services to the Corporation or an Affiliate.

 

  1.3.29

Minimum Performance Criteria ” means, in respect of each PSU grant under this Plan, the minimum Performance Criteria applicable to a Performance Period, as determined by the Committee, and as set forth in the applicable Grant Agreement.

 

  1.3.30

Paid Leave of Absence ” means in respect of a Participant, a period of time during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on an approved leave of absence and continues to receive his salary from, but does not provide employment services to, the Corporation or an Affiliate.

 

  1.3.31

Participant ” means such employee of the Corporation or an Affiliate as the Committee may designate from time to time as eligible to participate in the Plan.

 

  1.3.32

Performance Criteria ” means, in respect of a PSU, the performance criteria as determined by the Committee as being applicable to a grant of a PSU under the Plan, and as set forth in the applicable Grant Agreement.

 

  1.3.33

Performance Period ” means, in respect of a grant of a PSU, the particular designated period of time in respect of which the Performance Criteria is assessed and may be determined by the Committee to be satisfied in order for such PSU to become an Eligible PSU pursuant to Section 7 and a Vested PSU pursuant to Section 8, and as set forth in the applicable Grant Agreement.

 

  1.3.34

Period of Absence ” means, with respect to a Participant, a period of time throughout which the Participant is on a Family Leave, Military Leave, Paid Leave of Absence, an unpaid leave of absence of 31 days or less approved by the Corporation or Affiliate, as applicable, or is experiencing a Disability, but does not include a period of time throughout which the Participant is on an Unpaid Leave of Absence.

 

  1.3.35

Plan ” means this amended and restated Performance Share Unit Plan for Employees of Encana Corporation, including any schedules or appendices hereto, as amended from time to time.

 

  1.3.36

PSU ” means a performance share unit granted to a Participant under the Plan that is represented by a bookkeeping entry on the books of the Corporation or an Affiliate, the value of which shall be determined in accordance with the Plan and the applicable Grant Agreement.

 

  1.3.37

PSU Account ” has the meaning set out in Section 5.1.

 

  1.3.38

Retirement ” means the early or normal retirement of the Participant from


Performance Share Unit Plan for Employees

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(With amendments as of February 14, 2018 )

 

  Page 9

 

 

employment with the Corporation or an Affiliate, as applicable, in accordance with the Corporation Policies.

 

  1.3.39

Section  409A Amount ” means any cash or Shares provided or to be provided pursuant to the Plan or a Grant Agreement that: (a) are provided or are to be provided to a U.S. Participant; and (b) constitute a deferral of compensation subject to section 409A of the Code.

 

  1.3.40

Share ” means a common share in the capital of the Corporation and such other share as may be substituted for it as a result of amendments to the articles of the Corporation, arrangement, re-organization or otherwise, including any rights that form a part of the common share or substituted share.

 

  1.3.41

Specified Period ” means (i) for a Participant who is an executive officer of the Corporation as of immediately prior to the Change in Control, 24 months, (ii) for a Participant who is not an executive officer of the Corporation and holds the title of “Vice-President” or above as of immediately prior to the Change in Control, 18 months, and (iii) for any Participant not covered by clauses (i) and (ii), 12 months, in each case, inclusive of the date on which the Change in Control occurs, or, in each case, such longer period specified in the Grant Agreement or as provided for in any employment agreement, change in control agreement or similar arrangement with the Corporation or an Affiliate to which the Participant is a party as of the Date Employment Ceases.

 

  1.3.42

Stock Exchange ” means, in respect of a PSU, the Toronto Stock Exchange or the New York Stock Exchange as specified in the Participant’s respective Grant Agreement relating to such PSU or, if the Shares are not listed on the Toronto Stock Exchange or the New York Stock Exchange, as applicable, such other stock exchange on which the Shares are listed, or if the Shares are not listed on any stock exchange, then on the over-the-counter market.

 

  1.3.43

Stock Exchange Rules ” means, in respect of a PSU, the applicable rules of the particular Stock Exchange pertaining to such PSU, as specified in the Participant’s Grant Agreement, upon which the Shares are listed.

 

  1.3.44

Termination of Employment ” means an event by which the Participant ceases to be an employee of the Corporation or an Affiliate, as applicable, but, for greater certainty, shall not include an event whereby the Participant ceases to be an employee of the Corporation or an Affiliate, as applicable, upon the Participant’s death or Retirement or where the Participant commences a Period of Absence or an Unpaid Leave of Absence in accordance with the provisions hereof.

 

  1.3.45

Trading Day ” means any date on which the applicable Stock Exchange is open for the trading of Shares and on which Shares are actually traded.

 

  1.3.46

Trust Fund ” means one or more trust funds, as specified by the


Performance Share Unit Plan for Employees

of Encana Corporation

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Committee, as may be established by the Corporation or an Affiliate, as applicable, for the purpose of funding awards of PSUs granted to Participants pursuant to the Plan.

 

  1.3.47

Trustee ” means such person or persons who is or are independent from and not affiliated with the Corporation or an Affiliate as may from time to time be appointed by the Corporation as trustee of the Trust Fund(s).

 

  1.3.48

Unpaid Leave of Absence ” means in respect of a Participant, a period of time during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered by the Corporation or an Affiliate, as applicable, to be on an approved leave of absence and does not continue to receive his salary from, or provide employment services to, the Corporation or an Affiliate, as applicable, which, for the purposes of the Plan, shall be deemed to commence on the 32 nd day following the day on which the Participant commences such approved, unpaid leave, as communicated in writing to the Participant by the Corporation or an Affiliate, as applicable, in accordance with the Corporation Policies or Applicable Law.

 

  1.3.49

U.S. Participant ” means a Participant who is a citizen or permanent resident of the United States for purposes of the Code or a Participant for whom compensation subject to deferral under this Plan would otherwise be subject to United States federal income taxation under the Code.

 

  1.3.50

Vested PSUs ” has the meaning set out in Section 8.1.

 

  1.3.51

Vesting Date ” means, in respect of a grant of PSUs, the date specified in the Participant’s applicable Grant Agreement upon which the Participant’s Eligible PSUs shall vest and become payable in accordance with Section 8, subject to the terms and conditions of the Plan and the applicable Grant Agreement.

 

2.

CONSTRUCTION AND INTERPRETATION

 

  2.1

Gender, Singular, Plural . In the Plan, references to the masculine include the feminine; and references to the singular shall include the plural and vice versa, as the context shall require.

 

  2.2

Governing Law . The Plan shall be governed and interpreted in accordance with the laws of the Province of Alberta and any actions, proceedings or claims pertaining in any manner or respect to the Plan, including without limitation, an applicable Grant Agreement or a PSU grant in respect thereof, shall be commenced in the courts of the Province of Alberta.

 

  2.3

Severability . If any provision or part of the Plan is determined to be void or unenforceable in whole or in part, such determination shall not affect the validity or enforcement of any other provision or part thereof.


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  2.4

Headings, Sections . Headings wherever used herein are for reference purposes only and do not limit or extend the meaning of the provisions herein contained. A reference to a section or schedule shall, except where expressly stated otherwise, mean a section or schedule of the Plan, as applicable.

 

3.

EFFECTIVE DATE AND EMPLOYMENT RIGHTS

 

  3.1

Effective Date . The Corporation is amending and restating the Plan effective January 1, 2010.

 

  3.2

No Employment Rights . Nothing contained in the Plan shall be deemed to give any person the right to be retained as an employee or an officer of the Corporation or of an Affiliate. For greater certainty, a period of notice, if any, (whether pursuant to statute or common law) or payment in lieu thereof, arising upon or attributed to a Termination of Employment, whether wrongful or otherwise, shall not be considered as extending the period of employment or the active service of a Participant with the Corporation or an Affiliate beyond the Date Employment Ceases.

 

4.

PSU GRANTS AND PERFORMANCE PERIODS

 

  4.1

Annual Grant of PSUs. Each Participant may receive in respect of a calendar year, a grant of PSUs in such number and subject to such Performance Criteria, Performance Period(s) and other terms and conditions as the Committee may specify. Each PSU grant to a Participant shall be governed by and subject to the terms and conditions of this Plan and the applicable Grant Agreement.

 

  4.2

Grant Agreement. Each PSU grant and each Participant’s participation in the Plan shall be evidenced by a Grant Agreement between the Corporation and the Participant in the form approved by the Committee. The Grant Agreement shall specify, at the time PSUs are granted to the Participant, the applicable Performance Criteria, the basis upon which such PSUs will become Eligible PSUs and valued, whether such PSUs (and Dividend Equivalent PSUs relating thereto) are, upon becoming Vested PSUs pursuant to Section 8, to be payable to the Participant on the Vesting Date in Canadian currency or United States currency, and the applicable Stock Exchange to be used to determine the Market Value of such PSUs, any other Share price or other methodology used to determine the value of such PSUs, and the applicable Vesting Date.

 

  4.3

PSUs . Subject to the terms and conditions of the Plan, and the applicable Grant Agreement, each PSU will give a Participant the right to receive a payment in cash or in Shares, as determined by the Committee, in an amount and on such date or dates, including the Vesting Date, as may be determined in accordance with the terms of the Plan and the applicable Grant Agreement. For greater certainty, a Participant shall have no right to receive a cash payment or Shares with respect to any PSUs that do not become both Eligible PSUs pursuant to Section 7 and Vested PSUs pursuant to Section 8, as applicable. Further, unless otherwise expressly authorized by this Plan (including, without limitation, Section 8) or the applicable Grant Agreement, a Participant shall have no right to receive


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a cash payment or Shares if the Participant is not actively employed by the Corporation or an Affiliate, as applicable, on the Vesting Date.

 

  4.4

Performance Period . The Committee shall specify the Performance Period or Performance Periods applicable to each PSU grant under Section 4.1, the first day of which, unless otherwise provided in a Grant Agreement, shall commence with the calendar year in which the Grant Date occurs.

 

  4.5

Other Terms and Conditions . Subject to the terms of the Plan, the Committee or the Board may determine other terms or conditions of, or take actions relating to, any PSUs, or any grant thereof, including:

 

  (a)

any additional conditions with respect to the vesting of PSUs, in whole or in part, or the payment of cash or provision of Shares under the Plan;

 

  (b)

restrictions on the resale of Shares, including escrow arrangements;

 

  (c)

exercising such discretion as may be set out in the Plan or a particular Grant Agreement; and

 

  (d)

any other terms and conditions the Committee may, in its discretion, determine,

 

   

which other terms or conditions shall be set out in the Grant Agreement.

 

   

Except as otherwise provided in Section 11.8, the Committee may, in its discretion, after the Grant Date of a PSU, waive any term or condition in respect of such PSU or determine that it has been satisfied.

 

  4.6

Payment Date. For greater certainty, and notwithstanding any other provision of the Plan or an applicable Grant Agreement, no term or condition imposed under this Plan or a Grant Agreement may have the effect of causing payment of the value of a PSU to a Participant, or his legal representative, to occur after December 31 of the third calendar year following the calendar year in which the Grant Date occurs.

 

  4.7

No Certificates . No share or other certificates shall be issued with respect to PSUs.

 

5.

ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION

 

  5.1

PSU Account . An account, called a “PSU Account”, shall be maintained by the Corporation for each Participant and will be credited with such notional grants of PSUs as may be received by a Participant from time to time pursuant to Sections 4.1 and 5.2 and, where applicable, with the Eligible PSU Amount relating to a particular Performance Period as may be determined pursuant to Section 7. For clarity, unless otherwise expressly authorized by this Plan (including, without limitation, Section 8) or the applicable Grant Agreement, the Participant shall have no entitlement or right to any PSUs granted, credited to or recorded in the Participant’s PSU Account, or to any Eligible PSU Amount credited to or


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recorded in such PSU Account, whether expressed in PSUs or dollar value form, prior to the Vesting Date if the Participant is not actively employed by the Corporation or an Affiliate, as applicable, on the Vesting Date.

 

  5.2

Dividend Equivalent PSUs . In the event cash dividends are paid by the Corporation on the Shares, additional PSUs shall be credited to the Participant’s PSU Account in accordance with this Section 5.2 (“Dividend Equivalent PSUs”). The number of such Dividend Equivalent PSUs (including fractional PSUs) and the date upon which such Dividend Equivalent PSUs are credited to the Participant’s PSU Account shall be determined by the Corporation in accordance with the applicable Grant Agreement. Except where provided otherwise in a Grant Agreement, Dividend Equivalent PSUs shall vest and be paid to the Participant at the same time as the Eligible PSUs to which they relate.

 

  5.3

Adjustments . In the event of any stock dividend, stock split, combination or exchange of shares, capital reorganization, consolidation, spin-off or other distribution (other than normal cash dividends) of Corporation assets to shareholders, or any other similar changes affecting the Shares, proportionate adjustments to reflect such change or changes may be made with respect to the number of PSUs outstanding under the Plan, or securities into which the Shares are changed or are convertible or exchangeable may be substituted for Shares under this Plan, on a basis proportionate to the number of PSUs in the Participant’s PSU Account on some other appropriate basis, all as determined by the Board in its discretion.

 

6.

OPTIONAL FUNDING OF PSU AWARDS

 

  6.1

Contributions to Trust Fund . Except as otherwise provided in Section 11.8, the Corporation may, in its sole discretion, from time to time, on its own behalf and on behalf of such of its Affiliates as employ Participants, or any Affiliate may, make contributions to a Trust Fund in such amounts and at such times as may be specified by the Committee or the Board for the purpose of funding, in whole or in part, awards of PSUs which become payable to Participants pursuant to the Plan. For clarity, this Section 6 does not obligate the Corporation or any Affiliate to create a Trust Fund, nor to make contributions to a Trust Fund in any amounts or at all nor does it require the funding in whole or in part of any award of PSUs granted under this Plan.

 

  6.2

Share Purchases . Where applicable, any purchases of Shares by the Trustee or otherwise pursuant to the Plan shall be made on the open market by a broker designated by the Trustee who is independent of the Corporation in accordance with Stock Exchange Rules and who is a member of the Stock Exchange. Subject to the foregoing part of this Section 6.2, any such designation may be changed from time to time. For clarity, this Section 6 does not obligate the Corporation or any Affiliate to purchase shares for the purposes of funding or settling, in whole or in part, awards of PSUs which may become payable to Participants pursuant to the Plan.


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7.

ELIGIBLE PSU s AND PERFORMANCE CRITERIA

 

  7.1

Eligible PSUs . PSUs granted to a Participant under Section 4.1 (and Dividend Equivalent PSUs granted to the Participant in respect of such PSUs) shall become “Eligible PSUs” in accordance with Section 7.2 and subject to the terms and conditions of the Plan and applicable Grant Agreement. PSUs granted to a Participant which do not become Eligible PSUs in accordance with this Section 7 or do not become Vested PSUs pursuant to Section 8, as applicable, shall be forfeited by the Participant or, where applicable, the Participant’s legal representative, and the Participant and, where applicable, the Participant’s legal representative, shall have no further right, title or interest in such PSUs. In such event, the Participant hereby waives any and all claims and/or rights to compensation or damages in consequence of the Termination of Employment (whether lawfully or unlawfully) or otherwise for any reason whatsoever insofar as these rights arise or may arise from the Participant ceasing to have rights to receive any cash payment or Shares in respect of PSUs granted under the Plan or any applicable Grant Agreement pursuant to this Section 7 or Section 8.

 

  7.2

Eligibility Based on Achievement of Performance Criteria. PSUs granted to a Participant may only become Eligible PSUs upon satisfaction of the Performance Criteria referred to in Section 7.3, as determined by the Committee, in its discretion, and pursuant to the terms and conditions set forth in the Plan and the applicable Grant Agreement.

 

  7.3

Determination of Performance Criteria . With respect to each grant of PSUs pursuant to Section 4.1, the Committee shall cause to be determined at the Committee Meeting Date applicable to a particular Performance Period, the Achieved Performance Criteria in respect of that Performance Period, as set out in the applicable Grant Agreement, for purposes of determining whether, and the extent to which (as applicable), such PSUs have become Eligible PSUs.

 

  7.4

Eligible PSU Amount. With respect to the Eligible PSUs relating to a particular Performance Period, the Committee shall also cause to be determined at the applicable Committee Meeting Date, the Eligible PSU Amount relating to such Eligible PSUs, which amount shall be used to determine the value relating to such Eligible PSUs on the Vesting Date, subject to and in accordance with the terms and conditions of the Plan and the applicable Grant Agreement. The Committee may, in its discretion, determine whether to adjust the Eligible PSU Amount, and where such an adjustment is to be made, the adjustment mechanism in respect thereof.

 

8.

VESTING AND PAYMENT OF PSU AWARDS

 

  8.1

Vesting of Eligible PSUs. Subject to Sections 8.3, 8.4 and 8.5, Eligible PSUs relating to a grant of PSUs shall become Vested PSUs on the Vesting Date set forth in the applicable Grant Agreement. Except where the context requires otherwise, each Eligible PSU which vests pursuant to Section 8 shall be referred to for the purposes of the Plan and the applicable Grant Agreement as a “Vested PSU”. Eligible PSUs which do not become Vested PSUs in accordance with this Section 8 shall be forfeited by the Participant and the Participant will have no


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further right, title or interest in such PSUs. In such event, the Participant hereby waives any and all claims and/or rights to compensation or damages in consequence of the Participant’s Termination of Employment (whether lawfully or unlawfully, wrongful or otherwise) or otherwise for any reason insofar as these rights arise or may arise from the Participant ceasing to have rights to receive any cash payment or Shares in respect of PSUs granted under the Plan or any applicable Grant Agreement pursuant to this Section 8.

 

  8.2

Payment in Cash or Shares. Subject to Sections 8.3, 8.4 and 8.5, each Participant shall be entitled to receive in cash or in Shares (or a combination thereof), as determined by the Committee, a payment in respect of the Vested PSUs relating to a particular Performance Period, as determined pursuant to Section 8.1, equal to the Participant’s Eligible PSU Amount in respect of such Performance Period (as may be adjusted pursuant to Section 7.4). Except as otherwise provided in Sections 8.3, 8.4, 8.5 and 11.8 and/or the applicable Grant Agreement(s), the cash or Shares in the amount determined pursuant to this Section 8.2 shall be paid or distributed to the Participant or their legal representative, as applicable, as soon as practicable following the Vesting Date set forth in the applicable Grant Agreement(s) and, in any event, prior to December 31 of the calendar year in which the applicable Vesting Date occurs, provided the Participant remains actively employed with the Corporation or an Affiliate, as applicable, on such date. Notwithstanding the foregoing or any other provision of the Plan, in respect of Vested PSUs, the Committee shall not settle in Shares any Vested PSUs for PSUs originally granted to the Participant after May 2, 2017 unless all approvals of such PSUs and/or the issuance of Shares in settlement of such PSUs, by shareholders or otherwise, as are required under Applicable Laws, are received prior to the applicable Vesting Date.

 

  8.3

Death, Retirement, Period of Absence or Unpaid Leave of Absence.

 

  8.3.1

Death. Unless otherwise determined by the Committee, in the event the Participant ceases to be an employee of the Corporation or an Affiliate, as applicable, by reason of the Participant’s death, the following shall apply:

 

  (a)

Where the Participant’s date of death occurs on a date that is prior to the date the Participant attains the age of 60 years, then:

 

  (i)

All Vested PSUs credited to the Participant’s PSU Account as of the Participant’s date of death, if any, if not already paid or distributed, shall be paid or distributed to the Participant’s legal representative in accordance with Section 8.2; and

 

  (ii)

Unless otherwise determined by the Committee, in the event of the Participant’s death prior to the Vesting Date relating to a grant of PSUs, PSUs granted to the Participant prior the Participant’s date of death which become Eligible PSUs pursuant to Section 7.2 shall vest and become payable to the Participant’s legal representative on the applicable Vesting Date in accordance with Section 8.2 in proportion to the number of calendar months (rounded up to the nearest whole month) following the applicable Grant Date before the date of death.


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  (b)

Where the Participant’s date of death occurs on a date following the date that the Participant attains the age of 60 years, then:

 

  (i)

All Vested PSUs credited to the Participant’s PSU Account as of the Participant’s date of death, if any, if not already paid or distributed, shall be paid or distributed to the Participant’s legal representative in accordance with Section 8.2;

 

  (ii)

Unless otherwise determined by the Committee, PSUs granted to the Participant prior to the Participant’s date of death which become Eligible PSUs pursuant to Section 7.2 shall vest and become payable to the Participant’s legal representative on the applicable Vesting Date in accordance with Section 8.2.

 

  (c)

For clarity, no additional PSUs (whether pursuant to Section 4.1 or in the form of Dividend Equivalent PSUs) shall be granted to the Participant following the Participant’s date of death.

 

  8.3.2

Retirement. Unless otherwise determined by the Committee, in the event the Participant ceases to be an employee of the Corporation or an Affiliate by reason of the Participant’s Retirement, the following shall apply:

 

  (a)

Where the Participant’s Date of Retirement occurs on a date that is prior to the date the Participant attains the age of 60 years, then:

 

  (i)

All Vested PSUs credited to the Participant’s PSU Account as of the Participant’s Date of Retirement, if any, if not already paid or distributed, shall be paid or distributed to the Participant in accordance with Section 8.2; and

 

  (ii)

Unless otherwise determined by the Committee, in the event of the Participant’s Retirement prior to the Vesting Date relating to a grant of PSUs under Section 4.1, PSUs granted to the Participant prior the Participant’s Date of Retirement which become Eligible PSUs pursuant to Section 7.2 shall vest and become payable to the Participant on the applicable Vesting Date in accordance with Section 8.2 in proportion to the number of calendar months (rounded up to the nearest whole month) following the applicable Grant Date before the Date of Retirement.

 

  (b)

Where the Participant’s Date of Retirement occurs on a date that is on or after the date the Participant attains the age of 60 years, then:

 

  (i)

All Vested PSUs credited to the Participant’s PSU Account as of the Participant’s Date of Retirement, if any, if not already paid or distributed, shall be paid or distributed to the Participant in accordance with Section 8.2;

 

  (ii)

Unless otherwise determined by the Committee, PSUs granted to the Participant prior to the Participant’s Date of Retirement which


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become Eligible PSUs pursuant to Section 7.2 shall vest and become payable to the Participant on the applicable Vesting Date in accordance with Section 8.2.

 

  (c)

For clarity, no additional PSUs (whether pursuant to Section 4.1 or in the form of Dividend Equivalent PSUs) shall be granted to the Participant following his Date of Retirement.

 

  8.3.3

Period of Absence. Unless otherwise determined by the Committee, in the event of a Participant’s Period of Absence, PSUs credited to the Participant’s PSU Account immediately prior to such Period of Absence (and any related Dividend Equivalent PSUs) shall continue to be and become Eligible PSUs in accordance with the provisions of Section 7.2 and such Eligible PSUs (if any) shall continue to become Vested PSUs in accordance with Section 8.1 and the Participant shall be entitled to receive a payment relating to such Vested PSUs determined in accordance with Section 8.2 in respect of each Performance Period that ends during the period of such Period of Absence and thereafter, unless there occurs a Termination of Employment during a Performance Period, in which case the provisions of Section 8.4 shall apply, or unless the Participant’s death occurs during a Performance Period, in which case the provisions of Section 8.3.1 shall apply, or unless there occurs a Retirement of the Participant during a Performance Period, in which case the provisions of Section 8.3.2 apply.

 

  8.3.4

Unpaid Leave of Absence. Unless otherwise determined by the Committee, in the event of a Participant’s Unpaid Leave of Absence, PSUs shall not become Eligible PSUs nor shall any PSUs become Vested PSUs during the Participant’s Unpaid Leave of Absence and the provisions of this Section 8.3.4 shall be applicable. The Participant shall only become entitled to have his PSUs become Eligible PSUs or, as applicable, his Eligible PSUs to become Vested PSUs on the date when the Participant’s Unpaid Leave of Absence ends and the Participant returns to active employment with the Corporation or an Affiliate. If the Participant does not return to active employment with the Corporation or an Affiliate from the Unpaid Leave of Absence, all unvested PSUs regardless of whether such PSUs are or are not Eligible PSUs shall not vest and shall be forfeited and cancelled and the Participant waives any and all right to compensation or damages in consequence of the Participant ceasing to have rights or be entitled to receive any cash or Shares under the Plan pursuant to this Section 8.3.4. Notwithstanding anything contained herein to the contrary, in no event shall this Section 8.3.4 cause a Section 409A Amount to be paid in a calendar year later than the calendar year such Section 409A Amount would have been paid had the Participant not been on an Unpaid Leave of Absence. For greater certainty, and notwithstanding any other provision in the Plan or a Grant Agreement, in no event shall this Section 8.3.4 cause a Section 409A Amount to be paid in a calendar year later than the calendar year such Section 409A Amount would have been paid had the Participant not been on an Unpaid Leave of Absence and instead such Section 409A Amount shall either be forfeited or paid on or before December 31 of the


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calendar year in which such amount would have been paid had the Participant not been on an Unpaid Leave of Absence, as determined by the Committee.

 

  8.4

Termination of Employment . Unless otherwise determined by the Committee, a Participant shall not be entitled to any further grant or vesting of PSUs nor shall any PSUs become Eligible PSUs and the Participant shall not be entitled to any cash, Shares or other payment (including without limitation any Eligible PSU Amount) in respect of any unvested PSUs following a Termination of Employment. Except as otherwise provided in Section 8.5.2, PSUs (including any related Dividend Equivalent PSUs) which do not become Eligible PSUs or which do not vest in accordance with Section 8 prior to the Date Employment Ceases shall be cancelled without payment. The Participant waives any and all right to compensation or damages which may arise or may be deemed to arise in consequence of the Participant’s Termination of Employment (whether lawfully or unlawfully) or otherwise for any reason whatsoever insofar as those rights arise or may arise from the Participant ceasing to have rights or be entitled to receive any cash, Shares or other payment under the Plan pursuant to this Section 8.4. Any Vested PSUs credited to a Participant’s PSU Account as of the Date Employment Ceases shall be payable in accordance with Section 8.2.

 

  8.5

Change in Control .

 

  8.5.1

PSUs granted prior to February  14, 2018. With respect to PSUs granted to the Participant prior to February 14, 2018, notwithstanding any other provision of the Plan, unless otherwise specified by the Board or the Committee with respect to any portion of a PSU that does not constitute a Section 409A Amount, in the event of a Change in Control:

 

  (a)

all Eligible PSUs credited to the Participant’s PSU Account immediately prior to such Change in Control shall become Vested PSUs immediately prior to the time of such Change in Control; and all PSUs credited to the Participant’s PSU Account that are not Eligible PSUs immediately prior to the time of such Change in Control shall become Eligible PSUs determined as if the Median Performance Criteria in respect of each applicable Performance Period have been achieved, and shall become Vested PSUs immediately prior to the time of such Change in Control;

 

  (b)

as soon as practicable, and in any event within 30 days, following a Change in Control, (i) to the extent a Participant’s Vested PSUs are expressed in dollar value form in the PSU Account (including, without limitation, as a dollar value Eligible PSU Amount), the Participant shall receive a cash payment equal to such dollar value; and (ii) to the extent a Participant’s PSUs are expressed in PSU form in the PSU Account, the Participant shall receive in cash or in Shares (or a combination thereof), as may be determined by the Board or the Committee, a payment equal to the number of Vested PSUs (including as determined pursuant to Section 8.5.1(a)) credited to the Participant’s PSU Account at the time of the Change in Control (rounded up to the nearest whole number of Vested PSUs) multiplied by the price at which the Shares are valued for the purpose of the transaction or series of transactions giving rise to the


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Change in Control, or if there is no such transaction or transactions, the simple average of the closing price per Share on the applicable Stock Exchange on each day in the thirty day period ending on the date of the Change in Control (as applicable, the “ Change in Control Value ”); and

 

  (c)

with respect to any Section 409A Amount (i) if the Change in Control constitutes a change in the ownership or effective control of a corporation, or a change in the ownership of a substantial portion of the assets of a corporation, as such terms are used in Section 409A of the Code and related regulations (a “ 409A Change of Control ”), such Section 409A Amount shall be paid in accordance with Section 8.5.1(b), and (ii) if the Change in Control does not constitute a 409A Change of Control, such Section 409A Amount shall in all events be paid during the calendar year or years in which such amount would have been paid had there been no Change in Control.

 

  8.5.2

PSUs granted on or after February  14, 2018. The provisions of this Section 8.5.2 shall apply to PSUs granted to the Participant on or after February 14, 2018, notwithstanding any other provision of the Plan.

 

  (a)

In the event of a Change in Control, all Eligible PSUs credited to the Participant’s PSU Account immediately prior to such Change in Control shall become Vested PSUs immediately prior to the time of such Change in Control, and each PSU credited to the Participant’s PSU Account that are not Eligible PSUs immediately prior to the time of such Change in Control shall become Eligible PSUs with the Achieved Performance Criteria in respect of the applicable Performance Period deemed to be the greater of (x) the Median Performance Criteria and (y) the level of achievement of the Performance Criteria applicable to the Performance Period as determined by the Committee no later than the date of the Change in Control, taking in account performance through the latest date preceding the Change in Control as to which performance can, as a practical matter, be determined (but no later than the end of the Performance Period), and shall become Vested PSUs immediately prior to the time of such Change in Control, except to the extent that an award of PSUs meeting the requirements set out below in this Section 8.5.2(a) (such award, a “ Replacement Award ”) is provided to the Participant to replace such award of PSUs (each award of PSUs intended to be replaced by a Replacement Award, a “ Replaced Award ”) effective on or immediately after the time of such Change in Control. An award of PSUs shall meet the requirements of this Section 8.5.2(a) (and hence qualify as a Replacement Award) if (A) it has a value equal to the value of the Replaced Award as of the date of the Change in Control determined with reference to the Change in Control Value of the PSUs comprising the Replaced Award and the fair market value of the securities underlying the Replacement Award, (B) it relates to publicly traded equity securities of the Corporation, the entity surviving the Corporation following the Change in Control or the parent company of such surviving entity, (C) it contains terms relating to vesting that are substantially identical to those of the Replaced Award (except that for any Replaced Award that is performance-based, the Replacement Award shall be subject solely to time-based vesting for the remainder of the applicable Performance


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Period (or such shorter period as determined by the Committee) and the Achieved Performance Criteria in respect of the applicable Performance Period shall be deemed to be the greater of (x) the Median Performance Criteria and (y) the level of achievement of the Performance Criteria applicable to a Performance Period as determined by the Committee no later than the date of the Change in Control, taking in account performance through the latest date preceding the Change in Control as to which performance can, as a practical matter, be determined (but no later than the end of the Performance Period)), and (D) its other terms and conditions are not less favorable to the Participant than the terms and conditions of the Replaced Award (including the provisions that would apply in the event of a subsequent Change in Control) as of the date of the Change in Control. Without limiting the generality of the foregoing, a Replacement Award may take the form of a continuation of the applicable Replaced Award if the requirements of the preceding sentence are satisfied. If a Replacement Award is granted, the Replaced Award shall not immediately vest upon the Change in Control giving rise to the replacement. The determination whether the conditions of this Section 8.5.2(a) are satisfied shall be made by the Committee, as constituted immediately before the Change in Control, in its sole discretion. All PSUs that become Vested PSUs pursuant to this Section 8.5.2(a) shall be paid in accordance with Sections 8.5.1(b) or 8.5.1(c), as applicable.

 

  (b)

Notwithstanding any other provision of this Plan to the contrary, upon the Participant’s Termination of Employment by the Corporation or an Affiliate, as applicable, without CIC Cause, or by the Participant for Good Reason, within the Specified Period following a Change in Control, all Replacement Awards held by such Participant shall become Vested PSUs immediately prior to the time of such Termination of Employment, and shall be paid as soon as practicable, and in any event within 30 days, following such Termination of Employment; provided that if the Replacement Award is a Section 409A Amount, and the Change in Control is not a 409A Change in Control, then such Replacement Award shall in all events be paid during the calendar year or years in which it would have been paid had there been no Change in Control. For clarity, in this Section 8.5.2(b), the defined term “Vested PSUs” shall be deemed to apply, mutatis mutandis , to Replacement Awards that are not a continuation of Replaced Awards.

 

9.

CURRENCY

 

  9.1

Currency . Except where expressly provided otherwise, all references in the Plan to currency refer to lawful Canadian currency.

 

10.

SHAREHOLDER RIGHTS

 

  10.1

No Rights to Shares . PSUs are not Shares and neither the grant of PSUs nor the fact that Shares may be acquired by, or provided from, a Trust Fund or otherwise in satisfaction of Vested PSUs will entitle a Participant to any shareholder rights, including, without limitation, voting rights, dividend entitlement or rights on liquidation.


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 14, 2018 )

 

  Page 21

 

11.

ADMINISTRATION

 

  11.1

Committee . Unless otherwise determined by the Board, or as specified in Section 11.6, the Plan shall be administered by the Committee.

 

  11.2

Compliance with Laws and Policies . The Corporation’s issuance of any PSUs and its obligation to make any payments or discretion to provide any Shares hereunder is subject to compliance with Applicable Law. Each Participant shall acknowledge and agree (and shall be conclusively deemed to have so acknowledged and agreed by participating in the Plan) that the Participant will, at all times, act in strict compliance with Applicable Law and all other laws and any policies of the Corporation applicable to the Participant in connection with the Plan including, without limitation, furnishing to the Corporation all information and undertakings as may be required to permit compliance with Applicable Law. Such laws, regulations, rules and policies shall include, without limitation, those governing “insiders” or “reporting issuers” as those terms are construed for the purposes of applicable securities laws, regulations and rules.

 

  11.3

Delegation . The Committee may also delegate to any director, officer or employee of the Corporation such duties and powers relating to the Plan or in respect of an applicable Grant Agreement as it may see fit.

 

  11.4

Withholdings . Notwithstanding any other provision in this Plan, to ensure that the Corporation, an Affiliate or a Trust Fund, as applicable, will be able to comply with the applicable provisions of any federal, provincial, state or local law relating to the withholding of tax or other required deductions, including on the amount, if any, includable in the income of a Participant, the Corporation, or an Affiliate may withhold or cause to be withheld from any amount payable to a Participant, either under this Plan, or otherwise, such amount, or may require the sale of such number of Shares by the Trustee, as may be necessary to permit the Corporation, the Affiliate or a Trust Fund, as applicable, to so comply.

 

  11.5

No Additional Rights . Neither designation of an employee as a Participant nor the grant of any PSUs to any Participant at any time entitles any person to the grant, or any additional grant, as the case may be, of any PSUs under the Plan.

 

  11.6

Amendment, Termination . The Plan may be amended or terminated at any time by the Board in whole or in part. No amendment of the Plan shall, without the consent of the Participants affected by the amendment, or unless required by Applicable Law, adversely affect the rights accrued to such Participants with respect to PSUs granted prior to the date of the amendment. Notwithstanding any provision in the Plan to the contrary, the Plan may be amended to prevent any adverse tax results under Section 409A of the Code.

 

  11.7

Administration Costs . The Corporation will be responsible for all costs relating to the administration of the Plan. For greater certainty and unless otherwise determined by the Committee, a Participant shall be responsible for brokerage fees and other administration or transaction costs relating to the transfer, sale or other disposition of Shares on behalf of the Participant that have been previously distributed to or provided to the Participant pursuant to the Plan.


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 14, 2018 )

 

  Page 22

 

  11.8

Section  409A.

 

  11.8.1

Section  409A Amounts . To the extent applicable to any Section 409A Amount, it is intended that the Plan and any Grant Agreement or other agreement that amends or otherwise affects such Section 409A Amount will comply with Section 409A of the Code and any regulations and guidance issued thereunder, and the Plan and any such Grant Agreement or other agreement shall be interpreted accordingly. The provisions of this Section 11.8 shall apply to any Section 409A Amount notwithstanding anything in the Plan or a Grant Agreement to the contrary. In no event shall a Section 409A Amount be distributed at a time or pursuant to an event that is not specified in Section 409A(a)(2) of the Code.

 

  11.8.2

Retirement or Termination of Employment . The Plan does not provide for payment to occur upon (or on a specified date or within a specified period following) a Termination of Employment or Retirement; however, to the extent any Grant Agreement or other agreement provides that any Section 409A Amount is to be distributed upon (or on a specified date or within a specified period following) the date of a U.S. Participant’s Termination of Employment or Retirement, such U.S. Participant shall be deemed to have experienced a Termination of Employment or Retirement when (and only when) a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred.

 

  11.8.3

Specified Employees . If a U.S. Participant is a “specified employee” for purposes of Section 409A of the Code, no payment, distribution or other benefit provided pursuant to a Section 409A Amount that is required to be delayed to comply with Section 409A(a)(2)(B)(i) of the Code shall be provided before the date that is six months after the date of such separation from service (or, if earlier than the end of such six-month period, the date of death of the Participant). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first Business Day following the six-month anniversary of the Participant’s separation from service or date of death, as the case may be.

 

  11.8.4

Time of Payment . In no event shall a Participant be entitled to designate the taxable year in which any Section 409A Amount is to be paid. Except with respect to payments following a Change in Control pursuant to Section 8.5.3, Shares or cash to be paid in respect of any Section 409A Amount pursuant to Vested PSUs shall in all events be paid within the calendar year in which the applicable Vesting Date set forth in the applicable Grant Agreement(s) occurs, which for purposes of Section 409A Amounts shall always be defined as occurring within a single calendar year. Payments with respect to Dividend Equivalent PSUs shall be paid at the same time as the PSU to which such Dividend Equivalent PSU relates.

 

  11.8.5

No Acceleration of Payments . In no event shall a change in a Performance Period, a waiver, amendment, exercise of discretion to adjust the Eligible PSU Amount under Section 7.4, or other modification


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 14, 2018 )

 

  Page 23

 

 

of any terms or conditions of a PSU or any determination by the Committee or the Board, as applicable in each case, that occurs after the Grant Date cause any Section 409A amount to be paid in a calendar year that is different than the calendar year in which payment would have occurred but for such change to the Performance Period, waiver, amendment, modification, exercise of discretion, or determination.

 

  11.8.6

Trusts . Notwithstanding Section 6.1 hereof, no funds with respect to any Section 409A Amount shall be set aside in a trust located outside the United States or in any other trust or arrangement described under Section 409A(b)(1) of the Code.

 

12.

ASSIGNMENT

 

  12.1

Assignment . The assignment or transfer of the PSUs, or any other benefits under this Plan, shall not be permitted other than by operation of law.

* * * *

Exhibit 10.11

PERFORMANCE SHARE UNIT PLAN

FOR EMPLOYEES OF ENCANA CORPORATION

[CANADIAN EXECUTIVE] 20 PSU GRANT AGREEMENT

 

Participant Name:   ###PARTICIPANT_NAME###
Grant Date:   ###GRANT_DATE###
Performance Period:   January 1, 20 to December 31, 20
Number of PSUs   ###TOTAL_AWARDS###
Currency of PSUs:   CAD
Stock Exchange:   TSX
Vesting Date:   See Schedule “A”

This Grant Agreement including Schedules “A” and “B” hereto (collectively, this “ Agreement ”) is between you, an eligible employee of the Corporation or an Affiliate (“ Participant ” or “ You ”) and Encana Corporation or an Affiliate thereof (the “ Corporation ”).

WHEREAS the Corporation has adopted a Performance Share Unit Plan for Employees of Encana Corporation (the “ Plan ”);

AND WHEREAS subject to the terms and conditions of the Plan and this Agreement, the Corporation has authorized the granting to You of certain Performance Share Units (“ PSUs ”) in such number as set out above and as further described in this Agreement;

NOW THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of such PSU grant and such other good and valuable consideration including, among other things, the employment services rendered by You to the Corporation or its Affiliate, the receipt and sufficiency of which is hereby acknowledged by the parties, it is agreed by and between the parties hereto as follows:

 

1.

You confirm that You have received and reviewed a copy of the Plan and agree to be bound by its terms and conditions.

 

2.

Participation in the Plan is voluntary on Your part.

 

3.

The terms and conditions of the Plan are hereby incorporated by reference as terms and conditions of this Agreement. All capitalized terms used in this Agreement, unless otherwise defined herein, shall have the meanings ascribed to such terms as set out in the Plan.

 

4.

Effective as of the Grant Date above, the Corporation hereby grants to You, in accordance with and subject to the terms and conditions of the Plan and this Agreement, PSUs in such number and in respect such Performance Period as set out above, and subject to the achievement of such Performance Criteria and such other terms and conditions as set forth in the Plan and this Agreement including, without limitation, Schedules “A” and “B” hereof.

 

5.

You agree that the determination by the Board (or the Committee, as applicable) regarding any question or issue which may arise as to the interpretation or implementation of the Plan,


 

this Agreement or any PSUs granted to You hereunder, shall be final and binding on You and all other persons claiming or deriving rights through You.

 

6.

The Corporation’s grant to You of any PSUs (or any obligation to make any corresponding payment to You) under the Plan or this Agreement is made expressly subject to the Parties’ compliance with Applicable Law. As a condition of participating in the Plan, You hereby confirm and accept the foregoing, and agree to comply with all Applicable Law and to furnish to the Corporation any and all information or undertakings as may be required to permit same.

 

7.

You acknowledge and agree that the Plan and this Agreement contain specific terms and conditions (including, without limitation, in Section 8 of the Plan) with respect to determining whether and the extent to which PSUs may become Eligible PSUs and, as applicable, Vested PSUs and which govern your rights including, without limitation, in respect of a Period of Absence, Unpaid Leave of Absence, Death or Retirement, upon a Termination of Employment and/or upon a Change in Control. Without restricting the generality of Section 1 hereof, You hereby confirm that You have read all provisions of the Plan and this Agreement and agree to be bound by same.

 

8.

Except as otherwise provided in Section 8.5.2 of the Plan, without limiting the generality of the foregoing, You confirm that upon the occurrence of a Termination of Employment of You, pursuant to Section 8.4 of the Plan, effective as of the Date Employment Ceases, You shall not be entitled to any further vesting of PSUs previously granted hereunder or to any further grant of PSUs, nor to any cash, Shares or other payment (as applicable) whatsoever in respect of any PSUs or Eligible PSUs that are unvested on or following such date.

 

9.

Neither the Plan nor any action taken thereunder shall interfere with the right of the Corporation to terminate Your employment at any time. Neither shall any period of notice of termination, if any (whether pursuant to statute or common law), nor any payment in lieu thereof, upon a Termination of Employment of You (whether such termination is wrongful or otherwise) be considered or deemed to extend the period of Your employment or, for greater certainty, the Date Employment Ceases, for purposes of the Plan or this Agreement including, without limitation, for the purposes of vesting any PSUs or any payment in respect thereof. For greater certainty, all vesting of PSUs granted to You hereunder shall immediately cease as of the Date Employment Ceases.

 

10.

You shall have no rights whatsoever as a shareholder in respect of any Shares (including any rights to receive dividends or other distributions from or on the Shares) other than in respect of Shares (if any) distributed to You in satisfaction of Your Vested PSUs in accordance with and in the manner provided for in the Plan.

 

11.

You acknowledge and agree that PSUs granted to You hereunder, including any payment to You, whether made or pending, in respect thereof, are expressly subject to the terms and conditions of the Corporation’s “Incentive Compensation Clawback Policy”, attached hereto as Schedule “B”, as same may be amended by the Corporation from time to time.

 

12.

Subject to Section 11.6 of the Plan, this Agreement may be amended or terminated at any time by the Committee in whole or in part and the Plan may be amended or terminated in whole or in part at any time by the Board.

 

13.

This Agreement shall enure to the benefit of and be binding upon the Corporation and its respective successors and assigns and upon You and all other persons claiming or deriving rights through You.

 

- 2 -


14.

This Agreement and the rights of all parties and the construction of each and every provision hereof and the Plan and any PSUs granted hereunder shall at all times and for all purposes be construed according to the laws of the Province of Alberta (and the federal laws of Canada, as applicable, herein) and shall be treated in all respects as an Alberta contract, without reference to the principles of conflicts of law. In the event of a dispute, You agree to submit to the jurisdiction of the courts of the Province of Alberta.

 

15.

Notwithstanding any provision of the Plan or this Agreement to the contrary, where applicable, it is intended that the provisions of the Plan and this Agreement comply with applicable tax law and, in respect of U.S. Participants, Section 409A, and that all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. If You are an US Participant, You are solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed upon You or for Your account in connection with the Plan or any other Plan maintained by the Corporation or an Affiliate (including any taxes and penalties under Section 409A), and neither the Corporation nor any Affiliate shall have any obligation to indemnify or otherwise hold You (or any beneficiary) harmless from any or all of such taxes or penalties. In addition, should any provision of the Plan or this Agreement be subject to Section 409A, You agree that the Date Employment Ceases and the Date of Retirement shall be determined to mean a “separation from service” as defined in Section 409A whenever necessary to ensure compliance therewith for any payment or settlement of a benefit conferred under the Plan or this Agreement that is subject to Section 409A, and, for such purposes, shall be determined based upon a reduction in the bona fide level of services performed to a level equal to twenty percent (20%) or less of the average level of services performed by You during the immediately preceding 36-month period. Any distribution or settlement of a benefit conferred under the Plan or this Agreement following the Date Employment Ceases or the Date of Retirement that would be subject to Section 409A as a distribution following a separation from service of a “specified employee” as defined under Section 409A, shall occur no earlier than the expiration of the six-month period following such Date Employment Ceases or Date of Retirement.

 

16.

You agree to the collection, use and disclosure of personal information about You (including, without limitation, personal employee information about You) (collectively, “ Personal Information ”) by the Corporation or its Affiliates for purposes of administering and managing the grant of PSUs to You hereunder, operation of the Plan and this Agreement and, as applicable, compliance with Applicable Law (the “ Purposes ”).

Without limiting the generality of the foregoing, You agree to the collection, use and disclosure of the Personal Information by the Corporation and its Affiliates from and to such third party service provider(s) as may be retained by the Corporation from time to time to assist with the Purposes (“ Service Provider ”), as may be reasonably required to fulfil the Purposes, whether verbally (including by telephone), in writing or electronically over the Internet including, without limitation, by e-mail. You agree that any acceptance or consent indicated by You in electronic form to any documents provided to You by the Corporation or the Service Provider including, without limitation, the Plan and this Agreement shall be the equivalent of original written paper documents and Your written acceptance or consent thereto.

You further agree to provide the Corporation and, where necessary, the Service Provider, with all information, including Personal Information, as may be reasonably required to fulfil the Purposes. You acknowledge and agree that the Corporation, an Affiliate and/or the Service Provider (as applicable) may, from time to time, and in accordance with Applicable Laws, disclose Personal Information including, without limitation, in response to regulatory

 

- 3 -


filings or other lawful requests by a government authority or regulatory body, or for purpose of complying with a subpoena, warrant or other order by a court or other party having jurisdiction over the Corporation, an Affiliate or the Service Provider (as applicable) to compel production of same. You acknowledge and agree that the Corporation, an Affiliate or the Service Provider may, as part of their business practices, collect, use and disclose the Personal Information outside of Canada or the United States (as applicable) in respect of the Purposes. Should You have any questions regarding the Corporation’s collection, use and disclosure of Your Personal Information, please contact Encana’s Privacy Officer at privacy@encana.com.

 

17.

You understand that by indicating your acceptance of and agreement with the terms of this Agreement (whether electronically or otherwise), You confirm You have received and reviewed the terms of the Plan and this Agreement, which contain legal terms, and that You agree to be bound by them.

IN WITNESS WHEREOF this Agreement has been executed effective as of the Grant Date above.

ENCANA CORPORATION

 

 

Mike Williams

Executive Vice-President, Corporate Services

 

- 4 -


Schedule “A”

 

1.

PSU Vesting & Eligible PSU Amount:

Any PSUs granted to You on the Grant Date shall only become Vested PSUs upon satisfaction of the terms and conditions set out in the Plan and this Agreement. Without limiting the generality of the foregoing, any Vested PSUs will only become eligible for payment on the Vesting Date (defined in paragraph 3 below), subject to the terms and conditions set out in the Plan and this Agreement (including, without limitation, paragraph 9 below).

The number of PSUs that may become Vested PSUs (and the Eligible PSU Amount payable in connection therewith) on the Vesting Date shall be determined by the Committee and the Board following the Performance Period, in accordance with the terms of the Plan and this Agreement.

 

2.

Performance Period :

The Performance Period for PSUs granted to You hereunder shall be January 1, 20 to December 31, 20 (the Performance Period ”).

 

3.

Vesting Date :

Pursuant to the terms of the Plan and this Agreement, the Vesting Date shall be the later of: (i) the applicable third Anniversary Date following the Grant Date; and (ii) the first Committee Meeting Date immediately following the end of the Performance Period and, in any event, shall be prior to December 31 of the calendar year in which the third Anniversary Date occurs.

 

4.

Performance Criteria :

The Performance Criteria used to determine the extent (if any), of vesting of PSUs granted hereunder shall consist of the following:

 

 

Relative Total Shareholder Return (“ RTSR ”) (50 percent); and

 

Strategic PSU Performance Measures (50 percent), consisting of the following:

  o

Cash Flow Per Share (25 percent)

  o

Net Debt to Adjusted EBITDA (25 percent) (collectively, the “ PSU Performance Measures ”)

In respect of RTSR, the Corporation’s performance will be compared to the PSU Performance Peer Group (defined in paragraph 5 below), as measured over the Performance Period.

RTSR shall reflect a relative ranking of the Corporation’s Compound Annual Growth Rate in equity market value over the Performance Period (“ CAGR ”) as compared to the CAGR of each respective member of the PSU Performance Peer Group over the same period, arranged in ascending order. For purposes of determining CAGR for the Corporation and each PSU Performance Peer Group member during the Performance Period (or otherwise), the following calculation shall be performed:

 

      

CAGR = 100 x [(B ÷ A)^.3333 -1] , where:

 

  A  =

Commencement Adjusted Share Price: calculated as the average closing price of a share (or in the case of the Corporation, a Share) on the New York Stock Exchange over the thirty (30) calendar days immediately prior to the commencement of the Performance Period (as defined in paragraph 8 below); and

 

A-1


  B  =

End Adjusted Share Price : calculated as the average closing price of a share, adjusted for dividends paid during the Performance Period, (or in the case of the Corporation, a Share) on the New York Stock Exchange over the thirty (30) calendar days immediately prior to and including the last day of the Performance Period.

In respect of the PSU Performance Measures, the Corporation’s performance shall be assessed by the Committee and the Board, as applicable, at the conclusion of the Performance Period.

For purposes of this Agreement, RTSR and the PSU Performance Measures shall be collectively referred to as the “ Performance Criteria ”.

 

5.

PSU Performance Peer Group:

In respect of RTSR, the Corporation’s achievement of the Performance Criteria shall be measured in relation to the following PSU Performance Peer Group, as may be determined, amended and approved by the Committee or the Board, as applicable from time to time. In respect of the Performance Period, the initial PSU Performance Peer Group shall be as follows:

 

Antero Resources Corp.

  

EP Energy Corp.

 

Cabot Oil & Gas Corp.

  

 

Hess Corporation

 

Baytex Energy Corp.

  

 

Marathon Oil Corp.

 

Continental Resources Inc.

  

 

Murphy Oil Corp.

 

Apache Corp.

  

 

Newfield Exploration Corp.

 

Enerplus Corp.

  

 

Noble Energy Inc.

 

Devon Energy Corp.

  

 

Obsidian Energy Ltd.

 

Canadian Natural Resources Ltd.

  

 

Pengrowth Energy Corporation

 

Concho Resources Inc.

  

 

Pioneer Natural Resources Co.

 

Chesapeake Energy Corp.

  

 

Range Resources Corp.

 

Anadarko Petroleum Corp.

  

 

Southwestern Energy Co.

 

Crescent Point Energy Corp.

  

 

Vermilion Energy Inc.

 

EOG Resources Inc.

  

 

Whiting Petroleum Co.

The Committee or the Board, as applicable, may, in its discretion, amend or modify the PSU Performance Peer Group during the Performance Period (including, without limitation by removing or adding a new member) including, without limitation, in the event any member ceases, in the sole discretion of the Committee or the Board, as applicable, to constitute a suitable member of the PSU Performance Peer Group.

 

6.

Achieved Performance Criteria:

Unless otherwise determined by the Committee or the Board, as applicable, the Performance Criteria shall be calculated by the Corporation prior to the Vesting Date, following the end of the Performance Period.

At the Committee Meeting Date immediately following the Performance Period, the Committee shall evaluate the Corporation’s achievement of the Performance Criteria during the Performance Period.

In respect of RTSR, such assessment shall be relative to the corresponding performance of the PSU Performance Peer Group during the same period. In respect of the PSU Performance Criteria, such assessment shall be relative to criteria as may be determined by the Board or the Committee, as

 

A-2


applicable. Based on such evaluation, the Committee or the Board, as applicable, shall determine whether and the extent to which PSUs hereunder may become Eligible PSUs.

For purposes of RTSR, the Corporation’s CAGR during the Performance Period shall be measured against the CAGR of members of the PSU Performance Peer Group, calculated at the 90 th , 75 th , 50 th and 25 th percentiles, as reflected in the table below.

20 PSU Grant: Performance/Payout Matrix:

 

Relative TSR Performance Thresholds
Ranking of Corporation’s CAGR Relative to
PSU Performance Peer Group
  Performance Payout Factor
P90 and Above   200%
P75   150%
P50   100%
P25   50%
Below P25   0%

For greater certainty, the maximum Performance Payout Factor for the Performance Period is 200%, which may be applied by the Committee or the Board, as applicable, to an Achieved Performance Criteria at or above P90 (or the 90 th percentile) of the PSU Performance Peer Group.

Achieved Performance Criteria between the respective 3 Year Target Percentiles above shall be calculated on a linear basis, as follows:

 

    P25 (or 25 th percentile) but less than P50 (or 50 th percentile) represents a Performance Payout Factor of 50 –99%;

 

    P50 (or 50 th percentile) but less than P75 (or 75 th percentile) represents Performance Payout Factor of 100 –149%;

 

    P75 (or 75 th percentile) but less than P90 (or 90 th percentile) represents a Performance Payout Factor of 150 –199%;

Unless otherwise determined by the Committee or the Board, as applicable, in its discretion, Achieved Performance Criteria below P25 (or the 25 th percentile) will result in no PSUs granted hereunder becoming Eligible PSUs in respect of the Performance Period.

The Corporation’s performance relative to the PSU Performance Measures over the Performance Period shall be assessed and determined by the Committee or the Board, as applicable. Based on such evaluation, the Committee or the Board, as applicable, shall determine whether and the extent to which PSUs hereunder may become Eligible PSUs.

Following upon approval by the Committee or the Board, as applicable, such approved Performance Criteria shall constitute the “ Achieved Performance Criteria in respect of PSUs granted hereunder.

 

7.

Commencement Adjusted Share Price:

The Commencement Adjusted Share Price for the Corporation for the Performance Period shall be $ USD.

 

A-3


8.

Dividend Equivalent PSUs:

Subject to the terms and conditions of the Plan and this Agreement, where cash dividends are paid by the Corporation on the Shares between the Grant Date and the Committee Meeting Date in respect of the Performance Period, the Corporation shall notionally credit additional Dividend Equivalent PSUs to the Participant’s PSU Account.

The number of such Dividend Equivalent PSUs (including fractional PSUs) to be credited in respect of each dividend record date will be calculated by dividing the cash dividends that would have been paid to the Participant if the corresponding PSUs applicable to the Performance Period had been Shares held by the Participant on such dividend record date, by the closing price per Share on the applicable Stock Exchange on the immediately preceding Trading Day of the dividend payment date for such cash dividends. The number and/or value of such Dividend Equivalent PSUs (as applicable) shall be determined by the Corporation prior to the Vesting Date relative to any Vested PSUs applicable to the Performance Period. Where applicable, Dividend Equivalent PSUs shall vest and be paid at the same time as the Vested PSUs to which they relate.

 

9.

Eligible PSU Amount:

Following approval of the Achieved Performance Criteria, the Eligible PSU Amount in respect of each Participant shall be calculated by the Corporation in accordance with Section 7.4 of the Plan. The Eligible PSU Amount shall be equal to the number of Eligible PSUs relating to the Performance Period, including any Dividend Equivalent PSUs in respect of same, rounded up to the nearest whole number of Eligible PSUs.

Once determined, Eligible PSUs shall be converted to a cash equivalent (based on the Participant’s payroll currency) by multiplying the number of Eligible PSUs by the volume weighted average (rounded to two decimal places) trading price of a Share on the Participant’s applicable Stock Exchange over the five (5) Trading Days immediately following the Committee Meeting Date, held to determine the vesting eligibility of PSUs granted hereunder, subject to any Blackout Period (the “ Eligible PSU Amount ”).

 

10.

Eligible PSU Amount Payment:

Subject to the terms of the Plan and this Agreement, following the Vesting Date, the Participant shall be eligible to receive a payment representing the Participant’s Eligible PSU Amount for the Performance Period. Except as otherwise provided in the Plan and this Agreement, such payment shall be distributed to the Participant or, where applicable, the Participant’s legal representative, as soon as practicable following the Vesting Date and, in any event, prior to December 31 of calendar year following the calendar year in which third Anniversary Date occurs.

 

A-4


Schedule “B”

INCENTIVE COMPENSATION CLAWBACK POLICY

By resolution of the Board of Directors (the “ Board ”) of Encana Corporation (“ Encana ” or the “ Corporation ”), this Policy is effective as of this 22 nd day of October, 2012 (the “ Effective Date ”).

This Policy applies to the President & Chief Executive Officer and each Executive-Vice President of the Corporation and any individual who serves in either such capacity on or following the Effective Date (collectively, the “ Executive ”). References in this Policy to the “Corporation” include, where applicable, any affiliate thereof.

This Policy has been adopted to enhance the Corporation’s alignment with best practices in respect of risk management and executive compensation and shall be, at all times, subject to and interpreted in a manner consistent with applicable laws or the rules of any applicable stock exchange (collectively, “ Applicable Rules ”) .

This Policy applies to “Incentive-Based Compensation” which, for the purposes of this Policy, means compensation relating to the achievement of performance goals or similar conditions, excluding salary, perquisites, benefits and pension entitlements, and including, without limitation, any award or grant of or any eligibility, entitlement or gain of, an Executive under the Corporation’s: (i) High Performance Results Plan, or any other short-term incentive plan; or (ii) Long-Term Incentive (“ LTI ”) program including, without limitation, Employee Stock Option Plan, Employee Stock Appreciation Rights Plan, Performance Share Unit Plan, Restricted Share Unit Plan and Deferred Share Unit Plan, as each may be amended from time to time (including any time-based grants under any such plans). For greater clarity, this Policy shall not apply to any Incentive-Based Compensation awarded, granted or paid to an Executive prior to the Effective Date.

Where:

 

 

the Corporation is required to prepare an accounting restatement due to its material non-compliance with any financial reporting requirement under applicable securities laws (the “ Restatement ”), (the date upon which the Corporation is required to prepare such Restatement is hereinafter the “ Restatement Date ”);

 

 

the Executive received Incentive-Based Compensation referable to the financial years subject to the Restatement in excess of what the Executive would have been paid under the Restatement (the “ Overcompensation Amount ”); and

 

 

the Executive engaged in gross negligence, intentional misconduct or fraud which caused or significantly contributed to the Corporation’s material non-compliance with applicable securities laws which resulted in the requirement for the Restatement;

the Board shall be entitled:

 

 

where and to the extent the Overcompensation Amount has been previously paid, transferred or otherwise made available to the Executive, to require the Executive, by written demand, to reimburse the Corporation for the Overcompensation Amount; and

 

 

where all or a portion of the Overcompensation Amount has not been paid, transferred or otherwise made available to the Executive, the right of the Executive to be so paid or have such benefit transferred or otherwise made available to him or her shall, to the extent required to reimburse the Corporation for such Overcompensation Amount, immediately

 

B-1


 

terminate and be forfeited by the Executive and where required, cancelled by the Corporation to such extent and upon such date as may be specified by the Board; and

 

 

to the extent the Overcompensation Amount is not immediately recovered upon demand from the Executive, whether via direct reimbursement, forfeiture and/or cancellation, to require a sufficient quantity or value of any compensation owing by the Corporation to the Executive including, without limitation, any unvested or unexercised awards under the LTIs (the “ Outstanding LTIs ”), be immediately withheld and/or irrevocably cancelled by the Corporation to compensate for (or set off the value of same against) the Overcompensation Amount or any unrecovered portion thereof, and to bring any other actions against the Executive which the Board may deem necessary to recover the Overcompensation Amount.

The period of time during which the Corporation shall be entitled to seek recovery of the Overcompensation Amount from the Executive shall be three (3) years from the Restatement Date. Recoupment of Overcompensation Amounts under this Policy shall be initiated by the Corporation at the request of the Board, and all amounts recoverable or payable hereunder shall be paid to the Corporation or as directed by the Board.

If Applicable Rules require the Corporation to adopt a policy or provisions relating to the recoupment or recovery of incentive-based or other compensation based on restated financial statements which are inconsistent with or materially differ from this Policy and the Board adopts such policy or provisions to comply with Applicable Rules (the “ New Policy ”), such New Policy shall replace and supersede this Policy and shall apply to Incentive-Based Compensation granted or awarded to the Executive following the effective date of the New Policy. Subject to Applicable Rules, this Policy shall continue to apply to Incentive-Based Compensation granted or awarded to the Executive prior to the effective date of the New Policy. This Policy may be terminated at any time by the Board.

 

B-2

Exhibit 10.12

PERFORMANCE SHARE UNIT PLAN

FOR EMPLOYEES OF ENCANA CORPORATION

[U.S. EXECUTIVE] 20 PSU GRANT AGREEMENT

 

Participant Name:

 

###PARTICIPANT_NAME###

Grant Date:

 

###GRANT_DATE###

Performance Period:

 

January 1, 20 to December 31, 20

Number of PSUs

 

###TOTAL_AWARDS###

Currency of PSUs:

 

USD

Stock Exchange:

 

NYSE

Vesting Date:

 

See Schedule “A”

This Grant Agreement including Schedules “A” and “B” hereto (collectively, this “ Agreement ”) is between you, an eligible employee of the Corporation or an Affiliate (“ Participant ” or “ You ”) and Encana Corporation or an Affiliate thereof (the “ Corporation ”).

WHEREAS the Corporation has adopted a Performance Share Unit Plan for Employees of Encana Corporation (the “ Plan ”);

AND WHEREAS subject to the terms and conditions of the Plan and this Agreement, the Corporation has authorized the granting to You of certain Performance Share Units (“ PSUs ”) in such number as set out above and as further described in this Agreement;

NOW THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of such PSU grant and such other good and valuable consideration including, among other things, the employment services rendered by You to the Corporation or its Affiliate, the receipt and sufficiency of which is hereby acknowledged by the parties, it is agreed by and between the parties hereto as follows:

 

1.

You confirm that You have received and reviewed a copy of the Plan and agree to be bound by its terms and conditions.

 

2.

Participation in the Plan is voluntary on Your part.

 

3.

The terms and conditions of the Plan are hereby incorporated by reference as terms and conditions of this Agreement. All capitalized terms used in this Agreement, unless otherwise defined herein, shall have the meanings ascribed to such terms as set out in the Plan.

 

4.

Effective as of the Grant Date above, the Corporation hereby grants to You, in accordance with and subject to the terms and conditions of the Plan and this Agreement, PSUs in such number and in respect such Performance Period as set out above, and subject to the achievement of such Performance Criteria and such other terms and conditions as set forth in the Plan and this Agreement including, without limitation, Schedules “A” and “B” hereof.

 

5.

You agree that the determination by the Board (or the Committee, as applicable) regarding any question or issue which may arise as to the interpretation or implementation of the Plan,


 

this Agreement or any PSUs granted to You hereunder, shall be final and binding on You and all other persons claiming or deriving rights through You.

 

6.

The Corporation’s grant to You of any PSUs (or any obligation to make any corresponding payment to You) under the Plan or this Agreement is made expressly subject to the Parties’ compliance with Applicable Law. As a condition of participating in the Plan, You hereby confirm and accept the foregoing, and agree to comply with all Applicable Law and to furnish to the Corporation any and all information or undertakings as may be required to permit same.

 

7.

You acknowledge and agree that the Plan and this Agreement contain specific terms and conditions (including, without limitation, in Section 8 of the Plan) with respect to determining whether and the extent to which PSUs may become Eligible PSUs and, as applicable, Vested PSUs and which govern your rights including, without limitation, in respect of a Period of Absence, Unpaid Leave of Absence, Death or Retirement, upon a Termination of Employment and/or upon a Change in Control. Without restricting the generality of Section 1 hereof, You hereby confirm that You have read all provisions of the Plan and this Agreement and agree to be bound by same.

 

8.

Except as otherwise provided in Section 8.5.2 of the Plan, without limiting the generality of the foregoing, You confirm that upon the occurrence of a Termination of Employment of You, pursuant to Section 8.4 of the Plan, effective as of the Date Employment Ceases, You shall not be entitled to any further vesting of PSUs previously granted hereunder or to any further grant of PSUs, nor to any cash, Shares or other payment (as applicable) whatsoever in respect of any PSUs or Eligible PSUs that are unvested on or following such date.

 

9.

Neither the Plan nor any action taken thereunder shall interfere with the right of the Corporation to terminate Your employment at any time. Neither shall any period of notice of termination, if any (whether pursuant to statute or common law), nor any payment in lieu thereof, upon a Termination of Employment of You (whether such termination is wrongful or otherwise) be considered or deemed to extend the period of Your employment or, for greater certainty, the Date Employment Ceases, for purposes of the Plan or this Agreement including, without limitation, for the purposes of vesting any PSUs or any payment in respect thereof. For greater certainty, all vesting of PSUs granted to You hereunder shall immediately cease as of the Date Employment Ceases.

 

10.

You shall have no rights whatsoever as a shareholder in respect of any Shares (including any rights to receive dividends or other distributions from or on the Shares) other than in respect of Shares (if any) distributed to You in satisfaction of Your Vested PSUs in accordance with and in the manner provided for in the Plan.

 

11.

You acknowledge and agree that PSUs granted to You hereunder, including any payment to You, whether made or pending, in respect thereof, are expressly subject to the terms and conditions of the Corporation’s “Incentive Compensation Clawback Policy”, attached hereto as Schedule “B”, as same may be amended by the Corporation from time to time.

 

12.

Subject to Section 11.6 of the Plan, this Agreement may be amended or terminated at any time by the Committee in whole or in part and the Plan may be amended or terminated in whole or in part at any time by the Board.

 

13.

This Agreement shall enure to the benefit of and be binding upon the Corporation and its respective successors and assigns and upon You and all other persons claiming or deriving rights through You.

 

- 2 -


14.

This Agreement and the rights of all parties and the construction of each and every provision hereof and the Plan and any PSUs granted hereunder shall at all times and for all purposes be construed according to the laws of the Province of Alberta (and the federal laws of Canada, as applicable, herein) and shall be treated in all respects as an Alberta contract, without reference to the principles of conflicts of law. In the event of a dispute, You agree to submit to the jurisdiction of the courts of the Province of Alberta.

 

15.

Notwithstanding any provision of the Plan or this Agreement to the contrary, where applicable, it is intended that the provisions of the Plan and this Agreement comply with applicable tax law and, in respect of U.S. Participants, Section 409A, and that all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. If You are an US Participant, You are solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed upon You or for Your account in connection with the Plan or any other Plan maintained by the Corporation or an Affiliate (including any taxes and penalties under Section 409A), and neither the Corporation nor any Affiliate shall have any obligation to indemnify or otherwise hold You (or any beneficiary) harmless from any or all of such taxes or penalties. In addition, should any provision of the Plan or this Agreement be subject to Section 409A, You agree that the Date Employment Ceases and the Date of Retirement shall be determined to mean a “separation from service” as defined in Section 409A whenever necessary to ensure compliance therewith for any payment or settlement of a benefit conferred under the Plan or this Agreement that is subject to Section 409A, and, for such purposes, shall be determined based upon a reduction in the bona fide level of services performed to a level equal to twenty percent (20%) or less of the average level of services performed by You during the immediately preceding 36-month period. Any distribution or settlement of a benefit conferred under the Plan or this Agreement following the Date Employment Ceases or the Date of Retirement that would be subject to Section 409A as a distribution following a separation from service of a “specified employee” as defined under Section 409A, shall occur no earlier than the expiration of the six-month period following such Date Employment Ceases or Date of Retirement.

 

16.

You agree to the collection, use and disclosure of personal information about You (including, without limitation, personal employee information about You) (collectively, “ Personal Information ”) by the Corporation or its Affiliates for purposes of administering and managing the grant of PSUs to You hereunder, operation of the Plan and this Agreement and, as applicable, compliance with Applicable Law (the “ Purposes ”).

Without limiting the generality of the foregoing, You agree to the collection, use and disclosure of the Personal Information by the Corporation and its Affiliates from and to such third party service provider(s) as may be retained by the Corporation from time to time to assist with the Purposes (“ Service Provider ”), as may be reasonably required to fulfil the Purposes, whether verbally (including by telephone), in writing or electronically over the Internet including, without limitation, by e-mail. You agree that any acceptance or consent indicated by You in electronic form to any documents provided to You by the Corporation or the Service Provider including, without limitation, the Plan and this Agreement shall be the equivalent of original written paper documents and Your written acceptance or consent thereto.

You further agree to provide the Corporation and, where necessary, the Service Provider, with all information, including Personal Information, as may be reasonably required to fulfil the Purposes. You acknowledge and agree that the Corporation, an Affiliate and/or the Service Provider (as applicable) may, from time to time, and in accordance with Applicable Laws, disclose Personal Information including, without limitation, in response to regulatory

 

- 3 -


filings or other lawful requests by a government authority or regulatory body, or for purpose of complying with a subpoena, warrant or other order by a court or other party having jurisdiction over the Corporation, an Affiliate or the Service Provider (as applicable) to compel production of same. You acknowledge and agree that the Corporation, an Affiliate or the Service Provider may, as part of their business practices, collect, use and disclose the Personal Information outside of Canada or the United States (as applicable) in respect of the Purposes. Should You have any questions regarding the Corporation’s collection, use and disclosure of Your Personal Information, please contact Encana’s Privacy Officer at privacy@encana.com .

 

17.

You understand that by indicating your acceptance of and agreement with the terms of this Agreement (whether electronically or otherwise), You confirm You have received and reviewed the terms of the Plan and this Agreement, which contain legal terms, and that You agree to be bound by them.

IN WITNESS WHEREOF this Agreement has been executed effective as of the Grant Date above.

ENCANA CORPORATION

 

 

Mike Williams

Executive Vice-President, Corporate Services

 

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Schedule “A”

 

1.

PSU Vesting & Eligible PSU Amount:

Any PSUs granted to You on the Grant Date shall only become Vested PSUs upon satisfaction of the terms and conditions set out in the Plan and this Agreement. Without limiting the generality of the foregoing, any Vested PSUs will only become eligible for payment on the Vesting Date (defined in paragraph 3 below), subject to the terms and conditions set out in the Plan and this Agreement (including, without limitation, paragraph 9 below).

The number of PSUs that may become Vested PSUs (and the Eligible PSU Amount payable in connection therewith) on the Vesting Date shall be determined by the Committee and the Board following the Performance Period, in accordance with the terms of the Plan and this Agreement.

 

2.

Performance Period:

The Performance Period for PSUs granted to You hereunder shall be January 1, 20 to December 31, 20 (the Performance Period ”).

 

3.

Vesting Date:

Pursuant to the terms of the Plan and this Agreement, the Vesting Date shall be the later of: (i) the applicable third Anniversary Date following the Grant Date; and (ii) the first Committee Meeting Date immediately following the end of the Performance Period and, in any event, shall be prior to December 31 of the calendar year in which the third Anniversary Date occurs.

 

4.

Performance Criteria:

The Performance Criteria used to determine the extent (if any), of vesting of PSUs granted hereunder shall consist of the following:

 

 

Relative Total Shareholder Return (“ RTSR ”) (50 percent); and

 

Strategic PSU Performance Measures (50 percent), consisting of the following:

  o

Cash Flow Per Share (25 percent)

  o

Net Debt to Adjusted EBITDA (25 percent) (collectively, the “ PSU Performance Measures ”)

In respect of RTSR, the Corporation’s performance will be compared to the PSU Performance Peer Group (defined in paragraph 5 below), as measured over the Performance Period.

RTSR shall reflect a relative ranking of the Corporation’s Compound Annual Growth Rate in equity market value over the Performance Period (“ CAGR ”) as compared to the CAGR of each respective member of the PSU Performance Peer Group over the same period, arranged in ascending order. For purposes of determining CAGR for the Corporation and each PSU Performance Peer Group member during the Performance Period (or otherwise), the following calculation shall be performed:

 

      

CAGR = 100 x [(B ÷ A)^.3333 -1] , where:

 

  A  =

Commencement Adjusted Share Price: calculated as the average closing price of a share (or in the case of the Corporation, a Share) on the New York Stock Exchange over the thirty (30) calendar days immediately prior to the commencement of the Performance Period (as defined in paragraph 8 below); and

 

A-1


  B  =

End Adjusted Share Price : calculated as the average closing price of a share, adjusted for dividends paid during the Performance Period, (or in the case of the Corporation, a Share) on the New York Stock Exchange over the thirty (30) calendar days immediately prior to and including the last day of the Performance Period.

In respect of the PSU Performance Measures, the Corporation’s performance shall be assessed by the Committee and the Board, as applicable, at the conclusion of the Performance Period.

For purposes of this Agreement, RTSR and the PSU Performance Measures shall be collectively referred to as the “Performance Criteria”.

 

5.

PSU Performance Peer Group:

In respect of RTSR, the Corporation’s achievement of the Performance Criteria shall be measured in relation to the following PSU Performance Peer Group, as may be determined, amended and approved by the Committee or the Board, as applicable from time to time. In respect of the Performance Period, the initial PSU Performance Peer Group shall be as follows:

 

Antero Resources Corp.

 

  

EP Energy Corp.

 

Cabot Oil & Gas Corp.

 

  

Hess Corporation

 

Baytex Energy Corp.

 

  

Marathon Oil Corp.

 

Continental Resources Inc.

 

  

Murphy Oil Corp.

 

Apache Corp.

 

  

Newfield Exploration Corp.

 

Enerplus Corp.

 

  

Noble Energy Inc.

 

Devon Energy Corp.

 

  

Obsidian Energy Ltd.

 

Canadian Natural Resources Ltd.

 

  

Pengrowth Energy Corporation

 

Concho Resources Inc.

 

  

Pioneer Natural Resources Co.

 

Chesapeake Energy Corp.

 

  

Range Resources Corp.

 

Anadarko Petroleum Corp.

 

  

Southwestern Energy Co.

 

Crescent Point Energy Corp.

 

  

Vermilion Energy Inc.

 

EOG Resources Inc.

  

Whiting Petroleum Co.

The Committee or the Board, as applicable, may, in its discretion, amend or modify the PSU Performance Peer Group during the Performance Period (including, without limitation by removing or adding a new member) including, without limitation, in the event any member ceases, in the sole discretion of the Committee or the Board, as applicable, to constitute a suitable member of the PSU Performance Peer Group.

 

6.

Achieved Performance Criteria:

Unless otherwise determined by the Committee or the Board, as applicable, the Performance Criteria shall be calculated by the Corporation prior to the Vesting Date, following the end of the Performance Period.

At the Committee Meeting Date immediately following the Performance Period, the Committee shall evaluate the Corporation’s achievement of the Performance Criteria during the Performance Period.

In respect of RTSR, such assessment shall be relative to the corresponding performance of the PSU Performance Peer Group during the same period. In respect of the PSU Performance Criteria, such assessment shall be relative to criteria as may be determined by the Board or the Committee, as

 

A-2


applicable. Based on such evaluation, the Committee or the Board, as applicable, shall determine whether and the extent to which PSUs hereunder may become Eligible PSUs.

For purposes of RTSR, the Corporation’s CAGR during the Performance Period shall be measured against the CAGR of members of the PSU Performance Peer Group, calculated at the 90 th , 75 th , 50 th and 25 th percentiles, as reflected in the table below.

20 PSU Grant: Performance/Payout Matrix:

 

Relative TSR Performance Thresholds
Ranking of Corporation’s CAGR Relative to
PSU Performance Peer Group
   Performance Payout Factor
P90 and Above    200%
P75    150%
P50    100%
P25    50%

Below P25

   0%

For greater certainty, the maximum Performance Payout Factor for the Performance Period is 200%, which may be applied by the Committee or the Board, as applicable, to an Achieved Performance Criteria at or above P90 (or the 90 th percentile) of the PSU Performance Peer Group.

Achieved Performance Criteria between the respective 3 Year Target Percentiles above shall be calculated on a linear basis, as follows:

 

    P25 (or 25 th percentile) but less than P50 (or 50 th percentile) represents a Performance Payout Factor of 50 – 99%;

 

    P50 (or 50 th percentile) but less than P75 (or 75 th percentile) represents Performance Payout Factor of 100 –149%;

 

    P75 (or 75 th percentile) but less than P90 (or 90 th percentile) represents a Performance Payout Factor of 150 –199%;

Unless otherwise determined by the Committee or the Board, as applicable, in its discretion, Achieved Performance Criteria below P25 (or the 25 th percentile) will result in no PSUs granted hereunder becoming Eligible PSUs in respect of the Performance Period.

The Corporation’s performance relative to the PSU Performance Measures over the Performance Period shall be assessed and determined by the Committee or the Board, as applicable. Based on such evaluation, the Committee or the Board, as applicable, shall determine whether and the extent to which PSUs hereunder may become Eligible PSUs.

Following upon approval by the Committee or the Board, as applicable, such approved Performance Criteria shall constitute the “ Achieved Performance Criteria in respect of PSUs granted hereunder.

 

7.

Commencement Adjusted Share Price:

The Commencement Adjusted Share Price for the Corporation for the Performance Period shall be $ USD.

 

A-3


8.

Dividend Equivalent PSUs:

Subject to the terms and conditions of the Plan and this Agreement, where cash dividends are paid by the Corporation on the Shares between the Grant Date and the Committee Meeting Date in respect of the Performance Period, the Corporation shall notionally credit additional Dividend Equivalent PSUs to the Participant’s PSU Account.

The number of such Dividend Equivalent PSUs (including fractional PSUs) to be credited in respect of each dividend record date will be calculated by dividing the cash dividends that would have been paid to the Participant if the corresponding PSUs applicable to the Performance Period had been Shares held by the Participant on such dividend record date, by the closing price per Share on the applicable Stock Exchange on the immediately preceding Trading Day of the dividend payment date for such cash dividends. The number and/or value of such Dividend Equivalent PSUs (as applicable) shall be determined by the Corporation prior to the Vesting Date relative to any Vested PSUs applicable to the Performance Period. Where applicable, Dividend Equivalent PSUs shall vest and be paid at the same time as the Vested PSUs to which they relate.

 

9.

Eligible PSU Amount:

Following approval of the Achieved Performance Criteria, the Eligible PSU Amount in respect of each Participant shall be calculated by the Corporation in accordance with Section 7.4 of the Plan. The Eligible PSU Amount shall be equal to the number of Eligible PSUs relating to the Performance Period, including any Dividend Equivalent PSUs in respect of same, rounded up to the nearest whole number of Eligible PSUs.

Once determined, Eligible PSUs shall be converted to a cash equivalent (based on the Participant’s payroll currency) by multiplying the number of Eligible PSUs by the volume weighted average (rounded to two decimal places) trading price of a Share on the Participant’s applicable Stock Exchange over the five (5) Trading Days immediately following the Committee Meeting Date, held to determine the vesting eligibility of PSUs granted hereunder, subject to any Blackout Period (the “ Eligible PSU Amount ”).

 

10.

Eligible PSU Amount Payment:

Subject to the terms of the Plan and this Agreement, following the Vesting Date, the Participant shall be eligible to receive a payment representing the Participant’s Eligible PSU Amount for the Performance Period. Except as otherwise provided in the Plan and this Agreement, such payment shall be distributed to the Participant or, where applicable, the Participant’s legal representative, as soon as practicable following the Vesting Date and, in any event, prior to December 31 of calendar year following the calendar year in which third Anniversary Date occurs.

 

A-4


Schedule “B”

INCENTIVE COMPENSATION CLAWBACK POLICY

By resolution of the Board of Directors (the “ Board ”) of Encana Corporation (“ Encana ” or the “ Corporation ”), this Policy is effective as of this 22 nd day of October, 2012 (the “ Effective Date ”).

This Policy applies to the President & Chief Executive Officer and each Executive-Vice President of the Corporation and any individual who serves in either such capacity on or following the Effective Date (collectively, the “ Executive ”). References in this Policy to the “Corporation” include, where applicable, any affiliate thereof.

This Policy has been adopted to enhance the Corporation’s alignment with best practices in respect of risk management and executive compensation and shall be, at all times, subject to and interpreted in a manner consistent with applicable laws or the rules of any applicable stock exchange (collectively, “ Applicable Rules ”) .

This Policy applies to “Incentive-Based Compensation” which, for the purposes of this Policy, means compensation relating to the achievement of performance goals or similar conditions, excluding salary, perquisites, benefits and pension entitlements, and including, without limitation, any award or grant of or any eligibility, entitlement or gain of, an Executive under the Corporation’s: (i) High Performance Results Plan, or any other short-term incentive plan; or (ii) Long-Term Incentive (“ LTI ”) program including, without limitation, Employee Stock Option Plan, Employee Stock Appreciation Rights Plan, Performance Share Unit Plan, Restricted Share Unit Plan and Deferred Share Unit Plan, as each may be amended from time to time (including any time-based grants under any such plans). For greater clarity, this Policy shall not apply to any Incentive-Based Compensation awarded, granted or paid to an Executive prior to the Effective Date.

Where:

 

 

the Corporation is required to prepare an accounting restatement due to its material non-compliance with any financial reporting requirement under applicable securities laws (the “ Restatement ”), (the date upon which the Corporation is required to prepare such Restatement is hereinafter the “ Restatement Date ”);

 

 

the Executive received Incentive-Based Compensation referable to the financial years subject to the Restatement in excess of what the Executive would have been paid under the Restatement (the “ Overcompensation Amount ”); and

 

 

the Executive engaged in gross negligence, intentional misconduct or fraud which caused or significantly contributed to the Corporation’s material non-compliance with applicable securities laws which resulted in the requirement for the Restatement;

the Board shall be entitled:

 

 

where and to the extent the Overcompensation Amount has been previously paid, transferred or otherwise made available to the Executive, to require the Executive, by written demand, to reimburse the Corporation for the Overcompensation Amount; and

 

 

where all or a portion of the Overcompensation Amount has not been paid, transferred or otherwise made available to the Executive, the right of the Executive to be so paid or have such benefit transferred or otherwise made available to him or her shall, to the extent required to reimburse the Corporation for such Overcompensation Amount, immediately

 

B-1


 

terminate and be forfeited by the Executive and where required, cancelled by the Corporation to such extent and upon such date as may be specified by the Board; and

 

 

to the extent the Overcompensation Amount is not immediately recovered upon demand from the Executive, whether via direct reimbursement, forfeiture and/or cancellation, to require a sufficient quantity or value of any compensation owing by the Corporation to the Executive including, without limitation, any unvested or unexercised awards under the LTIs (the “ Outstanding LTIs ”), be immediately withheld and/or irrevocably cancelled by the Corporation to compensate for (or set off the value of same against) the Overcompensation Amount or any unrecovered portion thereof, and to bring any other actions against the Executive which the Board may deem necessary to recover the Overcompensation Amount.

The period of time during which the Corporation shall be entitled to seek recovery of the Overcompensation Amount from the Executive shall be three (3) years from the Restatement Date. Recoupment of Overcompensation Amounts under this Policy shall be initiated by the Corporation at the request of the Board, and all amounts recoverable or payable hereunder shall be paid to the Corporation or as directed by the Board.

If Applicable Rules require the Corporation to adopt a policy or provisions relating to the recoupment or recovery of incentive-based or other compensation based on restated financial statements which are inconsistent with or materially differ from this Policy and the Board adopts such policy or provisions to comply with Applicable Rules (the “ New Policy ”), such New Policy shall replace and supersede this Policy and shall apply to Incentive-Based Compensation granted or awarded to the Executive following the effective date of the New Policy. Subject to Applicable Rules, this Policy shall continue to apply to Incentive-Based Compensation granted or awarded to the Executive prior to the effective date of the New Policy. This Policy may be terminated at any time by the Board.

 

B-2

Exhibit 10.13

 

LOGO

RESTRICTED SHARE UNIT PLAN FOR EMPLOYEES

OF ENCANA CORPORATION

Established with effect from February 8, 2011, and reflective with

amendments made as of February 24, 2015, February 22, 2016 and February 14, 2018.


Table of Contents

 

 

Section        Page
    1.   PREAMBLE AND DEFINITIONS          1
    2.   CONSTRUCTION AND INTERPRETATION          9
    3.   EFFECTIVE DATE AND EMPLOYMENT RIGHTS          10
    4.   RSU GRANTS          10
    5.   ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION          12
    6.   OPTIONAL FUNDING OF RSU AWARDS          12
    7.   VESTING AND PAYMENT OF RSU AWARDS          13
    8.   CURRENCY          18
    9.   SHAREHOLDER RIGHTS          18
    10.   ADMINISTRATION          18
    11.   ASSIGNMENT          20


RESTRICTED SHARE UNIT PLAN FOR EMPLOYEES

OF ENCANA CORPORATION

(Established with effect from February 8, 2011, and reflective with amendments made as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

1.

PREAMBLE AND DEFINITIONS

 

  1.1

Title .

The Plan described in this document shall be called the “Restricted Share Unit Plan for Employees of Encana Corporation”.

 

  1.2

Purpose of the Plan .

The purposes of the Plan are:

 

  (a)

to promote an alignment of interests between employees and shareholders of the Corporation;

 

  (b)

to associate a portion of eligible employees’ compensation with the growth and performance of the Corporation over the medium to long-term; and

 

  (c)

to attract and retain employees with the knowledge, experience and expertise required by the Corporation.

 

  1.3

Definitions .

 

  1.3.1

Affiliate ” means any corporation, partnership or other entity in which the Corporation, directly or indirectly, has a majority ownership interest.

 

  1.3.2

Applicable Law ” means any applicable provision of law, domestic or foreign, including, without limitation, applicable securities legislation, together with all regulations, rules, policy statements, rulings, notices, orders or other instruments promulgated thereunder, and Stock Exchange Rules.

 

  1.3.3

Blackout Period ” means a trading blackout period imposed by the Corporation under the Corporation’s Securities Trading and Insider Reporting Policy (as amended, supplemented or replaced from time to time).

 

  1.3.4

Board ” means the Board of Directors of the Corporation.

 
  1.3.5

Business Day ” means any day other than a Saturday or a Sunday, a statutory holiday in Alberta or any day on which the principal chartered banks located in Calgary are not open for business during normal banking hours.

 

  1.3.6

CIC Cause ” following a Change in Control for purposes of this Plan means, unless otherwise provided in an Grant Agreement, (i) “cause” as defined in any employment agreement, change in control agreement or


Encana Corporation   Page 2

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

 

similar arrangement with the Corporation to which the Participant is a party as of the Date Employment Ceases, or (ii) if there is no such arrangement or if it does not define “cause” or CIC Cause: (A) conviction of, or plea of guilty or nolo contendere (or its equivalent) by, the Participant for committing an indictable offence in Canada or a felony under U.S. federal law or the law of the state in which such action occurred, (B) willful and deliberate failure on the part of the Participant in the performance of his or her employment duties in any material respect that remains uncured thirty (30) days after receipt of written notice from the Corporation specifying in reasonable detail the alleged failure, (C) dishonesty in the course of fulfilling the Participant’s employment duties that results in material harm to the Corporation, or (D) a material violation of the Corporation Policies. For purposes of this Plan, any determination by the Committee as to whether CIC Cause exists shall be subject to de novo review.

 

  1.3.7

Change in Control ” shall be deemed to have occurred for purposes of this Plan if:

 

  (a)

any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing (each, a “Person”), is or becomes the beneficial owner directly or indirectly of 30% or more of either (A) the then-outstanding shares of common stock of the Corporation (the “Outstanding Corporation Common Stock”) or (B) the combined voting power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “Outstanding Corporation Voting Securities”); provided, however, that, for purposes of this Section 1.3.7(a), the following acquisitions of shares or other voting securities of the Corporation shall not constitute a Change in Control: (i) any acquisition directly from the Corporation, (ii) any acquisition made by the Corporation, (iii) any acquisition by any employee plan (or related trust) sponsored or maintained by the Corporation or any of its subsidiaries, or (iv) any acquisition pursuant to a transaction that complies with Sections 1.3.7(b)(1), 1.3.7(b)(2) and 1.3.7(b)(3);

 

  (b)

consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Corporation or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Corporation, or the acquisition of assets or securities of another entity by the Corporation or any of its subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent


Encana Corporation   Page 3

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

 

governing body), as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such Business Combination or any employee plan (or related trust) of the Corporation or of such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting from such Business Combination were members of the Incumbent Board (as defined below) at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination;

 

  (c)

individuals who, as of Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to Effective Date whose election, or nomination for election by the Corporation’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person or entity other than the Board; or

 

  (d)

approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation.

For the purposes of this Section 1.3.7:

 

  (a)

the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (b)

the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Plan, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining the percentage of beneficial ownership of any Person.


Encana Corporation   Page 4

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

Notwithstanding the foregoing, with respect to RSUs granted prior to February 14, 2018, any event or transaction that would have constituted a “Change in Control” under the definition of such term in effect immediately prior to the February 14, 2018 amendment of the Plan shall also be deemed to constitute a “Change in Control” for purposes of this Plan, regardless of whether it would constitute a “Change in Control” within the meaning of the definition set forth in this Section 1.3.7.

 

    1.3.8

Change in Control Value ” has the meaning set out in Section 7.5.1(b).

 

    1.3.9

Code ” means the United States Internal Revenue Code , as amended from time to time.

 

  1.3.10

Committee ” means the Human Resources and Compensation Committee of the Board or such other committee of the Board, as constituted from time to time, which may be appointed by the Board to, among other things, interpret, administer and implement the Plan, including any corresponding Grant Agreement. Any reference in this Plan or corresponding Grant Agreement to action by the Committee means action by or under the authority of: (i) the Committee; or (ii) if no such Committee has been designated, or such authority has not been delegated by the Board, the Board.

 

  1.3.11

Corporation ” means Encana Corporation and any successor corporation whether by amalgamation, merger or otherwise.

 

  1.3.12

Corporation Policies” means, at a particular time, the applicable policies, plans and practices of the Corporation or an Affiliate, as applicable, which employs the Participant, as published on the Corporation’s or an Affiliate’s, as applicable, internal website or as otherwise communicated to employees of the Corporation or an Affiliate, as applicable from time to time.

 

  1.3.13

Date Employment Ceases ” means:

 

  (i)

in the case of voluntary Termination of Employment initiated by the Participant, the last date the Participant is, for the purposes of receiving his regular salary, on the payroll of the Corporation or an Affiliate;

 

  (ii)

in the case of involuntary Termination of Employment by the Corporation or an Affiliate for cause (as determined by the Corporation or the Affiliate, as applicable), the date written notification of dismissal from employment is delivered to the Participant;

 

  (iii)

in the case of involuntary Termination of Employment by the Corporation or an Affiliate other than for cause (as determined by the Corporation or the Affiliate, as applicable), the date identified in the written notification of Termination of Employment delivered to the Participant as the “Termination Date” or “Departure Date”


Encana Corporation   Page 5

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

 

and, where both dates are so referred to, the earlier thereof, and, where such date is not identified in the written notification, the date written notification of dismissal from employment is delivered to the Participant;

 

  (iv)

in the case where the Participant is employed by an Affiliate and for any reason including, without limitation, by reason of the sale, disposition or other divestiture thereof, in whole or in part, such employer ceases to be an Affiliate of the Corporation, the effective date (in the case of a sale, disposition or other divestiture, the closing date of such transaction or series of transactions, as determined by the Corporation) upon which the Participant’s employer ceases to be an Affiliate;

but, for greater certainty, shall not include the date the Participant ceases to be an employee of the Corporation or an Affiliate upon the Participant’s death or Retirement, or the date the Participant commences a Period of Absence or an Unpaid Leave of Absence in accordance with the provisions hereof.

 

  1.3.14

Date of Retirement ” means the last day the Participant is, for the purposes of receiving his regular salary, on the payroll of the Corporation or an Affiliate immediately prior to the date the Participant commences Retirement.

 

  1.3.15

Disability ” means the Participant’s physical or mental incapacity that prevents the Participant from substantially fulfilling his duties and responsibilities on behalf of the Corporation or an Affiliate, and in respect of which the Participant commences receiving disability benefits under the Corporation’s or an Affiliate’s short-term or long-term disability plan, as applicable, in respect of such incapacity.

 

  1.3.16

Dividend Equivalent RSU ” has the meaning set out in Section 5.2.

 

  1.3.17

Family Leave ” means, a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on family leave and does not provide employment services to the Corporation or an Affiliate.

 

  1.3.18

Good Reason ” means (i) “Good Reason” as defined in any employment agreement, change in control agreement or similar arrangement with the Corporation or an Affiliate to which the Participant is a party as of the Date Employment Ceases, or (ii) if there is no such arrangement or if it does not define Good Reason, and the Participant holds the title of “Vice-President” or above as of immediately prior to the Change in Control, the occurrence of any of the following on or after the Change in Control, unless the Participant shall have given express written consent thereto: (A) a material diminution in the scope of the Participant’s duties or responsibilities from those in effect immediately prior to the Change in Control, provided that any change in the Participant’s duties or responsibilities resulting solely from the fact that the Corporation is no longer


Encana Corporation   Page 6

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

 

publicly traded, or no longer the ultimate parent company of its affiliated group, due to the Change in Control shall not be deemed to be a material diminution in the scope of the Participant’s duties or responsibilities; (B) a reduction in the Participant’s annual base salary as in effect immediately prior to the Change in Control; (C) a material reduction in the Participant’s short-term or long-term incentive compensation opportunity (measured based on grant date fair value of any equity-based awards) in effect immediately prior to the Change in Control; (D) the failure by the Corporation or an Affiliate to pay the Participant (1) any portion of the Participant’s then current compensation, except pursuant to an across-the-board compensation deferral similarly affecting other such Vice-Presidents and required by applicable law, or (2) any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation or an Affiliate; or (E) a requirement that the Participant be based more than 50 miles from where the Participant is based immediately prior to the Change in Control, except for: (1) required travel on the Corporation’s or Affiliate’s business to an extent substantially consistent with the Participant’s business travel obligations in the ordinary course of business immediately prior to the Change in Control; or (2) if the Participant has been relocated or repatriated by the Corporation or an Affiliate prior to the Change in Control, such relocation as may be required by applicable law or performed in accordance with an agreement (whether written or unwritten) entered into between the Corporation (or an Affiliate) and the Participant prior to the Change in Control; provided, that, a Participant may only resign for Good Reason under this clause (ii) if the Participant has provided written notice to the Corporation and, if the Participant is employed by an Affiliate, such Affiliate, of the event or circumstance alleged to constitute Good Reason within ninety (90) days following the initial existence thereof, the Corporation or Affiliate, as applicable, has failed to cure such event or circumstance within thirty (30) days after receipt of such notice, and the Participant resigns within thirty (30) days after the expiration of such cure period. If the Participant is not covered by clause (i) or (ii) above, then Good Reason shall not be applicable to such Participant.

 

  1.3.19

Grant Agreement ” means an agreement between the Corporation and the Participant under which a RSU is granted, as contemplated by Section 4.1, together with such schedules, amendments, deletions or changes thereto as are permitted under the Plan, subject to the terms and conditions of such Grant Agreement and the Plan.

 

  1.3.20

Grant Date ” means the effective date of a grant of RSUs to a Participant by the Corporation or an Affiliate, as applicable, as stated in the Participant’s applicable Grant Agreement. Where the Corporation determines to grant any RSUs on a date which is within a Blackout Period or where, for any reason: (i) the grant of RSUs falls on a day that is within a Blackout Period; or (ii) the Market Value of the grant of RSUs would be calculated using a Trading Day that is within a Blackout Period, then the Grant Date of any such RSUs shall automatically occur and be effective


Encana Corporation   Page 7

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

 

on the sixth Trading Day immediately following the end of such Blackout Period to permit the Market Value of such RSUs to be determined based on Trading Days which occur immediately following the end of any such Blackout Period.

 

  1.3.21

Market Value ” means, with respect to any particular date, the volume-weighted average (rounded to two decimal places) of the trading price per Share on the applicable Stock Exchange during the immediately preceding five (5) Trading Day period prior to that particular date.

 

  1.3.22

Military Leave ” means a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on a military leave, and does not provide employment services to the Corporation or an Affiliate.

 

  1.3.23

Paid Leave of Absence ” means in respect of a Participant, a period of time during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on an approved leave of absence and continues to receive his salary from, but does not provide employment services to, the Corporation or an Affiliate.

 

  1.3.24

Participant ” means such employee of the Corporation or an Affiliate as the Committee may designate from time to time as eligible to participate in the Plan.

 

  1.3.25

Period of Absence ” means, with respect to a Participant, a period of time throughout which the Participant is on a Family Leave, Military Leave, Paid Leave of Absence, an unpaid leave of absence of 31 days or less approved by the Corporation or Affiliate, as applicable, or is experiencing a Disability, but does not include a period of time throughout which the Participant is on an Unpaid Leave of Absence.

 

  1.3.26

Plan ” means this Restricted Share Unit Plan for Employees of Encana Corporation, including any schedules or appendices hereto, as amended from time to time.

 

  1.3.27

RSU ” means a restricted share unit granted to a Participant under the Plan that is represented by a bookkeeping entry on the books of the Corporation or an Affiliate, the value of which on any particular date (other than for the purposes of the Grant Date or the Vesting Date) shall be equal to the closing price per Share on the applicable Stock Exchange on the immediately preceding Trading Day.

 

  1.3.28

RSU Account ” has the meaning set out in Section 5.1.

 

  1.3.29

Retirement ” means the early or normal retirement of the Participant from employment with the Corporation or an Affiliate, as applicable, in accordance with the Corporation Policies.

 

  1.3.30

Section  409A Amount ” means any cash or Shares provided or to be provided pursuant to the Plan or a Grant Agreement that: (a) are provided


Encana Corporation   Page 8

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

 

or are to be provided to a U.S. Participant; and (b) constitute a deferral of compensation subject to section 409A of the Code.

 

  1.3.31

Share ” means a common share in the capital of the Corporation and such other share as may be substituted for it as a result of amendments to the articles of the Corporation, arrangement, re-organization or otherwise, including any rights that form a part of the common share or substituted share.

 

  1.3.32

Specified Period ” means (i) for a Participant who is an executive officer of the Corporation as of immediately prior to the Change in Control, 24 months, (ii) for a Participant who is not an executive officer of the Corporation and holds the title of “Vice-President” or above as of immediately prior to the Change in Control, 18 months, and (iii) for any Participant not covered by clauses (i) and (ii), 12 months, in each case, inclusive of the date on which the Change in Control occurs, or, in each case, such longer period specified in the Grant Agreement or as provided for in any employment agreement, change in control agreement or similar arrangement with the Corporation or an Affiliate to which the Participant is a party as of the Date Employment Ceases.

 

  1.3.33

Stock Exchange ” means, in respect of a RSU, the Toronto Stock Exchange or the New York Stock Exchange as specified in the Participant’s respective Grant Agreement relating to such RSU or, if the Shares are not listed on the Toronto Stock Exchange or the New York Stock Exchange, as applicable, such other stock exchange on which the Shares are listed, or if the Shares are not listed on any stock exchange, then on the over-the-counter market.

 

  1.3.34

Stock Exchange Rules ” means, in respect of a RSU, the applicable rules of the particular Stock Exchange pertaining to such RSU, as specified in the Participant’s Grant Agreement, upon which the Shares are listed.

 

  1.3.35

Termination of Employment ” means an event by which the Participant ceases to be an employee of the Corporation or an Affiliate, as applicable, but, for greater certainty, shall not include an event whereby the Participant ceases to be an employee of the Corporation or an Affiliate, as applicable, upon the Participant’s death or Retirement or where the Participant commences a Period of Absence or an Unpaid Leave of Absence in accordance with the provisions hereof.

 

  1.3.36

Trading Day ” means any date on which the applicable Stock Exchange is open for the trading of Shares and on which Shares are actually traded.

 

  1.3.37

Trust Fund ” means one or more trust funds, as specified by the Committee, as may be established by the Corporation or an Affiliate, as applicable, for the purpose of funding awards of RSUs granted to Participants pursuant to the Plan.


Encana Corporation   Page 9

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

  1.3.38

Trustee ” means such person or persons who is or are independent from and not affiliated with the Corporation or an Affiliate as may from time to time be appointed by the Corporation as trustee of the Trust Fund(s).

 

  1.3.39

Unpaid Leave of Absence ” means in respect of a Participant, a period of time during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered by the Corporation or an Affiliate, as applicable, to be on an approved leave of absence and does not continue to receive his salary from, or provide employment services to, the Corporation or an Affiliate, as applicable, which, for the purposes of the Plan, shall be deemed to commence on the 32 nd day following the day on which the Participant commences such approved, unpaid leave, as communicated in writing to the Participant by the Corporation or an Affiliate, as applicable, in accordance with the Corporation Policies or Applicable Law.

 

  1.3.40

U.S. Participant ” means a Participant who is a citizen or permanent resident of the United States for purposes of the Code or a Participant for whom compensation subject to deferral under this Plan would otherwise be subject to United States federal income taxation under the Code.

 

  1.3.41

Vested RSUs ” has the meaning set out in Section 7.1.

 

  1.3.42

“Vested RSU Value” means with respect to each Vested RSU that is settled in cash, as determined by the Committee, the Market Value determined as of the applicable Vesting Date, and with respect to each Vested RSU is settled in Shares, as determined by the Committee, means one Share for each whole Vested RSU; provided that with respect to each Vested RSU that is settled in cash where, for any reason, the Market Value determined as of the applicable Vesting Date would be calculated using a Trading Day that is within a Blackout Period, then the deemed Vesting Date solely for purposes of calculating the Vested RSU Value shall be the sixth Trading Day immediately following the end of such Blackout Period to permit the Vested RSU Value to be determined based on Trading Days which occur immediately following the end of any such Blackout Period.

 

  1.3.43

Vesting Date ” means, in respect of a grant of RSUs, the date specified in the Participant’s applicable Grant Agreement upon which the Participant’s RSUs shall vest and become payable in accordance with Section 7, subject to the terms and conditions of the Plan and the applicable Grant Agreement.

 

2.

CONSTRUCTION AND INTERPRETATION

 

  2.1

Gender, Singular, Plural . In the Plan, references to the masculine include the feminine; and references to the singular shall include the plural and vice versa, as the context shall require.


Encana Corporation   Page 10

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

  2.2

Governing Law . The Plan shall be governed and interpreted in accordance with the laws of the Province of Alberta and any actions, proceedings or claims pertaining in any manner or respect to the Plan, including without limitation, an applicable Grant Agreement or a RSU grant in respect thereof, shall be commenced in the courts of the Province of Alberta.

 

  2.3

Severability . If any provision or part of the Plan is determined to be void or unenforceable in whole or in part, such determination shall not affect the validity or enforcement of any other provision or part thereof.

 

  2.4

Headings, Sections . Headings wherever used herein are for reference purposes only and do not limit or extend the meaning of the provisions herein contained. A reference to a section or schedule shall, except where expressly stated otherwise, mean a section or schedule of the Plan, as applicable.

 

3.

EFFECTIVE DATE AND EMPLOYMENT RIGHTS

 

  3.1

Effective Date . The Corporation is establishing the Plan effective February 8, 2011.

 

  3.2

No Employment Rights . Nothing contained in the Plan shall be deemed to give any person the right to be retained as an employee or an officer of the Corporation or of an Affiliate. For greater certainty, a period of notice, if any, (whether pursuant to statute or common law) or payment in lieu thereof, arising upon or attributed to a Termination of Employment, whether wrongful or otherwise, shall not be considered as extending the period of employment or the active service of a Participant with the Corporation or an Affiliate beyond the Date Employment Ceases.

 

4.

RSU GRANTS

 

  4.1

Annual Grant of RSUs. Each Participant may receive in respect of any calendar year, a grant of RSUs in such number and subject to such terms and conditions as the Committee may specify. Each RSU grant to a Participant shall be governed by and subject to the terms and conditions of this Plan and the applicable Grant Agreement.

 

  4.2

Grant Price. The applicable grant price for each RSU granted to a Participant hereunder shall be fixed by the Committee effective as of the Grant Date, but shall not be less than the Market Value on the applicable Stock Exchange.

 

  4.3

Grant Agreement. Each RSU grant and each Participant’s participation in the Plan shall be evidenced by a Grant Agreement between the Corporation and the Participant in the form approved by the Committee. The Grant Agreement shall specify, at the time RSUs are granted to the Participant, the basis upon which such RSUs will become Vested RSUs and valued, whether such RSUs (and Dividend Equivalent RSUs relating thereto) are, upon becoming Vested RSUs pursuant to Section 7, to be payable to the Participant on the Vesting Date in Canadian currency or United States currency, and the applicable Stock


Encana Corporation   Page 11

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

 

Exchange to be used to determine the Market Value of such RSUs, any other Share price or other methodology used to determine the value of such RSUs, and the applicable Vesting Date.

 

  4.4

RSUs . Subject to the terms and conditions of the Plan, and the applicable Grant Agreement, each RSU will give a Participant the right to receive a payment in cash or in Shares, as determined by the Committee, in an amount and on such date or dates, including the Vesting Date, as may be determined in accordance with the terms of the Plan and the applicable Grant Agreement. For greater certainty, a Participant shall have no right to receive a cash payment or Shares with respect to any RSUs that do not become Vested RSUs pursuant to Section 7, as applicable. Further, unless otherwise expressly authorized by this Plan (including, without limitation, Section 7) or the applicable Grant Agreement, a Participant shall have no right to receive a cash payment or Shares if the Participant is not actively employed by the Corporation or an Affiliate, as applicable, on the Vesting Date.

 

  4.5

Other Terms and Conditions . Subject to the terms of the Plan, the Committee or the Board may determine other terms or conditions of, or take actions relating to, any RSUs, or any grant thereof, including:

 

  (a)

any additional conditions with respect to the vesting of RSUs, in whole or in part, or the payment of cash or provision of Shares under the Plan;

 

  (b)

restrictions on the resale of Shares, including escrow arrangements;

 

  (c)

exercising such discretion as may be set out in the Plan or a particular Grant Agreement; and

 

  (d)

any other terms and conditions the Committee may, in its discretion, determine,

which other terms or conditions shall be set out in the Grant Agreement.

Except as otherwise provided in Section 10.8, the Committee may, in its discretion, after the Grant Date of a RSU, waive any term or condition in respect of such RSU or determine that it has been satisfied.

 

  4.6

Payment Date . For greater certainty, and notwithstanding any other provision of the Plan or an applicable Grant Agreement, no term or condition imposed under this Plan or a Grant Agreement may have the effect of causing payment of the value of a RSU to a Participant, or his legal representative, to occur after December 31 of the third calendar year following the calendar year in which the Grant Date occurs.

 

  4.7

No Certificates . No share or other certificates shall be issued with respect to RSUs.


Encana Corporation   Page 12

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

5.

ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION

 

  5.1

RSU Account . An account, called a “RSU Account”, shall be maintained by the Corporation for each Participant and will be credited with such notional grants of RSUs as may be received by a Participant from time to time pursuant to Sections 4.1 and 5.2. For clarity, unless otherwise expressly authorized by this Plan (including, without limitation, Section 7) or the applicable Grant Agreement, the Participant shall have no entitlement or right to any RSUs granted, credited to or recorded in the Participant’s RSU Account, whether expressed in RSUs or dollar value form, prior to the Vesting Date if the Participant is not actively employed by the Corporation or an Affiliate, as applicable, on the Vesting Date.

 

  5.2

Dividend Equivalent RSUs . In the event cash dividends are paid by the Corporation on the Shares, additional RSUs shall be credited to the Participant’s RSU Account in accordance with this Section 5.2 (“Dividend Equivalent RSUs”). The number of such Dividend Equivalent RSUs (including fractional RSUs) and the date upon which such Dividend Equivalent RSUs are credited to the Participant’s RSU Account shall be determined by the Corporation in accordance with the applicable Grant Agreement. Except where provided otherwise in a Grant Agreement, Dividend Equivalent RSUs shall vest and be paid to the Participant at the same time as the RSUs to which they relate.

 

  5.3

Adjustments . In the event of any stock dividend, stock split, combination or exchange of shares, capital reorganization, consolidation, spin-off or other distribution (other than normal cash dividends) of Corporation assets to shareholders, or any other similar changes affecting the Shares, proportionate adjustments to reflect such change or changes may be made with respect to the number of RSUs outstanding under the Plan, or securities into which the Shares are changed or are convertible or exchangeable may be substituted for Shares under this Plan, on a basis proportionate to the number of RSUs in the Participant’s RSU Account on some other appropriate basis, all as determined by the Board in its discretion.

 

6.

OPTIONAL FUNDING OF RSU AWARDS

 

  6.1

Contributions to Trust Fund . Except as otherwise provided in Section 10.8, the Corporation may, in its sole discretion, from time to time, on its own behalf and on behalf of such of its Affiliates as employ Participants, or any Affiliate may, make contributions to one or more Trust Funds in such amounts and at such times as may be specified by the Committee or the Board for the purpose of funding, in whole or in part, awards of RSUs which become payable to Participants pursuant to the Plan. For clarity, this Section 6 does not obligate the Corporation or any Affiliate to create a Trust Fund, nor to make contributions to a Trust Fund in any amounts or at all, nor does it require the funding in whole or in part of any award of RSUs granted under this Plan.

 

  6.2

Share Purchases . Where applicable, any purchases of Shares by the Trustee or otherwise pursuant to the Plan shall be made on the open market by a broker designated by the Trustee who is independent of the Corporation in accordance with Stock Exchange Rules and who is a member of the Stock Exchange.


Encana Corporation   Page 13

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

 

Subject to the foregoing part of this Section 6.2, any such designation may be changed from time to time. For clarity, this Section 6 does not obligate the Corporation or any Affiliate to purchase shares for the purposes of funding or settling, in whole or in part, awards of RSUs which may become payable to Participants pursuant to the Plan.

 

7.

VESTING AND PAYMENT OF RSU AWARDS

 

  7.1

Vesting of RSUs. Subject to Sections 7.3, 7.4, and 7.5, RSUs shall become Vested RSUs on the Vesting Date(s) set forth in the applicable Grant Agreement. Except where the context requires otherwise, each RSU which vests pursuant to this Section 7 shall be referred to for the purposes of the Plan and the applicable Grant Agreement as a “Vested RSU”. RSUs which do not become Vested RSUs in accordance with this Section 7 shall be forfeited by the Participant and the Participant will have no further right, title or interest in such RSUs. In such event, the Participant hereby waives any and all claims and/or rights to compensation or damages in consequence of the Participant’s Termination of Employment (whether lawfully or unlawfully, wrongful or otherwise) or otherwise for any reason insofar as these rights arise or may arise from the Participant ceasing to have rights to receive any cash payment or Shares in respect of RSUs granted under the Plan or any applicable Grant Agreement pursuant to this Section 7.

 

  7.2

Payment in Cash or Shares. Subject to Sections 7.3, 7.4 and 7.5, each Participant shall be entitled to receive in cash or in Shares (or a combination thereof), as determined by the Committee, a payment or settlement in Shares equal to the Vested RSU Value in respect of each Vested RSU credited to the Participant’s RSU Account on the applicable Vesting Date (rounded up to the nearest whole number of RSUs) relating to a particular grant under Section 4.1, as determined pursuant to Section 7.1. Except as otherwise provided in Sections 7.3, 7.4, 7.5 and 10.8 and/or the applicable Grant Agreement(s), the cash or Shares in the amount determined pursuant to this Section 7.2 shall be paid or distributed to the Participant or his legal representative, as applicable, as soon as practicable following the applicable Vesting Date(s) set forth in the applicable Grant Agreement(s) and, in any event, prior to December 31 of the third calendar year following the calendar year in which the Grant Date occurs, provided the Participant remains actively employed with the Corporation or an Affiliate, as applicable, on each such date. Notwithstanding the foregoing or any other provision of the Plan, in respect of each Vested RSU credited to the Participant’s RSU Account on the applicable Vesting Date, the Committee shall not settle in Shares any Vested RSUs for RSUs originally granted to the Participant after May 2, 2017 unless all approvals of such RSUs and/or the issuance of Shares in settlement of such RSUs, by shareholders or otherwise, as are required under Applicable Laws, are received prior to the applicable Vesting Date.

 

  7.3

Death, Retirement, Period of Absence or Unpaid Leave of Absence.

 

  7.3.1

Death. Unless otherwise determined by the Committee, in the event the Participant ceases to be an employee of the Corporation or an Affiliate, as applicable, by reason of the Participant’s death, the following shall apply:


Encana Corporation   Page 14

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

  (a)

Where the Participant’s date of death occurs on a date that is prior to the date the Participant attains the age of 60 years, then:

 

  (i)

All Vested RSUs credited to the Participant’s RSU Account as of the Participant’s date of death, if any, if not already paid or distributed, shall be paid or distributed to the Participant’s legal representative in accordance with Section 7.2; and

 

  (ii)

Unless otherwise determined by the Committee, in the event of the Participant’s death prior to the Vesting Date relating to a grant of RSUs under Section 4.1, RSUs granted to the Participant prior to the Participant’s date of death shall vest and become payable to the Participant’s legal representative on the applicable Vesting Date in accordance with Section 7.2, in proportion to the number of calendar months (rounded up to the nearest whole month) from the applicable Grant Date to the Participant’s date of death.

 

  (b)

Where the Participant’s date of death occurs on a date following the date that the Participant attains the age of 60 years, then:

 

  (i)

All Vested RSUs credited to the Participant’s RSU Account as of the Participant’s date of death, if any, if not already paid or distributed, shall be paid or distributed to the Participant’s legal representative in accordance with Section 7.2;

 

  (ii)

Unless otherwise determined by the Committee, RSUs granted to the Participant prior to the Participant’s date of death shall vest and become payable to the Participant’s legal representative on the applicable Vesting Date in accordance with Section 7.2.

 

  (c)

For clarity, no additional RSUs (whether pursuant to Section 4.1 or in the form of Dividend Equivalent RSUs) shall be granted to the Participant following the Participant’s date of death.

 

  7.3.2

Retirement. Unless otherwise determined by the Committee, in the event the Participant ceases to be an employee of the Corporation or an Affiliate by reason of the Participant’s Retirement, the following shall apply:

 

  (a)

Where the Participant’s Date of Retirement occurs on a date that is prior to the date the Participant attains the age of 60 years, then:

 

  (i)

All Vested RSUs credited to the Participant’s RSU Account as of the Participant’s Date of Retirement, if any, if not already paid or distributed, shall be paid or distributed to the Participant in accordance with Section 7.2; and

 

  (ii)

Unless otherwise determined by the Committee, in the event of the Participant’s Retirement prior to the Vesting Date relating to a grant of RSUs under Section 4.1, RSUs granted to the Participant prior the Participant’s Date of Retirement shall vest and become


Encana Corporation   Page 15

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

 

payable to the Participant on the applicable Vesting Date in accordance with Section 7.2, in proportion to the number of calendar months (rounded up to the nearest whole month) from the applicable Grant Date to the Participant’s Date of Retirement.

 

  (b)

Where the Participant’s Date of Retirement occurs on a date that is on or after the date the Participant attains the age of 60 years, then:

 

  (i)

All Vested RSUs credited to the Participant’s RSU Account as of the Participant’s Date of Retirement, if any, if not already paid or distributed, shall be paid or distributed to the Participant in accordance with Section 7.2;

 

  (ii)

Unless otherwise determined by the Committee, RSUs granted to the Participant prior to the Participant’s Date of Retirement shall vest and become payable to the Participant on the applicable Vesting Date in accordance with Section 7.2.

 

  (c)

For clarity, no additional RSUs (whether pursuant to Section 4.1 or in the form of Dividend Equivalent RSUs) shall be granted to the Participant following his Date of Retirement.

 

  7.3.3

Period of Absence. Subject to the provisions of Sections 7.3.1, 7.3.2 and 7.4 and unless otherwise determined by the Committee, in the event of a Participant’s Period of Absence, RSUs credited to the Participant’s RSU Account immediately prior to such Period of Absence (and any related Dividend Equivalent RSUs) shall continue to become Vested RSUs in accordance with Section 7.1 and the Participant shall be entitled to receive a payment relating to such Vested RSUs determined in accordance with Section 7.2.

 

  7.3.4

Unpaid Leave of Absence. Unless otherwise determined by the Committee, in the event of a Participant’s Unpaid Leave of Absence, RSUs shall not become Vested RSUs during the Participant’s Unpaid Leave of Absence and the provisions of this Section 7.3.4 shall be applicable. The Participant shall only become entitled to have his RSUs become Vested RSUs on the date when the Participant’s Unpaid Leave of Absence ends and the Participant returns to active employment with the Corporation or an Affiliate. If the Participant does not return to active employment with the Corporation or an Affiliate from the Unpaid Leave of Absence, all unvested RSUs shall not vest and shall be forfeited and cancelled and the Participant waives any and all right to compensation or damages in consequence of the Participant ceasing to have rights or be entitled to receive any cash or Shares under the Plan pursuant to this Section 7.3.4. Notwithstanding anything contained herein to the contrary, in no event shall this Section 7.3.4 cause a Section 409A Amount to be paid in a calendar year later than the calendar year such Section 409A Amount would have been paid had the Participant not been on an Unpaid Leave of Absence. For greater certainty, and notwithstanding any other provision in the Plan or a Grant Agreement, in no event shall this Section


Encana Corporation   Page 16

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

 

7.3.4 cause a Section 409A Amount to be paid in a calendar year later than the calendar year such Section 409A Amount would have been paid had the Participant not been on an Unpaid Leave of Absence and instead such Section 409A Amount shall either be forfeited or paid on or before December 31 of the calendar year in which such amount would have been paid had the Participant not been on an Unpaid Leave of Absence, as determined by the Committee.

 

  7.4

Termination of Employment . Unless otherwise determined by the Committee, a Participant shall not be entitled to any further grant or vesting of RSUs and the Participant shall not be entitled to any cash, Shares or other payment in respect of any unvested RSUs following a Termination of Employment. Except as otherwise provided in Section 7.5.2, RSUs (including any related Dividend Equivalent RSUs) which do not vest in accordance with Section 7 prior to the Date Employment Ceases shall be cancelled without payment. The Participant waives any and all right to compensation or damages which may arise or may be deemed to arise in consequence of the Participant’s Termination of Employment (whether lawfully or unlawfully) or otherwise for any reason whatsoever insofar as those rights arise or may arise from the Participant ceasing to have rights or be entitled to receive any cash, Shares or other payment under the Plan pursuant to this Section 7.4. Any Vested RSUs credited to a Participant’s RSU Account as of the Date Employment Ceases shall be payable in accordance with Section 7.2.

 

  7.5

Change in Control .

 

  7.5.1

RSUs granted prior to February  14, 2018. With respect to RSUs granted to the Participant prior to February 14, 2018, notwithstanding any other provision of the Plan, unless otherwise specified by the Board or the Committee with respect to any portion of a RSU that does not constitute a Section 409A Amount, in the event of a Change in Control:

 

  (a)

all such RSUs credited to the Participant’s RSU Account immediately prior to such Change in Control shall become Vested RSUs immediately prior to the time of such Change in Control;

 

  (b)

as soon as practicable, and in any event within 30 days, following a Change in Control, (i) to the extent a Participant’s Vested RSUs are expressed in dollar value form in the RSU Account, the Participant shall receive a cash payment equal to such dollar value; and (ii) to the extent a Participant’s RSUs are expressed in RSU form in the RSU Account, the Participant shall receive in cash or in Shares (or a combination thereof), as may be determined by the Board or the Committee, a payment equal to the number of Vested RSUs (including as determined pursuant to Section 7.5.1(a)) credited to the Participant’s RSU Account at the time of the Change in Control (rounded up to the nearest whole number of Vested RSUs) multiplied by the price at which the Shares are valued for the purpose of the transaction or series of transactions giving rise to the Change in Control, or if there is no such transaction or transactions, the simple average of the closing price per Share on the applicable Stock


Encana Corporation   Page 17

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

Exchange on each day in the thirty day period ending on the date of the Change in Control (as applicable, the “ Change in Control Value ”); and

 

  (c)

with respect to any Section 409A Amount (i) if the Change in Control constitutes a change in the ownership or effective control of a corporation, or a change in the ownership of a substantial portion of the assets of a corporation, as such terms are used in Section 409A of the Code and related regulations (a “409A Change of Control”), such Section 409A Amount shall be paid in accordance with Section 7.5.1(b), and (ii) if the Change in Control does not constitute a 409A Change of Control, such Section 409A Amount shall in all events be paid during the calendar year or years in which such amount would have been paid had there been no Change in Control.

 

  7.5.2

RSUs granted on or after February  14, 2018. The provisions of this Section 7.5.2 shall apply to RSUs granted to the Participant on or after February 14, 2018, notwithstanding any other provision of the Plan.

 

  (a)

In the event of a Change in Control, all such RSUs credited to the Participant’s RSU Account immediately prior to such Change in Control shall become Vested RSUs immediately prior to the time of such Change in Control, except to the extent that an award of RSUs meeting the requirements set out below in this Section 7.5.2(a) (such award, a “Replacement Award”) is provided to the Participant to replace such award of RSUs (each award of RSUs intended to be replaced by a Replacement Award, a “Replaced Award”) effective on or immediately after the time of such Change in Control. An award of RSUs shall meet the requirements of this Section 7.5.2(a) (and hence qualify as a Replacement Award) if (i) it has a value equal to the value of the Replaced Award as of the date of the Change in Control determined with reference to the Change in Control Value of the RSUs comprising the Replaced Award and the fair market value of the securities underlying the Replacement Award, (ii) it relates to publicly traded equity securities of the Corporation, the entity surviving the Corporation following the Change in Control or the parent company of such surviving entity, (iii) it contains terms relating to vesting that are substantially identical to those of the Replaced Award, and (iv) its other terms and conditions are not less favorable to the Participant than the terms and conditions of the Replaced Award (including the provisions that would apply in the event of a subsequent Change in Control) as of the date of the Change in Control. Without limiting the generality of the foregoing, a Replacement Award may take the form of a continuation of the applicable Replaced Award if the requirements of the preceding sentence are satisfied. If a Replacement Award is granted, the Replaced Award shall not immediately vest upon the Change in Control giving rise to the replacement. The determination whether the conditions of this Section 7.5.2(a) are satisfied shall be made by the Committee, as constituted immediately before the Change in Control, in its sole discretion. All RSUs that become vested RSUs pursuant to this Section 7.5.2(a) shall be paid in accordance with Sections 7.5.1(b) or 7.5.1(c), as applicable.


Encana Corporation   Page 18

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

  (b)

Notwithstanding any other provision of this Plan to the contrary, upon the Participant’s Termination of Employment by the Corporation or an Affiliate, as applicable, without CIC Cause, or by the Participant for Good Reason, within the Specified Period following a Change in Control, all Replacement Awards held by such Participant shall vest in full and be paid as soon as practicable, and in any event within 30 days, following such Termination of Employment; provided that if the Replacement Award is a Section 409A Amount, and the Change in Control is not a 409A Change in Control, then such Replacement Award shall in all events be paid during the calendar year or years in which it would have been paid had there been no Change in Control.

 

8.

CURRENCY

 

    8.1

Currency . Except where expressly provided otherwise, all references in the Plan to currency refer to lawful Canadian currency.

 

9.

SHAREHOLDER RIGHTS

 

    9.1

No Rights to Shares . RSUs are not Shares and neither the grant of RSUs nor the fact that Shares may be acquired by, or provided from, a Trust Fund or otherwise in satisfaction of Vested RSUs will entitle a Participant to any shareholder rights, including, without limitation, voting rights, dividend entitlement or rights on liquidation.

 

10.

ADMINISTRATION

 

  10.1

Committee . Unless otherwise determined by the Board, or as specified in Section 10.6, the Plan shall be administered by the Committee.

 

  10.2

Compliance with Laws and Policies . The Corporation’s issuance of any RSUs and its obligation to make any payments or discretion to provide any Shares hereunder is subject to compliance with Applicable Law. Each Participant shall acknowledge and agree (and shall be conclusively deemed to have so acknowledged and agreed by participating in the Plan) that the Participant will, at all times, act in strict compliance with Applicable Law and all other laws and any policies of the Corporation applicable to the Participant in connection with the Plan including, without limitation, furnishing to the Corporation all information and undertakings as may be required to permit compliance with Applicable Law. Such laws, regulations, rules and policies shall include, without limitation, those governing “insiders” or “reporting issuers” as those terms are construed for the purposes of applicable securities laws, regulations and rules.

 

  10.3

Delegation . The Committee may also delegate to any director, officer or employee of the Corporation such duties and powers relating to the Plan or in respect of an applicable Grant Agreement as it may see fit.


Encana Corporation   Page 19

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

  10.4

Withholdings . Notwithstanding any other provision in this Plan, to ensure that the Corporation, an Affiliate or a Trust Fund, as applicable, will be able to comply with the applicable provisions of any federal, provincial, state or local law relating to the withholding of tax or other required deductions, including on the amount, if any, includable in the income of a Participant, the Corporation, or an Affiliate, shall withhold or cause to be withheld from any amount payable to a Participant, either under this Plan, or otherwise, such amount, or may require the sale of such number of Shares by the Trustee, as may be necessary to permit the Corporation, the Affiliate or a Trust Fund, as applicable, to so comply.

 

  10.5

No Additional Rights . Neither designation of an employee as a Participant nor the grant of any RSUs to any Participant at any time entitles any person to the grant, or any additional grant, as the case may be, of any RSUs under the Plan.

 

  10.6

Amendment, Termination . The Plan may be amended or terminated at any time by the Board in whole or in part. No amendment of the Plan shall, without the consent of the Participants affected by the amendment, or unless required by Applicable Law, adversely affect the rights accrued to such Participants with respect to RSUs granted prior to the date of the amendment. Notwithstanding any provision in the Plan to the contrary, the Plan may be amended to prevent any adverse tax results under Section 409A of the Code.

 

  10.7

Administration Costs . The Corporation will be responsible for all costs relating to the administration of the Plan. For greater certainty and unless otherwise determined by the Committee, a Participant shall be responsible for brokerage fees and other administration or transaction costs relating to the transfer, sale or other disposition of Shares on behalf of the Participant that have been previously distributed to or provided to the Participant pursuant to the Plan.

 

  10.8

Section  409A.

 

  10.8.1

Section  409A Amounts . To the extent applicable to any Section 409A Amount, it is intended that the Plan and any Grant Agreement or other agreement that amends or otherwise affects such Section 409A Amount will comply with Section 409A of the Code and any regulations and guidance issued thereunder, and the Plan and any such Grant Agreement or other agreement shall be interpreted accordingly. The provisions of this Section 10.8 shall apply to any Section 409A Amount notwithstanding anything in the Plan or a Grant Agreement to the contrary. In no event shall a Section 409A Amount be distributed at a time or pursuant to an event that is not specified in Section 409A(a)(2) of the Code.

 

  10.8.2

Retirement or Termination of Employment . The Plan does not provide for payment to occur upon (or on a specified date or within a specified period following) a Termination of Employment or Retirement; however, to the extent any Grant Agreement or other agreement provides that any Section 409A Amount is to be distributed upon (or on a specified date or within a specified period following) the date of a U.S. Participant’s Termination of Employment or Retirement, such U.S. Participant shall be deemed to have experienced a Termination of Employment or Retirement


Encana Corporation   Page 20

Restricted Share Unit Plan for Employees

 
(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015, February 22, 2016 and February 14, 2018)

 

 

when (and only when) a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred.

 

  10.8.3

Specified Employees . If a U.S. Participant is a “specified employee” for purposes of Section 409A of the Code, no payment, distribution or other benefit provided pursuant to a Section 409A Amount that is required to be delayed to comply with Section 409A(a)(2)(B)(i) of the Code shall be provided before the date that is six months after the date of such separation from service (or, if earlier than the end of such six-month period, the date of death of the Participant). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first Business Day following the six-month anniversary of the Participant’s separation from service or date of death, as the case may be.

 

  10.8.4

Time of Payment . In no event shall a Participant be entitled to designate the taxable year in which any Section 409A Amount is to be paid. Except with respect to payments following a Change in Control pursuant to Section 7.5.3, Shares or cash to be paid in respect of any Section 409A Amount pursuant to Vested RSUs shall in all events be paid within the calendar year in which the applicable Vesting Date set forth in the applicable Grant Agreement(s) occurs, which for purposes of Section 409A Amounts shall always be defined as occurring within a single calendar year. Payments with respect to Dividend Equivalent RSUs shall be paid at the same time as the RSU to which such Dividend Equivalent RSU relates.

 

  10.8.5

No Acceleration of Payments . In no event shall a change in a period of grant, a waiver, amendment, or other modification of any terms or conditions of a RSU or any determination by the Committee or the Board, as applicable in each case, that occurs after the Grant Date cause any Section 409A amount to be paid in a calendar year that is different than the calendar year in which payment would have occurred but for such change to the period of grant, waiver, amendment, modification, exercise of discretion, or determination.

 

  10.8.6

Trusts . Notwithstanding Section 6.1 hereof, no funds with respect to any Section 409A Amount shall be set aside in a trust located outside the United States or in any other trust or arrangement described under Section 409A(b)(1) of the Code.

 

11.

ASSIGNMENT

 

  11.1

Assignment . The assignment or transfer of the RSUs, or any other benefits under this Plan, shall not be permitted other than by operation of law.

* * * *

Exhibit 10.17

 

 

LOGO

DEFERRED SHARE UNIT PLAN FOR DIRECTORS

OF ENCANA CORPORATION

Adopted with effect from December 18, 2002 and reflective with

amendments made as of April 26, 2005, October 22, 2008,

December 8, 2009, July 20, 2010, February 13, 2013, December 1, 2014 and February 14, 2018


TABLE OF CONTENTS

 

Section

   Page  

1.

  

PREAMBLE AND DEFINITIONS

     1  

2.

  

CONSTRUCTION AND INTERPRETATION

     4  

3.

  

ELIGIBILITY

     4  

4.

  

DEFERRED SHARE UNIT GRANTS

     4  

5.

  

ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION

     7  

6.

  

REDEMPTION ON RETIREMENT OR DEATH

     8  

7.

  

CURRENCY

     9  

8.

  

SHAREHOLDER RIGHTS

     9  

9.

  

ADMINISTRATION

     10  

10.

  

ASSIGNMENT

     10  

Schedules were amended effective February  14, 2018 :

 

Schedule A

  

Election Notice

Schedule B

  

Redemption Notice

Special Appendix

  

Special Provisions Applicable to Directors Subject to

  

Section 409A of the United States Internal Revenue Code


DEFERRED SHARE UNIT PLAN FOR DIRECTORS

OF ENCANA CORPORATION

(Adopted with effect from December 18, 2002 and reflective with

amendments made as of April 26, 2005, October 22, 2008,

December 8, 2009, July 20, 2010, February 13, 2013, December 1, 2014 and February 14, 2018.)

 

1.

PREAMBLE AND DEFINITIONS

 

  1.1

Title

The Plan herein described shall be called the “Deferred Share Unit Plan for Directors of Encana Corporation”.

 

  1.2

Purpose of the Plan

The purpose of the Plan is to promote a greater alignment of interests between Directors and the shareholders of the Corporation.

 

  1.3

Definitions

 

  1.3.1

Affiliate ” means an affiliate of the Corporation as the term “affiliate” is defined in paragraph 3 of Canada Customs and Revenue Agency Interpretation Bulletin IT-337R3, Retiring Allowances .

 

  1.3.2

Annual Remuneration ” means:

 

  1.3.2.1

for all periods ending on or before December 31, 2014, all amounts payable to a Director or the Chairman of the Board by the Corporation in respect of the services provided to the Corporation by the Director or the Chairman of the Board as a member of the Board in a calendar year, including without limitation (i) the annual base retainer fee for serving as a Director, (ii) the annual retainer fee for serving as a member of a Board committee, (iii) the annual retainer fee for chairing a Board committee, (iv) the fees for attending meetings of the Board or Board committees, but excluding (x) amounts received by a Director or Chairman of the Board as a reimbursement for expenses incurred in attending meetings and (y) the initial and annual grants of Deferred Share Units granted pursuant to Sections 4.1 and 4.3 hereof;

 

  1.3.2.2

for all periods commencing on or after January 1, 2015 but ending on or before December 31, 2017, all amounts payable to a Director or the Chairman of the Board by the Corporation in respect of the services provided to the Corporation by such person in his or her capacity as a member of the Board and/or Chairman of the Board in a calendar year, including without limitation (i) the annual Board retainer payable for serving as a Director, (ii) the annual retainer payable for chairing a Board


Encana Corporation

Deferred Share Unit Plan for Directors

(With amendments as of February 14, 2018)

 

  Page 2

 

 

committee and (iii) in the case of the Chairman of the Board, all amounts payable to the Chairman of the Board in a calendar year as an annual retainer for serving as Chairman of the Board, but excluding (x) all amounts received by a Director or Chairman of the Board as a reimbursement for expenses incurred in connection with their service to the Corporation as a Director or Chairman of the Board; and (y) the initial and annual grants of Deferred Share Units granted pursuant to Sections 4.1 and 4.3 hereof; and

 

  1.3.2.3

for all periods commencing on or after January 1, 2018, all amounts payable to a Director or the Chairman of the Board by the Corporation in respect of the services provided to the Corporation by such person in his or her capacity as a member of the Board and/or Chairman of the Board in a calendar year, including without limitation (i) the annual Board retainer payable for serving as a Director, (ii) the annual retainer payable for chairing a Board committee and (iii) in the case of the Chairman of the Board, all amounts payable to the Chairman of the Board in a calendar year as an annual retainer for serving as Chairman of the Board, but excluding (x) all amounts received by a Director or Chairman of the Board as a reimbursement for expenses incurred in connection with their service to the Corporation as a Director or Chairman of the Board; and (y) grants of restricted share units granted by the Corporation pursuant to the Restricted Share Unit Plan for Directors of Encana Corporation to such person.

 

  1.3.3

Blackout Period ” means a trading blackout period imposed by the Corporation under the Corporation’s Securities Trading & Insider Reporting Policy (as amended, supplemented or replaced from time to time).

 

  1.3.4

Board ” means the Board of Directors of the Corporation.

 

  1.3.5

Cease Trade Date ” has the meaning ascribed thereto in Section 6.3.

 

  1.3.6

Chairman of the Board means a director who is not an employee of the Corporation who has been elected or appointed as the non-executive Chairman of the Board of Encana Corporation.

 

  1.3.7

Committee ” means the Nominating and Corporate Governance Committee of the Board.

 

  1.3.8

Conversion Date ” means, with respect to any Quarter, the date used to determine the Market Value for purposes of determining the number of Deferred Share Units to be awarded in respect of that Quarter to a Director, which date shall be the date recommended by the Committee and confirmed by the Board and which shall for the Quarter


Encana Corporation

Deferred Share Unit Plan for Directors

(With amendments as of February 14, 2018)

 

  Page 3

 

 

commencing on the effective date of the Plan be the last day of that Quarter and thereafter shall generally be the last day of each Quarter and, in any event, shall not be earlier than the first business day, or later than December 31, of the year in respect of which the Deferred Share Units are being provided.

 

  1.3.9

Corporation ” means Encana Corporation and any successor corporation whether by amalgamation, merger or otherwise.

 

  1.3.10

Deferred Share Unit ” means a bookkeeping entry on the books of the Corporation, the value of which on any particular date shall be equal to the Market Value.

 

  1.3.11

Deferred Share Unit Account ” has the meaning ascribed thereto in Section 5.1.

 

  1.3.12

Director ” means a director of the Corporation who is not an employee of the Corporation otherwise than in his or her capacity as a member of the Board, and for the purposes of this Plan does not include the Chairman of the Board .

 

  1.3.13

Market Value ” means, with respect to a particular date, the closing price for a Share on the applicable Stock Exchange on the Trading Day immediately prior to that date or, in the event of the Cease Trade Date, such other value as may be determined pursuant to Section 6.3.

 

  1.3.14

Quarter ” means a fiscal quarter of the Corporation, which, until changed by the Corporation, shall be the three month period ending March 31, June 30, September 30 or December 31 in any calendar year.

 

  1.3.15

Redemption Date ” has the meaning ascribed thereto in Section 6.1.

 

  1.3.16

Related Corporation ” has the meaning ascribed thereto in Section 5.2.

 

  1.3.17

Share ” means a common share of the Corporation and such other share as is substituted therefore as a result of amendments to the articles of the Corporation, reorganization or otherwise, including any rights that form a part of the common share or substituted share but not including any other rights that are attached thereto and trade therewith or any other share that is added thereto;

 

  1.3.18

Stock Exchange ” means the Toronto Stock Exchange or the New York Stock Exchange, as specified in the grant confirmation provided to the Director or the Chairman of the Board relating to such Deferred Share Unit, or if the Shares are not listed on the Toronto Stock Exchange or the New York Stock Exchange, such other stock exchange on which the Shares are listed, or if the Shares are not listed on any stock exchange, then on the over-the-counter market.


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Deferred Share Unit Plan for Directors

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  1.3.19

Termination Date has the meaning ascribed thereto in Section 6.1.

 

  1.3.20

Trading Day means any date on which the applicable Stock Exchange is open for the trading of Shares and on which one or more Shares actually traded.

 

2.

CONSTRUCTION AND INTERPRETATION

 

  2.1

In the Plan, references to the masculine include the feminine; references to the singular shall include the plural and vice versa, as the context shall require.

 

  2.2

The Plan shall be governed and interpreted in accordance with the laws of the Province of Alberta and the laws of Canada.

 

  2.3

If any provision of the Plan or part hereof is determined to be void or unenforceable in whole or in part, such determination shall not affect the validity or enforcement of any other provision or part thereof.

 

  2.4

Headings wherever used herein are for reference purposes only and do not limit or extend the meaning of the provisions herein contained.

 

3.

ELIGIBILITY

 

  3.1

The Corporation has established the Plan, effective on December 18, 2002.

 

  3.2

Nothing herein contained shall be deemed to give any person the right to be retained as a Director of the Corporation or an employee of the Corporation or of an Affiliate.

 

4.

DEFERRED SHARE UNIT GRANTS

Annual Deferred Share Unit Grants

 

  4.1

Subject to the conditions stated herein:

 

  (i)

For all periods commencing prior to January 1, 2010 each Director and the Chairman of the Board shall receive an annual grant of 5,000 Deferred Share Units;

 

  (ii)

For all periods commencing after January 1, 2010 but prior to January 1, 2015 each Director and the Chairman of the Board shall receive an annual grant of 10,000 Deferred Share Units;

 

  (iii)

For all periods commencing after January 1, 2015 but prior to January 1, 2018 each Director shall receive an annual grant of 9,800 Deferred Share Units and the Chairman of the Board shall receive an annual grant of 18,000 Deferred Share Units; and

 

  (iv)

For all periods commencing after January 1, 2018, the Chairman of the Board and each Director shall not receive an annual grant of Deferred


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Share Units but may make an election to receive Deferred Share Units pursuant to Section 4.6.

 

  4.2

The first annual grant of Deferred Share Units shall be effective January 1, 2006. For years following 2006 but prior to January 1, 2018, each such annual grant of Deferred Share Units shall, except as otherwise provided in Sections 4.1 to 4.3, be effective on January 1 st of such year. Where January 1 st falls within a Blackout Period, then the date of such annual grant of Deferred Share Units shall automatically occur and be effective on the next business day following the last day of such Blackout Period.

 

  4.3

In the case of a Director or a Chairman of the Board who commences being a Director or a Chairman of the Board during a calendar year on a date which occurs after any annual grant of Deferred Share Units for that particular year:

 

  (i)

in any such year occurring prior to January 1, 2010, each such Director or Chairman of the Board shall receive 5,000 Deferred Share Units;

 

  (ii)

in any such year occurring in or after January 1, 2010 but prior to January 1, 2015, 10,000 Deferred Share Units shall be granted to each Director or the Chairman of the Board, in each such case under this Section 4.3 (i) or (ii) on the date on which such Director or Chairman of the Board is first elected or appointed to the Board; and

 

  (iii)

in any such year occurring in or after January 1, 2015 but prior to January 1, 2018, 9,800 Deferred Share Units shall be granted to each Director and 18,000 Deferred Share Units shall be granted to the Chairman of the Board on the date on which such Director and Chairman of the Board are first elected or appointed to the Board.

The foregoing notwithstanding, effective December 1, 2014, any grant of Deferred Share Units made pursuant to this Section 4.3 shall be subject to pro-rata adjustment based on the proportion the number of calendar days in the calendar year during which such individual was a Director or Chairman of the Board is of 365 days. Where any date specified herein for the grant of Deferred Share Units falls on a date which is within a Blackout Period, then the date of such grant of Deferred Share Units shall automatically occur and be effective on the next business day following the last day of such Blackout Period.

Election for Deferred Share Units

 

  4.4

Subject to Sections 4.5 through 4.7 and such rules, regulations, approvals and conditions as the Committee may impose, a Director or Chairman of the Board may elect to receive all or a portion of his Annual Remuneration in the form of Deferred Share Units in lieu of cash.

 

  4.5

To elect to receive all or a portion, as specified in Section 4.6, of his Annual Remuneration in the form of Deferred Share Units, a Director or the Chairman of the Board, as the case may be, shall complete and deliver to the Corporate Secretary of the Corporation an initial written election in the form attached as


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Deferred Share Unit Plan for Directors

(With amendments as of February 14, 2018)

 

  Page 6

 

 

Schedule A hereto (or such other form as provided by the Corporate Secretary of the Corporation) by no later than the date specified by the Corporate Secretary (but in any event no later than December 31 immediately preceding the commencement of the calendar year to which the Annual Remuneration relates), which shall, subject to Section 4.7, apply to all Annual Remuneration payable for the year commencing immediately following the date of the election and for any subsequent year.

 

  4.6

Except as determined by the Committee, in its sole discretion, a Director or the Chairman of the Board may elect on an irrevocable basis, subject to Section 4.5 and Section 4.7, in lieu of cash thereof,

 

  4.6.1

one of the following four (4) options with respect to the payment of his Annual Remuneration relating to periods commencing prior to January 1, 2018:

 

  (i)

25% of the Director’s or Chairman of the Board’s Annual Remuneration in the form of Deferred Share Units;

 

  (ii)

50% of the Director’s or Chairman of the Board’s Annual Remuneration in the form of Deferred Share Units;

 

  (iii)

75% of the Director’s or Chairman of the Board’s Annual Remuneration in the form of Deferred Share Units; or

 

  (iv)

100% of the Director’s or Chairman of the Board’s Annual Remuneration in the form of Deferred Share Units; or

 

  4.6.2

to receive 100% of the Director’s or Chairman of the Board’s Annual Remuneration relating to periods commencing on or after January 1, 2018 in the form of Deferred Share Units.

 

  4.7

A Director’s or Chairman of the Board’s latest election received by the Corporate Secretary of the Corporation with respect to the percentages of his Annual Remuneration to be provided in the form of Deferred Share Units shall be irrevocable and shall continue to apply with respect to Annual Remuneration for the year commencing immediately following the date of the election and for any subsequent year unless the Director or Chairman of the Board wishes to change the portion of his Annual Remuneration to be provided in the form of Deferred Share Units for subsequent years. In order to effect such a change, the Director or the Chairman of the Board shall complete and deliver to the Corporate Secretary of the Corporation a new written election, in the form attached as Schedule A hereto (or such other form as provided by the Corporate Secretary of the Corporation), in accordance with Section 4.6 which shall be effective for all Annual Remuneration payable in respect of all calendar years commencing after the date on which such new election is delivered (unless subsequently changed again for future years in accordance with this Section 4.7).

 

  4.8

The portion of Annual Remuneration payable to a Director or Chairman of the Board in respect of a Quarter or other period within the year to which such


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Deferred Share Unit Plan for Directors

(With amendments as of February 14, 2018)

 

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Annual Remuneration relates shall be paid in cash (net of applicable withholdings) or provided in the form of Deferred Share Units as set out in Section 5.1 as soon as practicable after the last day of each Quarter or such other applicable period in respect of which the Annual Remuneration may be payable, provided that, notwithstanding any election by a Director or Chairman of the Board under the Plan, the Committee may, in its sole discretion, decline to award Deferred Share Units on account of his Annual Remuneration and instead require the Director or Chairman of the Board, as the case may be, to receive such Annual Remuneration in cash. Where any date specified herein for the grant of Deferred Share Units falls on a date which is within a Blackout Period, then the date of such grant of Deferred Share Units shall automatically occur and be effective on the second Trading Day immediately following the end of such Blackout Period to permit the Market Value of any such Deferred Share Units to be determined on a Trading Day which occurs immediately following the end of any such Blackout Period.

 

5.

ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION

 

  5.1

An account, to be known as a “Deferred Share Unit Account” shall be maintained by the Corporation for each Director and the Chairman of the Board and will be credited with grants of Deferred Share Units received by a Director and the Chairman of the Board from time to time. Where Deferred Share Units are granted pursuant to Section 4.8, such Deferred Share Units shall be credited to the eligible Deferred Share Unit Account as of the Conversion Date applicable for the Quarter or other period to which the Deferred Share Units relate. The number of Deferred Share Units to be credited to a Deferred Share Unit Account as of a particular Conversion Date shall be determined by dividing (i) the portion of the Annual Remuneration for the applicable Quarter or other applicable period to be satisfied by Deferred Share Units as elected by the Director or the Chairman of the Board, as the case may be, pursuant to any of options (i) through (iv) of Section 4.6, by (ii) the Market Value on the particular Conversion Date. Deferred Share Units will be fully vested upon being credited to a Deferred Share Unit Account and the entitlement to payment of such Deferred Share Units at a Director’s or the Chairman of the Board’s Termination Date shall not thereafter be subject to satisfaction of any requirements as to any minimum period of membership on the Board or other conditions.

 

  5.2

Whenever cash dividends are paid on the Shares, additional Deferred Share Units will be credited to each Deferred Share Unit Account. The number of such additional Deferred Share Units will be calculated by dividing the dividends that would have been paid if the Deferred Share Units recorded in the Deferred Share Unit Account as at the record date for the cash dividend had been Shares by the Market Value on the date on which the dividends are paid on the Shares. Notwithstanding the foregoing, following a Cease Trade Date, the value of a Share (or the share of a corporation that is related to the Corporation for purposes of the Income Tax Act (Canada) (“Related Corporation”)) used to calculate the number of additional Deferred Share Units under this Section 5.2 shall be the value determined on a reasonable and equitable basis by the Board. Where the date on which dividends are deemed paid on the Deferred Share Units falls on a date which is within a Blackout Period, then the deemed dividend


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Deferred Share Unit Plan for Directors

(With amendments as of February 14, 2018)

 

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payment date shall automatically occur and be effective on the second Trading Day immediately following the end of such Blackout Period to permit the Market Value to be determined on a Trading Day which occurs immediately following the end of any such Blackout Period.

 

  5.3

In the event of any stock dividend, stock split, combination or exchange of shares, merger, arrangement, re-organization, re-capitalization, consolidation, spin-off or other distribution (other than normal cash dividends) of Corporation assets to shareholders, or any other similar changes affecting the Shares, such proportionate adjustments, to reflect such change or changes shall be made with respect to the number of Deferred Share Units outstanding under the Plan, all as determined by the Board in its sole discretion.

 

  5.4

For greater certainty, no amount will be paid to, or in respect of, a Director or the Chairman of the Board under the Plan or pursuant to any other arrangement, and no additional Deferred Share Units will be granted to a Director or the Chairman of the Board to compensate for a downward fluctuation in the fair market value of the Shares, nor will any other form of benefit be conferred upon, or in respect of, a Director or the Chairman of the Board for such purpose.

 

6.

REDEMPTION ON RETIREMENT OR DEATH

 

  6.1

The value of the Deferred Share Units credited to a Deferred Share Unit Account shall be redeemable by the Director or the Chairman of the Board (or, where the Director or the Chairman of the Board has died, his estate) at the Director’s or the Chairman of the Board’s option (or after the Director’s or the Chairman of the Board’s death at the option of his legal representative) following the event, including death, causing the Director or the Chairman of the Board to be no longer a director or an employee of the Corporation, or a director or employee of an Affiliate (the “Termination Date”). The Director or the Chairman of the Board (or after the Director’s or Chairman of the Board’s death, his legal representative) shall, by filing a written notice of redemption in the form of Schedule B hereto with the Corporate Secretary of the Corporation, specify the number of Deferred Share Units to be redeemed and a redemption date (the “Redemption Date”) in respect of such Deferred Share Units which in any event must be after the date on which the notice of redemption is filed with the Corporation and within the period from the Termination Date to December 15 of the first calendar year commencing after the Termination Date (the “Redemption Deadline”). A Director or the Chairman of the Board (or after the Director’s or the Chairman of the Board’s death, his legal representative) shall be entitled to file one or more additional notices of redemption in accordance with the foregoing terms until such time as all of the Deferred Share Units credited to the corresponding Deferred Share Unit Account have been redeemed. In the event the Director or the Chairman of the Board or his respective legal representative has made no such election or has failed to redeem all Deferred Share Units credited to the corresponding Deferred Share Unit Account prior to the Redemption Deadline, the Corporation shall be entitled to deem any such unredeemed Deferred Share Units as redeemed by the Director or the Chairman of the Board or his respective legal representative effective as of the Redemption Deadline.


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  6.2

The value of the Deferred Share Units redeemed by or in respect of a Director or the Chairman of the Board pursuant to Section 6.1 shall be the Market Value on the applicable Redemption Date and shall be paid to the Director or the Chairman of the Board (or, if the Director or Chairman of the Board has died, to his estate) in the form of a lump sum cash payment, net of any applicable withholdings as soon as practicable after the applicable Redemption Date, provided that in any event such payment date shall be no later than December 31 of the first calendar year commencing after the Termination Date.

 

  6.3

In the event that any applicable Redemption Date is after the date on which the Shares ceased to be traded on the applicable Stock Exchange, provided such cessation in trading is not reasonably expected to be temporary (the “Cease Trade Date”), the value of the Deferred Share Units redeemed by or in respect of the Director or the Chairman of the Board on such Redemption Date pursuant to Section 6.1 shall be determined in accordance with the following:

 

  (a)

where the Termination Date is before or not more than 365 days after the last Trading Day before the Cease Trade Date, the value of each Deferred Share Unit credited to the corresponding Deferred Share Unit Account at Redemption Date shall be equal to the Market Value on the last Trading Day before the Cease Trade Date;

 

  (b)

where the Termination Date is after the date that is 365 days after the last Trading Day before the Cease Trade Date, the value of each Deferred Share Unit credited to the Deferred Share Unit Account at Redemption Date shall be based on the fair market value of a share of the Corporation or of a Related Corporation at Redemption Date as is determined on a reasonable and equitable basis by the Board after receiving the advice of one or more independent firms of investment bankers of national repute.

The value of Deferred Share Units determined in accordance with paragraph (a) or (b) of this Section 6.3, as applicable, shall be paid to the Director or the Chairman of the Board (or, if the Director or the Chairman of the Board has died, to his estate) in the form of a lump sum cash payment, net of any applicable withholdings as soon as practicable after the applicable Redemption Date, provided that in any event such payment date shall be no later than December 31 of the first calendar year commencing after the Termination Date.

 

7.

CURRENCY

 

  7.1

All references in the Plan to currency refer to lawful Canadian currency.

 

8.

SHAREHOLDER RIGHTS

 

  8.1

Deferred Share Units are not Shares or other securities of the Corporation and will not entitle a Director or the Chairman of the Board to any shareholder rights, including, without limitation, voting rights, dividend entitlement or rights on liquidation.


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Deferred Share Unit Plan for Directors

(With amendments as of February 14, 2018)

 

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9.

ADMINISTRATION

 

  9.1

Unless otherwise determined by the Board, the Plan shall remain an unfunded and unsecured obligation of the Corporation.

 

  9.2

Unless otherwise determined by the Board, the Plan shall be administered by the Committee.

 

  9.3

The Plan may be amended or terminated at any time by the Board, except as to rights already accrued hereunder by the Directors and the Chairman of the Board. Notwithstanding the foregoing, any amendment or termination of the Plan shall be such that the Plan continuously meets the requirements of paragraph 6801(d) of the Income Tax Regulations or any successor provision thereto.

 

  9.4

The Corporation will be responsible for all costs relating to the administration of the Plan.

 

10.

ASSIGNMENT

 

  10.1

The assignment or transfer of the Deferred Share Units, or any other benefits under this Plan, shall not be permitted other than by operation of law.

* * * *


Schedule A

Deferred Share Unit Plan for

Directors of Encana Corporation (the “Plan”)

ELECTION NOTICE – Section 4.5 of the Plan

 

I.

Election

Subject to Part II of this Election Notice, I hereby elect to receive 100% of the Annual Remuneration that may be payable to me after the effective date of this election in the form of Deferred Share Units (“DSUs”) and the balance of any such Annual Remuneration in cash, net of applicable withholdings.

 

II.

Acknowledgement

I confirm and acknowledge that:

 

  1.

I have received and reviewed a copy of the terms of the Plan and agree to be bound by them.

 

  2.

I understand that, notwithstanding this election, subject to the terms of the Special Appendix (as defined below), if applicable, the Committee retains discretion to decline to grant DSUs, in which case I will remain eligible to receive my Annual Remuneration in cash.

 

  3.

My DSUs granted under the Plan may not be redeemed by Encana Corporation (the “Corporation”) or any Affiliate thereof until I am no longer either a director or an employee of the Corporation or an Affiliate.

 

  4.

When DSUs credited to my account pursuant to this election are redeemed in accordance with the terms of the Plan after I am no longer either a director or employee of the Corporation or any Affiliate, income tax and other withholdings as required will arise at that time. Upon redemption of the DSUs, the Corporation will make all appropriate withholdings as required by law at that time.

 

  5.

The value of DSUs are based on the value of the common shares of the Corporation and therefore are not guaranteed.

 

  6.

No funds will be set aside to guarantee the payment of DSUs. Future payment of DSUs will remain an unfunded liability recorded on the books of the Corporation.

 

  7.

This election is irrevocable with respect to Annual Remuneration payable after the effective date described in Part III below, subject to my right under the Plan to make a new election with respect to Annual Remuneration payable in calendar years commencing after such new election notice is received by the Corporate Secretary of the Corporation.

 

A-1


  8.

The foregoing is only a brief outline of certain key provisions of the Plan. In the event of any discrepancy between the terms of the Plan and the terms of this Election Notice, the terms of the Plan shall prevail. All capitalized expressions used herein shall have the same meaning as in the Plan unless otherwise defined herein.

 

  9.

To the extent I am (or become) subject to United States federal income taxes, my DSUs credited pursuant to the Plan, and my rights with respect to such DSUs, will be subject to the terms of the Special Appendix to the Plan (the “Special Appendix”), which Special Appendix contains terms and conditions that are intended to cause DSUs to comply with Section 409A of the United States Internal revenue Code. I also understand that the Special Appendix is a part of the Plan and references to the Plan shall be deemed to include a reference to the Special Appendix, to the extent applicable.

The foregoing is only a brief outline of certain key provisions of the Plan. For more complete information, reference should be made to the Plan text which governs in the case of a conflict or inconsistency with this Election Notice. All capitalized expressions used herein shall have the same meaning as in the Plan unless otherwise defined herein.

 

III.

Effective Date

This election shall be effective for the year commencing after the date on which this election is received by the Corporate Secretary of the Corporation.

 

 

    

 

Date

    

(Name of Director)

    

 

    

(Signature of Director)

 

A-2


Schedule B

Deferred Share Unit Plan for

Directors of Encana Corporation (the “Plan”)

To:     Corporate Secretary

           Encana Corporation

REDEMPTION NOTICE

Pursuant to Section 6.1 of the Plan, I hereby advise Encana Corporation (the “Corporation) that I wish to redeem the number of Deferred Share Units specified below which are currently credited to my account under the Plan on the                                  {Redemption Date specified below, which shall be no later than December 15 (and for directors subject to United States federal income taxes, shall not be earlier than January 1) of the first calendar year commencing after the year in which the Director [or the Chairman of the Board, as applicable] ceases to be any of a director or an employee of the Corporation or of an Affiliate.}.

 

Number of Deferred Share Units redeemed:   

                                                                                                               

  

                (If all, specify “All”)

 

Redemption Date(s):

  

                                                                                                                                                       

  

(Must be after the date which this Notice of Redemption is filed with the Corporation)

  

If multiple redemptions, specify the number of Deferred Share Units to be redeemed on the corresponding date.

If the Redemption Notice is signed by a legal representative, documents providing the authority of such signature must be provided to the Corporation.

Payment is to be received as follows ( check one) :

 

 

If Canadian:

  

________ mailed to my home address

  

_________ direct deposit

 

If US:

  

________ mailed to my home address

  

_________ wire transfer

Send cheque/check to:

Address: _______________________________________________________________

City: ___________________ Province/State: ______________ Postal Code/Zip:______

If payment is direct deposited please complete the following if your banking information has changed and attach a void cheque/check:

 

 

Bank Name:                                                                                                                                            

 

Branch Address:                                                                                                                                    

 

City / Province:                                                                                                                                       

 

Branch Transit Number (5 digits):                                                                                                      

 

Bank Number (3 digits):                                                                                                                       

 

Account Number:                                                                                                                                   

I hereby authorize Encana Corporation to credit payment, due to me to my account, which I certify is my account, is in my name and under my direction and control. I make this authorization to the financial institution above designated. I understand that if the information provided is incorrect or illegible, I will not receive payment until the correct information is received by Encana Corporation. If you are not supplying a void cheque/check, we require a document approved in writing from your banking institution confirming this information, or alternatively their stamp/approval that the information supplied on this form is correct. In completing this form, you are acknowledging all information to be accurate and correct to the best of your knowledge.

 

 

    

 

Date

    

(Name of Director)

    

 

    

(Signature of Director)

Return this form to the Corporate Secretary of the Corporation as per Section 6.1 of the Encana Corporation Deferred Share Unit Plan for Directors.

 

B-1


Special Appendix

to

DEFERRED SHARE UNIT PLAN FOR DIRECTORS OF

ENCANA CORPORATION

Special provisions applicable to directors of Encana Corporation subject to

Section 409A of the United States Internal Revenue Code

This special appendix sets forth special provisions of the Plan that apply to U.S. Directors. This special appendix shall become effective on October 22, 2008; however, Sections 2.5 and 2.7 of this special appendix shall not apply in the case of a U.S. Director’s termination or death that occurs in 2008. For avoidance of doubt, nothing in this special appendix shall be deemed to modify the Plan as it relates to directors of Encana Corporation who are not U.S. Directors.

 

1.

Definitions

For purposes of this special appendix:

 

1.1

Code ” means the United States Internal Revenue Code of 1986, as amended, and any applicable Treasury Regulations and other binding regulatory guidance thereunder.

 

1.2

Section  409A ” means section 409A of the Code.

 

1.3

Separation From Service ” shall have the meaning set forth in Section 409A(a)(2)(A)(i) of the Code.

 

1.4

Specified Employee ” means a U.S. Director who meets the definition of “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code.

 

1.5

U.S. Director ” means a director of Encana Corporation subject to Section 409A.

 

2.

Compliance with Section 409A

 

2.1

In General . Notwithstanding any provision of the Plan to the contrary, it is intended that, with respect to U.S. Directors, the provisions of the Plan comply with Section 409A, and all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. Each U.S. Director is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or for the account of such U.S. Director in connection with the Plan or any other Plan maintained by the Corporation (including any taxes and penalties under Section 409A), and neither the Corporation nor any affiliate of the Corporation shall have any obligation to indemnify or otherwise hold such U.S. Director (or any beneficiary) harmless from any or all of such taxes or penalties.

 

2.2

Election to Receive Deferred Share Units . A U.S. Director who wishes to have all or any part of his Annual Remuneration for a given calendar year paid as Deferred Share Units shall irrevocably elect payment in the form of Deferred Share Units prior to the commencement of the calendar year during which the Annual Remuneration is to be earned. Notwithstanding the foregoing, to the extent permitted by Section 409A, in the first calendar year in which a U.S. Director becomes eligible to participate in the Plan,


Special Appendix

Deferred Share Unit Plan for

Directors of Encana Corporation

 

  Page 2

 

 

the U.S. Director may elect payment of all or any part of the Annual Remuneration payable for services to be performed after the election in the form of Deferred Share Units, provided that such election is made within 30 days after the date the U.S. Director first becomes eligible to participate in the Plan. Any election under this Section 2.2 shall be made in accordance with procedures established by the Committee for such purpose. Any election made under this Section 2.2 shall apply to the Annual Remuneration earned in future calendar years unless and until the U.S. Director makes a later election in accordance with the terms of this Section 2.2.

 

2.3

Payment Deadline for Annual Remuneration Paid in Cash . Notwithstanding Section 4.8 of the Plan, payment of the Annual Remuneration payable in cash shall in all events be paid within 60 days after the last day of each Quarter.

 

2.4

Committee’s Ability to Decline to Issue Deferred Share Units . Notwithstanding Section 4.8 of the Plan, the Committee may only exercise its discretion pursuant to Section 4.8 of the Plan to decline to award Deferred Share Units for a given calendar year (notwithstanding an election by a U.S. Director under the Plan to have all or any part of his Annual Remuneration for a given calendar year paid as Deferred Share Units) if it does so on or before the deadline for the U.S. Director to make such election pursuant to Section 2.2.

 

2.5

Distributions to U.S. Directors . Notwithstanding the provisions of Section 6.1 of the Plan to the contrary, the value of a U.S. Director’s Deferred Share Unit Account shall be redeemed during the calendar year next following the calendar year in which the U.S. Director’s Termination Date occurs. If the U.S. Director does not select one or more Redemption Dates such that all Deferred Share Units in a U.S. Director’s Deferred Share Unit Account are redeemed, his Deferred Share Unit Account shall be redeemed by the Committee in sufficient time so that payment may be made on the last business day of the calendar year following the year in which the Termination Date occurs. For avoidance of doubt, a U.S. Director may not specify any Redemption Date that is earlier than January 1 or later than December 15 of the calendar year following the calendar year in which the Termination Date occurs. The Termination Date shall be the date on which the U.S. Director experiences a Separation From Service or dies. If the Termination Date results from the U.S. Director’s death, payments shall be deemed for purposes of Section 409A to be made upon death rather than Separation From Service, and shall be paid pursuant to Section 2.7.

 

2.6

Distributions to Specified Employees . Solely to the extent required by Section 409A, Deferred Share Unit Accounts which become redeemable on account of the Separation From Service of a U.S. Director who is determined to be a Specified Employee shall not be redeemed and paid before the date which is 6 months after the Specified Employee’s Separation from Service (or, if earlier, the date of death of the Specified Employee).

 

2.7

Distributions on Death . The Deferred Share Unit Account of a U.S. Director whose Termination Date results from death shall be redeemed and paid to the U.S. Director’s estate during the calendar year next following the calendar year in which the death occurs. If the U.S. Director (or the U.S. Director’s estate) does not select an applicable Redemption Date, his Deferred Share Unit Account shall be redeemed by the


Special Appendix

Deferred Share Unit Plan for

Directors of Encana Corporation

 

  Page 3

 

 

Committee in sufficient time so that payment may be made on the last business day of the calendar year following the year in which the death occurs.

 

2.8

Notwithstanding anything contained in this Special Appendix, if a U.S. Director becomes subject to tax pursuant to the provisions of the Income Tax Act (Canada), on amounts under the Plan prior to receipt of such amounts pursuant to Section 2.5 or 2.7 of this Special Appendix, a portion of the U.S. Director’s Deferred Share Unit Account shall be redeemed so that payment may be made in an amount equal to the “Tax Payment Amount” as soon as practicable (but not later than 90 days) after the date such amounts become subject to tax pursuant to the provisions of the Income Tax Act (Canada). The “Tax Payment Amount” shall equal the amount of taxes due by the U.S. Director (or the U.S. Director’s estate) under the Income Tax Act (Canada) on amounts under the Plan, plus an additional amount to cover any taxes imposed on the payment made pursuant to this Section 2.8 to the maximum extent permitted under Section 409A.

 

3.

Amendment of Appendix

The Board shall retain the power and authority to amend or modify this special appendix to the extent the Board in its sole discretion deems necessary or advisable to comply with any guidance issued under Section 409A. Such amendments may be made without the approval of any U.S. Director.

* * * *

Exhibit 10.18

AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT

This Amended and Restated Change in Control Agreement (this “ Agreement ”) is made effective as of February 14, 2018 between Encana Corporation, a corporation amalgamated under the laws of Canada (the “ Corporation ”), and Sherri A. Brillon of the City of Calgary in the Province of Alberta (the “ Executive ”).

WHEREAS the Corporation and the Executive previously entered into the Change in Control Agreement effective as of January 1, 2007 (the “ Prior Agreement ”) and wish to amend and restate the Prior Agreement as set forth herein;

AND WHEREAS the Board of Directors of the Corporation (the “ Board ”) has determined that it is in the best interests of the Corporation and its shareholders to assure that the Corporation will have the continued dedication of the Executive, notwithstanding the possibility or threat of a Change in Control (as defined herein);

AND WHEREAS the Board believes it is imperative to diminish the inevitable distraction of the Executive by virtue of the personal uncertainties and risks created by a pending or threatened Change in Control and to encourage the Executive’s full attention and dedication to the Corporation in the event of any threatened or pending Change in Control, and to provide the Executive with compensation and benefits arrangements upon a Change in Control that ensure that the compensation and benefits expectations of the Executive will be satisfied and that provide the Executive with compensation and benefits arrangements that are competitive with those of other companies;

AND WHEREAS to accomplish these objectives, the Board has caused the Corporation to enter into this Agreement;

NOW THEREFORE , in consideration of the covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency whereof are hereby acknowledged by each of the Executive and the Corporation (each, a “ Party ” and collectively, the “ Parties ”), the Parties hereby mutually covenant and agree as follows:

 

1.0

Term of Agreement

 

1.1

Term . This Agreement shall commence on the date hereof and shall continue in effect during the Executive’s employment with the Corporation as an executive officer until such time as there shall occur a Change in Control of the Corporation and for a period of two years following the Effective Date (as defined below) of such Change in Control (the “ Term ”); provided, however, that the payment of compensation and benefits to the Executive under this Agreement may continue beyond the end of the Term in accordance with the applicable provisions of this Agreement.

 

2.0

Definitions

For purposes of this Agreement, the following definitions shall apply:

 

2.1

Affiliate ”: the term “Affiliate” shall be interpreted in accordance with the definition of such term as contained in Section 2 of the Canada Business Corporations Act (Canada).


2.2

Cause ” means:

 

  (a)

the willful and continued failure by the Executive to substantially perform his or her duties with the Corporation or an Affiliate after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes the Executive has not substantially performed his or her duties, and the Executive fails to correct such failure to perform his or her duties within thirty (30) days after such written demand is delivered to the Executive; provided, however, that if such failure occurs after the occurrence of an event or circumstance which would entitle the Executive to resign for Good Reason, such alleged failure shall not constitute the basis for “Cause”; or

 

  (b)

the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Corporation or an Affiliate, monetarily or otherwise.

For purposes of this Section 2.2, (i) any action by the Executive or any failure on the Executive’s part to act, shall be deemed “willful” only when done (or omitted to be done) by the Executive not in good faith and only if, when done (or omitted to be done), the Executive had or ought to have had the reasonable belief that the Executive’s action or omission would not be in the best interests of the Corporation or an Affiliate, and (ii) if the Corporation is not the ultimate parent corporation of the group that includes the Corporation and all of its Affiliates after a Change in Control, references to the “Board” shall mean the board of directors (or equivalent governing body) of the ultimate parent entity of such group.

Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until (A) the Executive has been provided with the opportunity, after reasonable advance notice, to appear before the Board, together with the Executive’s legal counsel, prior to a determination by the Board regarding the existence of “Cause”, and (B) there shall have been delivered to the Executive a copy of a resolution duly adopted by a vote of at least two-thirds (2/3) of the members of the Board, finding that in the good faith opinion of the Board, the Executive was guilty of conduct set forth in clause (a) or (b) of this Section 2.2 and specifying the particulars thereof. A determination of “Cause” made by the Board that is challenged by the Executive in a court of competent jurisdiction shall be subject to “ de novo ” standard of review by such court.

 

2.3

Change in Control ” means:

 

  (a)

any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing (each, a “ Person ”), is or becomes the beneficial owner directly or indirectly of 30% or more of either (A) the then-outstanding shares of common stock of the Corporation (the “ Outstanding Corporation Common Stock ”) or (B) the combined voting power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “ Outstanding Corporation Voting Securities ”); provided, however, that, for purposes of this Section 2.3(a), the following acquisitions of shares or other voting securities of the Corporation shall not constitute a Change in Control: (i) any acquisition directly from the Corporation, (ii) any acquisition made by the Corporation, (iii) any acquisition by any employee plan (or related trust) sponsored or maintained by the

 

Page 2


 

Corporation or any of its subsidiaries, or (iv) any acquisition pursuant to a transaction that complies with Sections 2.3(b)(1), 2.3(b)(2) and 2.3(b)(3);

 

  (b)

consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Corporation or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Corporation, or the acquisition of assets or securities of another entity by the Corporation or any of its subsidiaries (each, a “ Business Combination ”), in each case unless , following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such Business Combination or any employee plan (or related trust) of the Corporation or of such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting from such Business Combination were members of the Incumbent Board (as defined below) at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination;

 

  (c)

individuals who, as of the date hereof, constitute the Board (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Corporation’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person or entity other than the Board; or

 

  (d)

approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation.

 

Page 3


For purposes of this Section 2.3:

 

  (i)

the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (ii)

the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining the percentage of beneficial ownership of any Person.

 

2.4

Effective Date ” means the date of the occurrence of a Change in Control.

 

2.5

“Good Reason ” means the occurrence of any of the following on or after a Change in Control, unless the Executive shall have given express written consent thereto:

 

  (a)

Changed Status, Position, Authorities, Duties or Responsibilities . The occurrence of any of the following:

 

  (i)

any adverse change to the Executive’s status or position as in effect immediately prior to the Change in Control, including, without limitation, the Executive ceasing to serve as an executive officer of a publicly traded company and the sole executive performing the Executive’s role as of immediately prior to the Change in Control (or its equivalent), reporting directly and exclusively to the chief executive officer of a publicly traded company; and

 

  (ii)

assignment to the Executive of any authorities, duties or responsibilities materially inconsistent with the Executive’s position and status as of immediately prior to the Change in Control; and

 

  (iii)

any diminution in the Executive’s authorities, duties or responsibilities from those in effect immediately prior to the Change in Control; or

 

  (b)

Reduced Salary . A reduction by the Corporation in the Executive’s annual base salary as in effect immediately prior to the Change in Control; or

 

  (c)

Relocation . The Corporation requiring the Executive to be based more than 50 miles from where the Executive is based immediately prior to the Change in Control, except for: (i) required travel on the Corporation’s business to an extent substantially consistent with the Executive’s business travel obligations in the ordinary course of business immediately prior to the Change in Control; or (ii) if the Executive has been relocated or repatriated by the Corporation prior to the Change in Control, such relocation as may be required by applicable law or performed in accordance with an agreement (whether written or unwritten) entered into between the Corporation (or an Affiliate) and the Executive prior to the Change in Control; or

 

Page 4


  (d)

Incentive Compensation Plans . The occurrence of any of the following: (i) a material reduction by the Corporation in the Executive’s (A) annual incentive compensation target or maximum opportunity, or (B) long-term incentive compensation target or maximum opportunity (measured based on grant date fair value of any equity-based awards), in each case, as in effect immediately prior to the Change in Control, or (ii) a change in the performance conditions, vesting, or other material terms and conditions applicable to annual and/or long-term incentive compensation awards granted to Executive after the Change in Control which would have the effect of materially reducing the Executive’s aggregate potential incentive compensation from the level in effect immediately prior to the Change in Control; or

 

  (e)

Pension Plan, Benefit Plans and Perquisites . The failure by the Corporation to continue to provide the Executive:

 

  (i)

with pension and other retirement benefits substantially similar to those provided to the Executive under the applicable pension and retirement plans and arrangements of the Corporation as of immediately prior to the Change in Control; or

 

  (ii)

with benefits substantially similar to the benefits provided to the Executive as of immediately prior to the Change in Control under the Corporation’s life insurance, medical, health and accident, disability or investment plans; or

 

  (iii)

with executive perquisites substantially similar to the material perquisites provided to the Executive by the Corporation as of immediately prior to the Change in Control; or

 

  (iv)

with the number of paid vacation days to which the Executive is entitled in accordance with the normal vacation policy of the Corporation in effect in respect of the Executive as of immediately prior to the Change in Control; or

 

  (f)

Deferred Compensation . The failure by the Corporation to pay the Executive (i) any portion of the Executive’s then current compensation, except pursuant to an across-the-board compensation deferral similarly affecting all senior executives of the Corporation and required by applicable law or (ii) any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation; or

 

  (g)

No Assumption by Successor . The failure of the Corporation to obtain a satisfactory agreement from a successor to assume and agree to perform this Agreement as contemplated by Section 7.1 hereof.

 

3.0

Notice of Termination; Date of Termination

 

3.1

Notice of Termination . Any termination of the Executive’s employment either by the Executive for Good Reason or by the Corporation for Cause or without Cause, as applicable, shall be communicated by written Notice of Termination to the Executive or to the Corporation, as the case may be, in accordance with Section 8.0 hereof.

 

Page 5


3.2

Content of Notice of Termination . The “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon by the Executive or the Corporation, as the case may be, and shall set forth in reasonable detail the facts and circumstances claimed as the basis for the Executive terminating the Executive’s employment or the Corporation terminating the Executive’s employment, as the case may be. The Executive’s failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of “Good Reason” shall not result in a waiver of the Executive’s rights hereunder or preclude the Executive from subsequently asserting such fact or circumstance in enforcing the Executive’s rights hereunder.

 

3.3

Date of Termination . The “Date of Termination” shall mean (a) if the Executive’s employment is terminated by the Corporation without Cause or by the Executive for Good Reason, the date specified in the Notice of Termination (which, in the case of termination by the Executive for Good Reason, shall be not more than sixty (60) days following the date such Notice of Termination is given), or (b) if the Executive’s employment is terminated by the Corporation for Cause, the date on which the Board resolution referenced in Section 2.2 is delivered to the Executive.

 

3.4

Notice Required . For the purposes of this Agreement, any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 3.2 hereof shall not be effective.

 

4.0

Compensation and Benefits following Change in Control

Upon the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, in accordance with the terms of this Agreement, in each case, on or after the Effective Date and prior to the end of the Term, the Corporation shall cause to be provided to the Executive, the following payments and benefits:

 

  (a)

Accrued Obligations . The Corporation shall pay the Executive, in cash, in a lump sum, on the thirtieth (30 th ) day following the Date of Termination (the “ Payment Date ”), the sum of (i) the Executive’s full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given (disregarding any reduction thereto that constitutes Good Reason), (ii) all accrued but unused vacation determined as of the Date of Termination, determined based upon the Executive’s Severance Salary Rate (as defined below) and the Corporation’s vacation policy in effect on the Date of Termination (or, if more favorable to the Executive, the vacation policy in effect as of immediately prior to the Effective Date), (iii) the Executive’s annual bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination, and (iv) the Executive’s business expenses that are reimbursable pursuant to the applicable policy of the Corporation as in effect on the Date of Termination but have not been reimbursed by the Corporation as of the Date of Termination.

 

  (b)

Severance Payment, Severance Period and Severance Salary Rate . The Corporation shall pay to the Executive, on account of both compensation in lieu of notice and loss of office, on the Payment Date, in cash, in a lump sum, on the Payment Date, a severance payment (the “ Severance Payment ”) equal to the amount of base salary the Executive would have

 

Page 6


 

earned had he continued to be employed until the end of the twenty-fourth (24 th ) full calendar month following the Date of Termination (the “ Severance Period ”) assuming that the Executive’s rate of monthly base salary during the Severance Period would be equal to the highest monthly rate of base salary which was payable to the Executive by the Corporation or an Affiliate during the twenty-four (24)-month period immediately preceding the Date of Termination (disregarding any reduction thereto that constitutes Good Reason) (the “ Severance Salary Rate ”).

 

  (c)

Annual Incentive Plans . The Corporation shall pay to the Executive, in cash, in a lump sum, on the Payment Date, a payment equal to: (i) two times the average of the annual bonuses paid to the Executive by the Corporation in respect of the three complete fiscal years of the Corporation immediately preceding the Effective Date (or, for any such complete fiscal year for which the Executive was not paid an annual bonus, the Executive’s target bonus as in effect immediately prior to the Effective Date) (the “ Average Bonus ”), plus (ii) if the Date of Termination is not the last day of a fiscal year, a prorated bonus payment equal to the Average Bonus multiplied by a fraction, the numerator of which is the number of days which have elapsed in the fiscal year in which the Date of Termination occurs and the denominator of which is the total number of days in such fiscal year.

 

  (d)

Retirement and Investment Plans . The Corporation shall pay the Executive, in cash, in a lump sum, on the Payment Date, a payment equal to the maximum contribution that the Corporation or a subsidiary thereof would have been required to make on behalf of the Executive to the Corporation’s retirement or investment plans in which the Executive participates as of immediately prior to the Effective Date (other than any amount covered by Section 4.0(e)) if the Executive had remained fully employed during the Severance Period and elected to have the Corporation or a subsidiary thereof match the Executive’s contributions to such plans, determined as if the Executive continued to make contributions to such plans at a rate equal to the contributions actually made by the Executive under such plans in the last complete calendar year immediately preceding the Date of Termination.

 

  (e)

Pension Benefits. In addition to the benefits which the Executive is entitled under any pension or retirement plan or arrangement established by the Corporation, the Corporation shall pay to the Executive the maximum contribution that the Corporation would have been required to make on behalf of the Executive under Encana Corporation Canadian Pension Plan and the Encana Corporation Canadian Supplemental Defined Contribution Savings Plan at the percentage of salary specified therein in respect to the Severance Period based on:

 

  (i)

The Executive’s annual base salary (using the Severance Salary Rate) if she were fully employed until the end of the 24 th calendar month following the Date of Termination; and

 

  (ii)

The lesser of the Average Bonus and 40% of the amount of the annual base salary the Executive would have earned (using the Severance Salary Rate) had

 

Page 7


 

she continued to be employed until the end of the 24 th calendar month following the Date of Termination.

This payment will be made to the Executive in a lump sum on the Payment Date.

 

  (f)

Equity Awards . Each outstanding equity and equity-based compensation award granted by the Corporation to the Executive shall be treated in accordance with the terms of the plan and award agreement under which it was originally granted.

 

  (g)

Insurance Benefits . The Corporation shall continue to provide the Executive with the same level of life, disability, accident, dental and health insurance benefits the Executive was receiving or entitled to receive from the Corporation immediately prior to the Date of Termination until the end of the Severance Period. The contributions or premiums required to be paid by the Executive under such programs shall be payable by the Executive to the Corporation or to the insurer, as applicable, on the same basis as if the Executive continued to be employed during the Severance Period.

 

  (h)

Career Counselling . At the Executive’s request, the Corporation shall provide the Executive with career counselling services, at a maximum cost to the Corporation of $15,000 per annum, until the Executive obtains subsequent employment or establishes the Executive’s own business activity or the end of the Severance Period, whichever is earliest. The Executive shall be entitled to obtain such services from the recognized professional career counselling firm of the Executive’s choice in the major metropolitan area in or nearest to where the Executive resides at the time the Executive begins to use such services.

 

  (i)

Annual Allowance . The Corporation shall pay to the Executive, in cash, in a lump sum, on the Payment Date an amount equal to two times the annual allowance to which the Executive is entitled as of the date of the Date of Termination (or, if higher, as of immediately prior to the Effective Date).

 

  (j)

Financial Counselling . The Corporation shall, during the Severance Period, continue to provide the Executive with the same financial counselling benefits as those to which the Executive was entitled as of immediately prior to the Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Effective Date). Such services shall be provided throughout the Severance Period, including the preparation of the Executive’s tax return(s) for the tax year during which the Severance Period ends.

 

  (k)

Executive Medical . The Corporation shall continue to provide the Executive with the same executive physical examination benefits as those to which the Executive was entitled as of immediately prior to the Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Effective Date). Such benefits shall be provided for the duration of the Severance Period.

 

  (l)

Professional Membership Fees . The Corporation shall pay the Executive, in cash, in a lump sum, on the Payment Date, an after-tax amount equal to two times the amount reimbursed or paid by the Corporation (separate from the annual allowance) in respect of membership fees for membership in professional organizations related to the Executive’s

 

Page 8


 

position and duties with the Corporation for the year preceding the year in which the Date of Termination occurs (or, if greater, preceding the year in which the Effective Date occurs).

 

5.0

Legal Fees and Expenses

The Corporation shall pay the Executive’s actual legal or professional fees and expenses incurred by the Executive in seeking to obtain or enforce any right or benefit provided by this Agreement up to US$100,000 (and, if a court or other tribunal finds in favor of the Executive, any such fees or expenses that are in excess of US$100,000). Such fees or expenses shall be reimbursed by the Corporation reasonably promptly following receipt of a copy of any invoice from the Executive evidencing the payment by the Executive of such fees or expenses. If such fees or expenses are paid in Canadian dollars, the application of the US$100,000 cap under this Section 5.0 shall be applied by converting the reimbursed amounts to U.S. dollars based on the spot exchange rate at the time of the reimbursement.

 

6.0

Entire Agreement

 

6.1

This Agreement constitutes the entire agreement between the Parties hereto concerning change in control benefits and obligations and supersedes all prior agreements or understandings, including the Prior Agreement, except that each outstanding equity and equity-based compensation award granted by the Corporation to the Executive shall be treated in accordance with the terms of the plan and award agreement under which it was granted, including any such terms that relate to change in control benefits.

 

7.0

Successors; Binding Agreement

 

7.1

Assumption by Successors . The Corporation will require any successor (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to (a) all or substantially all of the business and/or assets of the Corporation in a transaction that constitutes a Change in Control, or (b) on or after the Effective Date and prior to the end of the Term, to the business in connection with which the Executive’s services are principally performed after a Change in Control in circumstances where the Executive’s employment is transferred to such successor, to expressly assume and to agree to perform this Agreement in the same manner and to the same extent as the Corporation, as if no such succession had taken place. Failure of the Corporation to obtain such assumption and agreement prior to the effectiveness of any such succession shall constitute Good Reason for purposes of this Agreement. As used in this Agreement, “Corporation” shall mean the Corporation as defined herein and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

7.2

Assignment; Binding Agreement .

 

  (a)

This Agreement is personal to the Executive, and, without the prior written consent of the Corporation, shall not be assignable by the Executive. This Agreement shall inure to the benefit of and be enforceable by the Executive and the Executive’s legal representatives and, and if the Executive should die while any amount remains due to the Executive under this Agreement, such amount shall be paid in accordance with the terms of this Agreement to the Executive’s legatee, if there is no such legatee, to the Executive’s estate.

 

Page 9


  (b)

Except as provided in Section 7.1, without the prior written consent of the Executive, this Agreement shall not be assignable by the Corporation. This Agreement shall inure to the benefit of and be binding upon the Corporation and its successors and permitted assigns.

 

8.0

Notices

 

8.1

Notices . For purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given (a) when hand delivered, (b) upon confirmation of receipt when sent by facsimile or email, or (c) on the third business day after having been sent by registered mail, postage prepaid, as follows:

If to the Corporation:

Encana Corporation

500 Centre Street S.E.

Calgary, Alberta

T2P 2S5

Attention: Executive Vice-President & General Counsel

Facsimile: (403) 645-4617

If to the Executive:

At the Executive’s most recent address, facsimile number, or email address, as applicable, on file with the Corporation.

Each of the Corporation and the Executive may from time to time change its contact information for notice by notice to the other Party given in the manner aforesaid.

 

9.0

Section  409A Compliance

 

9.1

To the extent that Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “ Code ”) (together with any related regulations or other guidance promulgated by the U.S. Department of the Treasury or the Internal Revenue Service, “ Section  409A ”) is applicable to the Executive, this Agreement and any payment, distribution or other benefit hereunder is intended to comply with the requirements of Section 409A or an applicable exemption or exclusion therefrom, and shall be interpreted and administered in accordance with such intent in all respects; provided , that for the avoidance of doubt, this provision shall not be construed to require a gross-up payment in respect of any taxes, interest or penalties imposed on Executive as a result of Section 409A.

 

9.2

To the extent Section 409A is applicable to the Executive:

 

  (a)

The Executive shall not be deemed to have terminated employment for purposes of any payment or benefit under this Agreement that constitutes non-qualified deferred compensation unless and until a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred. If the Executive is a “specified employee” under Section 409A, no payment, distribution or other benefit provided pursuant to this Agreement constituting non-qualified deferred compensation (within the meaning of Treasury Regulation Section 1.409A-1(b)) that is required to be delayed to comply with

 

Page 10


 

Section 409A(a)(2)(B)(i) shall be provided before the date that is six months after the date of the Executive’s separation from service (or, if earlier than the end of such six-month period, the date of death of the specified employee). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first business day following the six-month anniversary of the separation from service.

 

  (b)

In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement.

 

  (c)

Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.

 

  (d)

All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the time period specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made not later than the last day of the Executive’s taxable year following the taxable year in which such expense was incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Notwithstanding anything in this Agreement to the contrary, with respect to payment of legal fees and expenses pursuant to Section 5.0 hereof, if the court or other tribunal has not yet found in favor or against the Executive prior to the last day of the Executive’s taxable year following the taxable year in which such fees and expenses were incurred, such fees and expenses will be paid on the last day of such taxable year following the taxable year in which such fees and expenses were incurred. If such court or other tribunal does not ultimately find in favor of the Executive, the Executive will repay to the Corporation as soon as practicable, but in no event more than ninety (90) days after the court or other tribunal renders its ruling, any amounts paid or reimbursed pursuant to the prior sentence that would not have been paid or reimbursed pursuant to Section 5.0 but for the prior sentence.

 

10.0

Reduction of Certain Payments . This Section 10.0 shall apply to the Executive only if and to the extent that Section 4999 of the Code is applicable to the Executive.

 

10.1

Anything in this Agreement to the contrary notwithstanding, if the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) of the Executive would subject the Executive to the Excise Tax (as defined below), the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “ Agreement Payments ”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder.

 

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10.2

If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Corporation shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 10.0 shall be binding upon the Corporation, its Affiliates and the Executive. All reasonable fees and expenses of the Accounting Firm shall be borne solely by the Corporation. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under the Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the Agreement Payments that have a Parachute Value in the following order: first, non-cash benefits that do not constitute non-qualified deferred compensation, second, cash benefits that constitute non-qualified deferred compensation, third, non-cash benefits that constitute non-qualified deferred compensation, and fourth, cash benefits that constitute non-qualified deferred compensation, with benefits within each category reduced in reverse chronological order beginning with those that are to be paid or provided the farthest in time from the Date of Termination, based on the Accounting Firm’s determination.

 

10.3

To the extent requested by the Executive, the Corporation and its Affiliates shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Corporation (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code)), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the Treasury Regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the Treasury Regulations under Section 280G of the Code in accordance with Q&A-5(a) of the Treasury Regulations under Section 280G of the Code.

 

10.4

The following terms shall have the following meanings for purposes of this Section 9.0:

 

  (a)

Accounting Firm ” shall mean a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Corporation prior to a Change in Control for purposes of making the applicable determinations hereunder.

 

  (b)

Excise Tax ” means any excise tax imposed under Section 4999 of the Code.

 

  (c)

Net After-Tax Receipt ” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on the Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to the Executive’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Executive in the relevant tax year(s).

 

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  (d)

Parachute Value ” of a Payment shall mean the present value as of the date of the change in control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

 

  (e)

Payment ” shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement or otherwise.

 

  (f)

Safe Harbor Amount ” shall mean the maximum Parachute Value of all Payments that the Executive can receive without any Payments being subject to the Excise Tax.

 

11.0

Miscellaneous

 

11.1

Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in a writing signed by the Parties hereto. No waiver by either Party of, or in compliance with, any condition or provision of this Agreement to be performed by the other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

 

11.2

Deductions . The Executive agrees that benefits and payments to which the Executive is entitled pursuant to this Agreement are subject to deductions or other source withholdings as may be required by law.

 

11.3

No Mitigation . The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided to the Executive by the Corporation referred to in this Agreement be reduced by any compensation earned by, or benefits paid to, the Executive as the result of employment, whether by another employer or self-employment, or by pension benefits after the Date of Termination, or otherwise, except as specifically provided in this Agreement.

 

11.4

Governing Law . This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Alberta.

 

11.5

Currency . All amounts due under this Agreement shall be paid calculated and paid in the currency in which the Executive’s base salary is paid as of immediately prior to the Date of Termination.

 

11.6

Validity . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

11.7

Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same Agreement.

 

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11.8

Headings . The division of this Agreement into sections, subsections and clauses, or other portions hereof and the insertion of headings or subheadings, are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

 

12.0

Survivorship

Upon the expiration or other termination of this Agreement or the Executive’s employment, the respective rights and obligations of the Parties shall survive to the extent necessary to carry out the intentions of the Parties under this Agreement.

 

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IN WITNESS WHEREOF , the Executive and the Corporation have caused this Agreement to be duly executed effective as of the date first above written.

 

ENCANA CORPORATION

 

Per:    

  /s/ Douglas J. Suttles  
  Name: Douglas J. Suttles  
  Title: President & Chief Executive Officer  

Per:

  /s/ Nancy L. Brennan  
  Name: Nancy L. Brennan  
  Title: Corporate Secretary  

SHERRI A. BRILLON

 

/s/ Sherri A. Brillon

 

Sherri A. Brillon

 

Exhibit 10.19

AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT

This Amended and Restated Change in Control Agreement (this “ Agreement ”) is made effective as of February 14, 2018 between Encana Corporation, a corporation amalgamated under the laws of Canada (the “ Corporation ”), and Renee E. Zemljak of the City of Denver in the State of Colorado (the “ Executive ”).

WHEREAS the Corporation and the Executive previously entered into the Change in Control Agreement effective as of November 30, 2009 (the “ Prior Agreement ”) and wish to amend and restate the Prior Agreement as set forth herein;

AND WHEREAS the Board of Directors of the Corporation (the “ Board ”) has determined that it is in the best interests of the Corporation and its shareholders to assure that the Corporation will have the continued dedication of the Executive, notwithstanding the possibility or threat of a Change in Control (as defined herein);

AND WHEREAS the Board believes it is imperative to diminish the inevitable distraction of the Executive by virtue of the personal uncertainties and risks created by a pending or threatened Change in Control and to encourage the Executive’s full attention and dedication to the Corporation in the event of any threatened or pending Change in Control, and to provide the Executive with compensation and benefits arrangements upon a Change in Control that ensure that the compensation and benefits expectations of the Executive will be satisfied and that provide the Executive with compensation and benefits arrangements that are competitive with those of other companies;

AND WHEREAS to accomplish these objectives, the Board has caused the Corporation to enter into this Agreement;

NOW THEREFORE , in consideration of the covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency whereof are hereby acknowledged by each of the Executive and the Corporation (each, a “ Party ” and collectively, the “ Parties ”), the Parties hereby mutually covenant and agree as follows:

 

1.0

Term of Agreement

 

1.1

Term . This Agreement shall commence on the date hereof and shall continue in effect during the Executive’s employment with the Corporation as an executive officer until such time as there shall occur a Change in Control of the Corporation and for a period of two years following the Effective Date (as defined below) of such Change in Control (the “ Term ”); provided, however, that the payment of compensation and benefits to the Executive under this Agreement may continue beyond the end of the Term in accordance with the applicable provisions of this Agreement.

 

2.0

Definitions

For purposes of this Agreement, the following definitions shall apply:

 

2.1

Affiliate ”: the term “Affiliate” shall be interpreted in accordance with the definition of such term as contained in Section 2 of the Canada Business Corporations Act (Canada).


2.2

Cause ” means:

 

  (a)

the willful and continued failure by the Executive to substantially perform his or her duties with the Corporation or an Affiliate after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes the Executive has not substantially performed his or her duties, and the Executive fails to correct such failure to perform his or her duties within thirty (30) days after such written demand is delivered to the Executive; provided, however, that if such failure occurs after the occurrence of an event or circumstance which would entitle the Executive to resign for Good Reason, such alleged failure shall not constitute the basis for “Cause”; or

 

  (b)

the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Corporation or an Affiliate, monetarily or otherwise.

For purposes of this Section 2.2, (i) any action by the Executive or any failure on the Executive’s part to act, shall be deemed “willful” only when done (or omitted to be done) by the Executive not in good faith and only if, when done (or omitted to be done), the Executive had or ought to have had the reasonable belief that the Executive’s action or omission would not be in the best interests of the Corporation or an Affiliate, and (ii) if the Corporation is not the ultimate parent corporation of the group that includes the Corporation and all of its Affiliates after a Change in Control, references to the “Board” shall mean the board of directors (or equivalent governing body) of the ultimate parent entity of such group.

Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until (A) the Executive has been provided with the opportunity, after reasonable advance notice, to appear before the Board, together with the Executive’s legal counsel, prior to a determination by the Board regarding the existence of “Cause”, and (B) there shall have been delivered to the Executive a copy of a resolution duly adopted by a vote of at least two-thirds (2/3) of the members of the Board, finding that in the good faith opinion of the Board, the Executive was guilty of conduct set forth in clause (a) or (b) of this Section 2.2 and specifying the particulars thereof. A determination of “Cause” made by the Board that is challenged by the Executive in a court of competent jurisdiction shall be subject to “ de novo ” standard of review by such court.

 

2.3

Change in Control ” means:

 

  (a)

any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing (each, a “ Person ”), is or becomes the beneficial owner directly or indirectly of 30% or more of either (A) the then-outstanding shares of common stock of the Corporation (the “ Outstanding Corporation Common Stock ”) or (B) the combined voting power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “ Outstanding Corporation Voting Securities ”); provided, however, that, for purposes of this Section 2.3(a), the following acquisitions of shares or other voting securities of the Corporation shall not constitute a Change in Control: (i) any acquisition directly from the Corporation, (ii) any acquisition made by the Corporation, (iii) any acquisition by any employee plan (or related trust) sponsored or maintained by the

 

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Corporation or any of its subsidiaries, or (iv) any acquisition pursuant to a transaction that complies with Sections 2.3(b)(1), 2.3(b)(2) and 2.3(b)(3);

 

  (b)

consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Corporation or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Corporation, or the acquisition of assets or securities of another entity by the Corporation or any of its subsidiaries (each, a “ Business Combination ”), in each case unless , following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such Business Combination or any employee plan (or related trust) of the Corporation or of such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting from such Business Combination were members of the Incumbent Board (as defined below) at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination;

 

  (c)

individuals who, as of the date hereof, constitute the Board (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Corporation’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person or entity other than the Board; or

 

  (d)

approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation.

 

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For purposes of this Section 2.3:

 

  (i)

the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (ii)

the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining the percentage of beneficial ownership of any Person.

 

2.4

Effective Date ” means the date of the occurrence of a Change in Control.

 

2.5

“Good Reason ” means the occurrence of any of the following on or after a Change in Control, unless the Executive shall have given express written consent thereto:

 

  (a)

Changed Status, Position, Authorities, Duties or Responsibilities . The occurrence of any of the following:

 

  (i)

any adverse change to the Executive’s status or position as in effect immediately prior to the Change in Control, including, without limitation, the Executive ceasing to serve as an executive officer of a publicly traded company and the sole executive performing the Executive’s role as of immediately prior to the Change in Control (or its equivalent), reporting directly and exclusively to the chief executive officer of a publicly traded company; and

 

  (ii)

assignment to the Executive of any authorities, duties or responsibilities materially inconsistent with the Executive’s position and status as of immediately prior to the Change in Control; and

 

  (iii)

any diminution in the Executive’s authorities, duties or responsibilities from those in effect immediately prior to the Change in Control; or

 

  (b)

Reduced Salary . A reduction by the Corporation in the Executive’s annual base salary as in effect immediately prior to the Change in Control; or

 

  (c)

Relocation . The Corporation requiring the Executive to be based more than 50 miles from where the Executive is based immediately prior to the Change in Control, except for: (i) required travel on the Corporation’s business to an extent substantially consistent with the Executive’s business travel obligations in the ordinary course of business immediately prior to the Change in Control; or (ii) if the Executive has been relocated or repatriated by the Corporation prior to the Change in Control, such relocation as may be required by applicable law or performed in accordance with an agreement (whether written or unwritten) entered into between the Corporation (or an Affiliate) and the Executive prior to the Change in Control; or

 

Page 4


  (d)

Incentive Compensation Plans . The occurrence of any of the following: (i) a material reduction by the Corporation in the Executive’s (A) annual incentive compensation target or maximum opportunity, or (B) long-term incentive compensation target or maximum opportunity (measured based on grant date fair value of any equity-based awards), in each case, as in effect immediately prior to the Change in Control, or (ii) a change in the performance conditions, vesting, or other material terms and conditions applicable to annual and/or long-term incentive compensation awards granted to Executive after the Change in Control which would have the effect of materially reducing the Executive’s aggregate potential incentive compensation from the level in effect immediately prior to the Change in Control; or

 

  (e)

Pension Plan, Benefit Plans and Perquisites . The failure by the Corporation to continue to provide the Executive:

 

  (i)

with pension and other retirement benefits substantially similar to those provided to the Executive under the applicable pension and retirement plans and arrangements of the Corporation as of immediately prior to the Change in Control; or

 

  (ii)

with benefits substantially similar to the benefits provided to the Executive as of immediately prior to the Change in Control under the Corporation’s life insurance, medical, health and accident, disability or investment plans; or

 

  (iii)

with executive perquisites substantially similar to the material perquisites provided to the Executive by the Corporation as of immediately prior to the Change in Control; or

 

  (iv)

with the number of paid vacation days to which the Executive is entitled in accordance with the normal vacation policy of the Corporation in effect in respect of the Executive as of immediately prior to the Change in Control; or

 

  (f)

Deferred Compensation . The failure by the Corporation to pay the Executive (i) any portion of the Executive’s then current compensation, except pursuant to an across-the-board compensation deferral similarly affecting all senior executives of the Corporation and required by applicable law or (ii) any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation; or

 

  (g)

No Assumption by Successor . The failure of the Corporation to obtain a satisfactory agreement from a successor to assume and agree to perform this Agreement as contemplated by Section 7.1 hereof.

 

3.0

Notice of Termination; Date of Termination

 

3.1

Notice of Termination . Any termination of the Executive’s employment either by the Executive for Good Reason or by the Corporation for Cause or without Cause, as applicable, shall be communicated by written Notice of Termination to the Executive or to the Corporation, as the case may be, in accordance with Section 8.0 hereof.

 

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3.2

Content of Notice of Termination . The “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon by the Executive or the Corporation, as the case may be, and shall set forth in reasonable detail the facts and circumstances claimed as the basis for the Executive terminating the Executive’s employment or the Corporation terminating the Executive’s employment, as the case may be. The Executive’s failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of “Good Reason” shall not result in a waiver of the Executive’s rights hereunder or preclude the Executive from subsequently asserting such fact or circumstance in enforcing the Executive’s rights hereunder.

 

3.3

Date of Termination . The “Date of Termination” shall mean (a) if the Executive’s employment is terminated by the Corporation without Cause or by the Executive for Good Reason, the date specified in the Notice of Termination (which, in the case of termination by the Executive for Good Reason, shall be not more than sixty (60) days following the date such Notice of Termination is given), or (b) if the Executive’s employment is terminated by the Corporation for Cause, the date on which the Board resolution referenced in Section 2.2 is delivered to the Executive.

 

3.4

Notice Required . For the purposes of this Agreement, any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 3.2 hereof shall not be effective.

 

4.0

Compensation and Benefits following Change in Control

Upon the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, in accordance with the terms of this Agreement, in each case, on or after the Effective Date and prior to the end of the Term, the Corporation shall cause to be provided to the Executive, the following payments and benefits:

 

  (a)

Accrued Obligations . The Corporation shall pay the Executive, in cash, in a lump sum, on the thirtieth (30 th ) day following the Date of Termination (the “ Payment Date ”), the sum of (i) the Executive’s full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given (disregarding any reduction thereto that constitutes Good Reason), (ii) all accrued but unused vacation determined as of the Date of Termination, determined based upon the Executive’s Severance Salary Rate (as defined below) and the Corporation’s vacation policy in effect on the Date of Termination (or, if more favorable to the Executive, the vacation policy in effect as of immediately prior to the Effective Date), (iii) the Executive’s annual bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination, and (iv) the Executive’s business expenses that are reimbursable pursuant to the applicable policy of the Corporation as in effect on the Date of Termination but have not been reimbursed by the Corporation as of the Date of Termination.

 

  (b)

Severance Payment, Severance Period and Severance Salary Rate . The Corporation shall pay to the Executive, on account of both compensation in lieu of notice and loss of office, on the Payment Date, in cash, in a lump sum, on the Payment Date, a severance payment (the “ Severance Payment ”) equal to the amount of base salary the Executive would have

 

Page 6


 

earned had he continued to be employed until the end of the twenty-fourth (24 th ) full calendar month following the Date of Termination (the “ Severance Period ”) assuming that the Executive’s rate of monthly base salary during the Severance Period would be equal to the highest monthly rate of base salary which was payable to the Executive by the Corporation or an Affiliate during the twenty-four (24)-month period immediately preceding the Date of Termination (disregarding any reduction thereto that constitutes Good Reason) (the “ Severance Salary Rate ”).

 

  (c)

Annual Incentive Plans . The Corporation shall pay to the Executive, in cash, in a lump sum, on the Payment Date, a payment equal to: (i) two times the average of the annual bonuses paid to the Executive by the Corporation in respect of the three complete fiscal years of the Corporation immediately preceding the Effective Date (or, for any such complete fiscal year for which the Executive was not paid an annual bonus, the Executive’s target bonus as in effect immediately prior to the Effective Date) (the “ Average Bonus ”), plus (ii) if the Date of Termination is not the last day of a fiscal year, a prorated bonus payment equal to the Average Bonus multiplied by a fraction, the numerator of which is the number of days which have elapsed in the fiscal year in which the Date of Termination occurs and the denominator of which is the total number of days in such fiscal year.

 

  (d)

Retirement and Investment Plans . The Corporation shall pay the Executive, in cash, in a lump sum, on the Payment Date, a payment equal to the maximum contribution that the Corporation or a subsidiary thereof would have been required to make on behalf of the Executive to the Corporation’s retirement or investment plans in which the Executive participates as of immediately prior to the Effective Date (other than any amount covered by Section 4.0(e)) if the Executive had remained fully employed during the Severance Period and elected to have the Corporation or a subsidiary thereof match the Executive’s contributions to such plans, determined as if the Executive continued to make contributions to such plans at a rate equal to the contributions actually made by the Executive under such plans in the last complete calendar year immediately preceding the Date of Termination.

 

  (e)

Pension Benefits. In addition to the benefits which the Executive is entitled under any pension or retirement plan or arrangement established by the Corporation, the Corporation shall pay to the Executive the maximum contribution that the Corporation or a subsidiary thereof would have been required to make on behalf of the Executive under the Encana (USA) Retirement Plan at the percentage of salary specified therein in respect to the Severance Period based on:

 

  (i)

The Executive’s annual base salary (using the Severance Salary Rate) if she were fully employed until the end of the 24 th calendar month following the Date of Termination; and

 

  (ii)

The lesser of the Average Bonus and 40% of the amount of the annual base salary (using the Severance Salary Rate) the Executive would have earned had she continued to be employed until the end of the 24 th calendar month following the Date of Termination.

 

Page 7


This payment will be made to the Executive in a lump sum on the Payment Date.

 

  (f)

Equity Awards . Each outstanding equity and equity-based compensation award granted by the Corporation to the Executive shall be treated in accordance with the terms of the plan and award agreement under which it was originally granted.

 

  (g)

Insurance Benefits . The Corporation shall continue to provide the Executive with the same level of life, disability, accident, dental and health insurance benefits the Executive was receiving or entitled to receive from the Corporation immediately prior to the Date of Termination until the end of the Severance Period. The contributions or premiums required to be paid by the Executive under such programs shall be payable by the Executive to the Corporation or to the insurer, as applicable, on the same basis as if the Executive continued to be employed during the Severance Period.

 

  (h)

Career Counselling . At the Executive’s request, the Corporation shall provide the Executive with career counselling services, at a maximum cost to the Corporation of $15,000 per annum, until the Executive obtains subsequent employment or establishes the Executive’s own business activity or the end of the Severance Period, whichever is earliest. The Executive shall be entitled to obtain such services from the recognized professional career counselling firm of the Executive’s choice in the major metropolitan area in or nearest to where the Executive resides at the time the Executive begins to use such services.

 

  (i)

Annual Allowance . The Corporation shall pay to the Executive, in cash, in a lump sum, on the Payment Date an amount equal to two times the annual allowance to which the Executive is entitled as of the date of the Date of Termination (or, if higher, as of immediately prior to the Effective Date).

 

  (j)

Financial Counselling . The Corporation shall, during the Severance Period, continue to provide the Executive with the same financial counselling benefits as those to which the Executive was entitled as of immediately prior to the Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Effective Date). Such services shall be provided throughout the Severance Period, including the preparation of the Executive’s tax return(s) for the tax year during which the Severance Period ends.

 

  (k)

Executive Medical . The Corporation shall continue to provide the Executive with the same executive physical examination benefits as those to which the Executive was entitled as of immediately prior to the Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Effective Date). Such benefits shall be provided for the duration of the Severance Period.

 

  (l)

Professional Membership Fees . The Corporation shall pay the Executive, in cash, in a lump sum, on the Payment Date, an after-tax amount equal to two times the amount reimbursed or paid by the Corporation (separate from the annual allowance) in respect of membership fees for membership in professional organizations related to the Executive’s position and duties with the Corporation for the year preceding the year in which the Date

 

Page 8


 

of Termination occurs (or, if greater, preceding the year in which the Effective Date occurs).

 

5.0

Legal Fees and Expenses

The Corporation shall pay the Executive’s actual legal or professional fees and expenses incurred by the Executive in seeking to obtain or enforce any right or benefit provided by this Agreement up to US$100,000 (and, if a court or other tribunal finds in favor of the Executive, any such fees or expenses that are in excess of US$100,000). Such fees or expenses shall be reimbursed by the Corporation reasonably promptly following receipt of a copy of any invoice from the Executive evidencing the payment by the Executive of such fees or expenses. If such fees or expenses are paid in Canadian dollars, the application of the US$100,000 cap under this Section 5.0 shall be applied by converting the reimbursed amounts to U.S. dollars based on the spot exchange rate at the time of the reimbursement.

 

6.0

Entire Agreement

 

6.1

This Agreement constitutes the entire agreement between the Parties hereto concerning change in control benefits and obligations and supersedes all prior agreements or understandings, including the Prior Agreement, except that each outstanding equity and equity-based compensation award granted by the Corporation to the Executive shall be treated in accordance with the terms of the plan and award agreement under which it was granted, including any such terms that relate to change in control benefits.

 

7.0

Successors; Binding Agreement

 

7.1

Assumption by Successors . The Corporation will require any successor (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to (a) all or substantially all of the business and/or assets of the Corporation in a transaction that constitutes a Change in Control, or (b) on or after the Effective Date and prior to the end of the Term, to the business in connection with which the Executive’s services are principally performed after a Change in Control in circumstances where the Executive’s employment is transferred to such successor, to expressly assume and to agree to perform this Agreement in the same manner and to the same extent as the Corporation, as if no such succession had taken place. Failure of the Corporation to obtain such assumption and agreement prior to the effectiveness of any such succession shall constitute Good Reason for purposes of this Agreement. As used in this Agreement, “Corporation” shall mean the Corporation as defined herein and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

7.2

Assignment; Binding Agreement .

 

  (a)

This Agreement is personal to the Executive, and, without the prior written consent of the Corporation, shall not be assignable by the Executive. This Agreement shall inure to the benefit of and be enforceable by the Executive and the Executive’s legal representatives and, and if the Executive should die while any amount remains due to the Executive under this Agreement, such amount shall be paid in accordance with the terms of this Agreement to the Executive’s legatee, if there is no such legatee, to the Executive’s estate.

 

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  (b)

Except as provided in Section 7.1, without the prior written consent of the Executive, this Agreement shall not be assignable by the Corporation. This Agreement shall inure to the benefit of and be binding upon the Corporation and its successors and permitted assigns.

 

8.0

Notices

 

8.1

Notices . For purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given (a) when hand delivered, (b) upon confirmation of receipt when sent by facsimile or email, or (c) on the third business day after having been sent by registered mail, postage prepaid, as follows:

If to the Corporation:

Encana Corporation

500 Centre Street S.E.

Calgary, Alberta

T2P 2S5

Attention: Executive Vice-President & General Counsel

Facsimile: (403) 645-4617

If to the Executive:

At the Executive’s most recent address, facsimile number, or email address, as applicable, on file with the Corporation.

Each of the Corporation and the Executive may from time to time change its contact information for notice by notice to the other Party given in the manner aforesaid.

 

9.0

Section  409A Compliance

 

9.1

To the extent that Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “ Code ”) (together with any related regulations or other guidance promulgated by the U.S. Department of the Treasury or the Internal Revenue Service, “ Section  409A ”) is applicable to the Executive, this Agreement and any payment, distribution or other benefit hereunder is intended to comply with the requirements of Section 409A or an applicable exemption or exclusion therefrom, and shall be interpreted and administered in accordance with such intent in all respects; provided , that for the avoidance of doubt, this provision shall not be construed to require a gross-up payment in respect of any taxes, interest or penalties imposed on Executive as a result of Section 409A.

 

9.2

To the extent Section 409A is applicable to the Executive:

 

  (a)

The Executive shall not be deemed to have terminated employment for purposes of any payment or benefit under this Agreement that constitutes non-qualified deferred compensation unless and until a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred. If the Executive is a “specified employee” under Section 409A, no payment, distribution or other benefit provided pursuant to this Agreement constituting non-qualified deferred compensation (within the meaning of Treasury Regulation Section 1.409A-1(b)) that is required to be delayed to comply with

 

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Section 409A(a)(2)(B)(i) shall be provided before the date that is six months after the date of the Executive’s separation from service (or, if earlier than the end of such six-month period, the date of death of the specified employee). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first business day following the six-month anniversary of the separation from service.

 

  (b)

In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement.

 

  (c)

Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.

 

  (d)

All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the time period specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made not later than the last day of the Executive’s taxable year following the taxable year in which such expense was incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Notwithstanding anything in this Agreement to the contrary, with respect to payment of legal fees and expenses pursuant to Section 5.0 hereof, if the court or other tribunal has not yet found in favor or against the Executive prior to the last day of the Executive’s taxable year following the taxable year in which such fees and expenses were incurred, such fees and expenses will be paid on the last day of such taxable year following the taxable year in which such fees and expenses were incurred. If such court or other tribunal does not ultimately find in favor of the Executive, the Executive will repay to the Corporation as soon as practicable, but in no event more than ninety (90) days after the court or other tribunal renders its ruling, any amounts paid or reimbursed pursuant to the prior sentence that would not have been paid or reimbursed pursuant to Section 5.0 but for the prior sentence.

 

10.0

Reduction of Certain Payments . This Section 10.0 shall apply to the Executive only if and to the extent that Section 4999 of the Code is applicable to the Executive.

 

10.1

Anything in this Agreement to the contrary notwithstanding, if the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) of the Executive would subject the Executive to the Excise Tax (as defined below), the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “ Agreement Payments ”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder.

 

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10.2

If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Corporation shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 10.0 shall be binding upon the Corporation, its Affiliates and the Executive. All reasonable fees and expenses of the Accounting Firm shall be borne solely by the Corporation. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under the Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the Agreement Payments that have a Parachute Value in the following order: first, non-cash benefits that do not constitute non-qualified deferred compensation, second, cash benefits that constitute non-qualified deferred compensation, third, non-cash benefits that constitute non-qualified deferred compensation, and fourth, cash benefits that constitute non-qualified deferred compensation, with benefits within each category reduced in reverse chronological order beginning with those that are to be paid or provided the farthest in time from the Date of Termination, based on the Accounting Firm’s determination.

 

10.3

To the extent requested by the Executive, the Corporation and its Affiliates shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Corporation (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code)), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the Treasury Regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the Treasury Regulations under Section 280G of the Code in accordance with Q&A-5(a) of the Treasury Regulations under Section 280G of the Code.

 

10.4

The following terms shall have the following meanings for purposes of this Section 9.0:

 

  (a)

Accounting Firm ” shall mean a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Corporation prior to a Change in Control for purposes of making the applicable determinations hereunder.

 

  (b)

Excise Tax ” means any excise tax imposed under Section 4999 of the Code.

 

  (c)

Net After-Tax Receipt ” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on the Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to the Executive’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Executive in the relevant tax year(s).

 

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  (d)

Parachute Value ” of a Payment shall mean the present value as of the date of the change in control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

 

  (e)

Payment ” shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement or otherwise.

 

  (f)

Safe Harbor Amount ” shall mean the maximum Parachute Value of all Payments that the Executive can receive without any Payments being subject to the Excise Tax.

 

11.0

Miscellaneous

 

11.1

Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in a writing signed by the Parties hereto. No waiver by either Party of, or in compliance with, any condition or provision of this Agreement to be performed by the other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

 

11.2

Deductions . The Executive agrees that benefits and payments to which the Executive is entitled pursuant to this Agreement are subject to deductions or other source withholdings as may be required by law.

 

11.3

No Mitigation . The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided to the Executive by the Corporation referred to in this Agreement be reduced by any compensation earned by, or benefits paid to, the Executive as the result of employment, whether by another employer or self-employment, or by pension benefits after the Date of Termination, or otherwise, except as specifically provided in this Agreement.

 

11.4

Governing Law . This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Alberta.

 

11.5

Currency . All amounts due under this Agreement shall be paid calculated and paid in the currency in which the Executive’s base salary is paid as of immediately prior to the Date of Termination.

 

11.6

Validity . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

11.7

Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same Agreement.

 

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11.8

Headings . The division of this Agreement into sections, subsections and clauses, or other portions hereof and the insertion of headings or subheadings, are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

 

12.0

Survivorship

Upon the expiration or other termination of this Agreement or the Executive’s employment, the respective rights and obligations of the Parties shall survive to the extent necessary to carry out the intentions of the Parties under this Agreement.

 

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IN WITNESS WHEREOF , the Executive and the Corporation have caused this Agreement to be duly executed effective as of the date first above written.

 

ENCANA CORPORATION

 

Per:

  /s/ Douglas J. Suttles  
  Name: Douglas J. Suttles  
  Title: President & Chief Executive Officer  

Per:

  /s/ Nancy L. Brennan  
  Name: Nancy L. Brennan  
  Title: Corporate Secretary  

RENEE E. ZEMLJAK

 

/s/ Renee E. Zemljak

 

Renee E. Zemljak

 

Exhibit 10.20

AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT

This Amended and Restated Change in Control Agreement (this “ Agreement ”) is made effective as of February 14, 2018 between Encana Corporation, a corporation amalgamated under the laws of Canada (the “ Corporation ”), and Michael G. McAllister of the City of Calgary in the Province of Alberta (the “ Executive ”).

WHEREAS the Corporation and the Executive previously entered into the Change in Control Agreement effective as of February 10, 2011 (the “ Prior Agreement ”) and wish to amend and restate the Prior Agreement as set forth herein;

AND WHEREAS the Board of Directors of the Corporation (the “ Board ”) has determined that it is in the best interests of the Corporation and its shareholders to assure that the Corporation will have the continued dedication of the Executive, notwithstanding the possibility or threat of a Change in Control (as defined herein);

AND WHEREAS the Board believes it is imperative to diminish the inevitable distraction of the Executive by virtue of the personal uncertainties and risks created by a pending or threatened Change in Control and to encourage the Executive’s full attention and dedication to the Corporation in the event of any threatened or pending Change in Control, and to provide the Executive with compensation and benefits arrangements upon a Change in Control that ensure that the compensation and benefits expectations of the Executive will be satisfied and that provide the Executive with compensation and benefits arrangements that are competitive with those of other companies;

AND WHEREAS to accomplish these objectives, the Board has caused the Corporation to enter into this Agreement;

NOW THEREFORE , in consideration of the covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency whereof are hereby acknowledged by each of the Executive and the Corporation (each, a “ Party ” and collectively, the “ Parties ”), the Parties hereby mutually covenant and agree as follows:

 

1.0

Term of Agreement

 

1.1

Term . This Agreement shall commence on the date hereof and shall continue in effect during the Executive’s employment with the Corporation as an executive officer until such time as there shall occur a Change in Control of the Corporation and for a period of two years following the Effective Date (as defined below) of such Change in Control (the “ Term ”); provided, however, that the payment of compensation and benefits to the Executive under this Agreement may continue beyond the end of the Term in accordance with the applicable provisions of this Agreement.

 

2.0

Definitions

For purposes of this Agreement, the following definitions shall apply:

 

2.1

Affiliate ”: the term “Affiliate” shall be interpreted in accordance with the definition of such term as contained in Section 2 of the Canada Business Corporations Act (Canada).


2.2

Cause ” means:

 

  (a)

the willful and continued failure by the Executive to substantially perform his or her duties with the Corporation or an Affiliate after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes the Executive has not substantially performed his or her duties, and the Executive fails to correct such failure to perform his or her duties within thirty (30) days after such written demand is delivered to the Executive; provided, however, that if such failure occurs after the occurrence of an event or circumstance which would entitle the Executive to resign for Good Reason, such alleged failure shall not constitute the basis for “Cause”; or

 

  (b)

the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Corporation or an Affiliate, monetarily or otherwise.

For purposes of this Section 2.2, (i) any action by the Executive or any failure on the Executive’s part to act, shall be deemed “willful” only when done (or omitted to be done) by the Executive not in good faith and only if, when done (or omitted to be done), the Executive had or ought to have had the reasonable belief that the Executive’s action or omission would not be in the best interests of the Corporation or an Affiliate, and (ii) if the Corporation is not the ultimate parent corporation of the group that includes the Corporation and all of its Affiliates after a Change in Control, references to the “Board” shall mean the board of directors (or equivalent governing body) of the ultimate parent entity of such group.

Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until (A) the Executive has been provided with the opportunity, after reasonable advance notice, to appear before the Board, together with the Executive’s legal counsel, prior to a determination by the Board regarding the existence of “Cause”, and (B) there shall have been delivered to the Executive a copy of a resolution duly adopted by a vote of at least two-thirds (2/3) of the members of the Board, finding that in the good faith opinion of the Board, the Executive was guilty of conduct set forth in clause (a) or (b) of this Section 2.2 and specifying the particulars thereof. A determination of “Cause” made by the Board that is challenged by the Executive in a court of competent jurisdiction shall be subject to “ de novo ” standard of review by such court.

 

2.3

Change in Control ” means:

 

  (a)

any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing (each, a “ Person ”), is or becomes the beneficial owner directly or indirectly of 30% or more of either (A) the then-outstanding shares of common stock of the Corporation (the “ Outstanding Corporation Common Stock ”) or (B) the combined voting power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “ Outstanding Corporation Voting Securities ”); provided, however, that, for purposes of this Section 2.3(a), the following acquisitions of shares or other voting securities of the Corporation shall not constitute a Change in Control: (i) any acquisition directly from the Corporation, (ii) any acquisition made by the Corporation, (iii) any acquisition by any employee plan (or related trust) sponsored or maintained by the

 

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Corporation or any of its subsidiaries, or (iv) any acquisition pursuant to a transaction that complies with Sections 2.3(b)(1), 2.3(b)(2) and 2.3(b)(3);

 

  (b)

consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Corporation or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Corporation, or the acquisition of assets or securities of another entity by the Corporation or any of its subsidiaries (each, a “ Business Combination ”), in each case unless , following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such Business Combination or any employee plan (or related trust) of the Corporation or of such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting from such Business Combination were members of the Incumbent Board (as defined below) at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination;

 

  (c)

individuals who, as of the date hereof, constitute the Board (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Corporation’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person or entity other than the Board; or

 

  (d)

approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation.

 

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For purposes of this Section 2.3:

 

  (i)

the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (ii)

the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining the percentage of beneficial ownership of any Person.

 

2.4

Effective Date ” means the date of the occurrence of a Change in Control.

 

2.5

“Good Reason ” means the occurrence of any of the following on or after a Change in Control, unless the Executive shall have given express written consent thereto:

 

  (a)

Changed Status, Position, Authorities, Duties or Responsibilities . The occurrence of any of the following:

 

  (i)

any adverse change to the Executive’s status or position as in effect immediately prior to the Change in Control, including, without limitation, the Executive ceasing to serve as an executive officer of a publicly traded company and the sole executive performing the Executive’s role as of immediately prior to the Change in Control (or its equivalent), reporting directly and exclusively to the chief executive officer of a publicly traded company; and

 

  (ii)

assignment to the Executive of any authorities, duties or responsibilities materially inconsistent with the Executive’s position and status as of immediately prior to the Change in Control; and

 

  (iii)

any diminution in the Executive’s authorities, duties or responsibilities from those in effect immediately prior to the Change in Control; or

 

  (b)

Reduced Salary . A reduction by the Corporation in the Executive’s annual base salary as in effect immediately prior to the Change in Control; or

 

  (c)

Relocation . The Corporation requiring the Executive to be based more than 50 miles from where the Executive is based immediately prior to the Change in Control, except for: (i) required travel on the Corporation’s business to an extent substantially consistent with the Executive’s business travel obligations in the ordinary course of business immediately prior to the Change in Control; or (ii) if the Executive has been relocated or repatriated by the Corporation prior to the Change in Control, such relocation as may be required by applicable law or performed in accordance with an agreement (whether written or unwritten) entered into between the Corporation (or an Affiliate) and the Executive prior to the Change in Control; or

 

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  (d)

Incentive Compensation Plans . The occurrence of any of the following: (i) a material reduction by the Corporation in the Executive’s (A) annual incentive compensation target or maximum opportunity, or (B) long-term incentive compensation target or maximum opportunity (measured based on grant date fair value of any equity-based awards), in each case, as in effect immediately prior to the Change in Control, or (ii) a change in the performance conditions, vesting, or other material terms and conditions applicable to annual and/or long-term incentive compensation awards granted to Executive after the Change in Control which would have the effect of materially reducing the Executive’s aggregate potential incentive compensation from the level in effect immediately prior to the Change in Control; or

 

  (e)

Pension Plan, Benefit Plans and Perquisites . The failure by the Corporation to continue to provide the Executive:

 

  (i)

with pension and other retirement benefits substantially similar to those provided to the Executive under the applicable pension and retirement plans and arrangements of the Corporation as of immediately prior to the Change in Control; or

 

  (ii)

with benefits substantially similar to the benefits provided to the Executive as of immediately prior to the Change in Control under the Corporation’s life insurance, medical, health and accident, disability or investment plans; or

 

  (iii)

with executive perquisites substantially similar to the material perquisites provided to the Executive by the Corporation as of immediately prior to the Change in Control; or

 

  (iv)

with the number of paid vacation days to which the Executive is entitled in accordance with the normal vacation policy of the Corporation in effect in respect of the Executive as of immediately prior to the Change in Control; or

 

  (f)

Deferred Compensation . The failure by the Corporation to pay the Executive (i) any portion of the Executive’s then current compensation, except pursuant to an across-the-board compensation deferral similarly affecting all senior executives of the Corporation and required by applicable law or (ii) any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation; or

 

  (g)

No Assumption by Successor . The failure of the Corporation to obtain a satisfactory agreement from a successor to assume and agree to perform this Agreement as contemplated by Section 7.1 hereof.

 

3.0

Notice of Termination; Date of Termination

 

3.1

Notice of Termination . Any termination of the Executive’s employment either by the Executive for Good Reason or by the Corporation for Cause or without Cause, as applicable, shall be communicated by written Notice of Termination to the Executive or to the Corporation, as the case may be, in accordance with Section 8.0 hereof.

 

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3.2

Content of Notice of Termination . The “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon by the Executive or the Corporation, as the case may be, and shall set forth in reasonable detail the facts and circumstances claimed as the basis for the Executive terminating the Executive’s employment or the Corporation terminating the Executive’s employment, as the case may be. The Executive’s failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of “Good Reason” shall not result in a waiver of the Executive’s rights hereunder or preclude the Executive from subsequently asserting such fact or circumstance in enforcing the Executive’s rights hereunder.

 

3.3

Date of Termination . The “Date of Termination” shall mean (a) if the Executive’s employment is terminated by the Corporation without Cause or by the Executive for Good Reason, the date specified in the Notice of Termination (which, in the case of termination by the Executive for Good Reason, shall be not more than sixty (60) days following the date such Notice of Termination is given), or (b) if the Executive’s employment is terminated by the Corporation for Cause, the date on which the Board resolution referenced in Section 2.2 is delivered to the Executive.

 

3.4

Notice Required . For the purposes of this Agreement, any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 3.2 hereof shall not be effective.

 

4.0

Compensation and Benefits following Change in Control

Upon the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, in accordance with the terms of this Agreement, in each case, on or after the Effective Date and prior to the end of the Term, the Corporation shall cause to be provided to the Executive, the following payments and benefits:

 

  (a)

Accrued Obligations . The Corporation shall pay the Executive, in cash, in a lump sum, on the thirtieth (30 th ) day following the Date of Termination (the “ Payment Date ”), the sum of (i) the Executive’s full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given (disregarding any reduction thereto that constitutes Good Reason), (ii) all accrued but unused vacation determined as of the Date of Termination, determined based upon the Executive’s Severance Salary Rate (as defined below) and the Corporation’s vacation policy in effect on the Date of Termination (or, if more favorable to the Executive, the vacation policy in effect as of immediately prior to the Effective Date), (iii) the Executive’s annual bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination, and (iv) the Executive’s business expenses that are reimbursable pursuant to the applicable policy of the Corporation as in effect on the Date of Termination but have not been reimbursed by the Corporation as of the Date of Termination.

 

  (b)

Severance Payment, Severance Period and Severance Salary Rate . The Corporation shall pay to the Executive, on account of both compensation in lieu of notice and loss of office, on the Payment Date, in cash, in a lump sum, on the Payment Date, a severance payment (the “ Severance Payment ”) equal to the amount of base salary the Executive would have

 

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earned had he continued to be employed until the end of the twenty-fourth (24 th ) full calendar month following the Date of Termination (the “ Severance Period ”) assuming that the Executive’s rate of monthly base salary during the Severance Period would be equal to the highest monthly rate of base salary which was payable to the Executive by the Corporation or an Affiliate during the twenty-four (24)-month period immediately preceding the Date of Termination (disregarding any reduction thereto that constitutes Good Reason) (the “ Severance Salary Rate ”).

 

  (c)

Annual Incentive Plans . The Corporation shall pay to the Executive, in cash, in a lump sum, on the Payment Date, a payment equal to: (i) two times the average of the annual bonuses paid to the Executive by the Corporation in respect of the three complete fiscal years of the Corporation immediately preceding the Effective Date (or, for any such complete fiscal year for which the Executive was not paid an annual bonus, the Executive’s target bonus as in effect immediately prior to the Effective Date) (the “ Average Bonus ”), plus (ii) if the Date of Termination is not the last day of a fiscal year, a prorated bonus payment equal to the Average Bonus multiplied by a fraction, the numerator of which is the number of days which have elapsed in the fiscal year in which the Date of Termination occurs and the denominator of which is the total number of days in such fiscal year.

 

  (d)

Retirement and Investment Plans . The Corporation shall pay the Executive, in cash, in a lump sum, on the Payment Date, a payment equal to the maximum contribution that the Corporation or a subsidiary thereof would have been required to make on behalf of the Executive to the Corporation’s retirement or investment plans in which the Executive participates as of immediately prior to the Effective Date (other than any amount covered by Section 4.0(e)) if the Executive had remained fully employed during the Severance Period and elected to have the Corporation or a subsidiary thereof match the Executive’s contributions to such plans, determined as if the Executive continued to make contributions to such plans at a rate equal to the contributions actually made by the Executive under such plans in the last complete calendar year immediately preceding the Date of Termination.

 

  (e)

Pension Benefits. In addition to the benefits to which the Executive is entitled under any pension or retirement plan or arrangement established by the Corporation:

 

  (i)

The Executive will be credited with pensionable service in the Encana Corporation Canadian Supplemental Pension Plan (the “ Supplemental Pension Plan ”), as may be amended from time to time or any successor plan thereto, for each of the 24 months included in the Severance Period;

 

  (ii)

Calculation of the Executive’s final average annual earnings for purposes of this Section 4.0(e) shall be determined based on the Executive’s annual base salary and annual Bonus award (as applicable) over the sixty month period prior to the end of the Executive’s Severance Period calculated according to Schedule A;

 

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  (iii)

The Executive’s age, for the purpose of calculating any early retirement reduction factor under the Supplemental Pension Plan shall be deemed to be equal to the age he would have attained at the end of the Severance Period;

 

  (iv)

For the purposes of this Section 4.0(e) and subject to clause 4.0(e)(vii) below, the date of pension commencement shall be determined in accordance with the Supplemental Pension Plan, but in any event no earlier than the end of the Severance Period;

 

  (v)

Subject to clauses 4.0(e)(vi) and (vii) below, the form of benefit to which the Executive is entitled under the Supplemental Pension Plan, including in the event of death prior to the commencement date of the Executive’s pension under the Supplemental Pension Plan, as modified by clauses 4.0(e)(i), (ii), (iii) and (iv) above, shall be determined in accordance with the terms of such plans in effect at the applicable time;

 

  (vi)

On or prior to the 15th business day following the Date of Termination, the Executive may irrevocably elect to receive in lieu of his pension entitlement under the Supplemental Pension Plan, a lump sum payment payable on the Payment Date equal to the actuarial present value of the Executive’s accrued pension under the Supplemental Pension Plan at the Date of Termination as modified by clauses 4.0(e)(i), (ii), (iii) and (iv) above and determined: (A) without any gross up or other adjustment for income tax and not taking into account the non-registered status of the Supplemental Pension Plan, (B) using the same assumptions and methods utilized as at the Date of Termination for purposes of calculating a commuted value upon cessation of employment or membership under the Encana Corporation Canadian Pension Plan, as amended from time to time or any successor registered pension plan thereto, and (C) assuming the Executive’s accrued pension under the Supplemental Pension Plan is fully vested. If the Executive does not elect to receive the lump sum payment provided under this clause 4.0(e)(vi) on or prior to the 15th business day following the Date of Termination and subject to clause 4.0(e)(vii) below, he shall be deemed to have elected to receive his entitlement under the Supplemental Pension Plan as modified by clauses 4.0(e)(i), (ii), (iii) and (iv) above in accordance with clause 4.0(e)(v) above; and

 

  (vii)

If the Executive is age 55 or older on the Date of Termination, the Executive may elect to commence his pension under the Supplemental Pension Plan as of the Date of Termination. In this event, the Executive’s pension entitlement under the Supplemental Pension Plan as modified by clauses 4.0(e)(i), (ii), (iii) and (iv) above, shall be reduced on an actuarial equivalent value basis (but for greater certainty without any gross up or other adjustment for income tax and not taking into account the non-registered status of the Supplemental Pension Plan), using the same assumptions and methods utilized as at the Date of Termination under the Encana Corporation Canadian Pension Plan, as amended from time to time or any successor registered pension plan thereto, to reflect the acceleration of the

 

Page 8


 

commencement of the Executive’s pension under the Supplemental Pension Plan from the end of the Severance Period to the Date of Termination.

 

  (f)

Equity Awards . Each outstanding equity and equity-based compensation award granted by the Corporation to the Executive shall be treated in accordance with the terms of the plan and award agreement under which it was originally granted.

 

  (g)

Insurance Benefits . The Corporation shall continue to provide the Executive with the same level of life, disability, accident, dental and health insurance benefits the Executive was receiving or entitled to receive from the Corporation immediately prior to the Date of Termination until the end of the Severance Period. The contributions or premiums required to be paid by the Executive under such programs shall be payable by the Executive to the Corporation or to the insurer, as applicable, on the same basis as if the Executive continued to be employed during the Severance Period.

 

  (h)

Career Counselling . At the Executive’s request, the Corporation shall provide the Executive with career counselling services, at a maximum cost to the Corporation of $15,000 per annum, until the Executive obtains subsequent employment or establishes the Executive’s own business activity or the end of the Severance Period, whichever is earliest. The Executive shall be entitled to obtain such services from the recognized professional career counselling firm of the Executive’s choice in the major metropolitan area in or nearest to where the Executive resides at the time the Executive begins to use such services.

 

  (i)

Annual Allowance . The Corporation shall pay to the Executive, in cash, in a lump sum, on the Payment Date an amount equal to two times the annual allowance to which the Executive is entitled as of the date of the Date of Termination (or, if higher, as of immediately prior to the Effective Date).

 

  (j)

Financial Counselling . The Corporation shall, during the Severance Period, continue to provide the Executive with the same financial counselling benefits as those to which the Executive was entitled as of immediately prior to the Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Effective Date). Such services shall be provided throughout the Severance Period, including the preparation of the Executive’s tax return(s) for the tax year during which the Severance Period ends.

 

  (k)

Executive Medical . The Corporation shall continue to provide the Executive with the same executive physical examination benefits as those to which the Executive was entitled as of immediately prior to the Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Effective Date). Such benefits shall be provided for the duration of the Severance Period.

 

  (l)

Professional Membership Fees . The Corporation shall pay the Executive, in cash, in a lump sum, on the Payment Date, an after-tax amount equal to two times the amount reimbursed or paid by the Corporation (separate from the annual allowance) in respect of membership fees for membership in professional organizations related to the Executive’s position and duties with the Corporation for the year preceding the year in which the Date

 

Page 9


 

of Termination occurs (or, if greater, preceding the year in which the Effective Date occurs).

 

5.0

Legal Fees and Expenses

The Corporation shall pay the Executive’s actual legal or professional fees and expenses incurred by the Executive in seeking to obtain or enforce any right or benefit provided by this Agreement up to US$100,000 (and, if a court or other tribunal finds in favor of the Executive, any such fees or expenses that are in excess of US$100,000). Such fees or expenses shall be reimbursed by the Corporation reasonably promptly following receipt of a copy of any invoice from the Executive evidencing the payment by the Executive of such fees or expenses. If such fees or expenses are paid in Canadian dollars, the application of the US$100,000 cap under this Section 5.0 shall be applied by converting the reimbursed amounts to U.S. dollars based on the spot exchange rate at the time of the reimbursement.

 

6.0

Entire Agreement

 

6.1

This Agreement constitutes the entire agreement between the Parties hereto concerning change in control benefits and obligations and supersedes all prior agreements or understandings, including the Prior Agreement, except that each outstanding equity and equity-based compensation award granted by the Corporation to the Executive shall be treated in accordance with the terms of the plan and award agreement under which it was granted, including any such terms that relate to change in control benefits.

 

7.0

Successors; Binding Agreement

 

7.1

Assumption by Successors . The Corporation will require any successor (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to (a) all or substantially all of the business and/or assets of the Corporation in a transaction that constitutes a Change in Control, or (b) on or after the Effective Date and prior to the end of the Term, to the business in connection with which the Executive’s services are principally performed after a Change in Control in circumstances where the Executive’s employment is transferred to such successor, to expressly assume and to agree to perform this Agreement in the same manner and to the same extent as the Corporation, as if no such succession had taken place. Failure of the Corporation to obtain such assumption and agreement prior to the effectiveness of any such succession shall constitute Good Reason for purposes of this Agreement. As used in this Agreement, “Corporation” shall mean the Corporation as defined herein and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

7.2

Assignment; Binding Agreement .

 

  (a)

This Agreement is personal to the Executive, and, without the prior written consent of the Corporation, shall not be assignable by the Executive. This Agreement shall inure to the benefit of and be enforceable by the Executive and the Executive’s legal representatives and, and if the Executive should die while any amount remains due to the Executive under this Agreement, such amount shall be paid in accordance with the terms of this Agreement to the Executive’s legatee, if there is no such legatee, to the Executive’s estate.

 

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  (b)

Except as provided in Section 7.1, without the prior written consent of the Executive, this Agreement shall not be assignable by the Corporation. This Agreement shall inure to the benefit of and be binding upon the Corporation and its successors and permitted assigns.

 

8.0

Notices

 

8.1

Notices . For purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given (a) when hand delivered, (b) upon confirmation of receipt when sent by facsimile or email, or (c) on the third business day after having been sent by registered mail, postage prepaid, as follows:

If to the Corporation:

Encana Corporation

500 Centre Street S.E.

Calgary, Alberta

T2P 2S5

Attention: Executive Vice-President & General Counsel

Facsimile: (403) 645-4617

If to the Executive:

At the Executive’s most recent address, facsimile number, or email address, as applicable, on file with the Corporation.

Each of the Corporation and the Executive may from time to time change its contact information for notice by notice to the other Party given in the manner aforesaid.

 

9.0

Section  409A Compliance

 

9.1

To the extent that Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “ Code ”) (together with any related regulations or other guidance promulgated by the U.S. Department of the Treasury or the Internal Revenue Service, “ Section  409A ”) is applicable to the Executive, this Agreement and any payment, distribution or other benefit hereunder is intended to comply with the requirements of Section 409A or an applicable exemption or exclusion therefrom, and shall be interpreted and administered in accordance with such intent in all respects; provided , that for the avoidance of doubt, this provision shall not be construed to require a gross-up payment in respect of any taxes, interest or penalties imposed on Executive as a result of Section 409A.

 

9.2

To the extent Section 409A is applicable to the Executive:

 

  (a)

The Executive shall not be deemed to have terminated employment for purposes of any payment or benefit under this Agreement that constitutes non-qualified deferred compensation unless and until a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred. If the Executive is a “specified employee” under Section 409A, no payment, distribution or other benefit provided pursuant to this Agreement constituting non-qualified deferred compensation (within the meaning of Treasury Regulation Section 1.409A-1(b)) that is required to be delayed to comply with

 

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Section 409A(a)(2)(B)(i) shall be provided before the date that is six months after the date of the Executive’s separation from service (or, if earlier than the end of such six-month period, the date of death of the specified employee). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first business day following the six-month anniversary of the separation from service.

 

  (b)

In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement.

 

  (c)

Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.

 

  (d)

All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the time period specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made not later than the last day of the Executive’s taxable year following the taxable year in which such expense was incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Notwithstanding anything in this Agreement to the contrary, with respect to payment of legal fees and expenses pursuant to Section 5.0 hereof, if the court or other tribunal has not yet found in favor or against the Executive prior to the last day of the Executive’s taxable year following the taxable year in which such fees and expenses were incurred, such fees and expenses will be paid on the last day of such taxable year following the taxable year in which such fees and expenses were incurred. If such court or other tribunal does not ultimately find in favor of the Executive, the Executive will repay to the Corporation as soon as practicable, but in no event more than ninety (90) days after the court or other tribunal renders its ruling, any amounts paid or reimbursed pursuant to the prior sentence that would not have been paid or reimbursed pursuant to Section 5.0 but for the prior sentence.

 

10.0

Reduction of Certain Payments . This Section 10.0 shall apply to the Executive only if and to the extent that Section 4999 of the Code is applicable to the Executive.

 

10.1

Anything in this Agreement to the contrary notwithstanding, if the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) of the Executive would subject the Executive to the Excise Tax (as defined below), the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “ Agreement Payments ”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder.

 

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10.2

If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Corporation shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 10.0 shall be binding upon the Corporation, its Affiliates and the Executive. All reasonable fees and expenses of the Accounting Firm shall be borne solely by the Corporation. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under the Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the Agreement Payments that have a Parachute Value in the following order: first, non-cash benefits that do not constitute non-qualified deferred compensation, second, cash benefits that constitute non-qualified deferred compensation, third, non-cash benefits that constitute non-qualified deferred compensation, and fourth, cash benefits that constitute non-qualified deferred compensation, with benefits within each category reduced in reverse chronological order beginning with those that are to be paid or provided the farthest in time from the Date of Termination, based on the Accounting Firm’s determination.

 

10.3

To the extent requested by the Executive, the Corporation and its Affiliates shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Corporation (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code)), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the Treasury Regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the Treasury Regulations under Section 280G of the Code in accordance with Q&A-5(a) of the Treasury Regulations under Section 280G of the Code.

 

10.4

The following terms shall have the following meanings for purposes of this Section 9.0:

 

  (a)

Accounting Firm ” shall mean a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Corporation prior to a Change in Control for purposes of making the applicable determinations hereunder.

 

  (b)

Excise Tax ” means any excise tax imposed under Section 4999 of the Code.

 

  (c)

Net After-Tax Receipt ” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on the Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to the Executive’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Executive in the relevant tax year(s).

 

Page 13


  (d)

Parachute Value ” of a Payment shall mean the present value as of the date of the change in control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

 

  (e)

Payment ” shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement or otherwise.

 

  (f)

Safe Harbor Amount ” shall mean the maximum Parachute Value of all Payments that the Executive can receive without any Payments being subject to the Excise Tax.

 

11.0

Miscellaneous

 

11.1

Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in a writing signed by the Parties hereto. No waiver by either Party of, or in compliance with, any condition or provision of this Agreement to be performed by the other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

 

11.2

Deductions . The Executive agrees that benefits and payments to which the Executive is entitled pursuant to this Agreement are subject to deductions or other source withholdings as may be required by law.

 

11.3

No Mitigation . The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided to the Executive by the Corporation referred to in this Agreement be reduced by any compensation earned by, or benefits paid to, the Executive as the result of employment, whether by another employer or self-employment, or by pension benefits after the Date of Termination, or otherwise, except as specifically provided in this Agreement.

 

11.4

Governing Law . This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Alberta.

 

11.5

Currency . All amounts due under this Agreement shall be paid calculated and paid in the currency in which the Executive’s base salary is paid as of immediately prior to the Date of Termination.

 

11.6

Validity . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

11.7

Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same Agreement.

 

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11.8

Headings . The division of this Agreement into sections, subsections and clauses, or other portions hereof and the insertion of headings or subheadings, are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

 

12.0

Survivorship

Upon the expiration or other termination of this Agreement or the Executive’s employment, the respective rights and obligations of the Parties shall survive to the extent necessary to carry out the intentions of the Parties under this Agreement.

 

Page 15


IN WITNESS WHEREOF , the Executive and the Corporation have caused this Agreement to be duly executed effective as of the date first above written.

 

ENCANA CORPORATION

 

Per:    

  /s/ Douglas J. Suttles  
  Name: Douglas J. Suttles  
  Title: President & Chief Executive Officer  

Per:

  /s/ Nancy L. Brennan  
  Name: Nancy L. Brennan  
  Title: Corporate Secretary  

MICHAEL G. MCALLISTER

 

/s/ Michael G. McAllister

 

Michael G. McAllister

 


SCHEDULE A

COMPUTATION OF PENSIONABLE EARNINGS

Annual Base Salary : Actual base salary paid to the Executive, except as provided below.

Annual Incentive (or Bonus) Award : Lesser of (i) 40% of annual base salary and (ii) annual Bonus award for applicable calendar year commencing 2011 and thereafter.

For the purposes of applying this Schedule A to the Severance Period, the following shall be applicable:

 

(i)

base salary for each month during the Severance Period will be determined using the Severance Salary Rate; and

 

(ii)

annual Bonus award relating to each month during the Severance Period shall be equal to 1/12th of the Average Bonus.

Exhibit 10.21

AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT

This Amended and Restated Change in Control Agreement (this “ Agreement ”) is made effective as of February 14, 2018 between Encana Corporation, a corporation amalgamated under the laws of Canada (the “ Corporation ”), and Douglas J. Suttles of the City of Calgary in the Province of Alberta (the “ Executive ”).

WHEREAS the Corporation and the Executive previously entered into the Change in Control Agreement effective as of June 10, 2013 (the “ Prior Agreement ”) and wish to amend and restate the Prior Agreement as set forth herein;

AND WHEREAS the Board of Directors of the Corporation (the “ Board ”) has determined that it is in the best interests of the Corporation and its shareholders to assure that the Corporation will have the continued dedication of the Executive, notwithstanding the possibility or threat of a Change in Control (as defined herein);

AND WHEREAS the Board believes it is imperative to diminish the inevitable distraction of the Executive by virtue of the personal uncertainties and risks created by a pending or threatened Change in Control and to encourage the Executive’s full attention and dedication to the Corporation in the event of any threatened or pending Change in Control, and to provide the Executive with compensation and benefits arrangements upon a Change in Control that ensure that the compensation and benefits expectations of the Executive will be satisfied and that provide the Executive with compensation and benefits arrangements that are competitive with those of other companies;

AND WHEREAS to accomplish these objectives, the Board has caused the Corporation to enter into this Agreement;

NOW THEREFORE , in consideration of the covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency whereof are hereby acknowledged by each of the Executive and the Corporation (each, a “ Party ” and collectively, the “ Parties ”), the Parties hereby mutually covenant and agree as follows:

 

1.0

Term of Agreement

 

1.1

Term . This Agreement shall commence on the date hereof and shall continue in effect during the Executive’s employment with the Corporation as an executive officer until such time as there shall occur a Change in Control of the Corporation and for a period of two years following the Effective Date (as defined below) of such Change in Control (the “ Term ”); provided, however, that the payment of compensation and benefits to the Executive under this Agreement may continue beyond the end of the Term in accordance with the applicable provisions of this Agreement.

 

2.0

Definitions

For purposes of this Agreement, the following definitions shall apply:

 

2.1

Affiliate ”: the term “Affiliate” shall be interpreted in accordance with the definition of such term as contained in Section 2 of the Canada Business Corporations Act (Canada).


2.2

Cause ” means:

 

  (a)

the willful and continued failure by the Executive to substantially perform his or her duties with the Corporation or an Affiliate after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes the Executive has not substantially performed his or her duties, and the Executive fails to correct such failure to perform his or her duties within thirty (30) days after such written demand is delivered to the Executive; provided, however, that if such failure occurs after the occurrence of an event or circumstance which would entitle the Executive to resign for Good Reason, such alleged failure shall not constitute the basis for “Cause”; or

 

  (b)

the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Corporation or an Affiliate, monetarily or otherwise.

For purposes of this Section 2.2, (i) any action by the Executive or any failure on the Executive’s part to act, shall be deemed “willful” only when done (or omitted to be done) by the Executive not in good faith and only if, when done (or omitted to be done), the Executive had or ought to have had the reasonable belief that the Executive’s action or omission would not be in the best interests of the Corporation or an Affiliate, and (ii) if the Corporation is not the ultimate parent corporation of the group that includes the Corporation and all of its Affiliates after a Change in Control, references to the “Board” shall mean the board of directors (or equivalent governing body) of the ultimate parent entity of such group.

Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until (A) the Executive has been provided with the opportunity, after reasonable advance notice, to appear before the Board, together with the Executive’s legal counsel, prior to a determination by the Board regarding the existence of “Cause”, and (B) there shall have been delivered to the Executive a copy of a resolution duly adopted by a vote of at least two-thirds (2/3) of the members of the Board, finding that in the good faith opinion of the Board, the Executive was guilty of conduct set forth in clause (a) or (b) of this Section 2.2 and specifying the particulars thereof. A determination of “Cause” made by the Board that is challenged by the Executive in a court of competent jurisdiction shall be subject to “ de novo ” standard of review by such court.

 

2.3

Change in Control ” means:

 

  (a)

any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing (each, a “ Person ”), is or becomes the beneficial owner directly or indirectly of 30% or more of either (A) the then-outstanding shares of common stock of the Corporation (the “ Outstanding Corporation Common Stock ”) or (B) the combined voting power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “ Outstanding Corporation Voting Securities ”); provided, however, that, for purposes of this Section 2.3(a), the following acquisitions of shares or other voting securities of the Corporation shall not constitute a Change in Control: (i) any acquisition directly from the Corporation, (ii) any acquisition made by the Corporation, (iii) any acquisition by any employee plan (or related trust) sponsored or maintained by the

 

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Corporation or any of its subsidiaries, or (iv) any acquisition pursuant to a transaction that complies with Sections 2.3(b)(1), 2.3(b)(2) and 2.3(b)(3);

 

  (b)

consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Corporation or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Corporation, or the acquisition of assets or securities of another entity by the Corporation or any of its subsidiaries (each, a “ Business Combination ”), in each case unless , following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such Business Combination or any employee plan (or related trust) of the Corporation or of such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting from such Business Combination were members of the Incumbent Board (as defined below) at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination;

 

  (c)

individuals who, as of the date hereof, constitute the Board (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Corporation’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person or entity other than the Board; or

 

  (d)

approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation.

 

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For purposes of this Section 2.3:

 

  (i)

the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (ii)

the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining the percentage of beneficial ownership of any Person.

 

2.4

Effective Date ” means the date of the occurrence of a Change in Control.

 

2.5

“Good Reason ” means the occurrence of any of the following on or after a Change in Control, unless the Executive shall have given express written consent thereto:

 

  (a)

Changed Status, Position, Authorities, Duties or Responsibilities . The occurrence of any of the following:

 

  (i)

any adverse change to the Executive’s status or position as in effect immediately prior to the Change in Control, including, without limitation, the Executive ceasing to serve as the sole chief executive officer of a publicly traded company, reporting directly and exclusively to the board of directors of a publicly traded company; and

 

  (ii)

assignment to the Executive of any authorities, duties or responsibilities materially inconsistent with the Executive’s position and status as of immediately prior to the Change in Control; and

 

  (iii)

any diminution in the Executive’s authorities, duties or responsibilities from those in effect immediately prior to the Change in Control; or

 

  (b)

Reduced Salary . A reduction by the Corporation in the Executive’s annual base salary as in effect immediately prior to the Change in Control; or

 

  (c)

Relocation . The Corporation requiring the Executive to be based more than 50 miles from where the Executive is based immediately prior to the Change in Control, except for: (i) required travel on the Corporation’s business to an extent substantially consistent with the Executive’s business travel obligations in the ordinary course of business immediately prior to the Change in Control; or (ii) if the Executive has been relocated or repatriated by the Corporation prior to the Change in Control, such relocation as may be required by applicable law or performed in accordance with an agreement (whether written or unwritten) entered into between the Corporation (or an Affiliate) and the Executive prior to the Change in Control; or

 

  (d)

Incentive Compensation Plans . The occurrence of any of the following: (i) a material reduction by the Corporation in the Executive’s (A) annual incentive compensation target or maximum opportunity, or (B) long-term incentive compensation target or maximum

 

Page 4


 

opportunity (measured based on grant date fair value of any equity-based awards), in each case, as in effect immediately prior to the Change in Control, or (ii) a change in the performance conditions, vesting, or other material terms and conditions applicable to annual and/or long-term incentive compensation awards granted to Executive after the Change in Control which would have the effect of materially reducing the Executive’s aggregate potential incentive compensation from the level in effect immediately prior to the Change in Control; or

 

  (e)

Pension Plan, Benefit Plans and Perquisites . The failure by the Corporation to continue to provide the Executive:

 

  (i)

with pension and other retirement benefits substantially similar to those provided to the Executive under the applicable pension and retirement plans and arrangements of the Corporation as of immediately prior to the Change in Control; or

 

  (ii)

with benefits substantially similar to the benefits provided to the Executive as of immediately prior to the Change in Control under the Corporation’s life insurance, medical, health and accident, disability or investment plans; or

 

  (iii)

with executive perquisites substantially similar to the material perquisites provided to the Executive by the Corporation as of immediately prior to the Change in Control; or

 

  (iv)

with the number of paid vacation days to which the Executive is entitled in accordance with the normal vacation policy of the Corporation in effect in respect of the Executive as of immediately prior to the Change in Control; or

 

  (f)

Deferred Compensation . The failure by the Corporation to pay the Executive (i) any portion of the Executive’s then current compensation, except pursuant to an across-the-board compensation deferral similarly affecting all senior executives of the Corporation and required by applicable law or (ii) any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation; or

 

  (g)

No Assumption by Successor . The failure of the Corporation to obtain a satisfactory agreement from a successor to assume and agree to perform this Agreement as contemplated by Section 7.1 hereof.

 

3.0

Notice of Termination; Date of Termination

 

3.1

Notice of Termination . Any termination of the Executive’s employment either by the Executive for Good Reason or by the Corporation for Cause or without Cause, as applicable, shall be communicated by written Notice of Termination to the Executive or to the Corporation, as the case may be, in accordance with Section 8.0 hereof.

 

3.2

Content of Notice of Termination . The “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon by the Executive or the Corporation, as the case may be, and shall set forth in reasonable detail the facts and

 

Page 5


 

circumstances claimed as the basis for the Executive terminating the Executive’s employment or the Corporation terminating the Executive’s employment, as the case may be. The Executive’s failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of “Good Reason” shall not result in a waiver of the Executive’s rights hereunder or preclude the Executive from subsequently asserting such fact or circumstance in enforcing the Executive’s rights hereunder.

 

3.3

Date of Termination . The “Date of Termination” shall mean (a) if the Executive’s employment is terminated by the Corporation without Cause or by the Executive for Good Reason, the date specified in the Notice of Termination (which, in the case of termination by the Executive for Good Reason, shall be not more than sixty (60) days following the date such Notice of Termination is given), or (b) if the Executive’s employment is terminated by the Corporation for Cause, the date on which the Board resolution referenced in Section 2.2 is delivered to the Executive.

 

3.4

Notice Required . For the purposes of this Agreement, any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 3.2 hereof shall not be effective.

 

4.0

Compensation and Benefits following Change in Control

Upon the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, in accordance with the terms of this Agreement, in each case, on or after the Effective Date and prior to the end of the Term, the Corporation shall cause to be provided to the Executive, the following payments and benefits:

 

  (a)

Accrued Obligations . The Corporation shall pay the Executive, in cash, in a lump sum, on the thirtieth (30 th ) day following the Date of Termination (the “ Payment Date ”), the sum of (i) the Executive’s full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given (disregarding any reduction thereto that constitutes Good Reason), (ii) all accrued but unused vacation determined as of the Date of Termination, determined based upon the Executive’s Severance Salary Rate (as defined below) and the Corporation’s vacation policy in effect on the Date of Termination (or, if more favorable to the Executive, the vacation policy in effect as of immediately prior to the Effective Date), (iii) the Executive’s annual bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination, and (iv) the Executive’s business expenses that are reimbursable pursuant to the applicable policy of the Corporation as in effect on the Date of Termination but have not been reimbursed by the Corporation as of the Date of Termination.

 

  (b)

Severance Payment, Severance Period and Severance Salary Rate . The Corporation shall pay to the Executive, on account of both compensation in lieu of notice and loss of office, on the Payment Date, in cash, in a lump sum, on the Payment Date, a severance payment (the “ Severance Payment ”) equal to the amount of base salary the Executive would have earned had he continued to be employed until the end of the twenty-fourth (24 th ) full calendar month following the Date of Termination (the “ Severance Period ”) assuming that the Executive’s rate of monthly base salary during the Severance Period would be equal to

 

Page 6


 

the highest monthly rate of base salary which was payable to the Executive by the Corporation or an Affiliate during the twenty-four (24)-month period immediately preceding the Date of Termination (disregarding any reduction thereto that constitutes Good Reason) (the “ Severance Salary Rate ”).

 

  (c)

Annual Incentive Plans . The Corporation shall pay to the Executive, in cash, in a lump sum, on the Payment Date, a payment equal to: (i) two times the average of the annual bonuses paid to the Executive by the Corporation in respect of the three complete fiscal years of the Corporation immediately preceding the Effective Date (or, for any such complete fiscal year for which the Executive was not paid an annual bonus, the Executive’s target bonus as in effect immediately prior to the Effective Date) (the “ Average Bonus ”), plus (ii) if the Date of Termination is not the last day of a fiscal year, a prorated bonus payment equal to the Average Bonus multiplied by a fraction, the numerator of which is the number of days which have elapsed in the fiscal year in which the Date of Termination occurs and the denominator of which is the total number of days in such fiscal year.

 

  (d)

Retirement and Investment Plans . The Corporation shall pay the Executive, in cash, in a lump sum, on the Payment Date, a payment equal to the maximum contribution that the Corporation or a subsidiary thereof would have been required to make on behalf of the Executive to the Corporation’s retirement or investment plans in which the Executive participates as of immediately prior to the Effective Date (other than any amount covered by Section 4.0(e)) if the Executive had remained fully employed during the Severance Period and elected to have the Corporation or a subsidiary thereof match the Executive’s contributions to such plans, determined as if the Executive continued to make contributions to such plans at a rate equal to the contributions actually made by the Executive under such plans in the last complete calendar year immediately preceding the Date of Termination.

 

  (e)

Pension Benefits. In addition to the benefits which the Executive is entitled under any pension or retirement plan or arrangement established by the Corporation:

 

  (i)

The Executive will be credited with pensionable contributions in the Encana Corporation Canadian Defined Contribution Savings Plan (the “ Supplemental Pension Plan ”), as may be amended from time to time or any successor plan thereto, for each of the 24 months included in the Severance Period;

 

  (ii)

For purposes of Section 4.0(e)(i), the Executive’s pensionable earnings shall be calculated based on the lesser of: (i) 67% of the Executive’s Severance Salary Rate; and (ii) the Average Bonus; and

 

  (iii)

On or prior to the 15th business day following the Date of Termination, the Executive will receive a lump sum cash payment of his accrued entitlements under the Supplemental Pension Plan, payable on the Payment Date, such amount to be determined: (A) without any gross up or other adjustment for income tax and not taking into account the nonregistered status of the Supplemental Pension Plan,

 

Page 7


 

and (B) assuming the Executive’s accrued entitlement under the Supplemental Pension Plan is fully vested.

 

  (f)

Equity Awards . Each outstanding equity and equity-based compensation award granted by the Corporation to the Executive shall be treated in accordance with the terms of the plan and award agreement under which it was originally granted.

 

  (g)

Insurance Benefits . The Corporation shall continue to provide the Executive with the same level of life, disability, accident, dental and health insurance benefits the Executive was receiving or entitled to receive from the Corporation immediately prior to the Date of Termination until the end of the Severance Period. The contributions or premiums required to be paid by the Executive under such programs shall be payable by the Executive to the Corporation or to the insurer, as applicable, on the same basis as if the Executive continued to be employed during the Severance Period.

 

  (h)

Career Counselling . At the Executive’s request, the Corporation shall provide the Executive with career counselling services, at a maximum cost to the Corporation of $15,000 per annum, until the Executive obtains subsequent employment or establishes the Executive’s own business activity or the end of the Severance Period, whichever is earliest. The Executive shall be entitled to obtain such services from the recognized professional career counselling firm of the Executive’s choice in the major metropolitan area in or nearest to where the Executive resides at the time the Executive begins to use such services.

 

  (i)

Annual Allowance . The Corporation shall pay to the Executive, in cash, in a lump sum, on the Payment Date an amount equal to two times the annual allowance to which the Executive is entitled as of the date of the Date of Termination (or, if higher, as of immediately prior to the Effective Date).

 

  (j)

Financial Counselling . The Corporation shall, during the Severance Period, continue to provide the Executive with the same financial counselling benefits as those to which the Executive was entitled as of immediately prior to the Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Effective Date). Such services shall be provided throughout the Severance Period, including the preparation of the Executive’s tax return(s) for the tax year during which the Severance Period ends.

 

  (k)

Executive Medical . The Corporation shall continue to provide the Executive with the same executive physical examination benefits as those to which the Executive was entitled as of immediately prior to the Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Effective Date). Such benefits shall be provided for the duration of the Severance Period.

 

  (l)

Professional Membership Fees . The Corporation shall pay the Executive, in cash, in a lump sum, on the Payment Date, an after-tax amount equal to two times the amount reimbursed or paid by the Corporation (separate from the annual allowance) in respect of membership fees for membership in professional organizations related to the Executive’s position and duties with the Corporation for the year preceding the year in which the Date

 

Page 8


 

of Termination occurs (or, if greater, preceding the year in which the Effective Date occurs).

 

5.0

Legal Fees and Expenses

The Corporation shall pay the Executive’s actual legal or professional fees and expenses incurred by the Executive in seeking to obtain or enforce any right or benefit provided by this Agreement up to US$100,000 (and, if a court or other tribunal finds in favor of the Executive, any such fees or expenses that are in excess of US$100,000). Such fees or expenses shall be reimbursed by the Corporation reasonably promptly following receipt of a copy of any invoice from the Executive evidencing the payment by the Executive of such fees or expenses. If such fees or expenses are paid in Canadian dollars, the application of the US$100,000 cap under this Section 5.0 shall be applied by converting the reimbursed amounts to U.S. dollars based on the spot exchange rate at the time of the reimbursement.

 

6.0

Entire Agreement

 

6.1

This Agreement constitutes the entire agreement between the Parties hereto concerning change in control benefits and obligations and supersedes all prior agreements or understandings, including the Prior Agreement, except that each outstanding equity and equity-based compensation award granted by the Corporation to the Executive shall be treated in accordance with the terms of the plan and award agreement under which it was granted, including any such terms that relate to change in control benefits.

 

7.0

Successors; Binding Agreement

 

7.1

Assumption by Successors . The Corporation will require any successor (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to (a) all or substantially all of the business and/or assets of the Corporation in a transaction that constitutes a Change in Control, or (b) on or after the Effective Date and prior to the end of the Term, to the business in connection with which the Executive’s services are principally performed after a Change in Control in circumstances where the Executive’s employment is transferred to such successor, to expressly assume and to agree to perform this Agreement in the same manner and to the same extent as the Corporation, as if no such succession had taken place. Failure of the Corporation to obtain such assumption and agreement prior to the effectiveness of any such succession shall constitute Good Reason for purposes of this Agreement. As used in this Agreement, “Corporation” shall mean the Corporation as defined herein and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

7.2

Assignment; Binding Agreement .

 

  (a)

This Agreement is personal to the Executive, and, without the prior written consent of the Corporation, shall not be assignable by the Executive. This Agreement shall inure to the benefit of and be enforceable by the Executive and the Executive’s legal representatives and, and if the Executive should die while any amount remains due to the Executive under this Agreement, such amount shall be paid in accordance with the terms of this Agreement to the Executive’s legatee, if there is no such legatee, to the Executive’s estate.

 

Page 9


  (b)

Except as provided in Section 7.1, without the prior written consent of the Executive, this Agreement shall not be assignable by the Corporation. This Agreement shall inure to the benefit of and be binding upon the Corporation and its successors and permitted assigns.

 

8.0

Notices

 

8.1

Notices . For purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given (a) when hand delivered, (b) upon confirmation of receipt when sent by facsimile or email, or (c) on the third business day after having been sent by registered mail, postage prepaid, as follows:

If to the Corporation:

Encana Corporation

500 Centre Street S.E.

Calgary, Alberta

T2P 2S5

Attention: Executive Vice-President & General Counsel

Facsimile: (403) 645-4617

If to the Executive:

At the Executive’s most recent address, facsimile number, or email address, as applicable, on file with the Corporation.

Each of the Corporation and the Executive may from time to time change its contact information for notice by notice to the other Party given in the manner aforesaid.

 

9.0

Section  409A Compliance

 

9.1

To the extent that Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “ Code ”) (together with any related regulations or other guidance promulgated by the U.S. Department of the Treasury or the Internal Revenue Service, “ Section  409A ”) is applicable to the Executive, this Agreement and any payment, distribution or other benefit hereunder is intended to comply with the requirements of Section 409A or an applicable exemption or exclusion therefrom, and shall be interpreted and administered in accordance with such intent in all respects; provided , that for the avoidance of doubt, this provision shall not be construed to require a gross-up payment in respect of any taxes, interest or penalties imposed on Executive as a result of Section 409A.

 

9.2

To the extent Section 409A is applicable to the Executive:

 

  (a)

The Executive shall not be deemed to have terminated employment for purposes of any payment or benefit under this Agreement that constitutes non-qualified deferred compensation unless and until a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred. If the Executive is a “specified employee” under Section 409A, no payment, distribution or other benefit provided pursuant to this Agreement constituting non-qualified deferred compensation (within the meaning of Treasury Regulation Section 1.409A-1(b)) that is required to be delayed to comply with

 

Page 10


 

Section 409A(a)(2)(B)(i) shall be provided before the date that is six months after the date of the Executive’s separation from service (or, if earlier than the end of such six-month period, the date of death of the specified employee). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first business day following the six-month anniversary of the separation from service.

 

  (b)

In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement.

 

  (c)

Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.

 

  (d)

All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the time period specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made not later than the last day of the Executive’s taxable year following the taxable year in which such expense was incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Notwithstanding anything in this Agreement to the contrary, with respect to payment of legal fees and expenses pursuant to Section 5.0 hereof, if the court or other tribunal has not yet found in favor or against the Executive prior to the last day of the Executive’s taxable year following the taxable year in which such fees and expenses were incurred, such fees and expenses will be paid on the last day of such taxable year following the taxable year in which such fees and expenses were incurred. If such court or other tribunal does not ultimately find in favor of the Executive, the Executive will repay to the Corporation as soon as practicable, but in no event more than ninety (90) days after the court or other tribunal renders its ruling, any amounts paid or reimbursed pursuant to the prior sentence that would not have been paid or reimbursed pursuant to Section 5.0 but for the prior sentence.

 

10.0

Reduction of Certain Payments . This Section 10.0 shall apply to the Executive only if and to the extent that Section 4999 of the Code is applicable to the Executive.

 

10.1

Anything in this Agreement to the contrary notwithstanding, if the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) of the Executive would subject the Executive to the Excise Tax (as defined below), the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “ Agreement Payments ”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder.

 

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10.2

If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Corporation shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 10.0 shall be binding upon the Corporation, its Affiliates and the Executive. All reasonable fees and expenses of the Accounting Firm shall be borne solely by the Corporation. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under the Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the Agreement Payments that have a Parachute Value in the following order: first, non-cash benefits that do not constitute non-qualified deferred compensation, second, cash benefits that constitute non-qualified deferred compensation, third, non-cash benefits that constitute non-qualified deferred compensation, and fourth, cash benefits that constitute non-qualified deferred compensation, with benefits within each category reduced in reverse chronological order beginning with those that are to be paid or provided the farthest in time from the Date of Termination, based on the Accounting Firm’s determination.

 

10.3

To the extent requested by the Executive, the Corporation and its Affiliates shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Corporation (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code)), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the Treasury Regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the Treasury Regulations under Section 280G of the Code in accordance with Q&A-5(a) of the Treasury Regulations under Section 280G of the Code.

 

10.4

The following terms shall have the following meanings for purposes of this Section 9.0:

 

  (a)

Accounting Firm ” shall mean a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Corporation prior to a Change in Control for purposes of making the applicable determinations hereunder.

 

  (b)

Excise Tax ” means any excise tax imposed under Section 4999 of the Code.

 

  (c)

Net After-Tax Receipt ” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on the Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to the Executive’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Executive in the relevant tax year(s).

 

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  (d)

Parachute Value ” of a Payment shall mean the present value as of the date of the change in control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

 

  (e)

Payment ” shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement or otherwise.

 

  (f)

Safe Harbor Amount ” shall mean the maximum Parachute Value of all Payments that the Executive can receive without any Payments being subject to the Excise Tax.

 

11.0

Miscellaneous

 

11.1

Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in a writing signed by the Parties hereto. No waiver by either Party of, or in compliance with, any condition or provision of this Agreement to be performed by the other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

 

11.2

Deductions . The Executive agrees that benefits and payments to which the Executive is entitled pursuant to this Agreement are subject to deductions or other source withholdings as may be required by law.

 

11.3

No Mitigation . The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided to the Executive by the Corporation referred to in this Agreement be reduced by any compensation earned by, or benefits paid to, the Executive as the result of employment, whether by another employer or self-employment, or by pension benefits after the Date of Termination, or otherwise, except as specifically provided in this Agreement.

 

11.4

Governing Law . This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Alberta.

 

11.5

Currency . All amounts due under this Agreement shall be paid calculated and paid in the currency in which the Executive’s base salary is paid as of immediately prior to the Date of Termination.

 

11.6

Validity . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

11.7

Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same Agreement.

 

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11.8

Headings . The division of this Agreement into sections, subsections and clauses, or other portions hereof and the insertion of headings or subheadings, are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

 

12.0

Survivorship

Upon the expiration or other termination of this Agreement or the Executive’s employment, the respective rights and obligations of the Parties shall survive to the extent necessary to carry out the intentions of the Parties under this Agreement.

 

 

Page 14


IN WITNESS WHEREOF , the Executive and the Corporation have caused this Agreement to be duly executed effective as of the date first above written.

 

ENCANA CORPORATION

 

Per:

  /s/ Clayton Woitas  
  Name: Clayton Woitas  
  Title: Chairman of the Board of Directors  

Per:

  /s/ Nancy L. Brennan  
  Name: Nancy L. Brennan  
  Title: Corporate Secretary  

DOUGLAS J. SUTTLES

 

/s/ Douglas J. Suttles

 

Douglas J. Suttles

 

Exhibit 10.22

AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT

This Amended and Restated Change in Control Agreement (this “ Agreement ”) is made effective as of February 14, 2018 between Encana Corporation, a corporation amalgamated under the laws of Canada (the “ Corporation ”), and David G. Hill of the City of Denver in the State of Colorado (the “ Executive ”).

WHEREAS the Corporation and the Executive previously entered into the Change in Control Agreement effective as of January 1, 2014 (the “ Prior Agreement ”) and wish to amend and restate the Prior Agreement as set forth herein;

AND WHEREAS the Board of Directors of the Corporation (the “ Board ”) has determined that it is in the best interests of the Corporation and its shareholders to assure that the Corporation will have the continued dedication of the Executive, notwithstanding the possibility or threat of a Change in Control (as defined herein);

AND WHEREAS the Board believes it is imperative to diminish the inevitable distraction of the Executive by virtue of the personal uncertainties and risks created by a pending or threatened Change in Control and to encourage the Executive’s full attention and dedication to the Corporation in the event of any threatened or pending Change in Control, and to provide the Executive with compensation and benefits arrangements upon a Change in Control that ensure that the compensation and benefits expectations of the Executive will be satisfied and that provide the Executive with compensation and benefits arrangements that are competitive with those of other companies;

AND WHEREAS to accomplish these objectives, the Board has caused the Corporation to enter into this Agreement;

NOW THEREFORE , in consideration of the covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency whereof are hereby acknowledged by each of the Executive and the Corporation (each, a “ Party ” and collectively, the “ Parties ”), the Parties hereby mutually covenant and agree as follows:

 

1.0

Term of Agreement

 

1.1

Term . This Agreement shall commence on the date hereof and shall continue in effect during the Executive’s employment with the Corporation as an executive officer until such time as there shall occur a Change in Control of the Corporation and for a period of two years following the Effective Date (as defined below) of such Change in Control (the “ Term ”); provided, however, that the payment of compensation and benefits to the Executive under this Agreement may continue beyond the end of the Term in accordance with the applicable provisions of this Agreement.

 

2.0

Definitions

For purposes of this Agreement, the following definitions shall apply:

 

2.1

Affiliate ”: the term “Affiliate” shall be interpreted in accordance with the definition of such term as contained in Section 2 of the Canada Business Corporations Act (Canada).


2.2

Cause ” means:

 

  (a)

the willful and continued failure by the Executive to substantially perform his or her duties with the Corporation or an Affiliate after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes the Executive has not substantially performed his or her duties, and the Executive fails to correct such failure to perform his or her duties within thirty (30) days after such written demand is delivered to the Executive; provided, however, that if such failure occurs after the occurrence of an event or circumstance which would entitle the Executive to resign for Good Reason, such alleged failure shall not constitute the basis for “Cause”; or

 

  (b)

the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Corporation or an Affiliate, monetarily or otherwise.

For purposes of this Section 2.2, (i) any action by the Executive or any failure on the Executive’s part to act, shall be deemed “willful” only when done (or omitted to be done) by the Executive not in good faith and only if, when done (or omitted to be done), the Executive had or ought to have had the reasonable belief that the Executive’s action or omission would not be in the best interests of the Corporation or an Affiliate, and (ii) if the Corporation is not the ultimate parent corporation of the group that includes the Corporation and all of its Affiliates after a Change in Control, references to the “Board” shall mean the board of directors (or equivalent governing body) of the ultimate parent entity of such group.

Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until (A) the Executive has been provided with the opportunity, after reasonable advance notice, to appear before the Board, together with the Executive’s legal counsel, prior to a determination by the Board regarding the existence of “Cause”, and (B) there shall have been delivered to the Executive a copy of a resolution duly adopted by a vote of at least two-thirds (2/3) of the members of the Board, finding that in the good faith opinion of the Board, the Executive was guilty of conduct set forth in clause (a) or (b) of this Section 2.2 and specifying the particulars thereof. A determination of “Cause” made by the Board that is challenged by the Executive in a court of competent jurisdiction shall be subject to “ de novo ” standard of review by such court.

 

2.3

Change in Control ” means:

 

  (a)

any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing (each, a “ Person ”), is or becomes the beneficial owner directly or indirectly of 30% or more of either (A) the then-outstanding shares of common stock of the Corporation (the “ Outstanding Corporation Common Stock ”) or (B) the combined voting power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “ Outstanding Corporation Voting Securities ”); provided, however, that, for purposes of this Section 2.3(a), the following acquisitions of shares or other voting securities of the Corporation shall not constitute a Change in Control: (i) any acquisition directly from the Corporation, (ii) any acquisition made by the Corporation, (iii) any acquisition by any employee plan (or related trust) sponsored or maintained by the

 

Page 2


 

Corporation or any of its subsidiaries, or (iv) any acquisition pursuant to a transaction that complies with Sections 2.3(b)(1), 2.3(b)(2) and 2.3(b)(3);

 

  (b)

consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Corporation or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Corporation, or the acquisition of assets or securities of another entity by the Corporation or any of its subsidiaries (each, a “ Business Combination ”), in each case unless , following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such Business Combination or any employee plan (or related trust) of the Corporation or of such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting from such Business Combination were members of the Incumbent Board (as defined below) at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination;

 

  (c)

individuals who, as of the date hereof, constitute the Board (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Corporation’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person or entity other than the Board; or

 

  (d)

approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation.

 

Page 3


For purposes of this Section 2.3:

 

  (i)

the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (ii)

the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining the percentage of beneficial ownership of any Person.

 

2.4

Effective Date ” means the date of the occurrence of a Change in Control.

 

2.5

“Good Reason ” means the occurrence of any of the following on or after a Change in Control, unless the Executive shall have given express written consent thereto:

 

  (a)

Changed Status, Position, Authorities, Duties or Responsibilities . The occurrence of any of the following:

 

  (i)

any adverse change to the Executive’s status or position as in effect immediately prior to the Change in Control, including, without limitation, the Executive ceasing to serve as an executive officer of a publicly traded company and the sole executive performing the Executive’s role as of immediately prior to the Change in Control (or its equivalent), reporting directly and exclusively to the chief executive officer of a publicly traded company; and

 

  (ii)

assignment to the Executive of any authorities, duties or responsibilities materially inconsistent with the Executive’s position and status as of immediately prior to the Change in Control; and

 

  (iii)

any diminution in the Executive’s authorities, duties or responsibilities from those in effect immediately prior to the Change in Control; or

 

  (b)

Reduced Salary . A reduction by the Corporation in the Executive’s annual base salary as in effect immediately prior to the Change in Control; or

 

  (c)

Relocation . The Corporation requiring the Executive to be based more than 50 miles from where the Executive is based immediately prior to the Change in Control, except for: (i) required travel on the Corporation’s business to an extent substantially consistent with the Executive’s business travel obligations in the ordinary course of business immediately prior to the Change in Control; or (ii) if the Executive has been relocated or repatriated by the Corporation prior to the Change in Control, such relocation as may be required by applicable law or performed in accordance with an agreement (whether written or unwritten) entered into between the Corporation (or an Affiliate) and the Executive prior to the Change in Control; or

 

Page 4


  (d)

Incentive Compensation Plans . The occurrence of any of the following: (i) a material reduction by the Corporation in the Executive’s (A) annual incentive compensation target or maximum opportunity, or (B) long-term incentive compensation target or maximum opportunity (measured based on grant date fair value of any equity-based awards), in each case, as in effect immediately prior to the Change in Control, or (ii) a change in the performance conditions, vesting, or other material terms and conditions applicable to annual and/or long-term incentive compensation awards granted to Executive after the Change in Control which would have the effect of materially reducing the Executive’s aggregate potential incentive compensation from the level in effect immediately prior to the Change in Control; or

 

  (e)

Pension Plan, Benefit Plans and Perquisites . The failure by the Corporation to continue to provide the Executive:

 

  (i)

with pension and other retirement benefits substantially similar to those provided to the Executive under the applicable pension and retirement plans and arrangements of the Corporation as of immediately prior to the Change in Control; or

 

  (ii)

with benefits substantially similar to the benefits provided to the Executive as of immediately prior to the Change in Control under the Corporation’s life insurance, medical, health and accident, disability or investment plans; or

 

  (iii)

with executive perquisites substantially similar to the material perquisites provided to the Executive by the Corporation as of immediately prior to the Change in Control; or

 

  (iv)

with the number of paid vacation days to which the Executive is entitled in accordance with the normal vacation policy of the Corporation in effect in respect of the Executive as of immediately prior to the Change in Control; or

 

  (f)

Deferred Compensation . The failure by the Corporation to pay the Executive (i) any portion of the Executive’s then current compensation, except pursuant to an across-the-board compensation deferral similarly affecting all senior executives of the Corporation and required by applicable law or (ii) any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation; or

 

  (g)

No Assumption by Successor . The failure of the Corporation to obtain a satisfactory agreement from a successor to assume and agree to perform this Agreement as contemplated by Section 7.1 hereof.

 

3.0

Notice of Termination; Date of Termination

 

3.1

Notice of Termination . Any termination of the Executive’s employment either by the Executive for Good Reason or by the Corporation for Cause or without Cause, as applicable, shall be communicated by written Notice of Termination to the Executive or to the Corporation, as the case may be, in accordance with Section 8.0 hereof.

 

Page 5


3.2

Content of Notice of Termination . The “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon by the Executive or the Corporation, as the case may be, and shall set forth in reasonable detail the facts and circumstances claimed as the basis for the Executive terminating the Executive’s employment or the Corporation terminating the Executive’s employment, as the case may be. The Executive’s failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of “Good Reason” shall not result in a waiver of the Executive’s rights hereunder or preclude the Executive from subsequently asserting such fact or circumstance in enforcing the Executive’s rights hereunder.

 

3.3

Date of Termination . The “Date of Termination” shall mean (a) if the Executive’s employment is terminated by the Corporation without Cause or by the Executive for Good Reason, the date specified in the Notice of Termination (which, in the case of termination by the Executive for Good Reason, shall be not more than sixty (60) days following the date such Notice of Termination is given), or (b) if the Executive’s employment is terminated by the Corporation for Cause, the date on which the Board resolution referenced in Section 2.2 is delivered to the Executive.

 

3.4

Notice Required . For the purposes of this Agreement, any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 3.2 hereof shall not be effective.

 

4.0

Compensation and Benefits following Change in Control

Upon the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, in accordance with the terms of this Agreement, in each case, on or after the Effective Date and prior to the end of the Term, the Corporation shall cause to be provided to the Executive, the following payments and benefits:

 

  (a)

Accrued Obligations . The Corporation shall pay the Executive, in cash, in a lump sum, on the thirtieth (30 th ) day following the Date of Termination (the “ Payment Date ”), the sum of (i) the Executive’s full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given (disregarding any reduction thereto that constitutes Good Reason), (ii) all accrued but unused vacation determined as of the Date of Termination, determined based upon the Executive’s Severance Salary Rate (as defined below) and the Corporation’s vacation policy in effect on the Date of Termination (or, if more favorable to the Executive, the vacation policy in effect as of immediately prior to the Effective Date), (iii) the Executive’s annual bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination, and (iv) the Executive’s business expenses that are reimbursable pursuant to the applicable policy of the Corporation as in effect on the Date of Termination but have not been reimbursed by the Corporation as of the Date of Termination.

 

  (b)

Severance Payment, Severance Period and Severance Salary Rate . The Corporation shall pay to the Executive, on account of both compensation in lieu of notice and loss of office, on the Payment Date, in cash, in a lump sum, on the Payment Date, a severance payment (the “ Severance Payment ”) equal to the amount of base salary the Executive would have

 

Page 6


 

earned had he continued to be employed until the end of the twenty-fourth (24 th ) full calendar month following the Date of Termination (the “ Severance Period ”) assuming that the Executive’s rate of monthly base salary during the Severance Period would be equal to the highest monthly rate of base salary which was payable to the Executive by the Corporation or an Affiliate during the twenty-four (24)-month period immediately preceding the Date of Termination (disregarding any reduction thereto that constitutes Good Reason) (the “ Severance Salary Rate ”).

 

  (c)

Annual Incentive Plans . The Corporation shall pay to the Executive, in cash, in a lump sum, on the Payment Date, a payment equal to: (i) two times the average of the annual bonuses paid to the Executive by the Corporation in respect of the three complete fiscal years of the Corporation immediately preceding the Effective Date (or, for any such complete fiscal year for which the Executive was not paid an annual bonus, the Executive’s target bonus as in effect immediately prior to the Effective Date) (the “ Average Bonus ”), plus (ii) if the Date of Termination is not the last day of a fiscal year, a prorated bonus payment equal to the Average Bonus multiplied by a fraction, the numerator of which is the number of days which have elapsed in the fiscal year in which the Date of Termination occurs and the denominator of which is the total number of days in such fiscal year.

 

  (d)

Retirement and Investment Plans . The Corporation shall pay the Executive, in cash, in a lump sum, on the Payment Date, a payment equal to the maximum contribution that the Corporation or a subsidiary thereof would have been required to make on behalf of the Executive to the Corporation’s retirement or investment plans in which the Executive participates as of immediately prior to the Effective Date (other than any amount covered by Section 4.0(e)) if the Executive had remained fully employed during the Severance Period and elected to have the Corporation or a subsidiary thereof match the Executive’s contributions to such plans, determined as if the Executive continued to make contributions to such plans at a rate equal to the contributions actually made by the Executive under such plans in the last complete calendar year immediately preceding the Date of Termination.

 

  (e)

Pension Benefits. The Corporation shall pay to the Executive the maximum contribution that the Corporation or a subsidiary thereof would have been required to make on behalf of the Executive under the Encana (USA) Retirement Plan at the percentage of salary specified therein in respect to the Severance Period based on:

 

  (i)

The Executive’s annual base salary (using the Severance Salary Rate) if he were fully employed until the end of the 24 th calendar month following the Date of Termination; and

 

  (ii)

The lesser of the Average Bonus and 40% of the amount of the annual base salary (using the Severance Salary Rate) the Executive would have earned had he continued to be employed until the end of the 24 th calendar month following the Date of Termination.

This payment will be made to the Executive in a lump sum on the Payment Date.

 

Page 7


  (f)

Equity Awards . Each outstanding equity and equity-based compensation award granted by the Corporation to the Executive shall be treated in accordance with the terms of the plan and award agreement under which it was originally granted.

 

  (g)

Insurance Benefits . The Corporation shall continue to provide the Executive with the same level of life, disability, accident, dental and health insurance benefits the Executive was receiving or entitled to receive from the Corporation immediately prior to the Date of Termination until the end of the Severance Period. The contributions or premiums required to be paid by the Executive under such programs shall be payable by the Executive to the Corporation or to the insurer, as applicable, on the same basis as if the Executive continued to be employed during the Severance Period.

 

  (h)

Career Counselling . At the Executive’s request, the Corporation shall provide the Executive with career counselling services, at a maximum cost to the Corporation of $15,000 per annum, until the Executive obtains subsequent employment or establishes the Executive’s own business activity or the end of the Severance Period, whichever is earliest. The Executive shall be entitled to obtain such services from the recognized professional career counselling firm of the Executive’s choice in the major metropolitan area in or nearest to where the Executive resides at the time the Executive begins to use such services.

 

  (i)

Annual Allowance . The Corporation shall pay to the Executive, in cash, in a lump sum, on the Payment Date an amount equal to two times the annual allowance to which the Executive is entitled as of the date of the Date of Termination (or, if higher, as of immediately prior to the Effective Date).

 

  (j)

Financial Counselling . The Corporation shall, during the Severance Period, continue to provide the Executive with the same financial counselling benefits as those to which the Executive was entitled as of immediately prior to the Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Effective Date). Such services shall be provided throughout the Severance Period, including the preparation of the Executive’s tax return(s) for the tax year during which the Severance Period ends.

 

  (k)

Executive Medical . The Corporation shall continue to provide the Executive with the same executive physical examination benefits as those to which the Executive was entitled as of immediately prior to the Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Effective Date). Such benefits shall be provided for the duration of the Severance Period.

 

  (l)

Professional Membership Fees . The Corporation shall pay the Executive, in cash, in a lump sum, on the Payment Date, an after-tax amount equal to two times the amount reimbursed or paid by the Corporation (separate from the annual allowance) in respect of membership fees for membership in professional organizations related to the Executive’s position and duties with the Corporation for the year preceding the year in which the Date of Termination occurs (or, if greater, preceding the year in which the Effective Date occurs).

 

Page 8


5.0

Legal Fees and Expenses

The Corporation shall pay the Executive’s actual legal or professional fees and expenses incurred by the Executive in seeking to obtain or enforce any right or benefit provided by this Agreement up to US$100,000 (and, if a court or other tribunal finds in favor of the Executive, any such fees or expenses that are in excess of US$100,000). Such fees or expenses shall be reimbursed by the Corporation reasonably promptly following receipt of a copy of any invoice from the Executive evidencing the payment by the Executive of such fees or expenses. If such fees or expenses are paid in Canadian dollars, the application of the US$100,000 cap under this Section 5.0 shall be applied by converting the reimbursed amounts to U.S. dollars based on the spot exchange rate at the time of the reimbursement.

 

6.0

Entire Agreement

 

6.1

This Agreement constitutes the entire agreement between the Parties hereto concerning change in control benefits and obligations and supersedes all prior agreements or understandings, including the Prior Agreement, except that each outstanding equity and equity-based compensation award granted by the Corporation to the Executive shall be treated in accordance with the terms of the plan and award agreement under which it was granted, including any such terms that relate to change in control benefits.

 

7.0

Successors; Binding Agreement

 

7.1

Assumption by Successors . The Corporation will require any successor (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to (a) all or substantially all of the business and/or assets of the Corporation in a transaction that constitutes a Change in Control, or (b) on or after the Effective Date and prior to the end of the Term, to the business in connection with which the Executive’s services are principally performed after a Change in Control in circumstances where the Executive’s employment is transferred to such successor, to expressly assume and to agree to perform this Agreement in the same manner and to the same extent as the Corporation, as if no such succession had taken place. Failure of the Corporation to obtain such assumption and agreement prior to the effectiveness of any such succession shall constitute Good Reason for purposes of this Agreement. As used in this Agreement, “Corporation” shall mean the Corporation as defined herein and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

7.2

Assignment; Binding Agreement .

 

  (a)

This Agreement is personal to the Executive, and, without the prior written consent of the Corporation, shall not be assignable by the Executive. This Agreement shall inure to the benefit of and be enforceable by the Executive and the Executive’s legal representatives and, and if the Executive should die while any amount remains due to the Executive under this Agreement, such amount shall be paid in accordance with the terms of this Agreement to the Executive’s legatee, if there is no such legatee, to the Executive’s estate.

 

  (b)

Except as provided in Section 7.1, without the prior written consent of the Executive, this Agreement shall not be assignable by the Corporation. This Agreement shall inure to the benefit of and be binding upon the Corporation and its successors and permitted assigns.

 

Page 9


8.0

Notices

 

8.1

Notices . For purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given (a) when hand delivered, (b) upon confirmation of receipt when sent by facsimile or email, or (c) on the third business day after having been sent by registered mail, postage prepaid, as follows:

If to the Corporation:

Encana Corporation

500 Centre Street S.E.

Calgary, Alberta

T2P 2S5

Attention: Executive Vice-President & General Counsel

Facsimile: (403) 645-4617

If to the Executive:

At the Executive’s most recent address, facsimile number, or email address, as applicable, on file with the Corporation.

Each of the Corporation and the Executive may from time to time change its contact information for notice by notice to the other Party given in the manner aforesaid.

 

9.0

Section  409A Compliance

 

9.1

To the extent that Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “ Code ”) (together with any related regulations or other guidance promulgated by the U.S. Department of the Treasury or the Internal Revenue Service, “ Section  409A ”) is applicable to the Executive, this Agreement and any payment, distribution or other benefit hereunder is intended to comply with the requirements of Section 409A or an applicable exemption or exclusion therefrom, and shall be interpreted and administered in accordance with such intent in all respects; provided , that for the avoidance of doubt, this provision shall not be construed to require a gross-up payment in respect of any taxes, interest or penalties imposed on Executive as a result of Section 409A.

 

9.2

To the extent Section 409A is applicable to the Executive:

 

  (a)

The Executive shall not be deemed to have terminated employment for purposes of any payment or benefit under this Agreement that constitutes non-qualified deferred compensation unless and until a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred. If the Executive is a “specified employee” under Section 409A, no payment, distribution or other benefit provided pursuant to this Agreement constituting non-qualified deferred compensation (within the meaning of Treasury Regulation Section 1.409A-1(b)) that is required to be delayed to comply with Section 409A(a)(2)(B)(i) shall be provided before the date that is six months after the date of the Executive’s separation from service (or, if earlier than the end of such six-month period, the date of death of the specified employee). Any payment, distribution or other

 

Page 10


 

benefit that is delayed pursuant to the prior sentence shall be paid on the first business day following the six-month anniversary of the separation from service.

 

  (b)

In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement.

 

  (c)

Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.

 

  (d)

All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the time period specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made not later than the last day of the Executive’s taxable year following the taxable year in which such expense was incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Notwithstanding anything in this Agreement to the contrary, with respect to payment of legal fees and expenses pursuant to Section 5.0 hereof, if the court or other tribunal has not yet found in favor or against the Executive prior to the last day of the Executive’s taxable year following the taxable year in which such fees and expenses were incurred, such fees and expenses will be paid on the last day of such taxable year following the taxable year in which such fees and expenses were incurred. If such court or other tribunal does not ultimately find in favor of the Executive, the Executive will repay to the Corporation as soon as practicable, but in no event more than ninety (90) days after the court or other tribunal renders its ruling, any amounts paid or reimbursed pursuant to the prior sentence that would not have been paid or reimbursed pursuant to Section 5.0 but for the prior sentence.

 

10.0

Reduction of Certain Payments . This Section 10.0 shall apply to the Executive only if and to the extent that Section 4999 of the Code is applicable to the Executive.

 

10.1

Anything in this Agreement to the contrary notwithstanding, if the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) of the Executive would subject the Executive to the Excise Tax (as defined below), the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “ Agreement Payments ”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder.

 

10.2

If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the

 

Page 11


 

Corporation shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 10.0 shall be binding upon the Corporation, its Affiliates and the Executive. All reasonable fees and expenses of the Accounting Firm shall be borne solely by the Corporation. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under the Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the Agreement Payments that have a Parachute Value in the following order: first, non-cash benefits that do not constitute non-qualified deferred compensation, second, cash benefits that constitute non-qualified deferred compensation, third, non-cash benefits that constitute non-qualified deferred compensation, and fourth, cash benefits that constitute non-qualified deferred compensation, with benefits within each category reduced in reverse chronological order beginning with those that are to be paid or provided the farthest in time from the Date of Termination, based on the Accounting Firm’s determination.

 

10.3

To the extent requested by the Executive, the Corporation and its Affiliates shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Corporation (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code)), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the Treasury Regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the Treasury Regulations under Section 280G of the Code in accordance with Q&A-5(a) of the Treasury Regulations under Section 280G of the Code.

 

10.4

The following terms shall have the following meanings for purposes of this Section 9.0:

 

  (a)

Accounting Firm ” shall mean a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Corporation prior to a Change in Control for purposes of making the applicable determinations hereunder.

 

  (b)

Excise Tax ” means any excise tax imposed under Section 4999 of the Code.

 

  (c)

Net After-Tax Receipt ” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on the Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to the Executive’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Executive in the relevant tax year(s).

 

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  (d)

Parachute Value ” of a Payment shall mean the present value as of the date of the change in control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

 

  (e)

Payment ” shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement or otherwise.

 

  (f)

Safe Harbor Amount ” shall mean the maximum Parachute Value of all Payments that the Executive can receive without any Payments being subject to the Excise Tax.

 

11.0

Miscellaneous

 

11.1

Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in a writing signed by the Parties hereto. No waiver by either Party of, or in compliance with, any condition or provision of this Agreement to be performed by the other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

 

11.2

Deductions . The Executive agrees that benefits and payments to which the Executive is entitled pursuant to this Agreement are subject to deductions or other source withholdings as may be required by law.

 

11.3

No Mitigation . The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided to the Executive by the Corporation referred to in this Agreement be reduced by any compensation earned by, or benefits paid to, the Executive as the result of employment, whether by another employer or self-employment, or by pension benefits after the Date of Termination, or otherwise, except as specifically provided in this Agreement.

 

11.4

Governing Law . This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Alberta.

 

11.5

Currency . All amounts due under this Agreement shall be paid calculated and paid in the currency in which the Executive’s base salary is paid as of immediately prior to the Date of Termination.

 

11.6

Validity . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

11.7

Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same Agreement.

 

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11.8

Headings . The division of this Agreement into sections, subsections and clauses, or other portions hereof and the insertion of headings or subheadings, are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

 

12.0

Survivorship

Upon the expiration or other termination of this Agreement or the Executive’s employment, the respective rights and obligations of the Parties shall survive to the extent necessary to carry out the intentions of the Parties under this Agreement.

 

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IN WITNESS WHEREOF , the Executive and the Corporation have caused this Agreement to be duly executed effective as of the date first above written.

 

ENCANA CORPORATION

 
Per:       /s/ Douglas J. Suttles  
  Name: Douglas J. Suttles  
  Title: President & Chief Executive Officer  
Per:   /s/ Nancy L. Brennan  
  Name: Nancy L. Brennan  
  Title: Corporate Secretary  

DAVID G. HILL

 

/s/ David G. Hill

 

David G. Hill

 

Exhibit 10.23

AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT

This Amended and Restated Change in Control Agreement (this “ Agreement ”) is made effective as of February 14, 2018 between Encana Corporation, a corporation amalgamated under the laws of Canada (the “ Corporation ”), and Michael Williams of the City of Calgary in the Province of Alberta (the “ Executive ”).

WHEREAS the Corporation and the Executive previously entered into the Change in Control Agreement effective as of March 10, 2014 (the “ Prior Agreement ”) and wish to amend and restate the Prior Agreement as set forth herein;

AND WHEREAS the Board of Directors of the Corporation (the “ Board ”) has determined that it is in the best interests of the Corporation and its shareholders to assure that the Corporation will have the continued dedication of the Executive, notwithstanding the possibility or threat of a Change in Control (as defined herein);

AND WHEREAS the Board believes it is imperative to diminish the inevitable distraction of the Executive by virtue of the personal uncertainties and risks created by a pending or threatened Change in Control and to encourage the Executive’s full attention and dedication to the Corporation in the event of any threatened or pending Change in Control, and to provide the Executive with compensation and benefits arrangements upon a Change in Control that ensure that the compensation and benefits expectations of the Executive will be satisfied and that provide the Executive with compensation and benefits arrangements that are competitive with those of other companies;

AND WHEREAS to accomplish these objectives, the Board has caused the Corporation to enter into this Agreement;

NOW THEREFORE , in consideration of the covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency whereof are hereby acknowledged by each of the Executive and the Corporation (each, a “ Party ” and collectively, the “ Parties ”), the Parties hereby mutually covenant and agree as follows:

 

1.0

Term of Agreement

 

1.1

Term . This Agreement shall commence on the date hereof and shall continue in effect during the Executive’s employment with the Corporation as an executive officer until such time as there shall occur a Change in Control of the Corporation and for a period of two years following the Effective Date (as defined below) of such Change in Control (the “ Term ”); provided, however, that the payment of compensation and benefits to the Executive under this Agreement may continue beyond the end of the Term in accordance with the applicable provisions of this Agreement.

 

2.0

Definitions

For purposes of this Agreement, the following definitions shall apply:

 

2.1

Affiliate ”: the term “Affiliate” shall be interpreted in accordance with the definition of such term as contained in Section 2 of the Canada Business Corporations Act (Canada).


2.2

Cause ” means:

 

  (a)

the willful and continued failure by the Executive to substantially perform his or her duties with the Corporation or an Affiliate after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes the Executive has not substantially performed his or her duties, and the Executive fails to correct such failure to perform his or her duties within thirty (30) days after such written demand is delivered to the Executive; provided, however, that if such failure occurs after the occurrence of an event or circumstance which would entitle the Executive to resign for Good Reason, such alleged failure shall not constitute the basis for “Cause”; or

 

  (b)

the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Corporation or an Affiliate, monetarily or otherwise.

For purposes of this Section 2.2, (i) any action by the Executive or any failure on the Executive’s part to act, shall be deemed “willful” only when done (or omitted to be done) by the Executive not in good faith and only if, when done (or omitted to be done), the Executive had or ought to have had the reasonable belief that the Executive’s action or omission would not be in the best interests of the Corporation or an Affiliate, and (ii) if the Corporation is not the ultimate parent corporation of the group that includes the Corporation and all of its Affiliates after a Change in Control, references to the “Board” shall mean the board of directors (or equivalent governing body) of the ultimate parent entity of such group.

Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until (A) the Executive has been provided with the opportunity, after reasonable advance notice, to appear before the Board, together with the Executive’s legal counsel, prior to a determination by the Board regarding the existence of “Cause”, and (B) there shall have been delivered to the Executive a copy of a resolution duly adopted by a vote of at least two-thirds (2/3) of the members of the Board, finding that in the good faith opinion of the Board, the Executive was guilty of conduct set forth in clause (a) or (b) of this Section 2.2 and specifying the particulars thereof. A determination of “Cause” made by the Board that is challenged by the Executive in a court of competent jurisdiction shall be subject to “ de novo ” standard of review by such court.

 

2.3

Change in Control ” means:

 

  (a)

any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing (each, a “ Person ”), is or becomes the beneficial owner directly or indirectly of 30% or more of either (A) the then-outstanding shares of common stock of the Corporation (the “ Outstanding Corporation Common Stock ”) or (B) the combined voting power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “ Outstanding Corporation Voting Securities ”); provided, however, that, for purposes of this Section 2.3(a), the following acquisitions of shares or other voting securities of the Corporation shall not constitute a Change in Control: (i) any acquisition directly from the Corporation, (ii) any acquisition made by the Corporation, (iii) any acquisition by any employee plan (or related trust) sponsored or maintained by the

 

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Corporation or any of its subsidiaries, or (iv) any acquisition pursuant to a transaction that complies with Sections 2.3(b)(1), 2.3(b)(2) and 2.3(b)(3);

 

  (b)

consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Corporation or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Corporation, or the acquisition of assets or securities of another entity by the Corporation or any of its subsidiaries (each, a “ Business Combination ”), in each case unless , following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such Business Combination or any employee plan (or related trust) of the Corporation or of such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting from such Business Combination were members of the Incumbent Board (as defined below) at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination;

 

  (c)

individuals who, as of the date hereof, constitute the Board (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Corporation’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person or entity other than the Board; or

 

  (d)

approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation.

 

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For purposes of this Section 2.3:

 

  (i)

the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (ii)

the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining the percentage of beneficial ownership of any Person.

 

2.4

Effective Date ” means the date of the occurrence of a Change in Control.

 

2.5

“Good Reason ” means the occurrence of any of the following on or after a Change in Control, unless the Executive shall have given express written consent thereto:

 

  (a)

Changed Status, Position, Authorities, Duties or Responsibilities . The occurrence of any of the following:

 

  (i)

any adverse change to the Executive’s status or position as in effect immediately prior to the Change in Control, including, without limitation, the Executive ceasing to serve as an executive officer of a publicly traded company and the sole executive performing the Executive’s role as of immediately prior to the Change in Control (or its equivalent), reporting directly and exclusively to the chief executive officer of a publicly traded company; and

 

  (ii)

assignment to the Executive of any authorities, duties or responsibilities materially inconsistent with the Executive’s position and status as of immediately prior to the Change in Control; and

 

  (iii)

any diminution in the Executive’s authorities, duties or responsibilities from those in effect immediately prior to the Change in Control; or

 

  (b)

Reduced Salary . A reduction by the Corporation in the Executive’s annual base salary as in effect immediately prior to the Change in Control; or

 

  (c)

Relocation . The Corporation requiring the Executive to be based more than 50 miles from where the Executive is based immediately prior to the Change in Control, except for: (i) required travel on the Corporation’s business to an extent substantially consistent with the Executive’s business travel obligations in the ordinary course of business immediately prior to the Change in Control; or (ii) if the Executive has been relocated or repatriated by the Corporation prior to the Change in Control, such relocation as may be required by applicable law or performed in accordance with an agreement (whether written or unwritten) entered into between the Corporation (or an Affiliate) and the Executive prior to the Change in Control; or

 

Page 4


  (d)

Incentive Compensation Plans . The occurrence of any of the following: (i) a material reduction by the Corporation in the Executive’s (A) annual incentive compensation target or maximum opportunity, or (B) long-term incentive compensation target or maximum opportunity (measured based on grant date fair value of any equity-based awards), in each case, as in effect immediately prior to the Change in Control, or (ii) a change in the performance conditions, vesting, or other material terms and conditions applicable to annual and/or long-term incentive compensation awards granted to Executive after the Change in Control which would have the effect of materially reducing the Executive’s aggregate potential incentive compensation from the level in effect immediately prior to the Change in Control; or

 

  (e)

Pension Plan, Benefit Plans and Perquisites . The failure by the Corporation to continue to provide the Executive:

 

  (i)

with pension and other retirement benefits substantially similar to those provided to the Executive under the applicable pension and retirement plans and arrangements of the Corporation as of immediately prior to the Change in Control; or

 

  (ii)

with benefits substantially similar to the benefits provided to the Executive as of immediately prior to the Change in Control under the Corporation’s life insurance, medical, health and accident, disability or investment plans; or

 

  (iii)

with executive perquisites substantially similar to the material perquisites provided to the Executive by the Corporation as of immediately prior to the Change in Control; or

 

  (iv)

with the number of paid vacation days to which the Executive is entitled in accordance with the normal vacation policy of the Corporation in effect in respect of the Executive as of immediately prior to the Change in Control; or

 

  (f)

Deferred Compensation . The failure by the Corporation to pay the Executive (i) any portion of the Executive’s then current compensation, except pursuant to an across-the-board compensation deferral similarly affecting all senior executives of the Corporation and required by applicable law or (ii) any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation; or

 

  (g)

No Assumption by Successor . The failure of the Corporation to obtain a satisfactory agreement from a successor to assume and agree to perform this Agreement as contemplated by Section 7.1 hereof.

 

3.0

Notice of Termination; Date of Termination

 

3.1

Notice of Termination . Any termination of the Executive’s employment either by the Executive for Good Reason or by the Corporation for Cause or without Cause, as applicable, shall be communicated by written Notice of Termination to the Executive or to the Corporation, as the case may be, in accordance with Section 8.0 hereof.

 

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3.2

Content of Notice of Termination . The “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon by the Executive or the Corporation, as the case may be, and shall set forth in reasonable detail the facts and circumstances claimed as the basis for the Executive terminating the Executive’s employment or the Corporation terminating the Executive’s employment, as the case may be. The Executive’s failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of “Good Reason” shall not result in a waiver of the Executive’s rights hereunder or preclude the Executive from subsequently asserting such fact or circumstance in enforcing the Executive’s rights hereunder.

 

3.3

Date of Termination . The “Date of Termination” shall mean (a) if the Executive’s employment is terminated by the Corporation without Cause or by the Executive for Good Reason, the date specified in the Notice of Termination (which, in the case of termination by the Executive for Good Reason, shall be not more than sixty (60) days following the date such Notice of Termination is given), or (b) if the Executive’s employment is terminated by the Corporation for Cause, the date on which the Board resolution referenced in Section 2.2 is delivered to the Executive.

 

3.4

Notice Required . For the purposes of this Agreement, any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 3.2 hereof shall not be effective.

 

4.0

Compensation and Benefits following Change in Control

Upon the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, in accordance with the terms of this Agreement, in each case, on or after the Effective Date and prior to the end of the Term, the Corporation shall cause to be provided to the Executive, the following payments and benefits:

 

  (a)

Accrued Obligations . The Corporation shall pay the Executive, in cash, in a lump sum, on the thirtieth (30 th ) day following the Date of Termination (the “ Payment Date ”), the sum of (i) the Executive’s full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given (disregarding any reduction thereto that constitutes Good Reason), (ii) all accrued but unused vacation determined as of the Date of Termination, determined based upon the Executive’s Severance Salary Rate (as defined below) and the Corporation’s vacation policy in effect on the Date of Termination (or, if more favorable to the Executive, the vacation policy in effect as of immediately prior to the Effective Date), (iii) the Executive’s annual bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination, and (iv) the Executive’s business expenses that are reimbursable pursuant to the applicable policy of the Corporation as in effect on the Date of Termination but have not been reimbursed by the Corporation as of the Date of Termination.

 

  (b)

Severance Payment, Severance Period and Severance Salary Rate . The Corporation shall pay to the Executive, on account of both compensation in lieu of notice and loss of office, on the Payment Date, in cash, in a lump sum, on the Payment Date, a severance payment (the “ Severance Payment ”) equal to the amount of base salary the Executive would have

 

Page 6


 

earned had he continued to be employed until the end of the twenty-fourth (24 th ) full calendar month following the Date of Termination (the “ Severance Period ”) assuming that the Executive’s rate of monthly base salary during the Severance Period would be equal to the highest monthly rate of base salary which was payable to the Executive by the Corporation or an Affiliate during the twenty-four (24)-month period immediately preceding the Date of Termination (disregarding any reduction thereto that constitutes Good Reason) (the “ Severance Salary Rate ”).

 

  (c)

Annual Incentive Plans . The Corporation shall pay to the Executive, in cash, in a lump sum, on the Payment Date, a payment equal to: (i) two times the average of the annual bonuses paid to the Executive by the Corporation in respect of the three complete fiscal years of the Corporation immediately preceding the Effective Date (or, for any such complete fiscal year for which the Executive was not paid an annual bonus, the Executive’s target bonus as in effect immediately prior to the Effective Date) (the “ Average Bonus ”), plus (ii) if the Date of Termination is not the last day of a fiscal year, a prorated bonus payment equal to the Average Bonus multiplied by a fraction, the numerator of which is the number of days which have elapsed in the fiscal year in which the Date of Termination occurs and the denominator of which is the total number of days in such fiscal year.

 

  (d)

Retirement and Investment Plans . The Corporation shall pay the Executive, in cash, in a lump sum, on the Payment Date, a payment equal to the maximum contribution that the Corporation or a subsidiary thereof would have been required to make on behalf of the Executive to the Corporation’s retirement or investment plans in which the Executive participates as of immediately prior to the Effective Date (other than any amount covered by Section 4.0(e)) if the Executive had remained fully employed during the Severance Period and elected to have the Corporation or a subsidiary thereof match the Executive’s contributions to such plans, determined as if the Executive continued to make contributions to such plans at a rate equal to the contributions actually made by the Executive under such plans in the last complete calendar year immediately preceding the Date of Termination.

 

  (e)

Pension Benefits. In addition to the benefits to which the Executive is entitled under any pension or retirement plan or arrangement established by the Corporation:

 

  (i)

The Executive will be credited with pensionable contributions in the Encana Corporation Canadian Defined Contribution Savings Plan (the “ Supplemental Pension Plan ”), as may be amended from time to time or any successor plan thereto, for each of the 24 months included in the Severance Period;

 

  (ii)

For purposes of Section 4.0(e)(i), the Executive’s pensionable earnings shall be calculated based on the lesser of: (A) 40% of the Executive’s Severance Salary Rate; and (B) the Average Bonus; and

 

  (iii)

On or prior to the 15th business day following the Date of Termination, the Executive will receive a lump sum cash payment of his accrued entitlements under the Supplemental Pension Plan, payable on the Payment Date, such amount to be

 

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determined: (A) without any gross up or other adjustment for income tax and not taking into account the nonregistered status of the Supplemental Pension Plan, and (B) assuming the Executive’s accrued entitlement under the Supplemental Pension Plan is fully vested.

 

  (f)

Equity Awards . Each outstanding equity and equity-based compensation award granted by the Corporation to the Executive shall be treated in accordance with the terms of the plan and award agreement under which it was originally granted.

 

  (g)

Insurance Benefits . The Corporation shall continue to provide the Executive with the same level of life, disability, accident, dental and health insurance benefits the Executive was receiving or entitled to receive from the Corporation immediately prior to the Date of Termination until the end of the Severance Period. The contributions or premiums required to be paid by the Executive under such programs shall be payable by the Executive to the Corporation or to the insurer, as applicable, on the same basis as if the Executive continued to be employed during the Severance Period.

 

  (h)

Career Counselling . At the Executive’s request, the Corporation shall provide the Executive with career counselling services, at a maximum cost to the Corporation of $15,000 per annum, until the Executive obtains subsequent employment or establishes the Executive’s own business activity or the end of the Severance Period, whichever is earliest. The Executive shall be entitled to obtain such services from the recognized professional career counselling firm of the Executive’s choice in the major metropolitan area in or nearest to where the Executive resides at the time the Executive begins to use such services.

 

  (i)

Annual Allowance . The Corporation shall pay to the Executive, in cash, in a lump sum, on the Payment Date an amount equal to two times the annual allowance to which the Executive is entitled as of the date of the Date of Termination (or, if higher, as of immediately prior to the Effective Date).

 

  (j)

Financial Counselling . The Corporation shall, during the Severance Period, continue to provide the Executive with the same financial counselling benefits as those to which the Executive was entitled as of immediately prior to the Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Effective Date). Such services shall be provided throughout the Severance Period, including the preparation of the Executive’s tax return(s) for the tax year during which the Severance Period ends.

 

  (k)

Executive Medical . The Corporation shall continue to provide the Executive with the same executive physical examination benefits as those to which the Executive was entitled as of immediately prior to the Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Effective Date). Such benefits shall be provided for the duration of the Severance Period.

 

  (l)

Professional Membership Fees . The Corporation shall pay the Executive, in cash, in a lump sum, on the Payment Date, an after-tax amount equal to two times the amount reimbursed or paid by the Corporation (separate from the annual allowance) in respect of

 

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membership fees for membership in professional organizations related to the Executive’s position and duties with the Corporation for the year preceding the year in which the Date of Termination occurs (or, if greater, preceding the year in which the Effective Date occurs).

 

5.0

Legal Fees and Expenses

The Corporation shall pay the Executive’s actual legal or professional fees and expenses incurred by the Executive in seeking to obtain or enforce any right or benefit provided by this Agreement up to US$100,000 (and, if a court or other tribunal finds in favor of the Executive, any such fees or expenses that are in excess of US$100,000). Such fees or expenses shall be reimbursed by the Corporation reasonably promptly following receipt of a copy of any invoice from the Executive evidencing the payment by the Executive of such fees or expenses. If such fees or expenses are paid in Canadian dollars, the application of the US$100,000 cap under this Section 5.0 shall be applied by converting the reimbursed amounts to U.S. dollars based on the spot exchange rate at the time of the reimbursement.

 

6.0

Entire Agreement

 

6.1

This Agreement constitutes the entire agreement between the Parties hereto concerning change in control benefits and obligations and supersedes all prior agreements or understandings, including the Prior Agreement, except that each outstanding equity and equity-based compensation award granted by the Corporation to the Executive shall be treated in accordance with the terms of the plan and award agreement under which it was granted, including any such terms that relate to change in control benefits.

 

7.0

Successors; Binding Agreement

 

7.1

Assumption by Successors . The Corporation will require any successor (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to (a) all or substantially all of the business and/or assets of the Corporation in a transaction that constitutes a Change in Control, or (b) on or after the Effective Date and prior to the end of the Term, to the business in connection with which the Executive’s services are principally performed after a Change in Control in circumstances where the Executive’s employment is transferred to such successor, to expressly assume and to agree to perform this Agreement in the same manner and to the same extent as the Corporation, as if no such succession had taken place. Failure of the Corporation to obtain such assumption and agreement prior to the effectiveness of any such succession shall constitute Good Reason for purposes of this Agreement. As used in this Agreement, “Corporation” shall mean the Corporation as defined herein and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

7.2

Assignment; Binding Agreement .

 

  (a)

This Agreement is personal to the Executive, and, without the prior written consent of the Corporation, shall not be assignable by the Executive. This Agreement shall inure to the benefit of and be enforceable by the Executive and the Executive’s legal representatives and, and if the Executive should die while any amount remains due to the Executive under

 

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this Agreement, such amount shall be paid in accordance with the terms of this Agreement to the Executive’s legatee, if there is no such legatee, to the Executive’s estate.

 

  (b)

Except as provided in Section 7.1, without the prior written consent of the Executive, this Agreement shall not be assignable by the Corporation. This Agreement shall inure to the benefit of and be binding upon the Corporation and its successors and permitted assigns.

 

8.0

Notices

 

8.1

Notices . For purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given (a) when hand delivered, (b) upon confirmation of receipt when sent by facsimile or email, or (c) on the third business day after having been sent by registered mail, postage prepaid, as follows:

If to the Corporation:

Encana Corporation

500 Centre Street S.E.

Calgary, Alberta

T2P 2S5

Attention: Executive Vice-President & General Counsel

Facsimile: (403) 645-4617

If to the Executive:

At the Executive’s most recent address, facsimile number, or email address, as applicable, on file with the Corporation.

Each of the Corporation and the Executive may from time to time change its contact information for notice by notice to the other Party given in the manner aforesaid.

 

9.0

Section  409A Compliance

 

9.1

To the extent that Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “ Code ”) (together with any related regulations or other guidance promulgated by the U.S. Department of the Treasury or the Internal Revenue Service, “ Section  409A ”) is applicable to the Executive, this Agreement and any payment, distribution or other benefit hereunder is intended to comply with the requirements of Section 409A or an applicable exemption or exclusion therefrom, and shall be interpreted and administered in accordance with such intent in all respects; provided , that for the avoidance of doubt, this provision shall not be construed to require a gross-up payment in respect of any taxes, interest or penalties imposed on Executive as a result of Section 409A.

 

9.2

To the extent Section 409A is applicable to the Executive:

 

  (a)

The Executive shall not be deemed to have terminated employment for purposes of any payment or benefit under this Agreement that constitutes non-qualified deferred compensation unless and until a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred. If the Executive is a “specified employee”

 

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under Section 409A, no payment, distribution or other benefit provided pursuant to this Agreement constituting non-qualified deferred compensation (within the meaning of Treasury Regulation Section 1.409A-1(b)) that is required to be delayed to comply with Section 409A(a)(2)(B)(i) shall be provided before the date that is six months after the date of the Executive’s separation from service (or, if earlier than the end of such six-month period, the date of death of the specified employee). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first business day following the six-month anniversary of the separation from service.

 

  (b)

In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement.

 

  (c)

Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.

 

  (d)

All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the time period specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made not later than the last day of the Executive’s taxable year following the taxable year in which such expense was incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Notwithstanding anything in this Agreement to the contrary, with respect to payment of legal fees and expenses pursuant to Section 5.0 hereof, if the court or other tribunal has not yet found in favor or against the Executive prior to the last day of the Executive’s taxable year following the taxable year in which such fees and expenses were incurred, such fees and expenses will be paid on the last day of such taxable year following the taxable year in which such fees and expenses were incurred. If such court or other tribunal does not ultimately find in favor of the Executive, the Executive will repay to the Corporation as soon as practicable, but in no event more than ninety (90) days after the court or other tribunal renders its ruling, any amounts paid or reimbursed pursuant to the prior sentence that would not have been paid or reimbursed pursuant to Section 5.0 but for the prior sentence.

 

10.0

Reduction of Certain Payments . This Section 10.0 shall apply to the Executive only if and to the extent that Section 4999 of the Code is applicable to the Executive.

 

10.1

Anything in this Agreement to the contrary notwithstanding, if the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) of the Executive would subject the Executive to the Excise Tax (as defined below), the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “ Agreement Payments ”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so

 

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reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder.

 

10.2

If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Corporation shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 10.0 shall be binding upon the Corporation, its Affiliates and the Executive. All reasonable fees and expenses of the Accounting Firm shall be borne solely by the Corporation. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under the Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the Agreement Payments that have a Parachute Value in the following order: first, non-cash benefits that do not constitute non-qualified deferred compensation, second, cash benefits that constitute non-qualified deferred compensation, third, non-cash benefits that constitute non-qualified deferred compensation, and fourth, cash benefits that constitute non-qualified deferred compensation, with benefits within each category reduced in reverse chronological order beginning with those that are to be paid or provided the farthest in time from the Date of Termination, based on the Accounting Firm’s determination.

 

10.3

To the extent requested by the Executive, the Corporation and its Affiliates shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Corporation (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code)), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the Treasury Regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the Treasury Regulations under Section 280G of the Code in accordance with Q&A-5(a) of the Treasury Regulations under Section 280G of the Code.

 

10.4

The following terms shall have the following meanings for purposes of this Section 9.0:

 

  (a)

Accounting Firm ” shall mean a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Corporation prior to a Change in Control for purposes of making the applicable determinations hereunder.

 

  (b)

Excise Tax ” means any excise tax imposed under Section 4999 of the Code.

 

  (c)

Net After-Tax Receipt ” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on the Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate

 

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under Section 1 of the Code and under state and local laws which applied to the Executive’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Executive in the relevant tax year(s).

 

  (d)

Parachute Value ” of a Payment shall mean the present value as of the date of the change in control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

 

  (e)

Payment ” shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement or otherwise.

 

  (f)

Safe Harbor Amount ” shall mean the maximum Parachute Value of all Payments that the Executive can receive without any Payments being subject to the Excise Tax.

 

11.0

Miscellaneous

 

11.1

Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in a writing signed by the Parties hereto. No waiver by either Party of, or in compliance with, any condition or provision of this Agreement to be performed by the other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

 

11.2

Deductions . The Executive agrees that benefits and payments to which the Executive is entitled pursuant to this Agreement are subject to deductions or other source withholdings as may be required by law.

 

11.3

No Mitigation . The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided to the Executive by the Corporation referred to in this Agreement be reduced by any compensation earned by, or benefits paid to, the Executive as the result of employment, whether by another employer or self-employment, or by pension benefits after the Date of Termination, or otherwise, except as specifically provided in this Agreement.

 

11.4

Governing Law . This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Alberta.

 

11.5

Currency . All amounts due under this Agreement shall be paid calculated and paid in the currency in which the Executive’s base salary is paid as of immediately prior to the Date of Termination.

 

11.6

Validity . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

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11.7

Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same Agreement.

 

11.8

Headings . The division of this Agreement into sections, subsections and clauses, or other portions hereof and the insertion of headings or subheadings, are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

 

12.0

Survivorship

Upon the expiration or other termination of this Agreement or the Executive’s employment, the respective rights and obligations of the Parties shall survive to the extent necessary to carry out the intentions of the Parties under this Agreement.

 

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IN WITNESS WHEREOF , the Executive and the Corporation have caused this Agreement to be duly executed effective as of the date first above written.

 

ENCANA CORPORATION

 

Per:    

  /s/ Douglas J. Suttles  
  Name: Douglas J. Suttles  
  Title: President & Chief Executive Officer  

Per:

  /s/ Nancy L. Brennan  
  Name: Nancy L. Brennan  
  Title: Corporate Secretary  

MICHAEL WILLIAMS

 

/s/ Michael Williams

 

Michael Williams

 

Exhibit 10.24

AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT

This Amended and Restated Change in Control Agreement (this “ Agreement ”) is made effective as of February 14, 2018 between Encana Corporation, a corporation amalgamated under the laws of Canada (the “ Corporation ”), and Joanne L. Alexander of the City of Calgary in the Province of Alberta (the “ Executive ”).

WHEREAS the Corporation and the Executive previously entered into the Change in Control Agreement effective as of January 12, 2015 (the “ Prior Agreement ”) and wish to amend and restate the Prior Agreement as set forth herein;

AND WHEREAS the Board of Directors of the Corporation (the “ Board ”) has determined that it is in the best interests of the Corporation and its shareholders to assure that the Corporation will have the continued dedication of the Executive, notwithstanding the possibility or threat of a Change in Control (as defined herein);

AND WHEREAS the Board believes it is imperative to diminish the inevitable distraction of the Executive by virtue of the personal uncertainties and risks created by a pending or threatened Change in Control and to encourage the Executive’s full attention and dedication to the Corporation in the event of any threatened or pending Change in Control, and to provide the Executive with compensation and benefits arrangements upon a Change in Control that ensure that the compensation and benefits expectations of the Executive will be satisfied and that provide the Executive with compensation and benefits arrangements that are competitive with those of other companies;

AND WHEREAS to accomplish these objectives, the Board has caused the Corporation to enter into this Agreement;

NOW THEREFORE , in consideration of the covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency whereof are hereby acknowledged by each of the Executive and the Corporation (each, a “ Party ” and collectively, the “ Parties ”), the Parties hereby mutually covenant and agree as follows:

 

1.0

Term of Agreement

 

1.1

Term . This Agreement shall commence on the date hereof and shall continue in effect during the Executive’s employment with the Corporation as an executive officer until such time as there shall occur a Change in Control of the Corporation and for a period of two years following the Effective Date (as defined below) of such Change in Control (the “ Term ”); provided, however, that the payment of compensation and benefits to the Executive under this Agreement may continue beyond the end of the Term in accordance with the applicable provisions of this Agreement.

 

2.0

Definitions

For purposes of this Agreement, the following definitions shall apply:

 

2.1

Affiliate ”: the term “Affiliate” shall be interpreted in accordance with the definition of such term as contained in Section 2 of the Canada Business Corporations Act (Canada).


2.2 “ Cause ” means:

 

  (a)

the willful and continued failure by the Executive to substantially perform his or her duties with the Corporation or an Affiliate after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes the Executive has not substantially performed his or her duties, and the Executive fails to correct such failure to perform his or her duties within thirty (30) days after such written demand is delivered to the Executive; provided, however, that if such failure occurs after the occurrence of an event or circumstance which would entitle the Executive to resign for Good Reason, such alleged failure shall not constitute the basis for “Cause”; or

 

  (b)

the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Corporation or an Affiliate, monetarily or otherwise.

For purposes of this Section 2.2, (i) any action by the Executive or any failure on the Executive’s part to act, shall be deemed “willful” only when done (or omitted to be done) by the Executive not in good faith and only if, when done (or omitted to be done), the Executive had or ought to have had the reasonable belief that the Executive’s action or omission would not be in the best interests of the Corporation or an Affiliate, and (ii) if the Corporation is not the ultimate parent corporation of the group that includes the Corporation and all of its Affiliates after a Change in Control, references to the “Board” shall mean the board of directors (or equivalent governing body) of the ultimate parent entity of such group.

Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until (A) the Executive has been provided with the opportunity, after reasonable advance notice, to appear before the Board, together with the Executive’s legal counsel, prior to a determination by the Board regarding the existence of “Cause”, and (B) there shall have been delivered to the Executive a copy of a resolution duly adopted by a vote of at least two-thirds (2/3) of the members of the Board, finding that in the good faith opinion of the Board, the Executive was guilty of conduct set forth in clause (a) or (b) of this Section 2.2 and specifying the particulars thereof. A determination of “Cause” made by the Board that is challenged by the Executive in a court of competent jurisdiction shall be subject to “ de novo ” standard of review by such court.

 

2.3

Change in Control ” means:

 

  (a)

any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing (each, a “ Person ”), is or becomes the beneficial owner directly or indirectly of 30% or more of either (A) the then-outstanding shares of common stock of the Corporation (the “ Outstanding Corporation Common Stock ”) or (B) the combined voting power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “ Outstanding Corporation Voting Securities ”); provided, however, that, for purposes of this Section 2.3(a), the following acquisitions of shares or other voting securities of the Corporation shall not constitute a Change in Control: (i) any acquisition directly from the Corporation, (ii) any acquisition made by the Corporation, (iii) any acquisition by any employee plan (or related trust) sponsored or maintained by the

 

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Corporation or any of its subsidiaries, or (iv) any acquisition pursuant to a transaction that complies with Sections 2.3(b)(1), 2.3(b)(2) and 2.3(b)(3);

 

  (b)

consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Corporation or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Corporation, or the acquisition of assets or securities of another entity by the Corporation or any of its subsidiaries (each, a “ Business Combination ”), in each case unless , following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such Business Combination or any employee plan (or related trust) of the Corporation or of such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting from such Business Combination were members of the Incumbent Board (as defined below) at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination;

 

  (c)

individuals who, as of the date hereof, constitute the Board (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Corporation’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person or entity other than the Board; or

 

  (d)

approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation.

 

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For purposes of this Section 2.3:

 

  (i)

the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (ii)

the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining the percentage of beneficial ownership of any Person.

 

2.4

Effective Date ” means the date of the occurrence of a Change in Control.

 

2.5

“Good Reason ” means the occurrence of any of the following on or after a Change in Control, unless the Executive shall have given express written consent thereto:

 

  (a)

Changed Status, Position, Authorities, Duties or Responsibilities . The occurrence of any of the following:

 

  (i)

any adverse change to the Executive’s status or position as in effect immediately prior to the Change in Control, including, without limitation, the Executive ceasing to serve as an executive officer of a publicly traded company and the sole executive performing the Executive’s role as of immediately prior to the Change in Control (or its equivalent), reporting directly and exclusively to the chief executive officer of a publicly traded company; and

 

  (ii)

assignment to the Executive of any authorities, duties or responsibilities materially inconsistent with the Executive’s position and status as of immediately prior to the Change in Control; and

 

  (iii)

any diminution in the Executive’s authorities, duties or responsibilities from those in effect immediately prior to the Change in Control; or

 

  (b)

Reduced Salary . A reduction by the Corporation in the Executive’s annual base salary as in effect immediately prior to the Change in Control; or

 

  (c)

Relocation . The Corporation requiring the Executive to be based more than 50 miles from where the Executive is based immediately prior to the Change in Control, except for: (i) required travel on the Corporation’s business to an extent substantially consistent with the Executive’s business travel obligations in the ordinary course of business immediately prior to the Change in Control; or (ii) if the Executive has been relocated or repatriated by the Corporation prior to the Change in Control, such relocation as may be required by applicable law or performed in accordance with an agreement (whether written or unwritten) entered into between the Corporation (or an Affiliate) and the Executive prior to the Change in Control; or

 

Page 4


  (d)

Incentive Compensation Plans . The occurrence of any of the following: (i) a material reduction by the Corporation in the Executive’s (A) annual incentive compensation target or maximum opportunity, or (B) long-term incentive compensation target or maximum opportunity (measured based on grant date fair value of any equity-based awards), in each case, as in effect immediately prior to the Change in Control, or (ii) a change in the performance conditions, vesting, or other material terms and conditions applicable to annual and/or long-term incentive compensation awards granted to Executive after the Change in Control which would have the effect of materially reducing the Executive’s aggregate potential incentive compensation from the level in effect immediately prior to the Change in Control; or

 

  (e)

Pension Plan, Benefit Plans and Perquisites . The failure by the Corporation to continue to provide the Executive:

 

  (i)

with pension and other retirement benefits substantially similar to those provided to the Executive under the applicable pension and retirement plans and arrangements of the Corporation as of immediately prior to the Change in Control; or

 

  (ii)

with benefits substantially similar to the benefits provided to the Executive as of immediately prior to the Change in Control under the Corporation’s life insurance, medical, health and accident, disability or investment plans; or

 

  (iii)

with executive perquisites substantially similar to the material perquisites provided to the Executive by the Corporation as of immediately prior to the Change in Control; or

 

  (iv)

with the number of paid vacation days to which the Executive is entitled in accordance with the normal vacation policy of the Corporation in effect in respect of the Executive as of immediately prior to the Change in Control; or

 

  (f)

Deferred Compensation . The failure by the Corporation to pay the Executive (i) any portion of the Executive’s then current compensation, except pursuant to an across-the-board compensation deferral similarly affecting all senior executives of the Corporation and required by applicable law or (ii) any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation; or

 

  (g)

No Assumption by Successor . The failure of the Corporation to obtain a satisfactory agreement from a successor to assume and agree to perform this Agreement as contemplated by Section 7.1 hereof.

 

3.0

Notice of Termination; Date of Termination

 

3.1

Notice of Termination . Any termination of the Executive’s employment either by the Executive for Good Reason or by the Corporation for Cause or without Cause, as applicable, shall be communicated by written Notice of Termination to the Executive or to the Corporation, as the case may be, in accordance with Section 8.0 hereof.

 

Page 5


3.2

Content of Notice of Termination . The “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon by the Executive or the Corporation, as the case may be, and shall set forth in reasonable detail the facts and circumstances claimed as the basis for the Executive terminating the Executive’s employment or the Corporation terminating the Executive’s employment, as the case may be. The Executive’s failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of “Good Reason” shall not result in a waiver of the Executive’s rights hereunder or preclude the Executive from subsequently asserting such fact or circumstance in enforcing the Executive’s rights hereunder.

 

3.3

Date of Termination . The “Date of Termination” shall mean (a) if the Executive’s employment is terminated by the Corporation without Cause or by the Executive for Good Reason, the date specified in the Notice of Termination (which, in the case of termination by the Executive for Good Reason, shall be not more than sixty (60) days following the date such Notice of Termination is given), or (b) if the Executive’s employment is terminated by the Corporation for Cause, the date on which the Board resolution referenced in Section 2.2 is delivered to the Executive.

 

3.4

Notice Required . For the purposes of this Agreement, any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 3.2 hereof shall not be effective.

 

4.0

Compensation and Benefits following Change in Control

Upon the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, in accordance with the terms of this Agreement, in each case, on or after the Effective Date and prior to the end of the Term, the Corporation shall cause to be provided to the Executive, the following payments and benefits:

 

  (a)

Accrued Obligations . The Corporation shall pay the Executive, in cash, in a lump sum, on the thirtieth (30 th ) day following the Date of Termination (the “ Payment Date ”), the sum of (i) the Executive’s full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given (disregarding any reduction thereto that constitutes Good Reason), (ii) all accrued but unused vacation determined as of the Date of Termination, determined based upon the Executive’s Severance Salary Rate (as defined below) and the Corporation’s vacation policy in effect on the Date of Termination (or, if more favorable to the Executive, the vacation policy in effect as of immediately prior to the Effective Date), (iii) the Executive’s annual bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination, and (iv) the Executive’s business expenses that are reimbursable pursuant to the applicable policy of the Corporation as in effect on the Date of Termination but have not been reimbursed by the Corporation as of the Date of Termination.

 

  (b)

Severance Payment, Severance Period and Severance Salary Rate . The Corporation shall pay to the Executive, on account of both compensation in lieu of notice and loss of office, on the Payment Date, in cash, in a lump sum, on the Payment Date, a severance payment (the “ Severance Payment ”) equal to the amount of base salary the Executive would have

 

Page 6


 

earned had he continued to be employed until the end of the twenty-fourth (24 th ) full calendar month following the Date of Termination (the “ Severance Period ”) assuming that the Executive’s rate of monthly base salary during the Severance Period would be equal to the highest monthly rate of base salary which was payable to the Executive by the Corporation or an Affiliate during the twenty-four (24)-month period immediately preceding the Date of Termination (disregarding any reduction thereto that constitutes Good Reason) (the “ Severance Salary Rate ”).

 

  (c)

Annual Incentive Plans . The Corporation shall pay to the Executive, in cash, in a lump sum, on the Payment Date, a payment equal to: (i) two times the average of the annual bonuses paid to the Executive by the Corporation in respect of the three complete fiscal years of the Corporation immediately preceding the Effective Date (or, for any such complete fiscal year for which the Executive was not paid an annual bonus, the Executive’s target bonus as in effect immediately prior to the Effective Date) (the “ Average Bonus ”), plus (ii) if the Date of Termination is not the last day of a fiscal year, a prorated bonus payment equal to the Average Bonus multiplied by a fraction, the numerator of which is the number of days which have elapsed in the fiscal year in which the Date of Termination occurs and the denominator of which is the total number of days in such fiscal year.

 

  (d)

Retirement and Investment Plans . The Corporation shall pay the Executive, in cash, in a lump sum, on the Payment Date, a payment equal to the maximum contribution that the Corporation or a subsidiary thereof would have been required to make on behalf of the Executive to the Corporation’s retirement or investment plans in which the Executive participates as of immediately prior to the Effective Date (other than any amount covered by Section 4.0(e)) if the Executive had remained fully employed during the Severance Period and elected to have the Corporation or a subsidiary thereof match the Executive’s contributions to such plans, determined as if the Executive continued to make contributions to such plans at a rate equal to the contributions actually made by the Executive under such plans in the last complete calendar year immediately preceding the Date of Termination.

 

  (e)

Pension Benefits. In addition to the benefits to which the Executive is entitled under any pension or retirement plan or arrangement established by the Corporation:

 

  (i)

The Executive will be credited with pensionable contributions in the Encana Corporation Canadian Defined Contribution Savings Plan (the “ Supplemental Pension Plan ”), as may be amended from time to time or any successor plan thereto, for each of the 24 months included in the Severance Period;

 

  (ii)

For purposes of Section 4.0(e)(i), the Executive’s pensionable earnings shall be calculated based on the lesser of: (i) 40% of the Executive’s Severance Salary Rate; and (ii) the Average Bonus; and

 

  (iii)

On or prior to the 15th business day following the Date of Termination, the Executive will receive a lump sum cash payment of her accrued entitlements under the Supplemental Pension Plan, payable on the Payment Date, such

 

Page 7


 

amount to be determined: (A) without any gross up or other adjustment for income tax and not taking in to account the non-registered status of the Supplemental Pension Plan, and (B) assuming the Executive’s accrued entitlement under the Supplemental Pension Plan is fully vested.

 

  (f)

Equity Awards . Each outstanding equity and equity-based compensation award granted by the Corporation to the Executive shall be treated in accordance with the terms of the plan and award agreement under which it was originally granted.

 

  (g)

Insurance Benefits . The Corporation shall continue to provide the Executive with the same level of life, disability, accident, dental and health insurance benefits the Executive was receiving or entitled to receive from the Corporation immediately prior to the Date of Termination until the end of the Severance Period. The contributions or premiums required to be paid by the Executive under such programs shall be payable by the Executive to the Corporation or to the insurer, as applicable, on the same basis as if the Executive continued to be employed during the Severance Period.

 

  (h)

Career Counselling . At the Executive’s request, the Corporation shall provide the Executive with career counselling services, at a maximum cost to the Corporation of $15,000 per annum, until the Executive obtains subsequent employment or establishes the Executive’s own business activity or the end of the Severance Period, whichever is earliest. The Executive shall be entitled to obtain such services from the recognized professional career counselling firm of the Executive’s choice in the major metropolitan area in or nearest to where the Executive resides at the time the Executive begins to use such services.

 

  (i)

Annual Allowance . The Corporation shall pay to the Executive, in cash, in a lump sum, on the Payment Date an amount equal to two times the annual allowance to which the Executive is entitled as of the date of the Date of Termination (or, if higher, as of immediately prior to the Effective Date).

 

  (j)

Financial Counselling . The Corporation shall, during the Severance Period, continue to provide the Executive with the same financial counselling benefits as those to which the Executive was entitled as of immediately prior to the Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Effective Date). Such services shall be provided throughout the Severance Period, including the preparation of the Executive’s tax return(s) for the tax year during which the Severance Period ends.

 

  (k)

Executive Medical . The Corporation shall continue to provide the Executive with the same executive physical examination benefits as those to which the Executive was entitled as of immediately prior to the Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Effective Date). Such benefits shall be provided for the duration of the Severance Period.

 

  (l)

Professional Membership Fees . The Corporation shall pay the Executive, in cash, in a lump sum, on the Payment Date, an after-tax amount equal to two times the amount reimbursed or paid by the Corporation (separate from the annual allowance) in respect of

 

Page 8


 

membership fees for membership in professional organizations related to the Executive’s position and duties with the Corporation for the year preceding the year in which the Date of Termination occurs (or, if greater, preceding the year in which the Effective Date occurs).

 

5.0

Legal Fees and Expenses

The Corporation shall pay the Executive’s actual legal or professional fees and expenses incurred by the Executive in seeking to obtain or enforce any right or benefit provided by this Agreement up to US$100,000 (and, if a court or other tribunal finds in favor of the Executive, any such fees or expenses that are in excess of US$100,000). Such fees or expenses shall be reimbursed by the Corporation reasonably promptly following receipt of a copy of any invoice from the Executive evidencing the payment by the Executive of such fees or expenses. If such fees or expenses are paid in Canadian dollars, the application of the US$100,000 cap under this Section 5.0 shall be applied by converting the reimbursed amounts to U.S. dollars based on the spot exchange rate at the time of the reimbursement.

 

6.0

Entire Agreement

 

6.1

This Agreement constitutes the entire agreement between the Parties hereto concerning change in control benefits and obligations and supersedes all prior agreements or understandings, including the Prior Agreement, except that each outstanding equity and equity-based compensation award granted by the Corporation to the Executive shall be treated in accordance with the terms of the plan and award agreement under which it was granted, including any such terms that relate to change in control benefits.

 

7.0

Successors; Binding Agreement

 

7.1

Assumption by Successors . The Corporation will require any successor (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to (a) all or substantially all of the business and/or assets of the Corporation in a transaction that constitutes a Change in Control, or (b) on or after the Effective Date and prior to the end of the Term, to the business in connection with which the Executive’s services are principally performed after a Change in Control in circumstances where the Executive’s employment is transferred to such successor, to expressly assume and to agree to perform this Agreement in the same manner and to the same extent as the Corporation, as if no such succession had taken place. Failure of the Corporation to obtain such assumption and agreement prior to the effectiveness of any such succession shall constitute Good Reason for purposes of this Agreement. As used in this Agreement, “Corporation” shall mean the Corporation as defined herein and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

7.2

Assignment; Binding Agreement .

 

  (a)

This Agreement is personal to the Executive, and, without the prior written consent of the Corporation, shall not be assignable by the Executive. This Agreement shall inure to the benefit of and be enforceable by the Executive and the Executive’s legal representatives and, and if the Executive should die while any amount remains due to the Executive under

 

Page 9


 

this Agreement, such amount shall be paid in accordance with the terms of this Agreement to the Executive’s legatee, if there is no such legatee, to the Executive’s estate.

 

  (b)

Except as provided in Section 7.1, without the prior written consent of the Executive, this Agreement shall not be assignable by the Corporation. This Agreement shall inure to the benefit of and be binding upon the Corporation and its successors and permitted assigns.

 

8.0

Notices

 

8.1

Notices . For purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given (a) when hand delivered, (b) upon confirmation of receipt when sent by facsimile or email, or (c) on the third business day after having been sent by registered mail, postage prepaid, as follows:

If to the Corporation:

Encana Corporation

500 Centre Street S.E.

Calgary, Alberta

T2P 2S5

Attention: Executive Vice-President, Corporate Services

Facsimile: (403) 645-4617

If to the Executive:

At the Executive’s most recent address, facsimile number, or email address, as applicable, on file with the Corporation.

Each of the Corporation and the Executive may from time to time change its contact information for notice by notice to the other Party given in the manner aforesaid.

 

9.0

Section  409A Compliance

 

9.1

To the extent that Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “ Code ”) (together with any related regulations or other guidance promulgated by the U.S. Department of the Treasury or the Internal Revenue Service, “ Section  409A ”) is applicable to the Executive, this Agreement and any payment, distribution or other benefit hereunder is intended to comply with the requirements of Section 409A or an applicable exemption or exclusion therefrom, and shall be interpreted and administered in accordance with such intent in all respects; provided , that for the avoidance of doubt, this provision shall not be construed to require a gross-up payment in respect of any taxes, interest or penalties imposed on Executive as a result of Section 409A.

 

9.2

To the extent Section 409A is applicable to the Executive:

 

  (a)

The Executive shall not be deemed to have terminated employment for purposes of any payment or benefit under this Agreement that constitutes non-qualified deferred compensation unless and until a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred. If the Executive is a “specified employee”

 

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under Section 409A, no payment, distribution or other benefit provided pursuant to this Agreement constituting non-qualified deferred compensation (within the meaning of Treasury Regulation Section 1.409A-1(b)) that is required to be delayed to comply with Section 409A(a)(2)(B)(i) shall be provided before the date that is six months after the date of the Executive’s separation from service (or, if earlier than the end of such six-month period, the date of death of the specified employee). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first business day following the six-month anniversary of the separation from service.

 

  (b)

In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement.

 

  (c)

Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.

 

  (d)

All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the time period specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made not later than the last day of the Executive’s taxable year following the taxable year in which such expense was incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Notwithstanding anything in this Agreement to the contrary, with respect to payment of legal fees and expenses pursuant to Section 5.0 hereof, if the court or other tribunal has not yet found in favor or against the Executive prior to the last day of the Executive’s taxable year following the taxable year in which such fees and expenses were incurred, such fees and expenses will be paid on the last day of such taxable year following the taxable year in which such fees and expenses were incurred. If such court or other tribunal does not ultimately find in favor of the Executive, the Executive will repay to the Corporation as soon as practicable, but in no event more than ninety (90) days after the court or other tribunal renders its ruling, any amounts paid or reimbursed pursuant to the prior sentence that would not have been paid or reimbursed pursuant to Section 5.0 but for the prior sentence.

 

10.0

Reduction of Certain Payments . This Section 10.0 shall apply to the Executive only if and to the extent that Section 4999 of the Code is applicable to the Executive.

 

10.1

Anything in this Agreement to the contrary notwithstanding, if the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) of the Executive would subject the Executive to the Excise Tax (as defined below), the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “ Agreement Payments ”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so

 

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reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder.

 

10.2

If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Corporation shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 10.0 shall be binding upon the Corporation, its Affiliates and the Executive. All reasonable fees and expenses of the Accounting Firm shall be borne solely by the Corporation. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under the Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the Agreement Payments that have a Parachute Value in the following order: first, non-cash benefits that do not constitute non-qualified deferred compensation, second, cash benefits that constitute non-qualified deferred compensation, third, non-cash benefits that constitute non-qualified deferred compensation, and fourth, cash benefits that constitute non-qualified deferred compensation, with benefits within each category reduced in reverse chronological order beginning with those that are to be paid or provided the farthest in time from the Date of Termination, based on the Accounting Firm’s determination.

 

10.3

To the extent requested by the Executive, the Corporation and its Affiliates shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Corporation (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code)), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the Treasury Regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the Treasury Regulations under Section 280G of the Code in accordance with Q&A-5(a) of the Treasury Regulations under Section 280G of the Code.

 

10.4

The following terms shall have the following meanings for purposes of this Section 9.0:

 

  (a)

Accounting Firm ” shall mean a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Corporation prior to a Change in Control for purposes of making the applicable determinations hereunder.

 

  (b)

Excise Tax ” means any excise tax imposed under Section 4999 of the Code.

 

  (c)

Net After-Tax Receipt ” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on the Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate

 

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under Section 1 of the Code and under state and local laws which applied to the Executive’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Executive in the relevant tax year(s).

 

  (d)

Parachute Value ” of a Payment shall mean the present value as of the date of the change in control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

 

  (e)

Payment ” shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement or otherwise.

 

  (f)

Safe Harbor Amount ” shall mean the maximum Parachute Value of all Payments that the Executive can receive without any Payments being subject to the Excise Tax.

 

11.0

Miscellaneous

 

11.1

Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in a writing signed by the Parties hereto. No waiver by either Party of, or in compliance with, any condition or provision of this Agreement to be performed by the other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

 

11.2

Deductions . The Executive agrees that benefits and payments to which the Executive is entitled pursuant to this Agreement are subject to deductions or other source withholdings as may be required by law.

 

11.3

No Mitigation . The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided to the Executive by the Corporation referred to in this Agreement be reduced by any compensation earned by, or benefits paid to, the Executive as the result of employment, whether by another employer or self-employment, or by pension benefits after the Date of Termination, or otherwise, except as specifically provided in this Agreement.

 

11.4

Governing Law . This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Alberta.

 

11.5

Currency . All amounts due under this Agreement shall be paid calculated and paid in the currency in which the Executive’s base salary is paid as of immediately prior to the Date of Termination.

 

11.6

Validity . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

Page 13


11.7

Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same Agreement.

 

11.8

Headings . The division of this Agreement into sections, subsections and clauses, or other portions hereof and the insertion of headings or subheadings, are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

 

12.0

Survivorship

Upon the expiration or other termination of this Agreement or the Executive’s employment, the respective rights and obligations of the Parties shall survive to the extent necessary to carry out the intentions of the Parties under this Agreement.

 

Page 14


IN WITNESS WHEREOF , the Executive and the Corporation have caused this Agreement to be duly executed effective as of the date first above written.

 

ENCANA CORPORATION

 

Per:    

  /s/ Douglas J. Suttles  
  Name: Douglas J. Suttles  
  Title: President & Chief Executive Officer  

Per:

  /s/ Nancy L. Brennan  
  Name: Nancy L. Brennan  
  Title: Corporate Secretary  

JOANNE L. ALEXANDER

 

/s/ Joanne L. Alexander

 

Joanne L. Alexander

 

Exhibit 10.38

 

LOGO

RESTRICTED SHARE UNIT PLAN FOR DIRECTORS

OF ENCANA CORPORATION

Effective February 14, 2018.


Table of Contents

 

Section

       Page  

1.

 

PREAMBLE AND DEFINITIONS

     1    

2.

 

CONSTRUCTION AND INTERPRETATION

     5    

3.

 

EFFECTIVE DATE AND RIGHTS FOR CONTINUED SERVICE

     6    

4.

 

RSU GRANTS

     6    

5.

 

ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION

     7    

6.

 

UNFUNDED STATUS OF PLAN

     8    

7.

 

SETTLEMENT OF RSU AWARDS

     8    

8.

 

CURRENCY

     9    

9.

 

SHAREHOLDER RIGHTS

     9    

10.

 

ADMINISTRATION

     9    

11.

 

ASSIGNMENT

     11  


RESTRICTED SHARE UNIT PLAN FOR DIRECTORS

OF ENCANA CORPORATION

(Effective February 14, 2018)

 

1.

PREAMBLE AND DEFINITIONS

 

  1.1

Title .

The Plan described in this document shall be called the “Restricted Share Unit Plan for Directors of Encana Corporation”.

 

  1.2

Purposes of the Plan .

The purposes of the Plan are:

 

  (a)

to promote a greater alignment of interests between non-employee directors and the shareholders of the Corporation with a view to enhancing long-term shareholder value;

 

  (b)

to assist non-employee directors of the Corporation to meet share ownership requirements; and

 

  (c)

to attract and retain qualified individuals to act as non-employee directors of the Corporation.

 

  1.3

Definitions .

 

  1.3.1

Affiliate ” means any corporation, partnership or other entity in which the Corporation, directly or indirectly, has a majority ownership interest.

 

  1.3.2

Applicable Law ” means any applicable provision of law, domestic or foreign, including, without limitation, applicable securities legislation, together with all regulations, rules, policy statements, rulings, notices, orders or other instruments promulgated thereunder, and Stock Exchange Rules.

 

  1.3.3

Blackout Period ” means a trading blackout period imposed by the Corporation under the Corporation’s Securities Trading and Insider Reporting Policy (as amended, supplemented or replaced from time to time).

 

  1.3.4

Board ” means the Board of Directors of the Corporation.

 

  1.3.5

Business Day ” means any day other than a Saturday or a Sunday, a statutory holiday in Alberta or any day on which the principal chartered banks located in Calgary are not open for business during normal banking hours.

 

  1.3.6

Change in Control ” shall be deemed to have occurred for purposes of this Plan if:

 

  (a)

any individual, partnership, firm, corporation, association, trust,

 


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Restricted Share Unit Plan for Directors

(Effective February 14, 2018)

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unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing (each, a “Person”), is or becomes the beneficial owner directly or indirectly of 30% or more of either (A) the then-outstanding shares of common stock of the Corporation (the “Outstanding Corporation Common Stock”) or (B) the combined voting power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “Outstanding Corporation Voting Securities”); provided, however, that, for purposes of this Section 1.3.6(a), the following acquisitions of shares or other voting securities of the Corporation shall not constitute a Change in Control: (i) any acquisition directly from the Corporation, (ii) any acquisition made by the Corporation, (iii) any acquisition by any employee plan (or related trust) sponsored or maintained by the Corporation or any of its subsidiaries, or (iv) any acquisition pursuant to a transaction that complies with Sections 1.3.6(b)(1), 1.3.6(b)(2) and 1.3.6(b)(3);

 

  (b)

consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Corporation or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Corporation, or the acquisition of assets or securities of another entity by the Corporation or any of its subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such Business Combination or any employee plan (or related trust) of the Corporation or of such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting from such Business Combination were members of the Incumbent Board (as defined below) at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination;


Encana Corporation

Restricted Share Unit Plan for Directors

(Effective February 14, 2018)

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  (c)

individuals who, as of Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to Effective Date whose election, or nomination for election by the Corporation’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person or entity other than the Board; or

 

  (d)

approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation.

For the purposes of this Section 1.3.6:

 

  (a)

the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (b)

the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Plan, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining the percentage of beneficial ownership of any Person.

 

    1.3.7

Code ” means the United States Internal Revenue Code , as amended from time to time.

 

    1.3.8

Committee ” means a committee of the Board, as constituted from time to time, which may be appointed by the Board to, among other things, interpret, administer and implement the Plan, including any corresponding Grant Agreement. Any reference in this Plan or corresponding Grant Agreement to action by the Committee means action by or under the authority of: (i) the Committee or; (ii) if no such Committee has been designated, or such authority has not been delegated by the Board, the Board.

 

    1.3.9

Corporation ” means Encana Corporation and any successor corporation whether by amalgamation, merger or otherwise.

 

  1.3.10

Date of Termination ” means the date of the Participant’s Termination of Service.

 

  1.3.11

Dividend Equivalent RSU ” has the meaning set out in Section 5.2.

 

  1.3.12

Effective Date ” has the meaning set out in Section 3.1.

 

  1.3.13

Grant Agreement ” means an agreement between the Corporation and the Participant under which a RSU is granted, as contemplated by


Encana Corporation

Restricted Share Unit Plan for Directors

(Effective February 14, 2018)

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Section 4.1, together with such schedules, amendments, deletions or changes thereto as are permitted under the Plan, subject to the terms and conditions of such Grant Agreement and the Plan.

 

  1.3.14

Grant Date ” means the effective date of a grant of RSUs to a Participant by the Corporation as stated in the Participant’s applicable Grant Agreement. Where the Corporation determines to grant any RSUs on a date which is within a Blackout Period or where, for any reason: (i) the grant of RSUs falls on a day that is within a Blackout Period; or (ii) the Market Value of the grant of RSUs would be calculated using a Trading Day that is within a Blackout Period, then the Grant Date of any such RSUs shall automatically occur and be effective on the sixth Trading Day immediately following the end of such Blackout Period to permit the Market Value of such RSUs to be determined based on Trading Days which occur immediately following the end of any such Blackout Period.

 

  1.3.15

Market Value ” means, with respect to any particular date, the volume-weighted average (rounded to two decimal places) of the trading price per Share on the applicable Stock Exchange during the immediately preceding five (5) Trading Day period prior to that particular date.

 

  1.3.16

Participant ” means such non-employee director of the Corporation as the Committee may designate from time to time as eligible to participate in the Plan.

 

  1.3.17

Plan ” means this Restricted Share Unit Plan for Directors of Encana Corporation, including any schedules or appendices hereto, as amended from time to time.

 

  1.3.18

RSU ” means a restricted share unit granted to a Participant under the Plan that is represented by a bookkeeping entry on the books of the Corporation.

 

  1.3.19

RSU Account ” has the meaning set out in Section 5.1.

 

  1.3.20

Section  409A Amount ” means any cash provided or to be provided pursuant to the Plan or a Grant Agreement that: (a) is provided or are to be provided to a U.S. Participant; and (b) constitutes a deferral of compensation subject to section 409A of the Code.

 

  1.3.21

Settlement Date ” means, in respect of a grant of RSUs, the date or dates specified in the Participant’s applicable Grant Agreement upon which the Participant’s RSUs shall become payable in accordance with Section 7, subject to the terms and conditions of the Plan and the applicable Grant Agreement.

 

  1.3.22

Settlement Date RSU Value ” means with respect to each RSU, except as otherwise provided in the applicable Grant Agreement, the Market Value of the applicable RSU on the Settlement Date; provided that where, for any reason, the Market Value of the applicable RSU on the Settlement Date would be calculated using a Trading Day that is within a Blackout Period, then the deemed Settlement Date solely for purposes of


Encana Corporation

Restricted Share Unit Plan for Directors

(Effective February 14, 2018)

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calculating the Settlement Date RSU Value shall be the sixth Trading Day immediately following the end of such Blackout Period to permit the Settlement Date RSU Value to be determined based on Trading Days which occur immediately following the end of any such Blackout Period.

 

  1.3.23

Share ” means a common share in the capital of the Corporation and such other share as may be substituted for it as a result of amendments to the articles of the Corporation, arrangement, re-organization or otherwise, including any rights that form a part of the common share or substituted share.

 

  1.3.24

Stock Exchange ” means, in respect of a RSU, the Toronto Stock Exchange or the New York Stock Exchange as specified in the Participant’s respective Grant Agreement relating to such RSU or, if the Shares are not listed on the Toronto Stock Exchange or the New York Stock Exchange, as applicable, such other stock exchange on which the Shares are listed, or if the Shares are not listed on any stock exchange, then on the over-the-counter market.

 

  1.3.25

Stock Exchange Rules ” means, in respect of a RSU, the applicable rules of the particular Stock Exchange pertaining to such RSU, as specified in the Participant’s Grant Agreement, upon which the Shares are listed.

 

  1.3.26

Termination of Service ” means an event by which the Participant ceases to be a director of the Corporation, and, for greater certainty, shall include an event whereby the Participant ceases to be a director of the Corporation upon the Participant’s death.

 

  1.3.27

Trading Day ” means any date on which the applicable Stock Exchange is open for the trading of Shares and on which Shares are actually traded.

 

  1.3.28

U.S. Participant ” means a Participant who is a citizen or permanent resident of the United States for purposes of the Code or a Participant for whom compensation subject to deferral under this Plan would otherwise be subject to United States federal income taxation under the Code.

 

2.

CONSTRUCTION AND INTERPRETATION

 

  2.1

Gender, Singular, Plural . In the Plan, references to the masculine include the feminine; and references to the singular shall include the plural and vice versa, as the context shall require.

 

  2.2

Governing Law . The Plan shall be governed and interpreted in accordance with the laws of the Province of Alberta and any actions, proceedings or claims pertaining in any manner or respect to the Plan, including without limitation, an applicable Grant Agreement or a RSU grant in respect thereof, shall be commenced in the courts of the Province of Alberta.

 

  2.3

Severability . If any provision or part of the Plan is determined to be void or unenforceable in whole or in part, such determination shall not affect the validity


Encana Corporation

Restricted Share Unit Plan for Directors

(Effective February 14, 2018)

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or enforcement of any other provision or part thereof.

 

  2.4

Headings, Sections . Headings wherever used herein are for reference purposes only and do not limit or extend the meaning of the provisions herein contained. A reference to a section or schedule shall, except where expressly stated otherwise, mean a section or schedule of the Plan, as applicable.

 

3.

EFFECTIVE DATE AND RIGHTS FOR CONTINUED SERVICE

 

  3.1

Effective Date . The Corporation is establishing the Plan effective February 14, 2018 (the “Effective Date”).

 

  3.2

No Rights for Continued Service . Nothing herein contained shall be deemed to give any person the right to continue service as a director of the Corporation.

 

4.

RSU GRANTS

 

  4.1

Annual Grant of RSUs. Each Participant may receive in respect of any calendar year, a grant of RSUs in such number and subject to such terms and conditions as the Committee may determine is appropriate having regard to the purposes of the Plan. Each RSU grant to a Participant shall be governed by and subject to the terms and conditions of this Plan and the applicable Grant Agreement.

 

  4.2

Grant Price. The applicable grant price for each RSU granted to a Participant hereunder shall be fixed by the Committee effective as of the Grant Date, but shall not be less than the Market Value on the applicable Stock Exchange.

 

  4.3

Grant Agreement. Each RSU grant and each Participant’s participation in the Plan shall be evidenced by a Grant Agreement between the Corporation and the Participant in the form approved by the Committee. The Grant Agreement shall specify, at the time RSUs are granted to the Participant, the basis upon which such RSUs will be valued, whether such RSUs (and Dividend Equivalent RSUs relating thereto) are payable to the Participant in Canadian currency or United States currency, and the applicable Stock Exchange to be used to determine the Market Value of such RSUs, any other Share price used to determine the value of such RSUs, and the applicable Settlement Date.

 

  4.4

RSUs . Subject to the terms and conditions of the Plan and the applicable Grant Agreement, each RSU will give a Participant the right to receive a payment in cash in an amount and on such Settlement Dates as may be determined in accordance with the terms of the Plan and the applicable Grant Agreement.

 

  4.5

Other Terms and Conditions . Subject to the terms of the Plan, the Committee or the Board may determine other terms or conditions of, or take actions relating to, any RSUs, or any grant thereof, including:

 

  (a)

any additional conditions with respect to the settlement of RSUs, in whole or in part, or the payment of cash under the Plan;

 

  (b)

exercising such discretion as may be set out in the Plan or a particular


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Restricted Share Unit Plan for Directors

(Effective February 14, 2018)

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Grant Agreement; and

 

  (c)

any other terms and conditions the Committee may, in its discretion, determine,

which other terms or conditions shall be set out in the Grant Agreement.

Except as otherwise provided in Section 10.8, the Committee may, in its discretion, after the Grant Date of a RSU, waive any term or condition in respect of such RSU or determine that it has been satisfied.

 

  4.6

Payment Date . For greater certainty, and notwithstanding any other provision of the Plan or an applicable Grant Agreement, no term or condition imposed under this Plan or a Grant Agreement may have the effect of causing payment of the value of a RSU to a Participant, or his legal representative, to occur after December 31 of the third calendar year following the calendar year in which the Grant Date occurs.

 

  4.7

No Certificates . No certificates shall be issued with respect to RSUs.

 

5.

ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION

 

  5.1

RSU Account . An account, called a “RSU Account”, shall be maintained by the Corporation for each Participant and will be credited with such notional grants of RSUs as may be received by a Participant from time to time pursuant to Sections 4.1 and 5.2. RSUs will be fully vested upon being credited to a RSU Account and the entitlement to future payment for such RSUs in accordance with the Plan shall not thereafter be subject to satisfaction of any requirements as to any minimum period of membership on the Board.

 

  5.2

Dividend Equivalent RSUs . In the event cash dividends are paid by the Corporation on the Shares, additional RSUs shall be credited to the Participant’s RSU Account in accordance with this Section 5.2 (“Dividend Equivalent RSUs”). The number of such Dividend Equivalent RSUs (including fractional RSUs) and the date upon which such Dividend Equivalent RSUs are credited to the Participant’s RSU Account shall be determined by the Corporation in accordance with the applicable Grant Agreement. Except where provided otherwise in a Grant Agreement, Dividend Equivalent RSUs shall be paid to the Participant at the same time as the RSUs to which they relate.

 

  5.3

Adjustments . In the event of any stock dividend, stock split, combination or exchange of shares, capital reorganization, consolidation, spin-off or other distribution (other than normal cash dividends) of Corporation assets to shareholders, or any other similar changes affecting the Shares, proportionate adjustments to reflect such change or changes may be made with respect to the number of RSUs outstanding under the Plan, or securities into which the Shares are changed or are convertible or exchangeable may be substituted for Shares under this Plan, on a basis proportionate to the number of RSUs in the Participant’s RSU Account on some other appropriate basis, all as determined by the Board in its discretion.


Encana Corporation

Restricted Share Unit Plan for Directors

(Effective February 14, 2018)

  Page 8

 

6.

UNFUNDED STATUS OF PLAN

 

  6.1

Unfunded Status of Plan . It is intended that this Plan constitute an “unfunded” plan. The Committee may authorize the creation of trusts or other arrangements to meet the obligations created under this Plan to make payments; provided, however, that unless the Committee otherwise determines, the existence of such trusts or other arrangements is consistent with the “unfunded” status of this Plan.

 

7.

SETTLEMENT OF RSU AWARDS

 

  7.1

Payment on Settlement Date. Subject to Sections 7.2 and 7.3, RSUs shall be payable on the Settlement Date(s) set forth in the applicable Grant Agreement, whereby each Participant shall be entitled to receive in cash a payment equal to the Settlement Date RSU Value in respect of each RSU credited to the Participant’s RSU Account for the applicable Settlement Date (rounded up to the nearest whole number of RSUs) relating to a particular grant under Section 4.1. Except as otherwise provided in Sections 7.2 and 7.3 and 10.8 and/or the applicable Grant Agreement(s), the cash in the amount determined pursuant to this Section 7.1 shall be paid to the Participant or his legal representative, as applicable, as soon as practicable following the applicable Settlement Date(s) set forth in the applicable Grant Agreement(s) and, in any event, prior to the earlier of December 31 of the third calendar year following the calendar year in which the Grant Date occurs and within 30 days after the applicable Settlement Date.

 

  7.2

Termination of Service. In the event of the Participant’s Termination of Service, all RSUs credited to the Participant’s RSU Account as of the Date of Termination shall become payable to the Participant or his legal representative, as applicable, as soon as practicable following the Date of Termination at the Market Value as of the Date of Termination; provided that any Section 409A Amount that is to become payable following the U.S. Participant’s Termination of Service, such U.S. Participant shall be deemed to have experienced a Termination of Service when (and only when) a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred. For clarity, no additional RSUs (whether pursuant to Section 4.1 or in the form of Dividend Equivalent RSUs) shall be granted to the Participant following the Participant’s Termination of Service.

 

  7.3

Change in Control .

 

  7.3.1

Settlement. In the event of a Change in Control, all RSUs credited to a RSU Account shall, except as otherwise provided in Section 7.3.3 below, become payable upon the occurrence of such Change in Control.

 

  7.3.2

Payment. As soon as practicable, and in any event within 30 days, following a Change in Control, the Participant shall receive in cash a payment equal to the number of RSUs credited to the Participant’s RSU Account at the time of the Change in Control (rounded up to the nearest whole number of RSUs) multiplied by the price at which the Shares are valued for the purpose of the transaction or series of transactions giving rise to the Change in Control, or if there is no such transaction or transactions, the simple average of the closing price per Share on the


Encana Corporation

Restricted Share Unit Plan for Directors

(Effective February 14, 2018)

  Page 9

 

 

applicable Stock Exchange on each day in the thirty day period ending on the date of the Change in Control.

 

  7.3.3

Payment of Section  409A Amounts. With respect to any Section 409A Amount (i) if the Change in Control constitutes a change in the ownership or effective control of a corporation, or a change in the ownership of a substantial portion of the assets of a corporation, as such terms are used in Section 409A of the Code and related regulations (a “409A Change of Control”), such Section 409A Amount shall be paid in accordance with Section 7.3.2, and (ii) if the Change in Control does not constitute a 409A Change of Control, such Section 409A Amount shall in all events be paid during the calendar year in which such amounts would have been paid had there been no Change in Control.

 

8.

CURRENCY

 

    8.1

Currency . Except where expressly provided otherwise, all references in the Plan to currency refer to lawful Canadian currency.

 

9.

SHAREHOLDER RIGHTS

 

    9.1

No Rights to Shares . RSUs are not Shares and the grant of RSUs will not entitle a Participant to any shareholder rights, including, without limitation, voting rights, dividend entitlement or rights on liquidation.

 

10.

ADMINISTRATION

 

  10.1

Committee . Unless otherwise determined by the Board, or as specified in Section 10.6, the Plan shall be administered by the Committee.

 

  10.2

Compliance with Laws and Policies . The Corporation’s issuance of any RSUs and its obligation to make any payments hereunder is subject to compliance with Applicable Law. Each Participant shall acknowledge and agree (and shall be conclusively deemed to have so acknowledged and agreed by participating in the Plan) that the Participant will, at all times, act in strict compliance with Applicable Law and all other laws and any policies of the Corporation applicable to the Participant in connection with the Plan including, without limitation, furnishing to the Corporation all information and undertakings as may be required to permit compliance with Applicable Law. Such laws, regulations, rules and policies shall include, without limitation, those governing “insiders” or “reporting issuers” as those terms are construed for the purposes of applicable securities laws, regulations and rules.

 

  10.3

Delegation . The Committee may also delegate to any director, officer or employee of the Corporation such duties and powers relating to the Plan or in respect of an applicable Grant Agreement as it may see fit.

 

  10.4

Withholdings . Notwithstanding any other provision in this Plan, to ensure that the Corporation will be able to comply with the applicable provisions of any


Encana Corporation

Restricted Share Unit Plan for Directors

(Effective February 14, 2018)

  Page 10

 

 

federal, provincial, state or local law relating to the withholding of tax or other required deductions, including on the amount, if any, includable in the income of a Participant or the Corporation shall withhold or cause to be withheld from any amount payable to a Participant, either under this Plan, or otherwise, such amount as may be necessary to permit the Corporation to so comply.

 

  10.5

No Additional Rights . Neither designation of a director as a Participant nor the grant of any RSUs to any Participant at any time entitles any person to the grant, or any additional grant, as the case may be, of any RSUs under the Plan.

 

  10.6

Amendment, Termination . The Plan may be amended or terminated at any time by the Board in whole or in part. No amendment of the Plan shall, without the consent of the Participants affected by the amendment, or unless required by Applicable Law, adversely affect the rights accrued to such Participants with respect to RSUs granted prior to the date of the amendment. Notwithstanding any provision in the Plan to the contrary, the Plan may be amended to prevent any adverse tax results under Section 409A of the Code.

 

  10.7

Administration Costs . The Corporation will be responsible for all costs relating to the administration of the Plan.

 

  10.8

Section  409A.

 

  10.8.1

Section  409A Amounts . To the extent applicable to any Section 409A Amount, it is intended that the Plan and any Grant Agreement or other agreement that amends or otherwise affects such Section 409A Amount will comply with Section 409A of the Code and any regulations and guidance issued thereunder, and the Plan and any such Grant Agreement or other agreement shall be interpreted accordingly. The provisions of this Section 10.8 shall apply to any Section 409A Amount notwithstanding anything in the Plan or a Grant Agreement to the contrary. In no event shall a Section 409A Amount be distributed at a time or pursuant to an event that is not specified in Section 409A(a)(2) of the Code.

 

  10.8.2

Specified Employees . If a U.S. Participant is a “specified employee” for purposes of Section 409A of the Code, no payment, distribution or other benefit provided pursuant to a Section 409A Amount that is required to be delayed to comply with Section 409A(a)(2)(B)(i) of the Code shall be provided before the date that is six months after the date of such separation from service (or, if earlier than the end of such six-month period, the date of death of the Participant). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first Business Day following the six-month anniversary of the Participant’s separation from service or date of death, as the case may be.

 

  10.8.3

Time of Payment . In no event shall a Participant be entitled to designate the taxable year in which any Section 409A Amount is to be paid. Except with respect to payments following a Change in Control pursuant to Section 7.4.3, cash to be paid in respect of any Section 409A Amount shall in all events be paid within the calendar year in which the applicable


Encana Corporation

Restricted Share Unit Plan for Directors

(Effective February 14, 2018)

  Page 11

 

 

Settlement Date set forth in the applicable Grant Agreement(s) occurs, which for purposes of Section 409A Amounts shall always be defined as occurring within a single calendar year. Payments with respect to Dividend Equivalent RSUs shall be paid at the same time as the RSU to which such Dividend Equivalent RSU relates.

 

  10.8.4

No Acceleration of Payments . In no event shall a change in a period of grant, a waiver, amendment, or other modification of any terms or conditions of a RSU or any determination by the Committee or the Board, as applicable in each case, that occurs after the Grant Date cause any Section 409A amount to be paid in a calendar year that is different than the calendar year in which payment would have occurred but for such change to the period of grant, waiver, amendment, modification, exercise of discretion, or determination.

 

  10.8.5

Trusts . Notwithstanding Section 6.1 hereof, no funds with respect to any Section 409A Amount shall be set aside in a trust located outside the United States or in any other trust or arrangement described under Section 409A(b)(1) of the Code.

 

11.

ASSIGNMENT

 

  11.1

Assignment . The assignment or transfer of the RSUs, or any other benefits under this Plan, shall not be permitted other than by operation of law.

* * * *

Exhibit 10.39

RESTRICTED SHARE UNIT PLAN

FOR DIRECTORS OF ENCANA CORPORATION

20 RSU GRANT AGREEMENT

 

Participant Name:    ###PARTICIPANT_NAME###
Grant Date:    ###GRANT_DATE###
Number of RSUs    ###TOTAL_AWARDS###
Currency of RSUs:    USD
Stock Exchange:    NYSE
Settlement Date:    ###SETTLEMENT_SCHEDULE_TABLE###

This Grant Agreement (this “ Agreement ”) is between you (“ Participant ” or “ You ”) and Encana Corporation (the “ Corporation ”).

WHEREAS the Corporation has established the Restricted Share Unit Plan for Directors of Encana Corporation (the “ Plan ”);

AND WHEREAS You are non-employee director of the Corporation and the Board of Directors of the Corporation (the “ Board ”) has authorized the granting to You of certain Restricted Share Units (“ RSUs ”) in such number as set out above and as further described in this Agreement pursuant to and in accordance with the provisions of the Plan;

NOW THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, it is agreed by and between the parties hereto as follows:

 

1.

The terms and conditions of the Plan are hereby incorporated by reference as terms and conditions of this Agreement. All capitalized terms used in this Agreement, unless otherwise defined in this Agreement, shall have the meanings set out in the Plan.

 

2.

Participation in the Plan is voluntary on Your part.

 

3.

You hereby confirm that You have received and reviewed a copy of the Plan and agree to be bound by its terms and conditions.

 

4.

Effective as of the Grant Date above, the Corporation hereby grants to You, in accordance with and subject to the terms and conditions of the Plan and this Agreement, RSUs in such number as set out above and subject to such other terms or conditions as the Committee or the Board, as applicable, may determine is appropriate having regard to the purposes of the Plan.

 

5.

RSUs granted to You on the Grant Date will only be payable subject to the terms and conditions set out in the Plan (including, without limitation, Section 7 thereof), and this Agreement.

 

6.

Dividend Equivalent RSUs shall be determined separately with respect to the RSUs applicable to each grant under Section 4.1 of the Plan. Subject to the terms and conditions of

 

- 1 -


 

the Plan (including, without limitation, Section 5.2 thereof) and this Agreement, where cash dividends are paid by the Corporation on the Shares between the Grant Date and the Settlement Date in respect of a particular grant under Section 4.1 of the Plan, the Corporation shall credit additional Dividend Equivalent RSUs to the Participant’s RSU Account. The number of such Dividend Equivalent RSUs (including fractional RSUs) to be credited in respect of each dividend record date will be calculated by dividing the cash dividends that would have been paid to the Participant if the RSUs applicable to the particular grant under Section 4.1 of the Plan (and any previously granted Dividend Equivalent RSUs related to such RSUs) as at such dividend record date had been Shares by the closing price per Share on the applicable Stock Exchange on the immediately preceding Trading Day of the dividend payment date for such cash dividends. Dividend Equivalent RSUs shall vest and be paid at the same time as the RSUs to which they relate.

 

7.

The determination by the Committee or the Board, as applicable, of any question which may arise as to the interpretation and implementation of the Plan, this Agreement or any RSUs granted pursuant to the Plan or hereunder shall be final and binding on You and all other persons claiming or deriving rights through You.

 

8.

The Corporation’s grant of any RSUs or any obligation to make any payments under the Plan is subject to compliance with Applicable Law. As a condition of participating in the Plan, You hereby agree to comply with all such Applicable Law and agree to furnish to the Corporation all information and undertakings as may be required to permit compliance with such Applicable Law. Without limiting the generality of the foregoing, You hereby acknowledge and agree that any payment or settlement to You in respect of Vested RSUs shall be subject to such taxes and other withholdings or deductions as may be required by Applicable Law.

 

9.

The Plan contains specific conditions and provisions including, without limitation, in Section 7 thereof, with respect to governing Your rights with respect to the Plan and this Agreement upon a Termination of Service and/or upon a Change in Control. Without restricting the generality of Section 3 hereof, You further agree that You have read all of the provisions of the Plan and this Agreement and agree to be bound by them.

 

10.

Upon the occurrence of a Termination of Service of You, pursuant to Section 7.2 of the Plan, You shall not be entitled to any further grant of RSUs. You agree You have read these provisions of the Plan and agree to be bound by them.

 

11.

Neither the Plan nor any action taken thereunder shall be deemed to give You the right to continue service as a director of the Corporation.

 

12.

You shall have no rights whatsoever as a shareholder in respect of any Shares, including, without limitation, voting rights, dividend entitlement or rights on liquidation.

 

13.

Subject to Section 10.6 of the Plan, this Agreement may be amended or terminated at any time by the Committee or the Board in whole or in part and the Plan may be amended or terminated at any time by the Board in whole or in part.

 

14.

This Agreement shall enure to the benefit of and be binding upon the Corporation and its respective successors and assigns and upon You and all other persons claiming or deriving rights through You.

 

15.

This Agreement and the rights of all parties and the construction of each and every provision hereof and the Plan and any RSUs granted hereunder shall at all times and for all purposes be construed according to the laws of the Province of Alberta (and the federal laws of Canada, as applicable, herein) and shall be treated in all respects as an Alberta contract,

 

- 2 -


 

without reference to the principles of conflicts of law. In the event of a dispute, You agree to submit to the jurisdiction of the courts of the Province of Alberta.

 

16.

Notwithstanding any provision of the Plan or this Agreement to the contrary, where applicable, it is intended that the provisions of the Plan and this Agreement comply with applicable tax law and, in respect of U.S. Participants, Section 409A, and that all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. If You are an US Participant, You are solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed upon You or for Your account in connection with the Plan or any other Plan maintained by the Corporation or an Affiliate (including any taxes and penalties under Section 409A), and neither the Corporation nor any Affiliate shall have any obligation to indemnify or otherwise hold You (or any beneficiary) harmless from any or all of such taxes or penalties. In addition, should any provision of the Plan or this Agreement be subject to Section 409A, You agree that a Termination of Service shall be determined to mean a “separation from service” as defined in Section 409A whenever necessary to ensure compliance therewith for any payment or settlement of a benefit conferred under the Plan or this Agreement that is subject to Section 409A, and, for such purposes, shall be determined based upon a reduction in the bona fide level of services performed to a level equal to twenty percent (20%) or less of the average level of services performed by You during the immediately preceding 36-month period. Any distribution or settlement of a benefit conferred under the Plan or this Agreement following a Termination of Service that would be subject to Section 409A as a distribution following a separation from service of a “specified employee” as defined under Section 409A, shall occur no earlier than the expiration of the six-month period following the date of such separation from service (or, if earlier than the end of such six-month period, Your date of death).

 

17.

You agree to the collection, use and disclosure of personal information about You (including, without limitation, personal employee information about You) (collectively, “ Personal Information ”) by the Corporation or its Affiliates for purposes of administering and managing the grant of RSUs to You hereunder, operation of the Plan and this Agreement and, as applicable, compliance with Applicable Law (the “ Purposes ”).

Without limiting the generality of the foregoing, You agree to the collection, use and disclosure of the Personal Information by the Corporation and its Affiliates from and to such third party service provider(s) as may be retained by the Corporation from time to time to assist with the Purposes (“ Service Provider ”), as may be reasonably required to fulfil the Purposes, whether verbally (including by telephone), in writing or electronically over the Internet including, without limitation, by e-mail. You agree that any acceptance or consent indicated by You in electronic form to any documents provided to You by the Corporation or the Service Provider including, without limitation, the Plan and this Agreement shall be the equivalent of original written paper documents and Your written acceptance or consent thereto.

You further agree to provide the Corporation and, where necessary, the Service Provider, with all information, including Personal Information, as may be reasonably required to fulfil the Purposes. You acknowledge and agree that the Corporation, an Affiliate and/or the Service Provider (as applicable) may, from time to time, and in accordance with Applicable Laws, disclose Personal Information including, without limitation, in response to regulatory filings or other lawful requests by a government authority or regulatory body, or for purpose of complying with a subpoena, warrant or other order by a court or other party having jurisdiction over the Corporation, an Affiliate or the Service Provider (as applicable) to compel production of same. You acknowledge and agree that the Corporation, an Affiliate or the Service Provider may, as part of their business practices, collect, use and disclose the

 

- 3 -


Personal Information outside of Canada or the United States (as applicable) in respect of the Purposes. Should You have any questions regarding the Corporation’s collection, use and disclosure of Your Personal Information, contact Encana’s Privacy Officer at privacy@encana.com

 

18.

You understand that by indicating your acceptance of and agreement with the terms of this Agreement (whether electronically or otherwise), You confirm You have received and reviewed the terms of the Plan and this Agreement, which contain legal terms, and that You agree to be bound by them.

IN WITNESS WHEREOF this Agreement has been executed effective as of the Grant Date.

 

ENCANA CORPORATION
 

 

Mike Williams
Executive Vice-President, Corporate Services

 

- 4 -

Exhibit 12.1

CONSOLIDATED STATEMENT OF COMPUTATION OF

RATIO OF EARNINGS TO FIXED CHARGES

 

     Years Ended December 31,
(Unaudited)
 
(millions, except for ratio amounts)            2017              2016             2015             2014             2013  
Earnings            

Net Earnings (Loss) Before Income Tax

     1,430        (1,620     (8,010     4,629       (12

(Income) or loss from equity investees (1)

     -        3       3       (4     (6

Fixed charges (2)

     406        447       696       712       631  

Noncontrolling interest in pre-tax income of subsidiaries that have not incurred fixed charges

     -        -       -       (41     -  
  

 

 

    

 

 

   

 

 

   

 

 

   

 

 

 

Total Earnings (Loss)

     1,836        (1,170     (7,311     5,296       613  
Fixed Charges            

Interest expense

     362        391       610       663       557  

Amortized premiums, discounts & capitalized expenses

     1        6       4       (9     6  

Estimate of interest in rental expenditures

     43        50       82       58       68  
  

 

 

    

 

 

   

 

 

   

 

 

   

 

 

 

Total Fixed Charges

     406        447       696       712       631  

Ratio of Earnings to Fixed Charges (2)

     4.5        (2.6     (10.5     7.4       1.0  

 

(1) There were no distributions of income from equity investees.
(2) The amount by which earnings were insufficient to cover fixed charges was approximately $8,007 million for the year ended December 31, 2015; and $1,617 million for the year ended December 31, 2016.

Exhibit 21.1

ENCANA CORPORATION

Significant Subsidiaries

December 31, 2017

 

1. 1847432 Alberta ULC, incorporated in Alberta
2. Alenco Inc., incorporated in Delaware
3. Encana Oil & Gas (USA) Inc., incorporated in Delaware
4. 1977994 Alberta Ltd., incorporated in Alberta
5. Encana Global Holdings S.a r.l., incorporated in Luxembourg
6. Encana Leasehold Limited Partnership, incorporated in Alberta
7. Encana Finance Switzerland AG, incorporated in Switzerland

Exhibit 23.1

 

LOGO

Consent of Independent Registered Public Accounting Firm

We hereby consent to the incorporation by reference in the Registration Statements on Form S-3 (No. 333-216395), and Form S-8 (Nos. 333-124218, 333-85598, 333-140856 and 333-188758) of Encana Corporation of our report dated February 26, 2018 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in this Form 10-K.

/s/ PricewaterhouseCoopers LLP

Chartered Professional Accountants

Calgary, Alberta, Canada

February 26, 2018

 

LOGO

Exhibit 23.2

 

LOGO

 

 

Encana Corporation

4400, 500 Centre Street S.E.

Calgary, Alberta T2P 2S5

Canada

CONSENT OF INDEPENDENT PETROLEUM ENGINEERS

We hereby consent to the use and reference to our name and reports auditing a portion of Encana Corporation’s petroleum and natural gas reserves as of December 31, 2017 (the “Reports”), and the information derived from our Reports, as described or incorporated by reference in: (i) Encana Corporation’s Annual Report on Form 10-K for the year ended December 31, 2017, (ii) Encana Corporation’s Registration Statement on Form S-3 (File Nos. 333-216395) and (iii) Encana Corporation’s Registration Statements on Form S-8 (File Nos. 333-124218, 333-85598, 333-140856 and 333-188758), filed with the United States Securities and Exchange Commission.

Yours truly,

McDANIEL & ASSOCIATES CONSULTANTS LTD.

 

/s/ B. R. Hamm

 

B. R. Hamm, P. Eng.

Executive Vice President

Calgary, Alberta

February 26, 2018

 

LOGO

Exhibit 23.3

 

LOGO

 

  E XECUTIVE C OMMITTEE     C HAIRMAN  & CEO
 

R OBERT C. B ARG

P. S COTT F ROST

J OHN G. H ATTNER

J. C ARTER  H ENSON , J R .

 

   

 

M IKE K. N ORTON

D AN P AUL  S MITH

J OSEPH  J. S PELLMAN

D ANIEL T. W ALKER

 

 

 

 

 

 

 

C.H. (S COTT ) R EES  III

P RESIDENT  & C OO

D ANNY D. S IMMONS

E XECUTIVE VP

G. L ANCE B INDER

 

Encana Corporation

4400, 500 Centre Street S.E.

Calgary, Alberta T2P 2S5

Canada

CONSENT OF INDEPENDENT PETROLEUM ENGINEERS

We hereby consent to the use and reference to our name and reports auditing a portion of Encana Corporation’s petroleum and natural gas reserves as of December 31, 2017 (the “Reports”), and the information derived from our Reports, as described or incorporated by reference in: (i) Encana Corporation’s Annual Report on Form 10-K for the year ended December 31, 2017, (ii) Encana Corporation’s Registration Statement on Form S-3 (File Nos. 333-216395) and (iii) Encana Corporation’s Registration Statements on Form S-8 (File Nos. 333-124218, 333-85598, 333-140856 and 333-188758), filed with the United States Securities and Exchange Commission.

 

Sincerely,  
NETHERLAND, SEWELL & ASSOCIATES, INC.  
   /s/ C.H. (Scott) Rees III  
By:  

 

 
   C.H. (Scott) Rees III, P.E.  
   Chairman and Chief Executive Officer  

Dallas, Texas

February 26, 2018

 

Please be advised that the digital document you are viewing is provided by Netherland, Sewell & Associates, Inc. (NSAI) as a convenience to our clients. The digital document is intended to be substantively the same as the original signed document maintained by NSAI. The digital document is subject to the parameters, limitations, and conditions stated in the original document. In the event of any differences between the digital document and the original document, the original document shall control and supersede the digital document.

 

 

2100 R OSS A VENUE , S UITE 2200 • D ALLAS , T EXAS 75201 • P H : 214-969-5401 • F AX : 214-969-5411

     info@nsai-petro.com  

1301 M C K INNEY S TREET , S UITE 3200 • H OUSTON , T EXAS 77010 • P H : 713-654-4950 • F AX : 713-654-4951

     netherlandsewell.com  

Exhibit 31.1

CERTIFICATION PURSUANT TO RULE 13a-14(a) OR 15d-14(a) OF THE SECURITIES EXCHANGE ACT OF 1934, AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Douglas J. Suttles, certify that:

 

1. I have reviewed this annual report on Form 10-K of Encana Corporation;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: February 26, 2018

 

/s/ Douglas J. Suttles

Douglas J. Suttles
President & Chief Executive Officer

 

Exhibit 31.2

CERTIFICATION PURSUANT TO RULE 13a-14(a) OR 15d-14(a) OF THE SECURITIES EXCHANGE ACT OF 1934, AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Sherri A. Brillon, certify that:

 

1. I have reviewed this annual report on Form 10-K of Encana Corporation;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: February 26, 2018

 

/s/ Sherri A. Brillon

Sherri A. Brillon
Executive Vice-President & Chief Financial Officer

 

Exhibit 32.1

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report of Encana Corporation (the “Company”) on Form 10-K for the period ended December 31, 2017 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Douglas J. Suttles, President & Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:

 

  (1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

  (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

/s/ Douglas J. Suttles

Douglas J. Suttles

President & Chief Executive Officer

February 26, 2018

 

Exhibit 32.2

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report of Encana Corporation (the “Company”) on Form 10-K for the period ended December 31, 2017 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Sherri A. Brillon, Executive Vice-President & Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:

 

  (1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

  (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

/s/ Sherri A. Brillon

Sherri A. Brillon
Executive Vice-President & Chief Financial Officer
February 26, 2018

 

Exhibit 99.1

 

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February 13, 2018

Encana Corporation

500 Centre Street SE

Calgary, Alberta

T2G 1A6

Attention:         Ms. Katherine Crerar, Director of Reserves

Reference:         Encana Corporation

                          December 31, 2017 Reserve Audit Opinion (Canadian Assets) (SEC)

At the request of Encana Corporation (Encana), McDaniel & Associates Consultants Ltd. (McDaniel) has conducted a reserves audit of the estimates of the proved reserves as of December 31, 2017 associated with certain Canadian Assets as prepared by Encana’s engineering and geological staff based on the definitions and disclosure guidelines of the United States Securities and Exchange Commission (SEC). Our third-party reserves audit, completed on February 13, 2018 and presented herein, was prepared for public disclosure by Encana in filings made with the SEC in accordance with the disclosure requirements set forth in the SEC regulations. The estimated reserves shown herein represent Encana’s estimated net reserves attributable to the leasehold and royalty interests and derived through in certain properties owned by Encana and the portion of those reserves audited and reviewed by McDaniel, as of December 31, 2017. This report has been prepared for Encana’s use in filing with the SEC, and in our opinion, the assumptions, data, methods and procedures used in the preparation of this report are appropriate for such purpose.

The properties audited by McDaniel account for a portion of Encana’s total net proved reserves as of December 31, 2017. Based on the estimates of total net proved reserves prepared by Encana, the reserves audit conducted by McDaniel addresses 74.8 percent of the total proved reserves of Encana’s Canadian Assets.

As prescribed by the Society of Petroleum Engineers in Paragraph 2.2(f) of the Standards Pertaining to the Estimating and Auditing of Oil and Gas Reserves Information (SPE auditing standards), a reserves audit is defined as “the process of reviewing certain of the pertinent facts interpreted and assumptions made that have resulted in an estimate of reserves prepared by others and the rendering of an opinion about (1) the appropriateness of the methodologies employed; (2) the adequacy and quality of the data relied upon; (3) the depth and thoroughness of the reserves estimation process; (4) the classification of reserves

 

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Encana Corporation

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December 31, 2017 SEC Reserve Audit Opinion (Canadian Assets)

   February 13, 2018

 

appropriate to the relevant definitions used; and (5) the reasonableness of the estimated reserve quantities.”

Based on our audit and review, including the data, technical processes and interpretations presented by Encana, it is our opinion that the overall procedures and methodologies utilized by Encana in preparing their estimates of the proved reserves as of December 31, 2017 comply with the current SEC regulations and that the overall proved reserves for the audited properties as estimated by Encana are, in the aggregate, reasonable within the established audit tolerance guidelines of 10 percent as set forth in the SPE auditing standards.

The scope of the audit consisted of the independent detailed preparation of our own estimates of the proved reserves and the comparison of our proved reserve results to the estimates prepared by Encana for key properties including Dawson North, Pipestone, Simonette and Willesden Green. When compared on a field-by-field basis, some estimates prepared by Encana are greater than and some are less than those prepared by McDaniel. However, in our opinion, the estimates prepared by Encana are, in aggregate, reasonable, and are within the established audit tolerance of plus or minus 10 percent and the estimates have been prepared in accordance with generally accepted petroleum engineering practices and procedures.

In addition, we performed a review of the reserves assigned to the Dawson South, Atlantic Canada, Duvernay General, Horn River, PRA Non-Core, Sexsmith, Tumbler Ridge and Wheatland areas by completing a review of the pertinent facts and assumptions used by Encana including, proved developed producing production forecasts, type well generation for undeveloped lands, review of lease operating statements and Encana forecasts, a review of capital projections, a review of reserve classification and development plans.

For the purpose of this audit, only deterministic methods were used. The proved reserve estimates prepared by both Encana and McDaniel conform to the reserve definitions as set forth in the SEC’s Regulation S-X Part 210.4-10(a) and as clarified in subsequent Commission Staff Accounting Bulletins. We believe that such assumptions, data, methods, and procedures are appropriate for the purpose served by the report.

The net reserves as estimated by Encana attributable to Encana’s interest and entitlement in properties that we audited and reviewed are summarized as follows:

SEC PARAMETERS

Estimated Net Proved Reserves

Certain Leasehold and Royalty Interests and

Derived Through Certain Production Sharing Contracts of

Encana Corporation (Total Canada)

As of December 31, 2017

 

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Encana Corporation

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December 31, 2017 SEC Reserve Audit Opinion (Canadian Assets)

   February 13, 2018

 

                Audited by McDaniel

 

    Reviewed by McDaniel

 

    Total

 

 
    % BOE
Reserves
Audited
    % BOE
Reserves
Reviewed
    Crude Oil
MBarrels
    Natural
Gas
Liquids
MBarrels
    Sales
Gas
MMCF
    MBOE     Crude Oil
MBarrels
    Natural
Gas
Liquids
MBarrels
    Sales
Gas
MMCF
    MBOE     Crude Oil
MBarrels
    Natural
Gas
Liquids
MBarrels
    Sales
Gas
MMCF
    MBOE  

Developed

    65.0       35.0       159       36,539       642,120       143,717       47       3,967       439,480       77,261       206       40,506       1,081,600       220,978  

Undeveloped

    83.5       16.5       -       68,477       841,697       208,760       -       6,010       211,549       41,268       -       74,487       1,053,246       250,028  

Total Proved

    74.8       25.2       159       105,016       1,483,817       352,477       47       9,977       651,030       118,529       206       114,993       2,134,846       471,006  

 

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Encana Corporation

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December 31, 2017 SEC Reserve Audit Opinion (Canadian Assets)

   February 13, 2018

 

Liquid hydrocarbons are expressed in standard 42-gallon barrels and shown herein as thousands of barrels (MBarrels). The natural gas liquids volumes shown include condensate. All gas volumes are reported on an “as sold basis” expressed in millions of cubic feet (MMCF) at the official temperature and pressure bases of the areas in which the gas reserves are located.

Reserves Included in This Report

In our opinion, the proved reserves presented in this report conform to the definition as set forth in the SEC’s Regulations S-X Part 210.4-10(a).

The various proved reserve status categories are defined under the attachment entitled “Petroleum Reserves Status Definitions and Guidelines” in this report. The proved developed non-producing reserves included herein consist of the shut-in and behind pipe categories.

Reserves are “estimated remaining quantities of oil and gas and related substances anticipated to be economically producible, as of a given date, by application of development projects to known accumulations.” All reserve estimates involve an assessment of the uncertainty relating the likelihood that the actual remaining quantities recovered will be greater or less than the estimated quantities determined as of the date the estimate is made. The uncertainty depends chiefly on the amount of reliable geologic and engineering data available at the time of the estimate and the interpretation of these data. The relative degree of uncertainty may be conveyed by placing reserves into one of two principal classifications, either proved or unproved. Unproved reserves are less certain to be recovered than proved reserves and may be further sub-classified as probable and possible reserves to denote progressively increasing uncertainty in their recoverability.

Audit Data, Methodology, Procedure and Assumptions

The estimation of reserves involves two distinct determinations. The first determination results in the estimation of the quantities of recoverable oil and gas and the second determination results in the estimation of the uncertainty associated with those estimated quantities in accordance with the definitions set forth by the SEC’s Regulations S-X Part 210.4-10(a). The process of estimating the quantities of recoverable oil and gas reserves relies on the use of certain generally accepted analytical procedures. These analytical procedures fall into three broad categories or methods: (1) performance-based methods; (2) volumetric-based methods; and (3) analogy. These methods may be used singularly or in combination by the reserve evaluator in the process of estimating the quantities of reserves. Reserve evaluators must select the method or combination of methods which in their professional judgment is most appropriate given the nature and amount of reliable geoscience and engineering data available at the time of the estimate, the established or anticipated performance characteristics of the reservoir being evaluated and the stage of development or producing maturity of the property.

McDaniel has prepared its report in accordance with SEC Regulation S-K, 229.1202 and Regulation S-X, 210.4-10.

 

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Encana Corporation

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December 31, 2017 SEC Reserve Audit Opinion (Canadian Assets)

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The reserves evaluations prepared by Encana have been audited, not for the purpose of verifying exactness, but the reserves information, company policies, procedures, and methods used in estimating the reserves will be examined in sufficient detail so that McDaniel can express an opinion as to whether, in the aggregate, the reserves information presented by Encana are reasonable.

Estimates of reserves quantities and their associated reserve categories may be revised in the future as additional geoscience or engineering data become available. Furthermore, estimates of reserves quantities and their associated reserve categories may also be revised due to other factors such as changes in economic conditions, results of future operations, effects of regulation by governmental agencies or geopolitical or economic risks as previously noted herein.

The proved reserves prepared by Encana, for the properties that McDaniel reviewed, were estimated by performance methods, the volumetric method, analogy, or a combination of methods. Greater than 90 percent of the proved producing reserves attributable to producing wells and/or reservoirs that we reviewed were estimated by performance methods or a combination of methods. These performance methods include, but may not be limited to, decline curve analysis, material balance and/or reservoir simulation which utilized extrapolations of historical production and pressure data available through November 2017, in those cases where such data were considered to be definitive. The data utilized in this analysis were furnished to McDaniel by Encana or obtained from public data sources and were considered sufficient for the purpose thereof.

To estimate economically recoverable proved oil and gas reserves, many factors and assumptions are considered including, but not limited to, the use of reservoir parameters derived from geological, geophysical and engineering data which cannot be measured directly, economic criteria based on current costs and SEC pricing requirements, and forecasts of future production rates. Under the SEC regulations 210.4-10(a)(22)(v) and (26), proved reserves must be anticipated to be economically producible from a given date forward based on existing economic conditions including the prices and costs at which economic producibility from a reservoir is to be determined.

The initial SEC hydrocarbon prices in effect on December 31, 2017 for the properties reviewed by us were determined using the 12-month average first-day-of-the-month benchmark prices appropriate to the geographic area where the hydrocarbons are sold. These benchmark prices are prior to the adjustments for differentials as described herein. The table below summarizes the “benchmark prices” and “price reference” used by Encana for the geographic areas reviewed by McDaniel. In certain geographic areas, the price reference and benchmark prices may be defined by contractual arrangements.

The product prices which were actually used by Encana to determine the future gross revenue for each property reviewed by us reflect adjustments to the benchmark prices for gravity, quality, local conditions, and/or distance from market, referred to herein as “differentials.” The differentials used by Encana were accepted as factual data and reviewed by us for their reasonableness based on a review of historical lease operating statements and marketing agreements.

 

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Encana Corporation

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December 31, 2017 SEC Reserve Audit Opinion (Canadian Assets)

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The table below summarizes Encana’s net volume weighted benchmark prices adjusted for differentials for the properties reviewed by us and referred to herein as Encana’s “average realized prices.” The average realized prices shown in the table below were determined from Encana’s estimate of the total future gross revenue before production taxes for the properties reviewed by us and Encana’s estimate of the total net reserves for the properties reviewed by us for the geographic area. The data shown in the table on the following page is presented in accordance with SEC disclosure requirements for each of the geographic areas reviewed by us.

 

Geographic Area    Product   

Price

Reference

  

Average

Benchmark

Prices

  

Average

Realized

Prices

Canada

   Oil    Edmonton Light    C$63.66/bbl    C$61.98bbl
  

Condensate

   Edmonton    C$67.65/bbl    C$59.45/bbl
  

NGLs

   Edmonton    C$39.51/bbl    C$18.12/bbl
  

Gas

   AECO    C$2.32/MMBtu    C$2.18/MMBtu

The effects of derivative instruments designated as price hedges of oil and gas quantities are not reflected in Encana’s individual property evaluations.

Operating costs furnished by Encana are based on the operating expense reports of Encana and include only those costs directly applicable to the leases or wells for the properties reviewed by McDaniel. The operating costs include a portion of general and administrative costs allocated directly to the leases and wells. For operated properties, the operating costs include an appropriate level of corporate general administrative and overhead costs. Other costs include transportation and/or processing fees as deductions. The operating costs furnished by Encana were accepted as factual data and reviewed by us for their reasonableness; however, we have not conducted an independent verification of the data used by Encana. No deduction was made for loan repayments, interest expenses, or exploration and development prepayments that were not charged directly to the leases or wells.

Development costs furnished by Encana are based on authorizations for expenditure for the proposed work or actual costs for similar projects. The development costs furnished by Encana were accepted as factual data and reviewed by us for their reasonableness; however, we have not conducted an independent verification of the data used by Encana. The estimated net cost of abandonment after salvage was included by Encana for properties where abandonment costs net of salvage were only significant, or where proved reserves were assigned. Encana’s estimates of the net abandonment costs were accepted without independent verification. Current costs used by Encana were held constant throughout the life of the properties.

The estimates of proved reserves presented herein were based upon a review of the properties in which Encana owns and derives an interest; however, we have not made any field examination of the properties. No consideration was given in this report to potential environmental liabilities that may exist nor were any costs included by Encana for potential liabilities to restore and clean up damages, if any, caused by past operating practices.

 

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Encana Corporation

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December 31, 2017 SEC Reserve Audit Opinion (Canadian Assets)

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Encana has informed McDaniel that they have furnished us all of the material accounts, records, geological and engineering data, and reports and other data required for this investigation. In performing our audit of Encana’s forecast of future proved production, we have relied upon data furnished by Encana with respect to property interests owned or derived, production and well tests from examined wells, normal direct costs of operating the wells or leases, other costs such as transportation and/or processing fees, ad valorem and production taxes, recompletion and development costs, development plans, abandonment costs after salvage, product prices based on the SEC regulations, adjustments or differentials to product prices, geological structural and isochore maps, well logs, core analyses, and pressure measurements. McDaniel reviewed such factual data for its reasonableness; however, we have not conducted an independent verification of the data furnished by Encana. We consider the factual data furnished to us by Encana to be appropriate and sufficient for the purpose of our review of Encana’s estimates of reserves. In summary, we consider the assumptions, data, methods and analytical procedures used by Encana and as reviewed by us appropriate for the purpose hereof, and we have used all such methods and procedures that we consider necessary and appropriate under the circumstances to render the conclusions set forth herein.

Audit Opinion

Based on our audit, including the data, technical processes and interpretations presented by Encana, it is our opinion that the overall procedures and methodologies utilized by Encana in preparing their estimates of the proved reserves as of December 31, 2017 comply with the current SEC regulations and that the overall proved reserves for the audited properties as estimated by Encana are, in the aggregate, reasonable within the established audit tolerance guidelines of 10 percent as set forth in the SPE auditing standards.

In the course of our audit, we also reviewed Encana’s reserves management processes and practices for the Dawson South, Atlantic Canada, Duvernay General, Horn River, PRA Non-Core, Sexsmith, Tumbler Ridge and Wheatland areas and were able to access the qualifications of its internal reserves estimators. This included a detailed review of Encana’s Reserves Manual dated July 2017, which covers its internal policies, procedures, documentation and guidelines with respect to the estimation, review and approval of its reserves information.

Standards of Independence and Professional Qualification

McDaniel is an independent petroleum engineering consulting firm that has been providing petroleum consulting services throughout the world since 1955. McDaniel maintains an office in Calgary, Alberta, Canada. We have over 50 engineers, geoscientists and technicians on our permanent staff. By virtue of the size of our firm and the large number of clients for which we provide services, no single client or job represents a material portion of our annual revenue.

We do not serve as officers or directors of any privately-owned or publicly-traded oil and gas company and are separate and independent from the operating and investment decision-making process of our clients. This allows us to bring the highest level of independence and objectivity to each engagement for our services.

 

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Encana Corporation

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December 31, 2017 SEC Reserve Audit Opinion (Canadian Assets)

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McDaniel actively participates in industry-related professional societies and routinely presents at conferences on the subject of reserves evaluations and SEC regulations. We encourage our staff to maintain and enhance their professional skills by actively participating in ongoing continuing education.

Prior to becoming an officer of the Company, McDaniel requires that staff engineers and geoscientists have received professional accreditation in the form of a registered or certified professional engineer’s license or a registered or certified professional geoscientist’s license, or the equivalent thereof, from an appropriate governmental authority or a recognized self-regulating professional organization.

We are independent with respect to the Company as provided in the standards pertaining to the estimating and auditing of oil and gas reserves information included in COGEH and the Association of Professional Engineers and Geoscientists’ of Alberta (APEGA). Neither we nor any of our employees have any financial interest in the subject properties, and neither the employment to do this work nor the compensation is contingent on our estimates of reserves for the properties which were reviewed.

The results of this audit and review, presented herein, are based on technical analysis conducted by teams of geoscientists and engineers from McDaniel. The professional qualifications of the undersigned, the technical person primarily responsible for overseeing the review of the reserves information discussed in this report, are included as an attachment to this letter.

Terms of Usage

The results of our third-party audit and review, presented in report form herein, were prepared in accordance with the disclosure requirements set forth in the SEC regulations and intended for public disclosure as an exhibit in filings made with the SEC by Encana Corporation.

Encana makes annual filings on Form 10-K with the SEC under the 1934 Exchange Act. Furthermore, Encana has certain registration statements filed with the SEC under the 1933 Securities Act into which any subsequently filed Form 10-K is incorporated by reference. We have consented to the incorporation by reference in the registration statements on Form F-3 and Form S-8 of Encana of the references to our name as well as to the references to our third-party report for Encana, which appears in the December 31, 2017 annual report on Form 10-K of Encana. Our written consent for such use is included as a separate exhibit to the filings made with the SEC by Encana.

We have provided Encana with a digital version of the original signed copy of this report letter. In the event there are any differences between the digital version included in filings made by Encana and the original signed report letter, the original signed report letter shall control and supersede the digital version.

 

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Encana Corporation

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December 31, 2017 SEC Reserve Audit Opinion (Canadian Assets)

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The data and work papers used in the preparation of this report are available for examination by authorized parties in our offices. Please contact us if we can be of further service.

Sincerely,

 

McDANIEL & ASSOCIATES CONSULTANTS LTD.

APEGA PERMIT NUMBER: P3145

/s/ B. R. Hamm

 

B. R. Hamm, P. Eng.

Executive Vice President

 

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Encana Corporation

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December 31, 2017 SEC Reserve Audit Opinion (Canadian Assets)

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CERTIFICATE OF QUALIFICATION

I, Brian R. Hamm, Petroleum Engineer of 2200, 255 - 5th Avenue, S.W., Calgary, Alberta, Canada hereby certify:

 

1.

That I am an Executive Vice President of McDaniel & Associates Consultants Ltd., APEGA Permit Number P3145, which Company did prepare, at the request of Encana Corporation an evaluation of certain oil and gas assets, As of December 31, 2017”, dated February 13, 2018, and that I was involved in the preparation of this report.

 

2.

That I attended the University of Calgary in the years 2001 to 2006 and that I graduated with a Bachelor of Science degree in Mechanical Engineering, that I am a registered Professional Engineer with the Association of Professional Engineers and Geoscientists of Alberta and that I have in excess of 10 years of experience in oil and gas reservoir studies and evaluations.

 

3.

That I have no direct or indirect interest in the properties or securities of Encana Corporation, nor do I expect to receive any direct or indirect interest in the properties or securities of Encana Corporation, or any affiliate thereof.

 

4.

That the aforementioned report was not based on a personal field examination of the properties in question, however, such an examination was not deemed necessary in view of the extent and accuracy of the information available on the properties in question.

 

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/s/ B. R. Hamm

    

 

B. R. Hamm, P. Eng.

Calgary, Alberta

Dated: February 13, 2018

 

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Exhibit 99.2

 

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February 1, 2018

Encana Corporation

500 Centre Street SE

P.O. Box 2850

Calgary, Alberta T2G 1A6

Canada

Ladies and Gentlemen:

In accordance with your request, we have audited the estimates prepared by Encana Corporation (Encana), as of December 31, 2017, of the proved reserves and future revenue to the Encana interest in certain oil and gas properties located in the Permian and San Juan Property Groups. It is our understanding that the proved reserves estimates shown herein constitute approximately 80 percent of Encana’s total proved reserves located in the United States and approximately 32 percent of all proved reserves owned by Encana. We have examined the estimates with respect to reserves quantities, reserves categorization, future producing rates, future net revenue, and the present value of such future net revenue, using the definitions set forth in U.S. Securities and Exchange Commission (SEC) Regulation S-X Rule 4-10(a). The estimates of reserves and future revenue have been prepared in accordance with the definitions and regulations of the SEC and conform to the FASB Accounting Standards Codification Topic 932, Extractive Activities—Oil and Gas. We completed our audit on or about the date of this letter. This report has been prepared for Encana’s use in filing with the SEC; in our opinion the assumptions, data, methods, and procedures used in the preparation of this report are appropriate for such purpose.

The following table sets forth Encana’s estimates of the net reserves, as of December 31, 2017, for the audited Permian and San Juan Property Groups:

 

     Net Reserves

Category

   Oil
  (MMBBL)  
   NGL
  (MMBBL)  
   Gas
      (BCF)      

Proved Developed Producing

     79.0    35.2    184.2

Proved Undeveloped

     71.9    21.7    115.8
  

 

  

 

  

 

Total Proved

   150.9    56.8    300.0

Totals may not add because of rounding.

The oil volumes shown include crude oil and condensate. Oil and natural gas liquids (NGL) volumes are expressed in millions of barrels (MMBBL); a barrel is equivalent to 42 United States gallons. Gas volumes are expressed in billions of cubic feet (BCF) at standard temperature and pressure bases. As requested, estimates of future net revenue are not included herein.

When compared on a well-by-well basis, some of the estimates of Encana are greater and some are less than the estimates of Netherland, Sewell & Associates, Inc. (NSAI). However, in our opinion the estimates shown herein of Encana’s reserves are reasonable when aggregated at the proved level and have been prepared in accordance with the Standards Pertaining to the Estimating and Auditing of Oil and Gas Reserves Information promulgated by the Society of Petroleum Engineers (SPE Standards). Additionally, these estimates are within the recommended 10 percent tolerance threshold set forth in the SPE Standards. We are satisfied with the methods and procedures used by Encana in preparing the December 31, 2017, estimates of reserves and future revenue, and we saw nothing of an unusual nature that would cause us to take exception with the estimates, in the aggregate, as prepared by Encana.

 

 

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Reserves categorization conveys the relative degree of certainty; reserves subcategorization is based on development and production status. The estimates of reserves included herein have not been adjusted for risk. Encana’s estimates do not include proved developed non-producing, probable, or possible reserves that may exist for these properties.

Prices used by Encana are based on the 12-month unweighted arithmetic average of the first-day-of-the-month price for each month in the period January through December 2017. For oil volumes, the average Argus Midland Cushing (Midland) and ICE West Texas Intermediate (WTI) prices are adjusted for quality, transportation fees, and market differentials. For NGL volumes, the average Oil Price Information Service Mont Belvieu NGL product prices are weight-averaged by processing area using NGL product recovery factors; the average prices are adjusted for quality, transportation fees, and fractionation fees. For gas volumes, the average ICE Waha and El Paso San Juan Basin (San Juan) prices are adjusted for energy content, market differentials, and gathering, processing, and transportation fees. All prices are held constant throughout the lives of the properties. The average adjusted product prices weighted by production over the remaining lives of the properties are $49.27 per barrel of oil, $21.71 per barrel of NGL, and $1.07 per MCF of gas. Oil and gas index prices and average realized oil, NGL, and gas prices for each property group are shown in the following table:

 

               Average Price    Average Realized Price

Property

Group

  

Pricing Index

   Oil
  ($/BBL)  
   Gas
  ($/MMBTU)  
   Oil
  ($/BBL)  
   NGL
  ($/BBL)  
   Gas
  ($/MCF)  
  

Oil

  

Gas

              

Permian

  

Midland

  

Waha

   50.75    2.70    49.82    21.52    1.12

San Juan

  

WTI

  

San Juan

   51.34    2.63    41.42    23.79    0.68

Operating costs used by Encana are based on historical operating expense records. For the nonoperated properties, these costs include the per-well overhead expenses allowed under joint operating agreements along with estimates of costs to be incurred at and below the district and field levels. Operating costs for the operated properties are limited to direct lease- and field-level costs and Encana’s estimate of the portion of its headquarters general and administrative overhead expenses necessary to operate the properties. Operating costs have been divided into per-well costs and per-unit-of-production costs. Capital costs used by Encana are based on authorizations for expenditure and actual costs from recent activity. Capital costs are included as required for maintenance on existing wells, new development wells, and production equipment. Abandonment costs are Encana’s estimates of reclamation costs and the costs to abandon the wells; these estimates do not include any salvage value for the lease and well equipment. Operating, capital, and abandonment costs are not escalated for inflation.

The reserves shown in this report are estimates only and should not be construed as exact quantities. Proved reserves are those quantities of oil and gas which, by analysis of engineering and geoscience data, can be estimated with reasonable certainty to be economically producible; probable and possible reserves are those additional reserves which are sequentially less certain to be recovered than proved reserves. Estimates of reserves may increase or decrease as a result of market conditions, future operations, changes in regulations, or actual reservoir performance. In addition to the primary economic assumptions discussed herein, estimates of Encana and NSAI are based on certain assumptions including, but not limited to, that the properties will be developed consistent with current development plans as provided to us by Encana, that the properties will be operated in a prudent manner, that no governmental regulations or controls will be put in place that would impact the ability of the interest owner to recover the reserves, and that projections of future production will prove consistent with actual performance. If the reserves are recovered, the revenues therefrom and the costs related thereto could be more or less than the estimated amounts. Because of governmental policies and uncertainties of supply and demand, the sales rates, prices received for the reserves, and costs incurred in recovering such reserves may vary from assumptions made while preparing these estimates.

It should be understood that our audit does not constitute a complete reserves study of the audited oil and gas properties. Our audit consisted primarily of substantive testing, wherein we conducted a detailed review of all


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properties in the Permian and San Juan Property Groups. In the conduct of our audit, we have not independently verified the accuracy and completeness of information and data furnished by Encana with respect to ownership interests, oil and gas production, well test data, historical costs of operation and development, product prices, or any agreements relating to current and future operations of the properties and sales of production. However, if in the course of our examination something came to our attention that brought into question the validity or sufficiency of any such information or data, we did not rely on such information or data until we had satisfactorily resolved our questions relating thereto or had independently verified such information or data.

We used standard engineering and geoscience methods, or a combination of methods, including performance analysis, volumetric analysis, analogy, and reservoir modeling, that we considered to be appropriate and necessary to establish the conclusions set forth herein. As in all aspects of oil and gas evaluation, there are uncertainties inherent in the interpretation of engineering and geoscience data; therefore, our conclusions necessarily represent only informed professional judgment.

In the course of our audit, we also reviewed Encana’s reserves management processes and practices for all of Encana’s United States properties and were able to assess the qualifications of its internal reserves estimators. This included a detailed review of Encana’s Reserves Manual dated July 2017, which covers its internal policies, procedures, documentation, and guidelines with respect to the estimation, review, and approval of its reserves information.

Supporting data documenting this audit, along with data provided by Encana, are on file in our office. The technical persons primarily responsible for conducting this audit meet the requirements regarding qualifications, independence, objectivity, and confidentiality set forth in the SPE Standards. Craig Adams, a Licensed Professional Engineer in the State of Texas, has been practicing consulting petroleum engineering at NSAI since 1997 and has over 11 years of prior industry experience. Phil Hodgson, a Licensed Professional Geoscientist in the State of Texas, has been practicing consulting petroleum geoscience at NSAI since 1998 and has over 14 years of prior industry experience. We are independent petroleum engineers, geologists, geophysicists, and petrophysicists; we do not own an interest in these properties nor are we employed on a contingent basis.

 

     

Sincerely,

     

NETHERLAND, SEWELL & ASSOCIATES, INC.

Texas Registered Engineering Firm F-2699

       

/s/ C.H. (Scott) Rees III

     

By:  

 
       

C.H. (Scott) Rees III, P.E.

       

Chairman and Chief Executive Officer

 

/s/ Craig H. Adams

     

/s/ Philip R. Hodgson

By:  

     

By:

 
 

Craig H. Adams, P.E. 68137

     

Philip R. Hodgson, P.G. 1314

 

Senior Vice President

     

Vice President

Date Signed:  February 1, 2018

   

Date Signed:  February 1, 2018

CHA:MBG

 

Please be advised that the digital document you are viewing is provided by Netherland, Sewell & Associates, Inc. (NSAI) as a convenience to our clients.    The digital document is intended to be substantively the same as the original signed document maintained by NSAI.    The digital document is subject to the parameters, limitations, and conditions stated in the original document.    In the event of any differences between the digital document and the original document, the original document shall control and supersede the digital document.