As
filed with the Securities and Exchange Commission on November 29,
2007
Registration
No. 333-
U.S.
SECURITIES AND EXCHANGE COMMISSION
FORM
F-9
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
Canadian
National Railway Company
(Exact
Name of Registrant as Specified in Its Charter)
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Canada
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980018609
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(Province
or other jurisdiction of
incorporation or organization)
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(I.R.S.
Employer Identification
No.)
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4011
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(Primary
Standard Industrial
Classification Code Number)
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935
de La Gauchetière Street West
Montreal,
Québec, Canada H3B 2M9
(514)
399-5430
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(Address
and telephone number of
Registrant’s
principal executive
offices)
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CT
Corporation System
1633
Broadway
New
York, NY 10019
(212)
664-1666
(Name,
address (including zip
code) and telephone
number (including area code)
of
agent for service in the
United
States
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Copies
to:
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Sean
Finn
Canadian
National Railway Company
935
de la Gauchetière Street West
Montreal,
Québec, Canada H3B 2M9
(514)
399-7091
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Alan
Dean
Davis
Polk & Wardwell
450
Lexington Avenue
New
York, NY 10017
(212)
450-4000
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Approximate
date of commencement of proposed sale to the public:
At
such time or times on or after the effective date of this Registration
Statement
Province
of Québec, Canada
(Principal
jurisdiction regulating
this offering)
It
is
proposed that this filing shall become effective (check appropriate
box):
A. o
upon filing with the
Commission pursuant to Rule 467(a) (if in connection with an offering being
made
contemporaneously in the United States and Canada).
B. x
at some future date
(check the appropriate box below):
1. o
pursuant to Rule 467(b)
on (date) at (time) (designate a time not sooner than 7 calendar days after
filing).
2. o
pursuant to Rule 467(b)
on (date) at (time) (designate a time not sooner than 7 calendar days or sooner
after filing) because the securities regulatory authority in the review
jurisdiction has issued a receipt or notification of clearance
(date).
3. x pursuant
to Rule
467(b) as soon as practicable after notification of the Commission by the
Registrant or the Canadian securities regulatory authority of the review
jurisdiction that a receipt or notification of clearance has been issued with
respect thereto.
4. o
after the filing of the
next amendment to this Form (if preliminary material is being
filed).
If
any of
the securities being registered on this Form are to be offered on a delayed
or
continuous basis pursuant to the home jurisdiction’s shelf prospectus offering
procedures, check the following box. x
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CALCULATION
OF REGISTRATION
FEE
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Title
of each class
of
securities to be registered
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Amount
to be registered(1)
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Proposed
maximum
aggregate
price per unit(2)
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Proposed
maximum
aggregate
offering price(2)
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Amount
of registration fee
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Debt
Securities(3)
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$2,500,000,000
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100%
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$2,500,000,000
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$76,750
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| (1) | Such amount in U.S. dollars or the equivalent thereof in foreign currencies as shall result in an aggregate initial public offering price for all securities of $2,500,000,000 and, if any debt securities are issued at original issue discount, such greater amount as shall result in net proceeds of $2,500,000,000 to the Registrant. |
| (2) | Estimated solely for the purpose of computing the registration fee. |
| (3) | Also includes such indeterminate amount of debt securities as may be issued upon conversion of or in exchange for any other debt securities that provide for conversion or exchange into other debt securities. |
The
Registrant hereby amends this Registration Statement on such date or dates
as
may be necessary to delay its effective date until the Registration Statement
shall become effective as provided in Rule 467 under the Securities Act of
1933
or on such date as the Commission, acting pursuant to Section 8(a) of such
Act,
may determine.
PART
I
INFORMATION
REQUIRED TO BE
DELIVERED
TO OFFEREES OR
PURCHASERS
Information
contained herein is subject
to completion or amendment. A Registration Statement relating to these
securities has been filed with the Securities and Exchange Commission. These
securities may not be sold nor may offers to buy be accepted prior to the
time
the Registration Statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy nor shall
there be any sale of these securities in any state in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state.
PRELIMINARY
SHORT FORM BASE SHELF PROSPECTUS
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New
Issue
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November 29,
2007
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CANADIAN
NATIONAL RAILWAY COMPANY
US$2,500,000,000
Debt
Securities
Canadian
National Railway Company (the "Company") may offer and issue from time to
time
unsecured debt securities (the "Securities") in one or more series in an
aggregate principal amount not to exceed US$2,500,000,000, or the equivalent,
based on the applicable exchange rate at the time of offering, in Canadian
dollars, U.S. dollars or such other currencies or units based on or relating
to
such other currencies, as shall be designated by the Company at the time
of
offering.
The
specific terms of any offering of Securities will be set forth in a prospectus
supplement (a "prospectus supplement") including, where applicable, the title
of
the debt securities, any limit on the aggregate principal amount of the debt
securities, whether payment on the debt securities will be senior or
subordinated to the Company's other liabilities and obligations, whether
the
debt securities will bear interest, the interest rate or method of determining
the interest rate, whether any conversion or exchange rights attach to the
debt
securities, whether the Company may redeem the debt securities at its option
and
any other specific terms. The Company reserves the right to include in a
prospectus supplement specific variable terms pertaining to the Securities
that
are not within the descriptions set forth in this prospectus.
All
information permitted under applicable laws to be omitted from this prospectus
will be contained in one or more prospectus supplements that will be delivered
to purchasers together with this prospectus. Each prospectus supplement will
be
incorporated by reference into this prospectus for the purposes of securities
legislation as of the date of the prospectus supplement and only for the
purposes of the distribution of the Securities to which the prospectus
supplement pertains.
The
Company may sell Securities to or through underwriters or dealers purchasing
as
principal or through agents. The applicable prospectus supplement will identify
each underwriter or agent with respect to the Securities and will set forth
the
terms of the offering of such Securities, including, to the extent applicable,
the proceeds to the Company, the underwriting fees or agency commissions,
and
any other fees, commissions or concessions to be allowed or reallowed to
dealers. See "Plan of Distribution".
This
offering is made by a Canadian issuer that is permitted, under a
multijurisdictional disclosure system adopted by the United States, to
prepare this prospectus in accordance with the disclosure requirements of
the
Province of Quebec. Prospective investors should be aware that such requirements
are different from those of the United States.
Prospective
investors should be aware that the acquisition of the securities described
herein may have tax consequences both in the United States and in Canada.
Such consequences for investors who are resident in, or citizens of, the
United States may not be described fully herein or in any applicable
prospectus supplement.
The
enforcement by investors of civil liabilities under United States federal
securities laws may be affected adversely by the fact that the Company is
incorporated or organized under the laws of Canada, that some or all of its
officers and directors may be residents of Canada, that some or all of the
underwriters or experts named in the registration statement may be residents
of
Canada and that all or a substantial portion of the assets of the Company
and
said persons may be located outside the
United States.
THESE
SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE
COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE IN
THE
UNITED STATES.
In
this
prospectus, unless the context otherwise indicates, the "Company" refers
to
Canadian National Railway Company and its subsidiaries. All dollar amounts
referred to in this prospectus are in Canadian dollars unless otherwise
specifically expressed.
DOCUMENTS
INCORPORATED BY REFERENCE
The
following documents, filed with the securities commission or other similar
authority in each of the provinces and territories of Canada, are incorporated
by reference in and form an integral part of this prospectus:
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(1)
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the
Annual Information Form of the
Company dated February 12, 2007 for the year ended December 31,
2006;
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(2)
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the
audited consolidated financial
statements of the Company for the years ended December 31, 2006
and 2005
and notes related thereto, together with the Report of Independent
Registered Public Accounting Firm thereon, prepared in accordance
with
U.S. generally accepted accounting principles ("GAAP"), as contained
in
the Company's 2006 Annual Report;
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(3)
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the
Company's Management's
Discussion and Analysis contained in the Company's 2006 Annual
Report;
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(4)
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the
Company's Management
Information Circular dated March 6, 2007 prepared in connection
with the
Company's annual meeting of shareholders held on April 24,
2007;
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(5)
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the
unaudited interim consolidated
financial statements of the Company for the three months and
nine months
ended September 30, 2007 and notes related thereto prepared in
accordance
with U.S. GAAP, including the Company's Management's Discussion
and
Analysis related thereto; and
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(6)
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the
material change report of the Company dated July 23, 2007 relating
to the
implementation of the Company's normal course issuer
bid.
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Any
document of the type referred to in the preceding paragraph and any material
change reports (excluding confidential material change reports) filed by
the
Company with securities commissions or similar authorities in the provinces
and
territories of Canada subsequent to the date of this prospectus and prior
to the
termination of any offering under any prospectus supplement shall be deemed
to
be incorporated by reference into this prospectus.
Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded,
for purposes of this prospectus, to the extent that a statement contained
herein
or in any other subsequently filed document that also is or is deemed to
be
incorporated by reference herein modifies or supersedes such statement. The
modifying or superseding statement need not state that it has modified or
superseded a prior statement or include any other information set forth in
the
document that it modifies or supersedes. The making of a modifying or
superseding statement shall not be deemed an admission for any purposes that
the
modified or superseded statement, when made, constituted a misrepresentation,
an
untrue statement of a material fact or an omission to state a material fact
that
is required to be stated or that is necessary to make a statement not misleading
in light of the circumstances in which it was made. Any statement so modified
or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
Upon
a new
annual information form and the related annual financial statements being
filed
by the Company with, and, where required, accepted by, the applicable securities
regulatory authorities, the previous annual information form, the previous
annual financial statements and all quarterly financial statements, material
change reports and annual filings or information circulars filed prior to
the
commencement of the Company's fiscal year with respect to which the new annual
information form is filed shall be deemed no longer to be incorporated by
reference into this prospectus for purposes of future offers and sales of
Securities hereunder.
A
prospectus supplement containing the specific terms in respect of any
Securities, updated disclosure of earnings coverage ratios, if applicable,
and
other information in relation to the Securities will be delivered to purchasers
of such Securities together with this prospectus and will be deemed to be
incorporated into this prospectus as of the date of such supplement, but
only
for purposes of the offering of such Securities.
Copies
of
the documents incorporated herein by reference may be obtained on request
without charge from the Corporate Secretary, Canadian National Railway Company,
935 de La Gauchetière Street West, Montreal, Québec, H3B 2M9 (telephone: (514)
399-7091), and are also available electronically at www.sedar.com.
AVAILABLE
INFORMATION
In
addition to its continuous disclosure obligations under the securities laws
of
the provinces of Canada, the Company is subject to the information requirements
of the United States Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports and other information with
the
Securities and Exchange Commission ("SEC"). Under the multijurisdictional
disclosure system adopted by the United States, such reports and other
information may be prepared in accordance with the disclosure requirements
of
Canada, which requirements are different from those of the United States.
Such
reports and other information, when filed by the Company in accordance with
such
requirements, can be inspected and copied at the Public Reference Room
maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. The
public
may obtain information on the operations of the Public Reference Room by
calling
the SEC at 1-800-SEC-0330. The SEC maintains an Internet site that contains
reports and other information regarding issuers that file electronically
with
the SEC. The address of that site is http://www.sec.gov.
The
Company has filed with the SEC a Registration Statement on Form F-9 (the
"Registration Statement") under the United States Securities Act of 1933,
as
amended (the "Securities Act"), with respect to the Securities and of which
this
prospectus is a part. This prospectus does not contain all of the information
set forth in the Registration Statement, certain parts of which are omitted
in
accordance with the rules and regulations of the SEC. Reference is made to
the
Registration Statement and the exhibits thereto for further information with
respect to the Company and the Securities.
STATEMENT
REGARDING FORWARD LOOKING INFORMATION
This
prospectus includes or incorporates by reference "forward looking statements"
within the meaning of the U.S. Private Securities Litigation Reform Act of
1995
and under Canadian securities laws. All statements, other than statements
of
historical facts, included or incorporated by reference in this prospectus
that
address activities, events or developments that the Company expects or
anticipates will or may occur in the future, including such things as future
capital expenditures (including the amount and nature thereof), business
strategies and measures to implement strategies, competitive strengths, goals,
expansion and growth of its business and operations, plans and references
to the
future success of the Company and the companies or partnerships in which
it has
equity investments, and other such matters, are forward looking statements.
These forward looking statements are based on certain assumptions and analyses
made by the Company in light of its experience and its perception of historical
trends, current conditions and expected future developments and synergies
resulting from the transactions referred to herein as well as other factors
it
believes are appropriate in the circumstances. While there may be a risk
of
recession in the U.S. economy, the Company's assumption is that positive
economic conditions in North America and globally will
continue. However, whether actual results and developments will
conform with the expectations and predictions of the Company is subject to
a
number of risks and uncertainties, including the special considerations and
risks discussed in this prospectus and the documents incorporated herein
by
reference; general economic, market or business conditions; the opportunities
(or lack thereof) that may be presented to and pursued by the Company and
the
companies or partnerships in which it has equity investments; competitive
actions by other companies; changes in laws or regulations, including
environmental regulatory compliance; actions by regulators, the availability
and
price of energy commodities, currency and interest rate fluctuations, potential
increases in maintenance and operating costs, uncertainties of investigations,
proceedings or other type of claims and litigation, labour negotiations and
disputes, risks and liabilities arising from derailments, inflation, various
events that could disrupt operations, including severe weather conditions,
droughts, floods and earthquakes, and other factors, many of which are
beyond the control of the Company and the companies or partnerships in which
it
has equity investments. Consequently, all of the forward looking statements
made
in this prospectus and the documents incorporated herein by reference are
qualified by these cautionary statements, and there can be no assurance that
the
actual results or developments anticipated by the Company will be realized
or,
even if substantially realized, that they will have the expected consequences
to, or effects on, the Company and the companies or partnerships in which
it has
equity investments.
THE
COMPANY
Overview
The
Company is engaged in the rail and related transportation business. The
Company's network of approximately 20,200 route miles of track spans Canada
and
mid-America, connecting three coasts: the Atlantic, the Pacific and the Gulf
of
Mexico. The Company's marketing alliances, interline agreements, co-production
arrangements and routing protocols, in addition to its extensive network,
give
the Company’s customers access to all three North American Free Trade Agreement
(NAFTA) nations.
The
Company's registered and head office is located at 935 de La Gauchetière
Street West, Montreal, Québec, H3B 2M9, and its telephone number is
(514) 399-5430. The Company's common shares are listed for trading on the
Toronto Stock Exchange under the symbol "CNR" and the New York Stock Exchange
under the symbol "CNI".
USE
OF PROCEEDS
Except
as
may otherwise be set forth in a prospectus supplement, the net proceeds from
the
sale of Securities will be used for general corporate purposes, including
the
redemption and refinancing of outstanding indebtedness, share repurchases,
acquisitions and other business opportunities.
CAPITALIZATION
The
following table sets forth the capitalization of the Company as at
December 31, 2006 and September 30, 2007 based on U.S. GAAP. The
capitalization of the Company does not give effect to the issuance of Securities
that may be issued pursuant to this prospectus and any prospectus supplement,
since the aggregate principal amounts and terms of such Securities are not
presently known.
This
table
should be read in conjunction with the audited consolidated financial statements
and the unaudited interim consolidated financial statements of the Company
and
related notes thereto incorporated by reference in this prospectus.
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December
31, 2006
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September
30, 2007
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(In
millions, except percentages)
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Current
portion of long-term debt
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$ |
218
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$ |
293
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Long-term
debt
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5,386
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5,342
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Total
debt
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5,604
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5,635
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Shareholders'
equity
Common
shares
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4,459
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4,359
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Accumulated
other comprehensive loss
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(44 | ) | (257 | ) | ||||
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Retained
earnings
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5,409
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5,557
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Total
shareholders' equity
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9,824
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9,659
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Total
capitalization
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$ |
15,428
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$ |
15,294
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Ratio
of total debt to total capitalization
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36.32 | % | 36.84 | % | ||||
EARNINGS
COVERAGES
The
following consolidated financial ratios are calculated for the twelve-month
periods ended December 31, 2006 and September 30, 2007 and give effect
to the issuance of all long-term debt of the Company and repayment or redemption
thereof as of these dates. These coverage ratios do not give effect to the
issuance of Securities that may be issued pursuant to this prospectus and
any
prospectus supplement, since the aggregate principal amounts and the terms
of
such Securities are not presently known.
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Twelve
months ended
December 31,
2006
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Twelve
months ended
September 30,
2007
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Earnings
coverage (U.S.
GAAP)
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9.75
times
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8.85 times
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Earnings
coverage is equal to net income before interest and income taxes divided
by
interest expense on all debt.
Based
on
U.S. GAAP, the Company's interest expense requirements amounted to $312 million and $331 million
for
the twelve-month periods ended December 31, 2006 and September 30, 2007,
respectively. Also based on U.S. GAAP, the Company's earnings before interest
expense and income taxes for the twelve-month periods ended December 31,
2006
and September 30, 2007 were $3,041 million and $2,930
million, respectively,
which is 9.75 times and 8.85 times the Company's interest expense requirements
for these periods.
If
the
Company offers debt securities having a term to maturity in excess of one
year
under this prospectus and a prospectus supplement, the prospectus supplement
will include earnings coverage ratios giving effect to the issuance of such
securities.
DESCRIPTION
OF SECURITIES
The
following description sets forth certain general terms and provisions of
the
Securities. The Company may issue Securities either separately, or together
with
or upon the conversion of or in exchange for other securities. The particular
terms and provisions of each series of Securities the Company may offer will
be
described in greater detail in the related prospectus supplement and which
may
provide information that is different from this prospectus. The Company reserves
the right to include in a prospectus supplement specific variable terms
pertaining to the Securities that are not within the descriptions set forth
in
this prospectus. Senior Securities of the Company may be issued under a senior
indenture, dated as of May 1, 1998 (the "Canadian Senior Indenture"), as
amended
and restated by an Amended and Restated Trust Indenture dated as of June
1,
1998, between the Company and BNY Trust Company of Canada (formerly The Trust
Company of Bank of Montreal), as trustee, or under a senior indenture dated
as
of June 1, 1998 between the Company and The Bank of New York, as trustee
(the
"U.S. Senior Indenture" and together with the Canadian Senior Indenture,
the
"Senior Indentures"). Senior Securities issued under the Canadian Senior
Indenture will not be offered or sold to persons in the United States.
Subordinated Securities may be issued under a subordinated indenture, dated
as
of June 23, 1999 (the "Subordinated Indenture"), as amended and supplemented,
between the Company and BNY Trust Company of Canada (formerly The Trust Company
of Bank of Montreal). Securities may also be issued under new indentures
between
the Company and a trustee or trustees as will be described in a prospectus
supplement for such Securities. The Senior Indentures and the Subordinated
Indenture are sometimes referred to collectively as the "indentures", and
the
trustees under the indentures are sometimes referred to collectively as the
"trustees".
The
following summary of certain provisions of the indentures and the Securities
is
not meant to be complete. For more information, you should refer to the full
text of the indentures and the Securities, including the definitions of certain
terms not defined herein, and the related prospectus supplement. Prospective
investors should rely on information in the prospectus supplement if it is
different from the following information.
Unless
otherwise indicated, references to the "Company" in this description of
Securities are to Canadian National Railway Company but not to any of its
subsidiaries.
General
The
indentures do not limit the aggregate principal amount of Securities the
Company
or any of its subsidiaries may issue and do not limit the amount of other
indebtedness they may incur. The Company may issue Securities from time to
time
in separate series. Securities may also be issued pursuant to a medium-term
note
program. Unless otherwise specified in a prospectus supplement,
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·
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Securities
will be unsecured obligations of the
Company;
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·
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senior
Securities will rank equally with all other unsecured and unsubordinated
indebtedness of the Company; and
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·
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subordinated
Securities will be subordinate, in right of payment, to all senior
indebtedness (as defined in the Subordinated
Indenture).
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A
prospectus supplement will describe the following terms of any series of
Securities the Company may offer and may include the following:
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·
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the
title of the Securities;
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·
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any
limit on the aggregate principal amount of Securities that may
be
issued;
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·
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the
date(s) of maturity;
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·
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the
rate(s) of interest, if any, or the method of calculation, the
date(s)
interest will begin to accrue, the date(s) interest will be payable
and
the regular record date(s) for interest payment dates or the method
for
determining such date(s);
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·
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the
covenants applicable to the
Securities;
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·
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any
mandatory or optional sinking fund or analogous
provisions;
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·
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the
date(s), if, any, and the price(s) at which the Company is obligated,
pursuant to any mandatory sinking fund provisions or otherwise,
to redeem,
or at a holder's option to purchase, such series of Securities
and other
related terms and provisions;
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·
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the
index used to determine any payments to be made on the
Securities;
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·
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the
currency or currencies of any payments to be made on the
Securities;
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·
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whether
or not the Securities will be issued in global form, their terms
and the
depositary;
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·
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the
terms upon which a global note may be exchanged in whole or in
part for
other Securities;
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·
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the
terms, if any, under which the Securities are convertible into
common
shares or any other security of the Company;
and
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·
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any
other terms of the series of
Securities.
|
In
addition to new issues of Securities, this prospectus may be used in connection
with the remarketing of outstanding Securities, in which case the terms of
the
remarketing and of the remarketed Securities will be set forth in the prospectus
supplement.
Conversion
or Exchange of Securities
If
applicable, the prospectus supplement will set forth the terms on which a
series
of Securities may be converted into or exchanged for other securities of
the
Company. These terms will include whether conversion or exchange is mandatory,
or is at the option of the holder or of the Company. The Company also will
describe in the prospectus supplement how it will calculate the number of
securities that holders of Securities would receive if they convert or exchange
their Securities.
Events
of Default
Under
the
indentures, an "event of default" with respect to any series of Securities
includes any of the following:
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·
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failure
to pay any principal or premium, when
due;
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·
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failure
to pay any interest when due, and this failure continues for
30 days;
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·
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failure
to pay any sinking fund installment when
due;
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·
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failure
to perform any covenant or agreement relating to the Securities
or in the
indenture, and the failure continues for 60 days after written notice
by the trustee or by holders of at least 25% in aggregate principal
amount
outstanding;
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·
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failure
to pay principal when due, or acceleration, of any indebtedness
of the
Company in an aggregate principal amount exceeding $75 million,
and such
acceleration is not rescinded or annulled within 30 days after
written notice by the trustee or holders of at least 25% in aggregate
principal amount outstanding (this provision applies to the Senior
Indentures only);
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·
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certain
events of bankruptcy, insolvency or reorganization;
and
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·
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any
other event of default provided for that series of
Securities.
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If
an
event of default occurs and is continuing, either the trustee or the holders
of
at least 25% in principal amount of the outstanding Securities of any series
affected by the default, may notify the Company (and the trustee, if notice
is
given by the holders) and declare that the unpaid principal is due and payable
immediately. However, subject to certain conditions, the holders of a majority
in aggregate principal amount of the Securities of the affected series can
rescind and annul this declaration for accelerated payment. The Company will
furnish the trustees with an annual certificate as to compliance with certain
covenants contained in the particular indenture.
No
event
of default with respect to any particular series of Securities necessarily
constitutes an event of default with respect to any other series of
Securities.
Subordinated
Securities
The
terms
of a series of subordinated Securities will be set forth in the relevant
indenture and the prospectus supplement. The subordinated Securities will
be
unsecured obligations of the Company and will be subordinate in right of
payment
to certain other indebtedness of the Company. Unless otherwise indicated
in the
related prospectus supplement, the indentures do not contain any restriction
on
the amount of senior or subordinated indebtedness that the Company may incur.
The subordinated Securities will be subordinate to senior debt securities
of the
Company.
Satisfaction
and Discharge of Indentures
The
Company may terminate its obligation with respect to a series of Securities
under the indentures if:
|
|
·
|
all
the outstanding Securities of a series have been delivered to the
trustee
for cancellation;
|
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·
|
the
Company has paid all sums it is required to pay under the respective
indenture; or
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·
|
the
Company deposits with the trustee, in trust, sufficient funds,
or
governmental securities, to cover payments due on all Securities
of such
series for principal, premium, if any, and interest and any other
sums due
under the applicable indenture to the stated maturity date or a
redemption
date of the Securities.
|
Such
defeasance is subject to the Company meeting certain conditions set forth
in the
indentures.
Modification
and Waiver
The
Company and the trustees may modify or amend the indentures by obtaining
the 66
2/3% approval of the holders of the outstanding Securities of each series
that
is affected in the case of the Senior Indentures and the majority approval
in
the case of the Subordinated Indenture. However, certain changes can be made
only with the consent of each holder of an outstanding series of Securities.
In
particular, each holder of the series must consent to changes in:
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|
·
|
the
stated maturity date;
|
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|
·
|
the
principal, premium, or interest payments, if
any;
|
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|
·
|
the
place or currency of any payment;
|
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|
·
|
the
rights of holders to enforce
payment;
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·
|
the
percentage in principal amount of outstanding Securities of any
series,
the consent of whose holders is needed to modify, amend or waive
certain
provisions of the indentures or certain defaults;
or
|
|
|
·
|
if
applicable, the subordination
provisions.
|
Except
as
otherwise specified for a series of Securities, the holders of at least 66
2/3%
in aggregate principal amount of the outstanding Securities of any series
issued
in the case of the Senior Indentures, and at least a majority thereof in
the
case of the Subordinated Indenture, can consent, or cause the trustees, on
behalf of the holders of the entire series, to waive compliance with certain
provisions of the relevant indenture. In addition, holders of at least a
majority in principal amount of the outstanding securities of a series can
consent to, or cause the trustees to waive any past default under the relevant
indentures, except for the following:
|
|
·
|
a
default in any payments due under the U.S. Senior Indenture or
the
Subordinated Indenture or in payment of principal under the Canadian
Senior Indenture; and
|
|
|
·
|
a
default under an indenture provision that can be modified or amended
only
with the consent of each holder of an outstanding series of
Securities.
|
Consolidation,
Merger and Sale of Assets
Each
indenture provides that the Company may consolidate, amalgamate or merge
with or
into any other corporation or sell, convey or lease all or substantially
all of
its property to any other corporation authorized to acquire and operate the
same; provided that upon any such consolidation, amalgamation, merger, sale,
conveyance or lease, (i) the successor entity (if other than the Company)
is
organized under the law of a Canadian or U.S. jurisdiction; (ii) the payment
of
the principal and premium, if any, and interest on all of the Securities
according to their terms, and the performance of all the covenants and
conditions under that indenture to be performed by the Company, shall be
expressly assumed, by supplemental indenture satisfactory to the relevant
trustee, by the corporation (if other than the Company) formed by such
consolidation or amalgamation, or into which the Company shall have been
merged,
or by the corporation which shall have acquired or leased such property;
and
(iii) no event of default or event that could give rise to an event of default
will have occurred and be continuing.
Restrictions
on Secured Debt
The
Company has covenanted in the Senior Indentures that it will not, nor will
it
permit a subsidiary to, create, issue, incur, assume or guarantee, any
indebtedness for money borrowed, or guarantees of such indebtedness, now
or
hereafter existing which is secured by any mortgage, pledge, hypothec, lien,
security interest, privilege, conditional sale or other title retention
agreement or similar encumbrance (a "Mortgage") on any present or future
Railway
Properties of the Company or any of its Canadian or United States subsidiaries
or on any shares of stock of any Railroad Subsidiary, without first making
effective provision whereby all outstanding Securities issued thereunder
shall
be secured by the Mortgage equally and ratably with such other indebtedness
or
guarantee thereby secured. The negative pledge covenant is subject to certain
exceptions. For example, this restriction excludes any Mortgage upon Railway
Properties existing or created at the time the Railway Properties are acquired,
or Mortgages existing on the shares or to secure indebtedness of a corporation
at the time such corporation becomes a subsidiary, and any extension, renewal
or
replacement of any such Mortgage. As used in such covenant, the term "Railway
Properties" means all main and branch lines of railway located in Canada
or the
United States, including all real property used as the right of way for such
lines; the term "Railroad Subsidiary" means a subsidiary whose principal
assets
are Railway Properties; and the term "subsidiary", subject to certain
exceptions, means a corporation a majority of the outstanding voting shares
of
which are owned, directly or indirectly, by the Company or by one or more
subsidiaries of the Company, or by the Company and one or more subsidiaries
of
the Company.
PLAN
OF DISTRIBUTION
The
Company may sell the Securities to or through underwriters or dealers purchasing
as principal or through agents.
The
prospectus supplement will set forth the terms of the offering and the method
of
distribution, including the name or names of any underwriters or agents,
the
purchase price or prices of the Securities, the proceeds to the Company from
the
sale of the Securities, any public offering price, any underwriting fee,
discount or commission and any fees, discounts, concessions or commissions
allowed or reallowed or paid by any underwriter to other dealers. Any initial
public offering price and any fees, discounts, concessions or commissions
allowed or reallowed or paid to dealers may be changed from time to time.
Unless
otherwise set forth in the prospectus supplement relating thereto, the
obligations of the underwriters to purchase the Securities will be subject
to
certain conditions and the underwriters will be obligated to purchase all
of the
Securities if any are purchased.
The
Securities may be sold from time to time in one or more transactions at a
fixed
price or prices which may be changed or at market prices prevailing at the
time
of sale, or at prices related to such prevailing market prices or at negotiated
prices.
Underwriters,
dealers and agents who participate in the distribution of the Securities
may be
entitled under agreements to be entered into with the Company to indemnification
by the Company against certain liabilities, including liabilities under
securities legislation, or to contribution with respect to payments which such
underwriters, dealers or agents may be required to make in respect thereof.
Such
underwriters, dealers and agents may be customers of, engage in transactions
with or perform services for the Company in the ordinary course of
business.
One
or
more firms, referred to as "remarketing firms", may also offer or sell
Securities, if the prospectus supplement so indicates, in connection with
a
remarketing arrangement upon their purchase. Remarketing firms will act as
principals for their own accounts or as agents for the Company. These
remarketing firms will offer or sell the Securities pursuant to the terms
of the
Securities. The prospectus supplement will identify any remarketing firm
and the
terms of its agreement, if any, with the Company and will describe the
remarketing firm's compensation. Remarketing firms may be deemed to be
underwriters in connection with the Securities they remarket. Remarketing
firms
may be entitled under agreements that may be entered into with the Company
to
indemnification by the Company against certain civil liabilities, including
liabilities under securities legislation, or to contribution in respect thereof,
and may be customers of, engage in transactions with or perform services
for the
Company in the ordinary course of business.
RISK
FACTORS
Investment
in the Securities is subject to a number of risks. Before deciding whether
to
invest in any Securities, investors should carefully consider the risks
identified and discussed in the AIF and the Management's Discussion and Analysis
of the Company which are incorporated by reference herein (including
subsequently filed documents incorporated by reference) and those described
or
incorporated by reference in a prospectus supplement relating to a specific
offering of Securities.
TAXATION
The
applicable prospectus supplement will describe the material Canadian and
United
States federal income tax consequences to an initial investor acquiring the
Securities, including whether payments of principal, premium, if any, and
interest in respect of the Securities will be subject to Canadian non-resident
withholding tax and any such consequences relating to Securities payable
in a
currency other than United States dollars, Securities that are issued at
an
original issue discount or subject to early redemption or other special
terms.
LEGAL
MATTERS
Unless
otherwise specified in the prospectus supplement relating to a series of
Securities, certain legal matters will be passed upon for the Company by
the
Senior Vice-President Public Affairs, Chief Legal Officer and Corporate
Secretary of the Company and by Davis Polk & Wardwell, New York, New York,
with respect to matters of United States law. Davis Polk & Wardwell may rely
on the opinion of the Senior Vice-President Public Affairs, Chief Legal Officer
and Corporate Secretary of the Company as to all matters of Canadian federal
and
Québec laws.
As
of
November 29, 2007, the
partners and associates of Davis Polk & Wardwell owned beneficially,
directly or indirectly, less than 1% of the outstanding common shares of
the
Company.
INDEPENDENT
AUDITORS
The
audited consolidated financial statements of the Company for each of the
two
years in the period ended December 31, 2006 incorporated by reference in
this prospectus have been so incorporated in reliance on the report of KPMG
LLP,
independent accountants.
ENFORCEABILITY
OF CIVIL LIABILITIES
UNDER
THE U.S. FEDERAL SECURITIES LAWS
The
Company is a Canadian company and is governed by the laws of Canada. A
substantial portion of its assets are located outside the United States and
some
or all of the directors and officers and some or all of the experts named
herein
are residents of Canada. As a result, it may be difficult for investors to
effect service within the United States upon the Company and those directors,
officers and experts, or to realize in the United States upon judgments of
courts of the United States predicated upon civil liability of the Company
and
such directors, officers or experts under the United States federal securities
laws. The Company has been advised by its Chief Legal Officer that there
is
doubt as to the enforceability in a Canadian court in original actions, or
in
actions to enforce judgments of United States courts, of civil liabilities
predicated upon United States federal securities laws.
DOCUMENTS
FILED AS PART OF THE REGISTRATION STATEMENT
The
following documents have been filed with the SEC as part of the Registration
Statement of which this prospectus is a part: (i) the documents listed in
the
first paragraph under "Documents Incorporated by Reference"; (ii) the consent
of
KPMG LLP, independent accountants; (iii) powers of attorney from directors
and
officers of the Company; (iv) the U.S. Senior Indenture and the Subordinated
Indenture; and (v) Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York, as Trustee.
PART
II
INFORMATION
NOT REQUIRED TO BE
DELIVERED
TO OFFEREES OR PURCHASERS
Indemnification
Under
the
Canada Business Corporations Act (the “CBCA”), a corporation may
indemnify a present or former director or officer of the corporation or another
individual who acts or acted at the corporation’s request as a director or
officer, or an individual acting in a similar capacity, of another entity,
against all costs, charges and expenses, including an amount paid to settle
an
action or satisfy a judgment, reasonably incurred by the individual in respect
of any civil, criminal, administrative, investigative or other proceeding in
which the individual is involved because of that association with the
corporation or other entity. A corporation may advance moneys to a director,
officer or other individual for the costs, charges and expenses of a proceeding
referred to above. A corporation may not indemnify an individual as aforesaid
unless the individual acted honestly and in good faith with a view to the best
interests of the corporation, or, as the case may be, to the best interests
of
the other entity for which the individual acted as a director or officer or
in a
similar capacity at the corporation’s request and, in the case of a criminal or
administrative action or proceeding that is enforced by a monetary penalty,
the
individual had reasonable grounds for believing that the individual’s conduct
was lawful. If the individual does not fulfill the aforesaid conditions, the
individual shall repay the moneys advanced by the corporation. A corporation
may, with the approval of a court, indemnify or advance moneys as aforesaid
in
connection with a derivative action. A present or former director or officer
of
the corporation or another individual who acts or acted at the corporation’s
request as a director or officer, or an individual acting in a similar capacity,
of another entity, is entitled to indemnity from the corporation in respect
of
all costs, charges and expenses reasonably incurred by the individual in
connection with the defense of any civil, criminal, administrative,
investigative or other proceeding to which the individual is subject, because
of
the individual’s association with the corporation or other entity if the
individual seeking indemnity was not judged by the court or other competent
authorities to have committed any fault or admitted to do anything that the
individual ought to have done and fulfill the conditions referred to
above.
In
accordance with the CBCA, the by-laws of the Company indemnify a director or
officer of the Company, a former director or officer of the Company or any
person who acts or acted at the Company’s request as a director or officer or an
individual acting in a similar capacity, of another entity, against all costs,
charges and expenses, including an amount paid to settle an action or satisfy
a
judgment, reasonably incurred by the individual in respect of any civil,
administrative, investigative or other proceeding in which the individual is
involved because of that association with the Company or other
entity. The Company may extend the benefits of the foregoing
indemnification to other persons provided such persons are designated by way
of
a resolution of the board of directors of the Company.
A
policy
of directors’ and officers’ liability insurance is maintained by the Company
which insures its directors and officers for losses as a result of claims based
upon their acts or omissions as directors and officers of the Company, and
also
reimburses the Company for amounts paid by the Company to indemnify its
directors and officers as a result of such claims.
Insofar
as indemnification for
liabilities arising under the Securities Act of
1933 (the
“Act”)
may be permitted to directors,
officers or persons controlling the Registrant pursuant to the foregoing
provisions, the Registrant has been informed that in the opinion of the U.S.
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is therefore unenforceable.
II-1
|
Exhibit No.
|
Description
of
Exhibit
|
|
4.1
|
Annual
Information Form of the
Company dated February
12, 2007 (incorporated
by reference to
Form 40-F filed with the Securities and Exchange Commission
on February 14,
2007)
|
|
4.2
|
Management’s
Discussion and Analysis of
Financial Results and the Audited Consolidated Financial Statements
of the
Company for the years
ended December 31, 2006
and 2005
and related notes
thereto, together
with the Report of
the Independent Registered Public Accounting Firm thereon as
contained in the Annual
Report of the Company for the year ended December 31, 2006
(incorporated by reference
to Form 6-K filed
with the Securities and Exchange Commission on February 14,
2007)
|
|
4.3
|
The
management proxy circular of
the Company dated March 6, 2007 prepared in
connection with the
Company’s
annual meeting of shareholders
held on April 24, 2007 (incorporated by
reference to
Form 6-K filed with the Securities and Exchange Commission on March 21, 2007)
|
|
4.4
|
The
unaudited interim consolidated
financial statements of the Company for the nine
months ended September 30,
2007 and
related notes thereto,
including the Company’s
Management’s
Discussion and Analysis of
Financial Results (incorporated
by reference to Form
6-K filed with the Securities and Exchange Commission on October
26, 2007)
|
|
5.1
|
Consent
of KPMG
LLP
|
|
6.1
|
Powers
of Attorney given by
officers and directors signing this Registration
Statement are set forth
on the signature page
|
|
7.1
|
Indenture
dated as of June 1, 1998
between the Company and The Bank
of New York, as Trustee (incorporated by reference to Registration
No.
333-8518, Registration Statement on Form F-9 filed June
5, 1998, Exhibit
7.4)
|
|
7.2
|
Form
T-1 Statement of Eligibility
under the Trust Indenture Act of 1939 of The Bank of
New
York, as
Trustee
|
|
7.3
|
Indenture
dated as of June 23,
1999 between the Company and BMO Trust Company (formerly the Trust
Company
of Bank of Montreal),
as Trustee (incorporated by reference to Amendment No. 2 to Registration
No. 333-10420 Registration Statement on Form F-10 filed June 17,
1999,
Exhibit 7.1)
|
Additional
exhibits to this Registration Statement may be subsequently filed in reports
on
Form 40-F or on Form 6-K that specifically state that such materials are
incorporated by reference as exhibits in Part II of this Registration
Statement.
II-2
PART
III
UNDERTAKING
AND CONSENT TO SERVICE OF PROCESS
Item
1. Undertaking
The
Registrant undertakes to make available, in person or by telephone,
representatives to respond to inquiries made by the Commission staff, and to
furnish promptly, when requested to do so by the Commission staff, information
relating to the securities registered pursuant to Form F-9 or
to transactions in said securities.
Item
2. Consent to Service of Process
Concurrently
with the filing of this Registration Statement on Form F-9, the Registrant
is
filing with the Commission a written irrevocable consent and power of attorney
on Form F-X.
II-3
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies
that
is has reasonable grounds to believe that it meets all of the requirements
for
filing on Form F-9 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Montreal, Province of Quebec, on the 29th day of November,
2007.
|
Canadian
National Railway Company
|
||||||
| By: | /s/ E. Hunter Harrison | |||||
| Name: |
E.
Hunter Harrison
|
|||||
| Title: |
President
and Chief Executive Officer
|
|||||
| By: | /s/ Sean Finn | |||||
| Name: |
Sean
Finn
|
|||||
| Title: |
Senior
Vice-President Public Affairs, Chief Legal Officer and Corporate
Secretary
|
|||||
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons in the capacities indicated
on
the 29th day of
November, 2007. Each person whose signature appears below hereby
authorizes any one of Claude Mongeau, Sean Finn or Ami Haasz, with full power
of
substitution, to execute in the name of such person and to file any amendment
or
post-effective amendment to this Registration Statement, making such changes
in
this Registration Statement as the Registrant deems appropriate, and appoints
any one of Claude Mongeau, Sean Finn or Ami Haasz, with full power of
substitution, attorney-in-fact to sign in his behalf individually and in each
capacity below and to file any amendment and post-effective amendment to this
Registration Statement.
|
Signature
|
Title
|
|
|
/s/
E. Hunter Harrison
|
Director,
President and Chief Executive Officer (Principal Executive
Officer)
|
|
|
E.
Hunter Harrison
|
||
|
/s/
Claude Mongeau
|
Executive
Vice President and Chief Financial Officer (Principal Financial Officer
and Principal Accounting Officer)
|
|
|
Claude
Mongeau
|
||
|
/s/
David G.A. McLean
|
Director
and Chairman of the Board
|
|
|
David
G.A. McLean
|
||
|
/s/
Michael R. Armellino
|
Director
|
|
|
Michael
R. Armellino
|
||
|
/s/
A. Charles Baillie
|
Director
|
|
|
A.
Charles Baillie
|
|
Signature
|
Title
|
|
|
/s/
Hugh J. Bolton
|
Director
|
|
|
Hugh
J. Bolton
|
||
|
/s/
J.V. Raymond Cyr
|
Director
|
|
|
J.V.
Raymond Cyr
|
||
|
/s/
Gordon D. Giffin
|
Director
|
|
|
Gordon
D. Giffin
|
||
|
/s/
James K. Gray
|
Director
|
|
|
James
K. Gray
|
||
|
/s/
Edith E. Holiday
|
Director
|
|
|
Edith
E. Holiday
|
||
|
/s/
V. Maureen Kempston Darkes
|
Director
|
|
|
V.
Maureen Kempston Darkes
|
||
|
/s/
Robert H. Lee
|
Director
|
|
|
Robert
H. Lee
|
||
|
/s/
Denis Losier
|
Director
|
|
|
Denis
Losier
|
||
|
/s/
Edward C. Lumley
|
Director
|
|
|
Edward
C. Lumley
|
||
|
/s/
Robert Pace
|
Director
|
|
|
Robert
Pace
|
||
|
/s/
Michael T. Novak
|
Authorized
Representative in the United States
|
|
|
Michael
T. Novak
|