U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 40-F
[ ] REGISTRATION STATEMENT PURSUANT TO SECTION 12 OF THE
THE SECURITIES EXCHANGE ACT OF 1934
[X] ANNUAL REPORT PURSUANT TO SECTION 13(a) OR 15(d) OF THE
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended:
December 31, 2005
Commission File Number:
333-13238
PRIMEWEST ENERGY TRUST
(Exact name of Registrant as specified in its charter)
| | |
Canada (Province or other jurisdiction of incorporation or organization) | 1311 (Primary Standard Industrial Classification Code Number) | N/A (I.R.S. Employer Identification No.) |
Suite 5100
150 Sixth Avenue, S.W.
Calgary, Alberta, Canada T2P 3Y7
(403) 234-6600
(Address and telephone number of Registrant’s principal executive offices)
CT Corporation System
111 Eighth Avenue, New York, New York 10011
(212) 894-8940
(Name, address including zip code, and telephone number including area codes of agent for service)
Securities registered or to be registered pursuant to Section 12(b) of the Act
| |
Title of each class | Name of each exchange on which registered |
Trust Units, without nominal or par value | New York Stock Exchange |
Securities registered or to be registered pursuant to Section 12(g) of the Act
None.
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act
None.
For annual reports, indicate by check mark the information filed with this Form:
[X] Annual information form
[X] Audited annual financial statements
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common
stock as of the close of the period covered by the annual report:
79,666,352 Trust Units
Indicate by check mark whether the Registrant by filing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under theSecurities Exchange Act of 1934 (the “Exchange Act”). If “Yes” is marked, indicate the filing number assigned to the Registrant in connection with such Rule.
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 theExchange Act 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
DOCUMENTS INCLUDED IN THIS FORM
The following documents are included in the Form:
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No. | Document |
| | |
1. | Annual Information Form of the Registrant for the year ended December 31, 2005. |
2. | Consolidated Financial Statements of the Registrant for the fiscal year ended December 31, 2005; including reconciliation to US GAAP (Note 20). |
3. | Management’s Discussion and Analysis of the Registrant for the fiscal year ended December 31, 2005. |
CONSOLIDATED AUDITED ANNUAL FINANCIAL STATEMENTS AND
MANAGEMENT’S DISCUSSION AND ANALYSIS
A.
Audited Annual Financial Statements
For consolidated audited financial statements, including the report of independent chartered accountants with respect thereto, see the Consolidated Financial Statements of the Registrant for the fiscal year ended December 31, 2005 included herein. The Registrant’s financial statements have been reconciled to United States generally accepted accounting principles (“US GAAP”) as required by Form 40-F under theExchange Act, see Note 20 - Differences Between Canadian And United States Generally Accepted Accounting Principles on pages 64 through 69 of such 2005 Consolidated Financial Statements.
B.
Management’s Discussion and Analysis
For management’s discussion and analysis, see Management’s Discussion and Analysis of the Registrant for the fiscal year ended December 31, 2005 included herein.
DISCLOSURE CONTROLS AND PROCEDURES
As of December 31, 2005, an evaluation was carried out under the supervision of and with the participation of the Registrant’s management, including the Chief Executive Officer and Chief Financial Officer, of the effectiveness of the Registrant’s disclosure controls and procedures (as defined in Rule 13a-15(e) under theExchange Act). Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that as of the end of the fiscal year, the design and operation of these disclosure controls and procedures were effective to ensure that information required to be disclosed by the Registrant in reports it files or submits under theExchange Actis recorded, processed, summarized and reported within the time periods specified in SEC rules and forms.
It should be noted that while the Registrant’s principal executive officer and principal financial officer believe that the Registrant’s disclosure controls and procedures provide a reasonable level of assurance that they are effective, they do not expect that the Registrant’s disclosure controls and procedures or internal control over financial reporting will prevent all errors and fraud. A control system, no matter how well conceived or operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met.
CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING
During the period covered by this Annual Report on Form 40-F no changes occurred in the Registrant’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting.
NOTICES PURSUANT TO REGULATION BTR
None.
CODE OF ETHICS FOR CHIEF EXECUTIVE OFFICER
AND SENIOR FINANCIAL OFFICERS
PrimeWest has adopted a Code of Ethics for its Chief Executive Officer and senior financial officers. This code applies to PrimeWest’s President and Chief Executive Officer, and all other Officers, Directors, employees and contractors. It is available on the Registrant’s web site at www.primewestenergy.com and in print to any unitholder who requests it. All amendments to the code, and all waivers of the code with respect to any of the officers covered by it, will be posted on the Registrant’s web site and provided in print to any unitholder who requests them.
AUDIT AND FINANCE COMMITTEE
Identification of Audit Committee
The following individuals comprise the entire membership of PrimeWest’s Audit and Finance Committee: Peter Valentine (Chair) Harold P. Milavsky and Michael W. O’Brien.
Audit Committee Financial Experts
Peter Valentine, Harold P. Milavsky and Michael W. O’Brien and have been determined by the board of PrimeWest to meet the “audit committee financial expert” criteria prescribed by the Securities and Exchange Commission and have been designated as audit committee financial experts for the Audit and Finance Committee of the board of PrimeWest.
Each of the directors serving on the Audit and Finance Committee has also been determined by the board of PrimeWest to be independent within the criteria established by the New York Stock Exchange, Inc. for audit committee membership.
PRINCIPAL ACCOUNTING FEES AND SERVICES – INDEPENDENT AUDITORS
Fees payable to the Registrant’s independent auditor, PricewaterhouseCoopers LLP, for the years ended December 31, 2005 and December 31, 2004 totaled $618,300 and $465,858, respectively, as detailed in the following table. All funds are in Canadian dollars.
| | |
| | Year ended December 31, 2005 | Year ended December 31, 2004 |
Audit Fees | $297,000 | $282,000 |
Audit Related Fees | $9,000 | $12,000 |
Tax Fees | $22,300 | $66,858 |
All Other Fees | $290,000 | $105,000 |
TOTAL | $618,300 | $465,858 |
The nature of the services provided by PricewaterhouseCoopers LLP under each of the categories indicated in the table is described below.
Audit Fees
Audit fees were for professional services rendered by PricewaterhouseCoopers LLP for the audit of the Registrant’s annual financial statements and services provided in connection with statutory and regulatory filings or engagements.
Audit-Related Fees
Audit-related fees were for assurance and related services reasonably related to the performance of the audit or review of the annual statements and are not reported under “Audit Fees” above. These services consisted of advice and guidance on new reporting standards.
Tax Fees
Tax fees were for tax compliance, tax advice and tax planning professional services. The fees were for services performed by the Trust’s auditors’ tax division except those tax services related to the audit. These services consisted of: tax compliance including the review of tax returns; and tax planning and advisory services relating to common forms of domestic and international taxation (i.e. income tax, capital tax, goods and services tax, and valued added tax).
All Other Fees
All other fees are those fees billed for products and services provided by PriceWaterhouseCoopers LLP, other than Audit Fees, Audit-related Fees and Tax Fees. Specifically, these fees relate to: Sarbanes-Oxley compliance and prospectus fees in 2004 and Sarbanes-Oxley compliance and the Registrant’s enterprise risk assessment in 2005.
PREAPPROVAL POLICIES AND PROCEDURES
It is within the mandate of PrimeWest’s Audit and Finance Committee to approve all audit and non-audit related fees. The Audit and Finance Committee have pre-approved specifically identified non-audit tax-related services, including tax compliance; the review of tax returns; and tax planning and advisory services relating to common forms of domestic and international taxation (i.e. income tax, capital tax, goods and services tax, and valued added tax) up to a pre-determined maximum annual limit of Cdn$50,000. The Audit and Finance Committee will be informed routinely as to the non-audit services actually provided by the auditor pursuant to this pre-approval process. The auditors also present the estimate for the annual audit related services to the Committee for approval prior to undertaking the annual audit of the financial statements. The Audit and Finance Committe e approved all of the Audit Fees, Audit-Related Fees, Tax Fees and All Other Fees relating to the services provided by PriceWaterhouseCoopers LLP in 2005.
OFF-BALANCE SHEET ARRANGEMENTS
None.
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CONTRACTUAL OBLIGATIONS
| | | | | |
| | Payments due by period (Cdn $MM) |
| | Total | Less than 1 year | 1-3 years | 4-5 years | More than 5 years |
| | | | | | |
Long-term debt obligations | 298.4 | - | 225.7 | 72.7 | - |
Series I and Series II Convertible Unsecured Convertible Debentures | 56.2 | - | - | 33.0 | 23.2 |
Lease rental obligations | 11.4 | 3.7 | 6.9 | 0.8 | - |
Pipeline transportation obligations | 11.5 | 7.2 | 3.7 | 0.5 | 0.1 |
Other Long-Term Liabilities Reflected on the Registrant's Balance Sheet: Derivative liability | 11.5 | 11.3 | 0.2 | - | - |
Total contractual obligations |
389.0 |
22.2 |
236.5 |
107.0 |
23.3 |
DISCLOSURES PURSUANT TO REQUIREMENTS OF THE
NEW YORK STOCK EXCHANGE
Presiding Director at Meetings of Non-Management Directors
The Registrant schedules regular executive sessions in which the Registrant’s “non-management directors” (as that term is defined in the rules of the New York Stock Exchange) meet without management participation. Harold P. Milavsky serves as the presiding director (the “Presiding Director”) at such sessions. Each of the Registrant’s non-management directors is “independent” as such term is used in the rules of the Canadian Securities Commissions and the New York Stock Exchange Corporate Governance Standards.
Communication with Non-Management Directors
Unitholders may send communications to the registrant’s non-management directors by writing to the Presiding Director, c/o PrimeWest Investor Relations, Suite 5100, 150 – 6th Avenue S.W., Calgary, AB, Canada T2P 3Y7. Communications will be referred to the Presiding Director for appropriate action. The status of all outstanding concerns addressed to the Presiding Director will be reported to the board of directors as appropriate.
Corporate Governance Guidelines
According to NYSE Rule 303A.09, a listed company must adopt and disclose a set of corporate governance guidelines with respect to specified topics and must disclose any significant ways in which its practices differ from those followed by US domestic companies under the NYSE rules. Such guidelines and disclosure are required to be posted on the listed company’s website. The Registrant has adopted the required guidelines and made the required disclosure, all of which is available on the Registrant’s website atwww.primewestenergy.com and in print to any unitholder who requests them.
Board Committee Mandates
The Mandates of the Registrant’s Audit and Finance Committee, Compensation Committee, Corporate Governance and EH&S Committee and Operations and Reserves Committee are each available for viewing on the Registrant’s website at www.primewestenergy.com, and are available in print to any unitholder who requests them. Requests for copies of these documents should be made by contacting: PrimeWest Investor Relations, Suite 5100, 150 – 6th Avenue S.W., Calgary, AB T2P 3Y7.
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 40-F; the securities in relation to which the obligation to file an annual report on Form 40-F arises; or transactions in said securities.
CONSENT TO SERVICE OF PROCESS
The Registrant has previously filed with the Commission a Form F-X in connection with the Trust Units.
Any change to the name or address of the agent for service of process of the registrant shall be communicated promptly to the Securities and Exchange Commission by an amendment to the Form F-X referencing the file number of the relevant registration statement.
5
EXHIBITS
The following exhibits are filed as part of this report.
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Exhibit Number |
Description |
| | |
99.1 | CEO Certification pursuant to rule 13a-14(a) of the Exchange Act. |
99.2 | CFO Certification pursuant to rule 13a-14(a) of the Exchange Act. |
99.3 | CEO Certification pursuant to U.S.C. Section 1350, as adopted pursuant to Section 906 of theSarbanes-Oxley Act of 2002. |
99.4 | CFO Certification pursuant to U.S.C. Section 1350, as adopted pursuant to Section 906 of theSarbanes-Oxley Act of 2002. |
99.5 | Consent of PricewaterhouseCoopers LLP. |
99.6 | Consent of GLJ Petroleum Consultants Ltd. |
6
SIGNATURE
Pursuant to the requirements of the Exchange Act, the Registrant certifies that it meets all of the requirements for filing on Form 40-F and has duly caused this Annual Report on Form 40-F to be signed on its behalf by the undersigned, thereto duly authorized, in the City of Calgary, Province of Alberta, Canada.
Dated: March 24, 2006
PRIMEWEST ENERGY TRUST
By:
/s/ Dennis G. Feuchuk
Name:
Dennis G. Feuchuk
Title:
Vice-President, Finance and
Chief Financial Officer
7
EXHIBIT 99.1
CEO CERTIFICATION
PURSUANT TO RULE 13a-14 (a) OFTHE SECURITIES EXCHANGE ACT OF 1934
I, Donald A. Garner, President and Chief Executive Officer, certify that:
1.
I have reviewed this annual report on Form 40-F of PrimeWest Energy Trust;
2.
Based on my knowledge, this annual 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 statement was 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 issuer as of, and for, the periods presented in this report;
4.
The issuer’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined inExchange Act Rules 13a-15(e) and 15d-15(e) for the issuer 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 issuer, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared;
b)
Evaluated the effectiveness of the issuer’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
c)
Disclosed in this report any change in the issuer’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the issuer’s internal control over financial reporting.
5.
The issuer’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the issuer’s auditors and the audit committee of the issuer’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 issuer’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 issuer’s internal control over financial reporting.
| |
Date: March 24, 2006 | /s/ Donald A. Garner |
| | Donald A. Garner |
| | President and Chief Executive Officer |
EXHIBIT 99.2
CFO CERTIFICATION
PURSUANT TO RULE 13a-14 (a) OFTHE SECURITIES EXCHANGE ACT OF 1934
I, Dennis G. Feuchuk, Vice-President, Finance and Chief Financial Officer, certify that:
6.
I have reviewed this annual report on Form 40-F of PrimeWest Energy Trust;
7.
Based on my knowledge, this annual 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 statement was made, not misleading with respect to the period covered by this report;
8.
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 issuer as of, and for, the periods presented in this report;
9.
The issuer’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined inExchange Act Rules 13a-15(e) and 15d-15(e) for the issuer 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 issuer, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared;
b)
Evaluated the effectiveness of the issuer’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
c)
Disclosed in this report any change in the issuer’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the issuer’s internal control over financial reporting.
10.
The issuer’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the issuer’s auditors and the audit committee of the issuer’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 issuer’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 issuer’s internal control over financial reporting.
| |
Date: March 24, 2006 | /s/ Dennis G. Feuchuk |
| | Dennis G. Feuchuk |
| | Vice-President, Finance and |
| | Chief Financial Officer |
EXHIBIT 99.3
CEO CERTIFICATION
PURSUANT TO U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THESARBANES-OXLEY ACT OF 2002
In connection with the annual report of PrimeWest Energy Trust (the “Company”) on Form 40-F for the fiscal year ending December 31, 2005 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Donald A. Garner, President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of theSarbanes-Oxley Actof 2002, that:
1.
The Report fully complies with the requirements of Section 13(a) or 15(d) of theSecurities 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.
Date: March 24, 2006
/s/ Donald A. Garner
Name:
Donald A. Garner
Title:
President and Chief Executive Officer
EXHIBIT 99.4
CFO CERTIFICATION
PURSUANT TO U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THESARBANES-OXLEY ACTOF 2002
In connection with the annual report of PrimeWest Energy Trust (the “Company”) on Form 40-F for the fiscal year ending December 31, 2005 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Dennis G. Feuchuk, Vice President, Finance and Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of theSarbanes-Oxley Act of 2002, that:
3.
The Report fully complies with the requirements of Section 13(a) or 15(d) of theSecurities Exchange Act of 1934; and
4.
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: March 24, 2006
/s/ Dennis G. Feuchuk
Name:
Dennis G. Feuchuk
Title:
Vice-President, Finance and Chief Financial Officer
EXHIBIT 99.5
CONSENT OF INDEPENDENT AUDITORS
Consent of PricewaterhouseCoopers LLP
We hereby consent to the use of our audit report dated February 10, 2006, on the consolidated balance sheets of PrimeWest Energy Trust (the "Trust") as at December 31, 2005 and 2004, and the consolidated statements of income, changes in unitholders' equity and cash flows for each year in the three-year period ended December 31, 2005, with respect to the consolidated financial statements of the Trust, included in the Trust's Annual Report on Form 40-F for the year ended December 31, 2005 and incorporated by reference in its Registration Statement on Form F-3 (Registration No. 333-128175), filed with the Securities and Exchange Commission.
/s/ PricewaterhouseCoopers LLP
|
| |
Chartered Accountants |
Calgary, Alberta
|
March 27, 2006 |
EXHIBIT 99.6
CONSENT OF INDEPENDENT ENGINEERS
We hereby consent to the use in this Annual Report on Form 40-F of PrimeWest Energy Trust for the year ended December 31, 2005 of our reports dated December 31, 2004 and December 31, 2005 evaluating the crude oil, natural gas, natural gas liquids and sulphur reserves attributable to properties owned at those times by PrimeWest Energy Inc.
Yours very truly,
GLJ PETROLEUM CONSULTANTS LTD.
/s/ Myron J. Hladyshevsky, P.Eng.
Myron J. Hladyshevsky, P.Eng
Vice-President
Calgary, Alberta
March 23, 2006
