U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 40-F/A
AMENDMENT NO. 1
[_] Registration Statement pursuant to section 12 of the Securities
Exchange Act of 1934
[X] Annual report pursuant to section 13(a) or 15(d) of the Securities
Exchange Act of 1934
For the fiscal year ended December 31, 2004 Commission File Number: 333-90736
WESTERN OIL SANDS INC.
(Exact name of Registrant as specified in its charter)
ALBERTA, CANADA 1311 NOT APPLICABLE
(Province or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) identification no.)
organization)
2400 ERNST & YOUNG TOWER, 440-2ND AVENUE S.W.
CALGARY, ALBERTA, CANADA T2P 5E9
(403) 233-1700
(Address and telephone number of registrant's principal executive offices)
CT CORPORATION SYSTEM
111-8TH 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:
NONE
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:
8 3/8% SENIOR SECURED NOTES DUE 2012
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:
53,278,762 Common Shares outstanding at December 31, 2004
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 the Securities 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 the Exchange 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 [_]
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EXPLANATORY NOTE
The Registrant is filing this Amendment No. 1 to Form 40-F for the year
ended December 31, 2004 to (a) revise Item C, Controls and Procedures to state
with specificity that its controls are effective; and (b) insert a signed
Auditor's Report, the signature of which was inadvertently omitted from the
original filing of the Form 40-F.
Other than as expressly set forth above, this Form 40-F/A does not, and
does not purport to, update or restate the information in any Item of the Form
40-F or reflect any events that have occurred after the Form 40-F was filed.
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PRINCIPAL DOCUMENTS
The following documents have been filed as part of this Annual Report
on Form 40-F:
A. ANNUAL INFORMATION FORM
For the Annual Information Form of Western Oil Sands Inc. ("Western Oil
Sands") for the year ended December 31, 2004, see Exhibit 1 of this Annual
Report on Form 40-F.
B. AUDITED ANNUAL FINANCIAL STATEMENTS
For Western Oil Sands' consolidated audited financial statements for
the year ended December 31, 2004 and 2003, including the auditor's report with
respect thereto, see Exhibit 2 of this Annual Report on Form 40-F. For a
reconciliation of important differences between Canadian and United States
generally accepted accounting principles, see Note 20 of the Notes to the
Consolidated Financial Statements.
C. MANAGEMENT'S DISCUSSION AND ANALYSIS
For Western Oil Sands' Management's Discussion and Analysis for the
year ended December 31, 2004, see Exhibit 3 of this Annual Report on Form 40-F.
CONTROLS AND PROCEDURES
Western Oil Sands maintains disclosure controls and procedures and
internal control over financial reporting designed to ensure that information
required to be disclosed in the reports filed under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified
in the Commission's rules and forms. Western Oil Sands' principal executive and
financial officers evaluated the effectiveness of Western Oil Sands' disclosure
controls and procedures as of the end of the period covered by this report and
concluded that such disclosure controls and procedures are effective to ensure
that information required to be disclosed by the Registrant in reports it files
or submits under the Exchange Act is (i) recorded, processed, summarized and
reported within the time periods specified and (ii) accumulated and communicated
to the Registrant's management, including its principal executive officer and
principal financial officer, to allow timely decision regarding required
disclosure. However, as recommended by the Commission in its adopting release,
the Registrant will continue to periodically evaluate its disclosure controls
and procedures to ensure that information is recorded, processed, summarized and
reported within the time period's specified in the Commission's 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.
During the fiscal year ended December 31, 2004, there were no changes
in Western Oil Sands' internal control over financial reporting that have
materially affected, or are reasonably likely to materially affect, Western Oil
Sands' internal control over financial reporting.
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AUDIT COMMITTEE FINANCIAL EXPERT
The Registrant's Board of Directors has determined that Messrs. Robert
Puchniak, Randall Oliphant and Mac Van Wielingen are audit committee financial
experts (as defined in paragraph 8(b) of General Instruction B to Form 40-F)
serving on its audit committee. Mr. Oliphant recently joined the Board of
Directors and Audit Committee in February 2005 and is therefore not associated
with the 2004 financial statements. Mr. Oliphant replaced Mr. Brian MacNeill.
Mr. MacNeill served on the Board and Audit Committee for the duration of fiscal
2004. Pursuant to paragraph 8(a)(2) of General Instruction B to Form 40-F, the
Board has applied the definition of independence applicable to the audit
committee members of the New York Stock Exchange ("NYSE") listed companies. All
above mentioned members are corporate directors and meet the NYSE definition of
independence. For a description of the Audit Committee member's relevant
experience in financial matters with the exception of Mr. MacNeill, see the
section "Directors and Officers" in the Registrant's Annual Information Form for
the year ended December 31, 2004, which is included as Exhibit 1 to this Annual
Report on Form 40-F
AUDIT COMMITTEE
Western Oil Sands has a separately designated standing audit committee
established in accordance with section 3(a)(58)(A) of the Exchange Act. The
members of the Audit Committee are Messrs. Robert G. Puchniak, Randall Oliphant
and Mac H. Van Wielingen. Mr. Puchniak chairs the Audit Committee.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
PricewaterhouseCoopers LLP ("PWC") have been the auditors of Western
Oil Sands since Western Oil Sands' incorporation. The aggregate amounts billed
by PWC for each of the last two fiscal years for audit fees, audit-related fees,
tax fees and all other fees, including expenses, are set forth below.
AUDIT FEES: The aggregate fees billed for each of the last two
fiscal years of Western Oil Sands ending December 31, 2004 and December 31,
2003, for professional services rendered by PWC for the audit of its annual
financial statements, review of the Annual Information Form, Management
Discussion and Analysis, completion of limited reviews of quarterly financial
information and for services that are normally provided by PWC in connection
with debt and equity financings for those fiscal years were $131,980 and
$66,900, respectively.
AUDIT-RELATED FEES: There were no fees billed for each of the
last two fiscal years of Western Oil Sands, ending December 31, 2004 and
December 31, 2003, for audit-related services by PWC.
TAX FEES: The aggregate fees billed for each of the last two
fiscal years of Western Oil Sands, ending December 31, 2004 and December 31,
2003, for professional services rendered by PWC for tax-related services
consisting of advice and assistance with tax filings and tax audits were $24,960
and $5,720, respectively. Western Oil Sands' Audit Committee approved all of the
noted services.
ALL OTHER FEES: There were no other fees billed for each of
the last two fiscal years of Western Oil Sands ending December 31, 2004 and
December 31, 2003.
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AUDIT COMMITTEE PRE-APPROVAL POLICIES AND PROCEDURES:
The Registrant has not yet established set policies and procedures for
pre-approval of audit and non-audit related services conducted by the
Registrant's accountant. At the present time, all such services are approved by
the Chair of the Audit Committee before an engagement is executed.
OFF-BALANCE SHEET ARRANGEMENTS
Western Oil Sands has no off-balance sheet arrangements that require
disclosure.
CONTRACTUAL OBLIGATIONS
Western Oil Sands has assumed various contractual obligations and
commitments in the normal course of its operations. Summarized below are
significant financial obligations that are known as of February 25, 2005, and
which represent future cash payments that Western Oil Sands will be required to
make under existing contractual agreements that it has entered into either
directly, or as a partner in the Joint Venture. The following information can
also be found in Western's Management Discussion and Analysis attached as
Exhibit 3.
PAYMENTS DUE BY PERIOD
< 1 YEAR 1-3 YEARS 4-5 YEARS AFTER 5 TOTAL
YEARS
US$450 Million Senior
Secured Notes $ -- $ -- $ -- $ 541,620 $ 541,620
Senior Credit Facility 95,000 -- -- -- 95,000
Revolving Credit
Facility(1) -- -- -- 121,000 121,000
Obligations Under
Capital Lease 1,340 2,680 2,680 44,909 51,609
Feedstocks 79,437 220,368 168,520 62,117 530,442
Utilities 31,807 65,690 69,513 590,377 757,387
Mobile Equipment Lease 5,960 6,280 17,440 8,700 48,380
Total Contractual
Obligations $ 213,544 $ 295,018 $ 268,153 $1,368,723 $2,145,438
(1) THE REVOLVING CREDIT FACILITY IS A 364-DAY EXTENDIBLE FACILITY THAT
INCORPORATES A TWO YEAR TERM-OUT. MANAGEMENT CONSIDERS THIS TO BE PART
OF OUR LONG-TERM CAPITAL STRUCTURE.
(2) IN ADDITION, WE HAVE AN OBLIGATION TO FUND WESTERN'S SHARE OF THE
PROJECT'S PENSION FUND AND HAVE MADE COMMITMENTS RELATED TO OUR RISK
MANAGEMENT
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PROGRAM: SEE NOTES 16 AND 17, RESPECTIVELY, OF THE CONSOLIDATED FINANCIAL
STATEMENTS.
CODE OF ETHICS
The Company does not have a code of ethics; it does not plan on
enacting a code of ethics until it has attained a much larger size. With so few
employees and officers (33 currently) and directors, it does not feel that
developing and adopting a code of ethics would impact or change its operations
or its employees, directors or officers. The Company feels that the few current
employees, officers and directors it now has know sufficiently all of the
actions of the Company such that unethical behavior would be discovered quickly.
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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 a Form F-X in connection with the
class of securities in relation to which the obligation to file this report
arises. Any change to the name or address of the agent for service of process of
the Registrant shall be communicated promptly to the Commission by an amendment
to the Form F-X referencing the file number of the relevant registration
statement.
SIGNATURE
Pursuant to the requirements of the Exchange Act, each Registrant
certifies that it meets all of the requirements for filing on Form 40-F/A and
has duly caused this amendment No.1 to Annual Report on Form 40-F/A to be signed
on its behalf by the undersigned, thereto duly authorized.
Dated: November 4, 2005
WESTERN OIL SANDS INC.
By: /s/ David A. Dyck
---------------------------------
Name: David A. Dyck
Title: Senior Vice President, Finance,
and Chief Financial Officer
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EXHIBITS
The following exhibits are filed as part of this report.
Exhibit
Number Description
1* Annual Information Form of the Registrant for the fiscal year ended
December 31, 2004.
2*+ Consolidated Financial Statements for the fiscal years ended
December 31, 2004 and 2003 including U.S. GAAP reconciliation
note, together with the auditors' report thereon.
3* Management's Discussion and Analysis for the fiscal year ended
December 31, 2004.
4* Certification of Chief Executive Officer pursuant to Rule
13a-14(a) or 15d-14 of the Securities Exchange Act of 1934.
5* Certification of Chief Financial Officer pursuant to Rule
13a-14(a) or 15d-14 of the Securities Exchange Act of 1934.
6* Certification of Chief Executive Officer pursuant to Rule
13(a)-14(b) and Section 1350 of Chapter 63 of Title 18 of the United
States Code (18 U.S.C. 1350).
7* Certification of Chief Financial Officer pursuant to Rule
13(a)-14(b) and Section 1350 of Chapter 63 of Title 18 of the United
States Code (18 U.S.C. 1350).
8 Consent of PricewaterhouseCoopers LLP, independent chartered
accountants.
9* Consent of Gilbert Laustsen Jung Associates Ltd., independent
petroleum engineering consultants.
10* Consent of Norwest Corporation, independent mining engineering
consultants.
* PREVIOUSLY FILED.
+ THE CONSOLIDATED FINANCIAL STATEMENTS FOR THE FISCAL YEARS ENDED DECEMBER 31,
2004 AND 2003 INCLUDING U.S. GAAP RECONCILIATION NOTE HAVE BEEN PREVIOUSLY
FILED. HOWEVER, THIS FORM 40-F/A IS ACCOMPANIED BY A SIGNED AUDITOR'S REPORT
THEREON.