form40fbaytexenergy.htm
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
40-F
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, 2008
Commission File
Number: 001-32754
BAYTEX
ENERGY TRUST
(Exact
name of Registrant as specified in its charter)
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Alberta
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1311
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Not
Applicable
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(Province
or other jurisdiction of incorporation or organization)
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(Primary
standard industrial classification code number, if
applicable)
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(I.R.S.
employer identification number, if
applicable)
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Suite
2200, 205 – 5th Avenue
S.W.
Calgary,
Alberta
T2P
2V7
(403)
269-4282
(Address
and telephone number of registrant’s principle executive offices)
CT
Corporation System
111
Eighth Avenue
New
York, NY 10011
(212)
894-8940
(Name,
address (including zip code) and telephone number
(including
area code) of agent for service in the United States)
Securities
registered pursuant to Section 12(b) of the Act:
Title of each
class: Name
of each exchange on which registered:
TRUST
UNITS New
York Stock Exchange
Toronto Stock Exchange
Securities
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 the issuer’s classes of capital or common
stock as of the close of the period covered by the annual report.
97,685,333 Trust Units
were outstanding as of December 31, 2008.
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 file 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
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain
statements in this Annual Report on Form 40-F are forward-looking statements
within the meaning of Section 21E of the Securities and Exchange Act of 1934, as
amended (the “Exchange Act”), and Section 27A of the Securities Act of 1933, as
amended. Please see “Special Note Regarding Forward-Looking Statements” on page
3 of the Annual Information Form, which is Exhibit 99.1 of this Annual Report on
Form 40-F.
Principal
Documents
The
Registrant is the sole common shareholder of Baytex Energy Ltd. (the “Company”).
The Company has been allocated the responsibility for significant strategic
management and operational decisions of the Registrant pursuant to the trust
indenture creating the Registrant and an administration agreement between the
Registrant and the Company. The Registrant has no directors or
officers.
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 for the year ended December 31, 2008, see Exhibit 99.1
of this Annual Report on Form 40-F.
B. Audited
Annual Financial Statements
For the
Registrant’s Audited Consolidated Financial Statements for the year ended
December 31, 2008, including the report of our Independent Registered Chartered
Accountants with respect thereto, see Exhibit 99.2 of this Annual Report on Form
40-F. For a reconciliation of differences between Canadian and United
States generally accepted accounting principles, see note 19 of the Notes to the
Consolidated Financial Statements.
C. Management’s
Discussion and Analysis
For
Management’s Discussion and Analysis for the year ended December 31, 2008, see
Exhibit 99.3 of this Annual Report on Form 40-F.
Except
where otherwise indicated, all dollar amounts stated in this Annual Report on
Form 40-F are in Canadian dollars.
Controls
and Procedures
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A.
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Disclosure
Controls and Procedures
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As of
December 31, 2008, an internal evaluation was conducted of the effectiveness of
the Registrant's “disclosure controls and procedures” as defined in the United
States by Rule 13a-15(e) and 15d-15(e) under Exchange Act and in Canada by
National Instrument 52-109, Certification of Disclosure in Issuers’ Annual and
Interim Filings . Based on that evaluation, the President and Chief Executive
Officer and the Chief Financial Officer concluded that the Registrant's
disclosure controls and procedures are effective to ensure that the information
required to be disclosed in the reports that the Registrant files or submits
under the Exchange Act or under Canadian securities legislation is recorded,
processed, summarized and reported, within the time periods specified in the
rules and forms therein and accumulated and communicated to the Registrant's
management, including the President and Chief Executive Officer and Chief
Financial Officer, to allow timely decisions regarding the required
disclosure.
It should
be noted that while the President and Chief Executive Officer and the Chief
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 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.
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B.
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Changes
in Internal Control Over Financial
Reporting
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No
changes were made to our internal control over financial reporting during the
year ended December 31, 2008 that have materially affected, or are reasonably
likely to materially affect, our internal control over financial
reporting.
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C.
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Management’s Report on Internal
Control Over Financial
Reporting
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Management's
Report on Internal Control Over Financial Reporting is included in the
Management's Report that accompanies the Registrant's audited Consolidated
Financial Statements for the year ended December 31, 2008, included as Exhibit
99.2 of this Annual Report of Form 40-F.
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D.
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Attestation
of Report of Independent Registered Chartered
Accountants
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The
Attestation Report of the Registrant's Auditor is included in
the Report of Independent Registered Chartered Accountants that
accompanies the Registrant's Audited Consolidated Financial Statements for the
year ended December 31, 2008, included as Exhibit 99.2 of this Annual Report of
Form 40-F.
Code
of Ethics
The
Registrant's code of ethics (“Code of Ethics”), which is applicable to its
principal executive officer, principal financial officer, principal accounting
officer or controller, and persons performing similar functions, is posted on
the Registrant’s website at www.baytex.ab.ca.
Since its
adoption, the Registrant has not amended any provision of its Code of Ethics
that relates to any element of the code of ethics definition enumerated in
paragraph (9)(b) of General Instruction B to Form 40-F, or granted any waiver,
including an implicit waiver, from a provision of its Code of
Ethics.
Auditor
Fees and Services
The
following table provides information about the fees billed to the Registrant for
professional services rendered by Deloitte & Touche LLP, the Registrant’s
principal accountant, during fiscal 2008 and 2007:
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Audit
fees
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1,124 |
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851 |
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Tax
fees
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56 |
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5 |
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All
other fees
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84 |
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133 |
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1,264 |
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989 |
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Audit Fees. Audit
fees consist of fees for the audit of our annual financial statements or
services that are normally provided in connection with statutory and regulatory
filings or engagements. In addition to the fees for annual audits of financial
statements and review of quarterly results, services in this category for fiscal
2008 and 2007 also include the reviews of comment letters from Canadian and U.S.
regulatory agencies, amounts for audit work performed in relation to the
requirements of Section 404 of the Sarbanes-Oxley Act of 2002 relating to
internal control over financial reporting and review of prospectuses related to
an acquisition and equity and debt issuances.
Audit-Related
Fees. Audit-related fees consist of fees for assurance and
related services that are reasonably related to the performance of the audit or
review of the Trust's financial statements and are not reported as Audit Fees.
During fiscal 2008 and 2007, there were no payments in this
category.
Tax Fees. Tax fees
included tax planning and various taxation matters.
All Other
Fees. During fiscal 2008 and 2007, the services provided in
this category consist only of advisory services associated with property
taxes.
The
Company’s Audit Committee has pre-approved and must pre–approve all non–audit
services to be provided to the Registrant or its subsidiaries by the external
auditors. The Audit Committee may delegate to one or more members the
authority to pre–approve non–audit services, provided that the member report to
the Audit Committee at the next scheduled meeting such pre–approval and the
member comply with such other procedures as may be established by the Audit
Committee from time to time.
The
Company’s Board of Directors has determined that Mr. Naveen Dargan is an audit
committee financial expert (as defined in paragraph 8(b) of General Instruction
B to Form 40-F) serving on its audit committee. Mr. Dargan is a
corporate director and meets the New York Stock Exchange definition of
independence. For a description of Mr. Dargan’s relevant experience
in financial matters, see the five-year history in the section “Additional
Information Respecting Baytex Energy Ltd. - Management of the Trust” in the
Registrant’s Annual Information Form for the year ended December 31, 2008, which
is included as Exhibit 99.1 to this Annual Report on Form 40-F. The Company has
a separately designated standing audit committee established in accordance with
Section 3(a)(58)(A) of the Exchange Act. The Company’s Audit Committee members
consist of Mr. Dargan, Mr. R.E.T. (Rusty) Goepel, and Mr. G.
Melchin.
Off-Balance
Sheet Arrangements
Information
regarding off-balance sheet arrangements of the Registrant is included in the
Registrant’s Management’s Discussion and Analysis for the year ended December
31, 2008, which is filed as Exhibit 99.3 to this Annual Report on Form
40-F.
Contractual
Obligations
Information
regarding contractual obligations of the Registrant is included in the
Registrant’s Management’s Discussion and Analysis for the year ended December
31, 2008, which is filed as Exhibit 99.3 to this Annual Report on Form
40-F.
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
A Form
F-X signed by the Registrant and its agent for service of process was filed with
the Commission together with the Registrant’s Annual Report on Form 40-F for the
fiscal year ended December 31, 2007.
Any
change to the name and address of the agent for service 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.
SIGNATURES
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 report
to be signed on its behalf by the undersigned, thereto duly
authorized.
Registrant:
BAYTEX ENERGY TRUST
By: Baytex Energy Ltd.
(signed) "W. Derek
Aylesworth"
Name: W. Derek Aylesworth,
CA
Title: Chief
Financial Officer
Date:
March 26, 2009
Form
40-F Table of Contents
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Exhibit
No.
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Document
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99.1
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Annual
Information Form of the Registrant for the fiscal year ended December 31,
2008
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99.2
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Audited
Consolidated Financial Statements of the Registrant for the year ended
December 31, 2008, including reconciliation to United States generally
accepted accounting principles, together with the Auditors’ Report
thereon.
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99.3
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Management’s
Discussion and Analysis of the Registrant for the year ended December 31,
2008.
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99.4
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Certification
of Chief Executive Officer under Section 302 of the Sarbanes-Oxley Act of
2002.
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99.5
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Certification
of Chief Financial Officer under Section 302 of the Sarbanes-Oxley Act of
2002.
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99.6
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Certification
of Chief Executive Officer under Section 906 of the Sarbanes-Oxley Act of
2002.
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99.7
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Certification
of Chief Financial Officer under Section 906 of the Sarbanes-Oxley Act of
2002.
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99.8
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Consent
of Deloitte & Touche LLP, independent registered chartered
accountants.
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99.9
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Consent
of Sproule Associates Limited, independent
engineers.
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