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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
FORM
40-F
 
 
(Check One)
☐
Registration statement pursuant to Section 12 of the Securities Exchange Act of 1934
or
 
☒
Annual report pursuant to section 13(a) or 15(d) of the Securities Exchange Act of 1934
For the fiscal year ended December 31, 2021
Commission file number
1-32895
 
 
OBSIDIAN ENERGY LTD.
(Exact name of registrant as specified in its charter)
 
 
 
Alberta, Canada
  
1311
  
Not applicable
(Province or other jurisdiction of
incorporation or organization)
  
(Primary Standard Industrial
Classification Code Number
(if applicable))
  
(I.R.S. Employer
Identification Number
(if Applicable))
Suite 200, 207 – 9
th
Avenue SW, Calgary, Alberta, Canada T2P 1K3
(403)
777-2500
(Address and Telephone Number of Registrant’s Principal Executive Offices)
DL Services Inc., Columbia Center, 701 Fifth Avenue, Suite 6100, Seattle, Washington 98104-7043
(206)
903-5448
(Name, Address (Including Zip Code) and Telephone Number
(Including Area Code) of Agent For Service in the United States)
Securities registered or to be registered pursuant to Section 12(b) of the Act.
 
Title of each class
  
Trading Symbol
  
Name of each exchange on which registered
 
Common Shares
 
OBE
 
 
NYSE American, LLC
 
         
Securities registered or to be registered pursuant to Section 12(g) of the Act:
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:
 
☒
Annual Information Form
   ☒
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:
 
80,753,516
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  ☒            No  ☐
Indicate by
check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation
S-T
(§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to submit such files).
Yes  ☒            No  ☐
Indicate by
check mark whether the registrant is an emerging growth company as defined in Rule
12b-2
of the Exchange Act.
Emerging
growth company  ☐
If an
e
merging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐
Indicate
by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report.
Yes  
☒
            No  ☐
 
 
 
FORM
40-F
Principal Documents
The following documents, filed as Exhibits 99.1, 99.2, 99.3 and 99.4 to this Annual Report on Form
40-F,
are hereby incorporated by reference into this Annual Report on Form
40-F:
 
 
(a)
Annual Information Form for the fiscal year ended December 31, 2021;
 
 
(b)
Management’s Discussion and Analysis of Financial Condition and Results of Operations for the fiscal year ended December 31, 2021;
 
 
(c)
Audited Consolidated Financial Statements for the fiscal year ended December 31, 2021, prepared under International Financial Reporting Standards as issued by the International Accounting Standards Board; and
 
 
(d)
Supplemental Oil and Gas information.
ADDITIONAL DISCLOSURE
Certifications and Disclosure Regarding Controls and Procedures.
 
(a)
Certifications
. See Exhibits 99.5, 99.6, 99.7 and 99.8 to this Annual Report on Form
40-F.
 
(b)
Disclosure Controls and Procedures
. As of the end of Obsidian Energy Ltd.’s (“Obsidian Energy”) fiscal year ended December 31, 2021, an evaluation of the effectiveness of Obsidian Energy’s “disclosure controls and procedures” (as such term is defined in Rules
13a-15(e)
and
15d-15(e)
under the Exchange Act) was carried out by the management of Obsidian Energy, with the participation of the Interim President and Chief Executive Officer (“CEO”) and the Chief Financial Officer (“CFO”) of Obsidian Energy. Based upon that evaluation, the CEO and CFO have concluded that as of the end of that fiscal year, Obsidian Energy’s disclosure controls and procedures were effective to ensure that information required to be disclosed by Obsidian Energy in reports that it files or submits under the Exchange Act is (i) recorded, processed, summarized and reported within the time periods specified in Securities and Exchange Commission (the “Commission”) rules and forms and (ii) accumulated and communicated to the management of Obsidian Energy, including the CEO and CFO, to allow timely decisions regarding required disclosure.
It should be noted that while the CEO and CFO believe that Obsidian Energy’s disclosure controls and procedures provide a reasonable level of assurance that they are effective, they do not expect that Obsidian Energy’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.
 
(c)
Management’s Annual Report on Internal Control Over Financial Reporting
.
Management is responsible for establishing and maintaining adequate internal control over Obsidian Energy’s financial reporting. Obsidian Energy’s internal control system was designed to provide reasonable assurance that all transactions are accurately recorded, that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that Obsidian Energy’s assets are safeguarded.
Management has assessed the effectiveness of Obsidian Energy’s internal control over financial reporting as at December 31, 2021. In making its assessment, management used the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) framework in Internal Control – Integrated Framework (2013) to evaluate the effectiveness of Obsidian Energy’s internal control over financial reporting. Based on this assessment, management has concluded that Obsidian Energy’s internal control over financial reporting was effective as of December 31, 2021.
(d)
Attestation Report of the Registered Public Accounting Firm
. The required disclosure is included in the Report of Independent Registered Public Accounting Firm on Obsidian Energy’s internal control over financial reporting that accompanies Obsidian Energy’s Audited Consolidated Financial Statements for the fiscal year ended December 31, 2021, filed as Exhibit 99.3 to this Annual Report on Form
40-F.
 
(e)
Changes in Internal Control Over Financial Reporting (“ICFR”)
. The required disclosure is included under the heading “Changes in Internal Control Over Financial Reporting” in the Company’s Management’s Discussion and Analysis of Financial Condition and Results of Operations for the fiscal year ended December 31, 2021, filed as Exhibit 99.2 to this Annual Report on Form
40-F.
Notices Pursuant to Regulation BTR.
None.
Audit Committee Financial Expert.
Obsidian Energy’s board of directors has determined that Raymond Crossley, a member of Obsidian Energy’s audit committee, qualifies as an “audit committee financial expert” (as such term is defined in Form
40-F).
Mr. Crossley is “independent” as that term is defined in the rules of the NYSE American stock exchange.
Code of Business Conduct
.
Obsidian Energy has adopted a Code of Business Conduct and Ethics that applies to all employees, officers and directors of Obsidian Energy. This Code constitutes a “code of ethics” as defined in Form
40-F
and is referred to in this Annual Report on Form
40-F
as the “Code of Ethics”.
The Code of Ethics is available for viewing on Obsidian Energy’s website at
www.obsidianenergy.com
, is available in print to any shareholder who requests a copy, and is filed as an exhibit to this Annual Report on Form
40-F.
Requests for copies of the Code of Ethics should be made by contacting: investor relations by phone at (888)
770-2633
or by
e-mail
to
investor_relations@obsidianenergy.com
.
During the year ended December 31, 2021, there have not been any amendments to, or waivers, including implicit waivers, from, any provision of the Code of Ethics.
If any amendment to the Code of Ethics is made, or if any waiver from the provisions thereof is granted, Obsidian Energy may elect to disclose the information about such amendment or waiver required by Form
40-F
to be disclosed, by posting such disclosure on Obsidian Energy’s website, which may be accessed at
www.obsidianenergy.com
.
Principal Accountant Fees and Services.
Our independent registered public accounting firm is KPMG LLP, Calgary AB, Auditor Firm ID 85.
The required disclosure is included under the heading “External Auditor Service Fees” in Obsidian Energy’s Annual Information Form for the fiscal year ended December 31, 2021, filed as Exhibit 99.1 hereto.
Pre-Approval
Policies and Procedures.
 
(a)
The terms of the engagement of Obsidian Energy’s external auditors to provide audit services, including the budgeted fees for such audit services and the representations and disclaimers relating thereto, must be
pre-approved
by the entire audit committee.
With respect to any engagements of Obsidian Energy’s external auditors for
non-audit
services, Obsidian Energy must obtain the approval of the audit committee prior to retaining the external auditors to complete such engagement. However, the audit committee may delegate to one or more audit committee members (the “Delegate”) authority to
pre-approve
non-audit
services, subject to the fee restriction below. If such delegation occurs, the
pre-approval
of
non-audit
services by the Delegate, must be presented to the audit committee at its first scheduled meeting following such
pre-approval
and the member(s) comply with such other procedures as may be established by the audit committee from time to time. The fees for such
non-audit
services shall not exceed $50,000, either individually or in the aggregate, for a particular financial year without the approval of the audit committee.
 
(b)
Of the fees reported in this Annual Report on Form
40-F
under the heading “Principal Accountant Fees and Services”, none of the fees billed by KPMG LLP or Ernst & Young LLP were approved by Obsidian Energy’s audit committee pursuant to the
de minimus
exception provided by Section (c)(7)(i)(C) of Rule
2-01
of Regulation
S-X.
Off-Balance
Sheet Arrangements.
Obsidian Energy has
off-balance-sheet
financing arrangements consisting of operating leases. The operating lease payments are summarized below in the Tabular Disclosure of Contractual Obligations.
Cash Requirements
The required disclosure is included under the headings “Liquidity and Capital Resources” and “Contractual Obligations and Commitments” in the Company’s Management’s Discussion and Analysis for the year ended December 31, 2021, filed as Exhibit 99.2 to this Annual Report on Form 40-F.
Identification of the Audit Committee.
Obsidian Energy 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: Raymond Crossley, John Brydson and Gordon Ritchie.
Mine Safety Disclosure.
Not applicable.
NYSE American Statement of Governance Differences
As a Canadian corporation listed on the NYSE American stock exchange, Obsidian Energy is not required to comply with most of the NYSE American corporate governance standards, so long as it complies with Canadian corporate governance practices. In order to claim such an exemption, however, Obsidian Energy must disclose the significant difference between its corporate governance practices and those required to be followed by U.S. domestic companies under the NYSE American’s corporate governance standards. Obsidian Energy has included a description of such significant differences in corporate governance practices on its website which may be accessed at
www.obsidianenergy.com
.
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
 
A.
Undertaking.
Obsidian Energy 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.
 
B.
Consent to Service of Process.
Obsidian Energy 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 Obsidian Energy shall be communicated promptly to the Commission by an amendment to the Form
F-X
referencing the file number of Obsidian Energy.
SIGNATURES
Pursuant to the requirements of the Exchange Act, Obsidian Energy Ltd. certifies that it meets all of the requirements for filing on Form
40-F
and has duly caused this annual report to be signed on its behalf by the undersigned, thereunto duly authorized, on February 24, 2022.
 
Obsidian Energy Ltd.
By:
 
/s/ Stephen E. Loukas
Name:
 
Stephen E. Loukas
Title:
 
Interim President and Chief Executive Officer
EXHIBIT INDEX
 
Exhibit
  
Description
99.1
  
99.2
  
99.3
  
99.4
  
99.5
  
99.6
  
99.7
  
99.8
  
99.9
  
99.10
  
99.11