U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 40-F
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¨
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Registration
statement pursuant to Section 12 of the Securities Exchange Act of 1934
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or
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x
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Annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934
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For the fiscal year ended
December 31, 2017
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Commission File Number
001-31722
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New
Gold Inc.
(Exact name of Registrant as specified in
its charter)
British Columbia
(Province or other jurisdiction of
incorporation or organization)
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1000
(Primary Standard Industrial
Classification Code Number)
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Not Applicable
(I.R.S. Employer
Identification Number)
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Suite 3510 Brookfield Place, 181 Bay Street
Toronto, Ontario, Canada M5J 2T3
(416) 324-6000
(Address and telephone number of Registrant’s principal executive offices)
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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)
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Securities registered pursuant to Section
12(b) of the Act:
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Title of Each Class:
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Name of Each Exchange On Which Registered:
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Common Shares, no par value
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NYSE American
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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:
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x
Annual Information Form
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x
Audited Annual Financial Statements
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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:
At
December 31, 2017
, the Registrant had outstanding
578,635,838 common shares without par value.
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.
x
Yes
¨
No
Indicate
by check mark whether the Registrant has submitted electronically and posted on its corporate Web site, if any, every
Interactive Data File required to be submitted and posted 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 and post such
files).
¨
Yes
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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 emerging 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.
¨
DOCUMENTS INCORPORATED BY REFERENCE
The
Annual Information Form (“
AIF
”) of New Gold Inc. (the “
Registrant
”,
“
New Gold
” or the “
Company
”)
for the fiscal year ended December 31, 2017 is filed as Exhibit 1 to this annual report on Form 40-F.
The audited
consolidated financial statements of the Company for the years ended December 31, 2017 and 2016, including the related report of
independent registered public accounting firm, are filed as Exhibit 2 to this annual report on Form 40-F.
The
Company’s management’s discussion and analysis (“
MD&A
”) for
the year ended December 31, 2017 is filed as Exhibit 3 to this annual report on Form 40-F.
EXPLANATORY NOTE
The
Company is a Canadian issuer eligible to file its annual report pursuant to Section 13 of the Securities Exchange Act of 1934,
as amended (the “
Exchange Act
”), on Form 40-F. The Company is a “foreign
private issuer” as defined in Rule 3b-4 under the Exchange Act. Accordingly, the Company’s equity securities are exempt
from Sections 14(a), 14(b), 14(c), 14(f) and 16 of the Exchange Act pursuant to Rule 3a12-3 under the Exchange Act.
The Company
is permitted, under a multi-jurisdictional disclosure system adopted by the United States, to prepare the documents incorporated
by reference in this annual report on Form 40-F in accordance with Canadian disclosure requirements, which are different from those
of the United States.
Information concerning the properties and
operations of New Gold has been prepared in accordance with Canadian standards under applicable Canadian securities laws, and may
not be comparable to similar information for United States companies. The terms “Mineral Resource”, “Measured
Mineral Resource”, “Indicated Mineral Resource” and “Inferred Mineral Resource” used in this annual
report on Form 40-F are Canadian mining terms as defined in the Canadian Institute of Mining, Metallurgy and Petroleum (“
CIM
”)
Definition Standards for Mineral Resources and Mineral Reserves adopted by CIM Council on May 10, 2014 and incorporated by reference
in National Instrument 43-101 (“
NI 43-101
”). While the terms “Mineral Resource”, “Measured
Mineral Resource”, “Indicated Mineral Resource” and “Inferred Mineral Resource” are recognized and
required by Canadian securities regulations, they are not defined terms under standards of the United States Securities and Exchange
Commission. As such, certain information contained in this annual report on Form 40-F concerning descriptions of mineralization
and resources under Canadian standards is not comparable to similar information made public by United States companies subject
to the reporting and disclosure requirements of the United States Securities and Exchange Commission (“
SEC
”).
An “Inferred Mineral Resource”
has a great amount of uncertainty as to its existence and as to its economic and legal feasibility. Under Canadian rules, estimates
of Inferred Mineral Resources may not form the basis of feasibility or pre-feasibility studies. It cannot be assumed that all or
any part of an “Inferred Mineral Resource” will ever be upgraded to a higher confidence category. Readers are cautioned
not to assume that all or any part of an “Inferred Mineral Resource” exists or is economically or legally mineable.
Under United States standards, mineralization
may not be classified as a “Reserve” unless the determination has been made that the mineralization could be economically
and legally produced or extracted at the time the Reserve estimation is made. Readers are cautioned not to assume that all or any
part of the Measured or Indicated Mineral Resources will ever be converted into Mineral Reserves. In addition, the definitions
of “Proven Mineral Reserves” and “Probable Mineral Reserves” under CIM standards differ in certain respects
from the standards of the United States Securities and Exchange Commission.
The
Company prepares its financial statements in accordance with International Financial Reporting Standards as issued by the International
Accounting Standards Board (“
IFRS
”), and the financial statements are subject
to Canadian auditing and auditor independence standards. Accordingly, the financial statements of the Company included in this
annual report on Form 40-F may not be comparable to financial statements of United States companies.
Unless
otherwise indicated, all dollar amounts are reported in U.S. dollars.
FORWARD LOOKING STATEMENTS
Certain
information contained in this annual report on Form 40-F is “forward looking”. All statements in this annual report
on Form 40-F, other than statements of historical fact, which address events, results, outcomes or developments that New Gold expects
to occur are “forward-looking statements”. Forward-looking statements are statements that are not historical facts
and are generally, but not always, identified by the use of forward-looking terminology such as “plans”, “expects”,
“is expected”, “budget”, “scheduled”, “targeted”, “estimates”, “forecasts”,
“intends”, “anticipates”, “projects”, “potential”, “believes” or variations
of such words and phrases or statements that certain actions, events or results “may”, “could”, “would”,
“should”, “might” or “will be taken”, “occur” or “be achieved” or the
negative connotation of such terms. Forward-looking statements in this annual report on Form 40-F include those under the headings
“General Developments of the Business”, “Description of the Business” and “Mineral Properties”
and include, among others, statements with respect to: guidance for production, operating expenses per gold ounce sold, total cash
costs, all-in sustaining costs and capital costs, and the factors contributing to those expected results, as well as expected capital
expenditures; mine life; Mineral Reserve and Mineral Resource estimates; grades expected to be mined at the Company’s operations;
the expected production, costs, economics and operating parameters of Blackwater and New Afton C-zone; planned activities for 2018
and beyond at the Company’s operations and projects, as well as planned exploration activities and expenses; targeted timing
for permits for the Blackwater Project; and the timing of achievement of closing conditions for the sale of the Peak Mines.
All forward-looking
statements in this annual report on Form 40-F are based on the opinions and estimates of management as of the date such statements
are made and are subject to important risk factors and uncertainties, many of which are beyond New Gold’s ability to control
or predict. Certain material assumptions regarding such forward-looking statements are discussed in this annual report on Form
40-F, New Gold’s latest annual MD&A, AIF and Technical Reports filed at www.sedar.com and on the SEC’s Electronic
Data Gathering, Analysis and Retrieval database at www.sec.gov. In addition to, and subject to, such assumptions discussed in more
detail elsewhere, the forward-looking statements in this annual report on Form 40-F are also subject to the following assumptions:
(1) there being no significant disruptions affecting New Gold’s operations; (2) political and legal developments in jurisdictions
where New Gold operates, or may in the future operate, being consistent with New Gold’s current expectations; (3) the accuracy
of New Gold’s current Mineral Reserve and Mineral Resource estimates; (4) the exchange rate between the Canadian dollar,
Mexican peso, Australian dollar and U.S. dollar being approximately consistent with current levels; (5) prices for diesel, natural
gas, fuel oil, electricity and other key supplies being approximately consistent with current levels; (6) equipment, labour and
material costs increasing on a basis consistent with New Gold’s current expectations; (7) arrangements with First Nations
and other indigenous groups in respect of Rainy River and Blackwater being consistent with New Gold’s current expectations;
(8) all required permits, licenses and authorizations being obtained from the relevant governments and other relevant stakeholders
within the expected timelines; (9) the results of the feasibility studies for the New Afton C-zone and Blackwater being realized;
(10) and in the case of production, cost and expenditure outlooks at operating mines for 2018, commodity prices and exchange rates
being consistent with those estimated for the purposes of 2018 guidance.
Forward-looking
statements are necessarily based on estimates and assumptions that are inherently subject to known and unknown risks, uncertainties
and other factors that may cause actual results, level of activity, performance or achievements to be materially different from
those expressed or implied by such forward-looking statements. Such factors include, without limitation: significant capital requirements
and the availability and management of capital resources; additional funding requirements; price volatility in the spot and forward
markets for metals and other commodities; fluctuations in the international currency markets and in the rates of exchange of the
currencies of Canada, the United States, Australia and Mexico; discrepancies between actual and estimated production, between actual
and estimated Mineral Reserves and Mineral Resources and between actual and estimated metallurgical recoveries; changes in national
and local government legislation in the countries in which New Gold does or may in the future carry on business; taxation; controls,
regulations and political or economic developments in the countries in which New Gold does or may in the future carry on business;
the speculative nature of mineral exploration and development, including the risks of obtaining and maintaining the validity and
enforceability of the necessary licenses and permits and complying with the permitting requirements of each jurisdiction in which
New Gold operates, including, but not limited to: in Canada, obtaining the necessary permits for the Blackwater and New Afton C-zone
Projects; the uncertainties inherent to current and future legal challenges to which New Gold is or may become a party; diminishing
quantities or grades of Mineral Reserves and Mineral Resources; competition; loss of key employees; rising costs of labour, supplies,
fuel and equipment; actual results of current exploration or reclamation activities; uncertainties inherent to mining economic
studies including the feasibility studies for the New Afton C-zone and Blackwater Projects; the uncertainty with respect to prevailing
market conditions necessary for a positive development or construction decision at the New Afton C-zone and Blackwater Projects;
changes in project parameters as plans continue to be refined; accidents; labour disputes; defective title to mineral claims or
property or contests over claims to mineral properties; unexpected delays and costs inherent to consulting and accommodating rights
of First Nations and other indigenous groups; uncertainties and unanticipated delays associated with obtaining and maintaining
necessary licenses, permits and authorizations, complying with permitting requirements, and receiving the environmental assessment
approval for the Blackwater Project. In addition, there are risks and hazards associated with the business of mineral exploration,
development and mining, including environmental events and hazards, industrial accidents, unusual or unexpected formations, pressures,
cave-ins, flooding and gold bullion losses (and, in each case, the risk of inadequate insurance or inability to obtain insurance
to cover these risks) as well as “Risk Factors” included in this annual report on Form 40-F and in New Gold’s
disclosure documents incorporated by reference herein. Forward-looking statements are not guarantees of future performance, and
actual results and future events could materially differ from those anticipated in such statements. All of the forward-looking
statements contained in this annual report on Form 40-F or in documents incorporated by reference herein are qualified by these
cautionary statements. New Gold expressly disclaims any intention or obligation to update or revise any forward-looking statements
whether as a result of new information, events or otherwise, except in accordance with applicable securities laws.
DISCLOSURE CONTROLS AND PROCEDURES
The Company’s
Chief Executive Officer and Chief Financial Officer have evaluated the effectiveness of the Company’s disclosure controls
and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of December 31, 2017. Based on the evaluation,
the Chief Executive Officer and Chief Financial Officer concluded that, as of December 31, 2017 the Company’s disclosure
controls and procedures were effective to provide assurance that the information required to be disclosed by the Company in reports
it files or submits under the Exchange Act, is recorded, processed, summarized and reported on a timely basis in accordance with
applicable time periods specified by the Commission rules and forms and to ensure that information required to be disclosed by
the Company in reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management,
including its principal executive and financial officers, or persons performing similar functions, as appropriate, to allow timely
decisions regarding required disclosure.
MANAGEMENT’S REPORT ON INTERNAL
CONTROL OVER FINANCIAL REPORTING
The
Company’s management, including the Chief Executive Officer and the Chief Financial Officer, is responsible for establishing
and maintaining adequate internal control over financial reporting. Internal control over financial reporting is defined in Rule
13a-15(f) and Rule 15d-15(f) promulgated under the Exchange Act as a process designed by, or under the supervision of, a company’s
principal executive and principal financial officers and effected by the company’s board of directors, management and other
personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with International Financial Reporting Standards as issued by the International Accounting
Standards Board. The Company’s internal control over financial reporting includes those policies and procedures that:
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pertain to the maintenance
of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company;
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provide reasonable
assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally
accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations
of management and directors of the Company; and
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provide reasonable
assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets
that could have a material effect on the financial statements.
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The Company’s
management, under the supervision of the President and Chief Executive Officer and the Chief Financial Officer, assessed the effectiveness
of the Company’s internal control over financial reporting as defined in Rule 13a-15(f) and Rule 15d-15(f) under the Exchange
Act as of December 31, 2017. In making this assessment, it used the criteria set forth in the Internal Control-Integrated Framework
(2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on this assessment, management
has concluded that, as of December 31, 2017, the Company’s internal control over financial reporting is effective based on
those criteria. There are no material weaknesses that have been identified by management.
The
effectiveness of the Company’s internal control over financial reporting as of December 31, 2017 has been audited by Deloitte
LLP, the Company’s independent registered public accounting firm. As stated in their report immediately preceding the Company’s
audited consolidated financial statements for the year ended December 31, 2017, filed as Exhibit 2 to this annual report on Form
40-F.
ATTESTATION REPORT OF THE REGISTERED
PUBLIC ACCOUNTING FIRM
The reports
immediately preceding the Company’s audited consolidated financial statements for the years ended December 31, 2017 and 2016
are filed as Exhibit 2 to this annual report on Form 40-F.
CHANGES IN INTERNAL CONTROL OVER FINANCIAL
REPORTING
During
the fiscal year ended December 31, 2017, there were no changes in the Company’s internal control over financial reporting
that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial
reporting.
LIMITATIONS ON DISCLOSURE CONTROLS
AND PROCEDURES AND INTERNAL CONTROL OVER FINANCIAL REPORTING
The Company’s
management, including the Chief Executive Officer and the Chief Financial Officer, believe that any disclosure controls and procedures
or internal control over financial reporting, no matter how well conceived and operated, can provide only reasonable, not absolute,
assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that
there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent
limitations in all control systems, they cannot provide absolute assurance that all control issues and instances of fraud, if any,
within the Company have been prevented or detected. These inherent limitations include the realities that judgments in decision
making can be faulty and breakdowns can occur because of simple error or mistake. Additionally, controls can be circumvented by
the individual acts of some persons, by collusion of two or more people, or by unauthorized override control. The design of any
system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance
that any design will succeed in achieving its stated goals under all potential future conditions. Accordingly, because of the inherent
limitations in a cost effective control system, misstatements due to error or fraud may occur and not be detected.
AUDIT COMMITTEE IDENTIFICATION AND
FINANCIAL EXPERT
The Company
has an Audit Committee established by its board of directors for the purpose of overseeing the accounting and financial reporting
processes of the Company and audits of the financial statements of the Company, in accordance with Section 3(a)(58)(A) of the Exchange
Act. The members of the Audit Committee are Kay Priestly (Chair), Martyn Konig and Marilyn Schonberner. Each of Ms. Priestly, Mr.
Konig and Ms. Schonberner is “independent” as that term is defined under the rules of the NYSE American.
The Board
has determined that Kay Priestly and Marilyn Schonberner are each an “Audit Committee Financial Expert” as that term
is defined under Section 407 of the Sarbanes-Oxley Act of 2002 and paragraph (8) of General Instruction B of Form 40-F.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
The information provided under the headings
“Pre-Approval Policies and Procedures” page 66 and “External Auditor Service Fees (by category)” page 67
contained in the AIF is incorporated by reference.
CODE OF ETHICS
In
connection with a comprehensive review of the Company’s corporate governance policies, on August 13, 2008, the Board of Directors
of the Company (the “
Board
”) approved the adoption of a code of business conduct
and ethics (“
Code
”). The Code has been reviewed and updated annually since
its adoption, with the most recent review by the Board on February 20, 2018. The Code is applicable to all directors, officers
and employees of the Company, including its President and Chief Executive Officer, Chief Financial Officer and principal accounting
officer. The Code was adopted to, among other things, update and clarify the duties, obligations and responsibilities that are
imposed upon the persons subject to its provisions. A copy of the Code is filed as Exhibit 4 to this annual report on Form 40-F.
Additionally, on July 8, 2008, the Board approved the adoption of a Whistleblower Policy (“
Whistleblower Policy
”).
The Whistleblower Policy has been reviewed and ratified or updated annually since its adoption, with the most recent review by
the Board on February 20, 2018. The Whistleblower Policy outlines the principles and commitments that the Company has made with
respect to the treatment of complaints by its personnel. Copies of the Code and the Whistleblower Policy are available on the Company’s
website at www.newgold.com
.
There
were no waivers of the Code in the past fiscal year.
OFF-BALANCE SHEET ARRANGEMENTS
The Company has no off-balance sheet arrangements that
have, or are reasonably likely to have, a current or future material effect on the Company's financial condition, changes
in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources.
TABULAR DISCLOSURE OF CONTRACTUAL
OBLIGATIONS
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U.S. dollars in million
as of December 31, 2017
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Payments due by period
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Contractual obligations
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Total
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Less than 1 year
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1 - 3 years
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4 - 5 years
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After 5 years
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Long-term debt
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$
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1,030
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$
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-
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$
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230.0
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$
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500.0
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$
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300.0
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Interest payable on long-term debt
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$
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292.9
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$
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43.5
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$
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100.8
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$
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100.8
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47.8
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Operating lease commitments
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$
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10.3
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$
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2.1
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$
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2.8
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$
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2.2
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$
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3.2
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Capital expenditure commitments
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$
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51.4
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$
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48.5
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$
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2.7
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$
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0.2
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$
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-
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Reclamation and closure cost obligations
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$
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187.1
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3.4
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$
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14.7
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$
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17.7
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$
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151.0
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Gold stream obligation
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$
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290.5
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$
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24.7
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$
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52.4
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$
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54.8
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$
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158.6
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Total contractual obligations
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$
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1,862.2
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$
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122.2
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$
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403.4
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$
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675.7
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$
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660.6
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MINE SAFETY DISCLOSURE
The Company’s subsidiary, Western
Mesquite Mines, Inc., is the operator of the Mesquite Mine located in southern California. The information concerning mine safety
violations and other regulatory matters required by Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection
Act and Item 16 of General Instruction B to Form 40-F- in respect of the Mesquite Mine is filed as Exhibit 5 to this annual report
on Form 40-F.
NYSE AMERICAN CORPORATE GOVERNANCE
The Company’s common
shares are listed on the NYSE American. Section 110 of the NYSE American company guide permits NYSE American to consider the laws,
customs and practices of foreign issuers in relaxing certain NYSE American listing criteria, and to grant exemptions from NYSE
American listing criteria based on these considerations. A company seeking relief under these provisions is required to provide
written certification from independent local counsel that the non-complying practice is not prohibited by home country law. A description
of the significant ways in which the Company’s governance practices differ from those followed by domestic companies pursuant
to NYSE American standards is contained on the Company’s website at www.newgold.com.
UNDERTAKINGS
The Company 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 Company has filed with the Commission
an amendment dated January 21, 2010 to the written consent to service of process and power of attorney on Form F-X. Any change
to the name or address of the Company’s agent for service shall be communicated promptly to the Commission by amendment to
the Form F-X referencing the file number of the Company.
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 annual report to be signed on its behalf by the undersigned, thereto duly authorized.
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NEW GOLD INC.
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By:
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/s/ Paula Myson
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Name:
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Paula Myson
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Title:
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Chief Financial Officer
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Date: March 29, 2018
EXHIBIT INDEX
The following documents are being filed
with the Commission as exhibits to this annual report on Form 40-F.
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