UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 40-F
[ ] Registration statement pursuant to Section 12 of the Securities Exchange Act of 1934
or
[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, 2012 | Commission File Number 001-32405 |
NEVSUN RESOURCES LTD.
(Exact name of registrant as specified in its charter)
|
British Columbia (Province or Other Jurisdiction of Incorporation or Organization) |
1041 (Primary Standard Industrial Classification Code) |
Not Applicable (I.R.S. Employer Identification No.) |
760 - 669 Howe Street,
Vancouver, British Columbia,
Canada V6C 0B4
(604) 623-4700
(Address and
telephone number of registrant’s principal executive offices)
Gibson, Dunn & Crutcher LLP
3161 Michelson Drive, Irvine, CA 92612-4412
(949) 451-4343
(Name, address and telephone number 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: | Name of Each Exchange On Which Registered: |
| Common shares, no par value | NYSE MKT LLC |
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 |
At December 31, 2012, the Registrant had 198,982,815 outstanding common shares with no par value.
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 82-_______ [X] No
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 [ ]
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 [ ] No [X]
DOCUMENTS INCORPORATED BY REFERENCE
The Annual Information Form of Nevsun Resources Ltd. (the “Registrant”) for the fiscal year ended December 31, 2012 (the “Annual Information Form”) is attached as Exhibit 99.1 and is incorporated herein by reference.
The audited consolidated financial statements of the Registrant for the years December 31, 2012 and 2011 (the “Financial Statements”), including the reports of the auditors with respect thereto, are attached as Exhibit 99.2 and are incorporated herein by reference.
The Registrant’s management’s discussion and analysis (“MD&A”) for the years ended December 31, 2012 and 2011 is attached as Exhibit 99.3 and is incorporated herein by reference.
EXPLANATORY NOTE
The Registrant is a Canadian issuer eligible to file its annual report pursuant to Section 13 of the Securities Exchange Act of 1934 (the “Exchange Act”) on Form 40-F. The Registrant is a “foreign private issuer” as defined in Rule 3b-4 under the Exchange Act. Accordingly, the Registrant’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.
The Registrant is permitted, under a multi-jurisdictional disclosure system adopted by the United States, to prepare this annual report on Form 40-F in accordance with Canadian disclosure requirements, which are different from those of the United States. In particular, and without limiting the foregoing, all mineral resource and reserve estimates included in this report have been prepared in accordance with Canadian National Instrument 43-101 and the Canadian Institute of Mining and Metallurgy (“CIM”) Classification System. These standards differ significantly from the requirements of the United States Securities and Exchange Commission (the “Commission”), and mineral resource and reserve information included herein may not be comparable to similar information concerning United States companies.
For definitions of the terms mineral reserve, mineral resource, measured mineral resource, indicated mineral resource and inferred mineral resource under CIM standards, and a summary of the differences between CIM and U.S. standards, see the sections entitled “Information Concerning Preparation of Resource Estimates” and “Glossary and Defined Terms” beginning on page iii of the Registrant’s Annual Information Form attached to this report.
A copy of this 40-F and accompanying Exhibits may be found on the Company website: www.nevsun.com.
FORWARD LOOKING STATEMENTS
This report contains forward-looking statements concerning anticipated developments in the Registrant’s continuing operations in Eritrea and in the putative class action lawsuit, the adequacy of the Registrant’s financial resources, the potential to expand resources, reserves and mine life, dividend policy, financial projections, including, but not limited to, estimates of capital and operating costs, mining activities, production, grades, processing rates, life of mine, net cash flows, metal prices, exchange rates, reclamation costs, results of the drill program, the conversion of mineral properties to reserves and resources and other events or conditions that may occur in the future. Forward-looking statements are frequently, but not always, identified by words such as “expects,” “anticipates,” “believes,” “intends,” “estimates,” “potential,” “possible,” “budget” and similar expressions, or statements that events, conditions or results “will,” “may,” “could” or “should” occur or be achieved. Information concerning the interpretation of drill results and mineral resource and reserve estimates also may be deemed to be forward-looking
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statements, as such information constitutes a prediction of what mineralization might be found to be present if and when an area is mined. Forward-looking statements are statements about the future and are inherently uncertain, and actual achievements of the Registrant or other future events or conditions may differ materially from those reflected in the forward-looking statements due to a variety of risks, uncertainties and other factors, including, without limitation, those described in the Annual Information Form of the Registrant included in this report.
The Registrant’s forward-looking statements are based on the beliefs, expectations and opinions of management on the date the statements are made and the Registrant assumes no obligation to update such forward-looking statements in the future. For the reasons set forth above, investors should not place undue reliance on forward-looking statements.
MANAGEMENT REPORT ON DISCLOSURE CONTROLS AND PROCEDURES
See “Disclosure Controls and Procedures” in Exhibit 99.3 MD&A.
MANAGEMENT REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING
The Registrant’s management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act.
The Registrant’s internal control over financial reporting includes those policies and procedures that: (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the Registrant’s assets; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that the Registrant’s receipts and expenditures are being made only in accordance with authorizations of the Registrant’s management and directors; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Registrant’s assets that could have a material effect on the financial statements.
With the participation of the Registrant’s Chief Executive Officer and the Registrant’s Chief Financial Officer, management conducted an evaluation of the effectiveness of the Registrant’s internal control over financial reporting, as of December 31, 2012, based on the framework set forth in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on its evaluation under this framework, management concluded that the Registrant’s internal control over financial reporting was effective as of that date.
KPMG LLP, an independent registered public accounting firm, which audited and reported on the Registrant’s consolidated financial statements, has issued an attestation report on the effectiveness of the Registrant’s internal control over financial reporting as of December 31, 2012. The attestation report is included with the Financial Statements in Exhibit 99.2.
AUDITOR ATTESTATION
See “Report of Independent Registered Public Accounting Firm” in Exhibit 99.2 Financial Statements.
CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING
See “Internal Control Over Financial Reporting” in Exhibit 99.3 MD&A.
AUDIT COMMITTEE AND AUDIT COMMITTEE FINANCIAL EXPERT
See “Audit Committee Charter” and “Composition of the Audit Committee” in Exhibit 99.1 Annual Information Form.
CODE OF ETHICS
The Registrant has adopted a code of ethics that applies to its principal executive officer, principal financial officer and principal accounting officer or persons performing similar functions. A copy of the code of ethics, as revised, is posted on the Registrant’s Internet website at www.nevsun.com, and is available in print to any person without charge, upon written request to the corporate secretary of the Registrant. The code of ethics was amended on March 19, 2013. No waivers of the code of ethics have been granted to any principal officer of the Registrant or any person performing similar functions.
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PRINCIPAL ACCOUNTANT FEES AND SERVICES
See “External Auditor Fee” in Exhibit 99.1 Annual Information Form.
OFF-BALANCE SHEET ARRANGEMENTS
See “Commitments and Contractual Obligations” in Exhibit 99.3 MD&A.
TABULAR DISCLOSURE OF CONTRACTUAL OBLIGATIONS
See “Commitments and Contractual Obligations” in Exhibit 99.3 MD&A.
MINE SAFETY DISCLOSURE
The Registrant does not operate any mine in the United States, and has no mine safety incidents to report for the year ended December 31, 2012.
UNDERTAKINGS
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 to transactions in said securities.
CONSENT TO SERVICE OF PROCESS
The Registrant has previously filed with the Commission a written consent to service of process and power of attorney on Form F-X.
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.
NEVSUN RESOURCES LTD.
| By: | /s/ Cliff T. Davis |
| Cliff T. Davis Chief Executive Officer and Director |
Date: March 20, 2013
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EXHIBIT INDEX
The following exhibits have been filed as part of the annual report:
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