OMB APPROVAL
----------------------------
OMB Number: 3235-0381
Expires: April 30, 2006
Estimated average burden
hours per response.......427
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
[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: 782875
BREAKWATER RESOURCES LTD.
- --------------------------------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CANADA
- --------------------------------------------------------------------------------
(PROVINCE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
1000
- --------------------------------------------------------------------------------
(PRIMARY STANDARD INDUSTRIAL CLASSIFICATION CODE NUMBER (IF APPLICABLE))
950 WELLINGTON STREET WEST, TORONTO, ONTARIO, CANADA, M5J 2N7
- --------------------------------------------------------------------------------
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CT Corporation System
111 Eighth Avenue
New York, N.Y. 10011
(212) 894-8440
- --------------------------------------------------------------------------------
(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 Name of each exchange on which registered
Not Applicable Not Applicable
Securities registered or to be registered pursuant to Section 12(g) of the Act.
Common Shares
- --------------------------------------------------------------------------------
(Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d)
of the Act.
No Applicable
- --------------------------------------------------------------------------------
(Title of Class)
SEC 2285 (08-03) PERSONS WHO ARE TO RESPOND TO THE COLLECTION OF INFORMATION
CONTAINED IN THIS FORM ARE NOT REQUIRED TO RESPOND UNLESS
THE FORM DISPLAYS A CURRENTLY VALID OMB CONTROL NUMBER.
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.
363,156,141
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 [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.
[X] Yes [ ] No
DISCLOSURE CONTROLS AND PROCEDURES
Disclosure controls and procedures are defined by the Securities and Exchange
Commission as those controls and other procedures that are designed to ensure
that information required to be disclosed by Breakwater Resources Ltd. (the
"Company") the Company in reports filed or submitted by it under the Securities
Exchange Act of 1934 is recorded, processed, summarized and reported within the
time periods specified in the Securities and Exchange Commission's rules and
forms. The Company's Chief Executive Officer and Chief Financial Officer have
evaluated the Company's disclosure controls and procedures within 90 days prior
to filing of this Annual Report on Form 40-F and have determined that such
disclosure controls and procedures are effective.
Since the most recent evaluation of the Company's internal controls, there have
not been any significant changes in the Company's internal controls or in other
factors that could significantly affect internal controls, including any
corrective actions with regard to significant deficiencies and material
weaknesses.
The design of the Company's system of controls and procedures is based, in part,
upon assumptions about the likelihood of future events. There can be no
assurance that the design of such system of controls and procedures will succeed
in achieving its goals under all potential future conditions, regardless of how
remote.
AUDIT COMMITTEE FINANCIAL EXPERT
The board of directors of the Registrant has determined that the Chair of the
audit committee, Mr. Grant A. Edey, qualifies as an "audit committee financial
expert who is also an independent director.
CODE OF ETHICS
The Registrant has not adopted a written code of ethics for its principal
executive officer, principal financial officer, principal accounting officer or
controller, or persons performing similar functions. Ethical oversight and
actual or apparent conflicts of interest have historically been handled
informally by senior management and the board of directors. The Registrant is
currently reviewing examples of written codes of ethics and will address the
adoption of such a code with the board of directors in the near future.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
AUDITOR'S FEES
The table below shows the fees that Deloitte & Touche LLP ("Deloitte & Touche"),
the Company's external auditor, billed to the Registrant and its subsidiaries
for various services for each year in the past two fiscal years.
FISCAL YEAR ENDED FISCAL YEAR ENDED
DECEMBER 31, 2004 (C$) DECEMBER 31, 2003 (C$)
Audit fees 405,000 310,000
Audit-related fees 247,000 245,400
Tax fees 75,000 91,400
Other fees - 5,100
- ----------------------------------------------------------------------------------------
TOTAL 727,000 651,900
AUDIT FEES
These fees include professional services provided by the external auditor for
the review of the interim financial statements, statutory audits of the annual
financial statements, the review of prospectuses, consulting on financial
accounting and reporting standards, other regulatory audits and filings and
translation services.
AUDIT-RELATED FEES
These fees relate to SARBANES-OXLEY ACT OF 2002 initiatives including reviewing
documentation from the pilot and provide feedback; review project plan and
provide feedback on timelines and provide budget estimates and timelines for
auditor attestation requirements.
TAX FEES
These fees include professional services for preparing of (a) U.S. income tax
returns for foreign corporations; (b) for a subsidiary, filing U.S. income tax
return; filing information returns; Florida corporate income/franchise and
emergency excise tax return; and Montana corporation license tax return.
OTHER FEES
During the fiscal year ended December 31, 2003, these fee related to assistance
rendered in connection with business interruption claim.
PRE-APPROVAL OF AUDITOR'S SERVICES
The audit committee is responsible for the oversight of our independent
auditor's work. The policy of our audit committee is to pre-approve all audit
and non-audit services provided by Deloitte & Touche LLP, including audit
services, audit-related services, tax services and other services provided by
the auditors. Any services provided by the auditors that are not specifically
included in the scope of the audit must be pre-approved by the audit committee
prior to any engagement. The audit committee is permitted to approve certain fee
for audit-related services, tax services and other services pursuant to a de
minimus exception before the completion of the engagement.
CONTRACTUAL OBLIGATIONS
The information required by Item 12 of General Instruction B is located under
the heading "Contractual Obligations" in Management's Discussion and Analysis,
which is filed as Exhibit II to this Annual Report and is incorporated by
reference herein.
CAUTIONARY NOTE TO U.S. INVESTORS CONCERNING ESTIMATES OF MEASURED, INDICATED
AND INFERRED MINERAL RESOURCES
In this document the Corporation uses the term "mineral resources" and its
subcategories "measured", "indicated" and "inferred" mineral resources.
Investors are advised that while such terms are recognized and required by
Canadian regulations, the U.S. Securities and Exchange Commission does not
recognize them. U.S. investors are cautioned not to assume that any part or all
of mineral deposits in these categories will ever be converted into reserves.
"Inferred mineral resources" have a great amount of uncertainty as to their
existence, and great uncertainty as to their economic and legal feasibility. It
cannot be assumed that all or any part of an inferred mineral resource will ever
be upgraded to a higher category. Under Canadian rules, issuers must not make
any disclosure of results of an economic evaluation that includes inferred
mineral resources, except in rare cases. U.S. investors are cautioned not to
assume that part or all of an inferred mineral resource exists, or is
economically or legally mineable.
CAUTIONARY NOTES ON FORWARD LOOKING STATEMENTS
Certain statements included in this Form 40-F and the Exhibits thereto are
forward-looking statements, which are made pursuant to the "safe harbor"
provisions of the United States Private Securities Litigation Reform Act of
1995. They include estimates and statements
that describe the Company's future plans, objectives and goals, including words
to the effect that the Company or management expects a stated condition or
result to occur. When used herein, words such as "forecast", "estimate",
"expect, "believe", "intend", "intent", "budget", "plan", "projection" "hope"
and other similar expressions are intended to identify forward-looking
statements. In particular, statements relating to the estimated future metal
prices, cash flows, expenses, capital costs, ore production, mine life or
financing are forward-looking statements. Such forward-looking statements
involve inherent risks and uncertainties and subject to other factors, many of
which are beyond our control, that may cause the actual results or performance
to differ materially from those expressed or implied by such forward-looking
statements. Such factors include, among others, asset impairment, metal price
volatility, fluctuations in foreign exchange rates, economic and political
events affecting metal supply and demand, fluctuations in ore grade or ore
tonnes milled, geological, operating and environmental risks, problems during
the development, construction and start-up phases of an underground mine,
inadequacy of environmental insurance. For a more comprehensive review of risk
factors, please refer to the sections entitled "Risk Factors" and "Forward
Looking Statements" in Company's most recent annual information form as well as
the sections entitled "Risks and Uncertainties" in the Management's Discussion
and Analysis of Financial Results filed with this Form 40-F with the U.S.
Securities and Exchange Commission and Canadian provincial securities regulatory
authorities filed on SEDAR at www.sedar.com. The Company disclaims any
obligation to update or revise any forward-looking statements whether as a
result of new information, events or otherwise. Readers are cautioned not to put
undue reliance on these forward-looking statements.
UNDERTAKING
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 registration 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.
DOCUMENTS FILED AS PART OF THIS REPORT
- --------------------- --------------------------------------------------------------------------------------------------------------
EXHIBIT NO. DESCRIPTION
- --------------------- --------------------------------------------------------------------------------------------------------------
I Annual Information Form for the financial year ended December 31, 2004.
- --------------------- --------------------------------------------------------------------------------------------------------------
II Management's Discussion and Analysis for the financial year ended December 31, 2004.
- --------------------- --------------------------------------------------------------------------------------------------------------
III Audited Financial Statements and notes thereto for the financial year ended December 31, 2004. Including U.S.
GAAP Reconciliation included in Note 17 to the Audited Financial Statements for the financial year ended
December 31, 2004
- --------------------- --------------------------------------------------------------------------------------------------------------
EXHIBIT INDEX
- --------------------- --------------------------------------------------------------------------------------------------------------
EXHIBIT NO. DESCRIPTION
- --------------------- --------------------------------------------------------------------------------------------------------------
99.1 Certifications of the President and Chief Executive Officer required by SECTION 906 of Sarbanes-Oxley Act of
2002 pursuant to Rule 13a-14(a) and Rule 15d-14(a).
- --------------------- --------------------------------------------------------------------------------------------------------------
99.2 Certifications of the Chief Financial Officer required by SECTION 906 of Sarbanes-Oxley Act of 2002 pursuant
to Rule 13a-14(a) and Rule 15d-14(a).
- --------------------- --------------------------------------------------------------------------------------------------------------
99.3 Certification of the President and Chief Executive Officer pursuant to 18 U.S.C. Section 1350 as adopted
pursuant to SECTION 302 of the Sarbanes-Oxley Act of 2002.
- --------------------- --------------------------------------------------------------------------------------------------------------
99.4 Certification of the Chief Financial Officer pursuant to 18 U.S.C. Section 1350 as adopted pursuant to
SECTION 302 of the Sarbanes-Oxley Act of 2002.
- --------------------- --------------------------------------------------------------------------------------------------------------
99.5 Consent of Deloitte & Touche LLP
- --------------------- --------------------------------------------------------------------------------------------------------------
99.6 Consent of SRK Consulting
- --------------------- --------------------------------------------------------------------------------------------------------------
SIGNATURES
Pursuant to the requirements of the Exchange Act, the Company 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.
BREAKWATER RESOURCES LTD.
"Garth A.C. MacRae"
President and Chief Executive Officer
Date: March 31, 2005