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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
[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, 2005 Commission File Number: 0-13979
BREAKWATER RESOURCES LTD.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CANADA
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(PROVINCE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
1000
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(PRIMARY STANDARD INDUSTRIAL CLASSIFICATION CODE NUMBER (IF APPLICABLE))
950-950 WELLINGTON STREET WEST, TORONTO, ONTARIO, CANADA, M5J 2N7
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(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CT Corporation System
1015-15th Street
Washington D.C. 20005
(202) 572 3100
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(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
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(Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d)
of the Act.
No Applicable
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(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 Company's classes of
capital or common stock as of the close of the period covered by the annual
report.
380,917,489
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
As of the end of the period covered by this Form 40-F, the Company conducted an
evaluation (under the supervision and with the participation of the Company's
management, including the chief executive officer and chief financial officer),
pursuant to Rule 13a-15 promulgated under the Securities Exchange Act of 1934,
as amended, of the effectiveness of the design and operation of the Company's
disclosure controls and procedures. Based on this evaluation, the Company's
chief executive officer and chief financial officer concluded that as of the end
of the period covered by this Form 40-F such disclosure controls and procedures
were effective.
CHANGES TO INTERNAL CONTROLS OVER FINANCIAL REPORTING
During the period covered by this Form 40-F, there have been no changes in the
Company's internal controls over financial reporting that have materially
affected, or are reasonably likely to materially affect, the Company's internal
control over financial reporting.
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 Company 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.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
AUDITOR'S FEES
The table below shows the fees that Deloitte & Touche LLP (the "Auditors"), the
Company's external auditor, billed to the Company and its subsidiaries for
various services for each year in the past two fiscal years.
FISCAL YEAR ENDED FISCAL YEAR ENDED
DECEMBER 31, 2005 (C$) DECEMBER 31, 2004 (C$)
Audit fees 833,920 405,000
Audit-related fees 38,000 247,000
Tax fees 29,105 75,000
TOTAL 901,025 727,000
AUDIT FEES
These fees include professional services provided by the Auditors for the review
of the interim financial statements, statutory audits of the annual financial
statements, consulting on financial accounting and reporting standards, other
regulatory audits and filings and translation services.
AUDIT-RELATED FEES
These fees relate to readiness assistance relating to The SARBANES-OXLEY ACT OF
2002 complaince plan and the audit of the employee pension plan financial
statements.
TAX FEES
These fees include assistance relating to tax compliance.
PRE-APPROVAL OF AUDITOR'S SERVICES
The audit committee of the Board of Directors of the Company is responsible for
the oversight of work conducted by the independent auditor of the Company. The
audit committee is required to pre-approve all audit and non-audit services
provided by the Auditors, including audit services, audit-related services, tax
services and other services provided by the auditors but 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. Also, 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.
TABULAR DISCLOSURE OF CONTRACTUAL OBLIGATIONS
The information required by Item 12 of General Instruction B is included under
the heading "Contractual Obligations" in Management's Discussion and Analysis,
which is filed as Exhibit II to this Annual Report.
IDENTIFICATION OF AUDIT COMMITTEE
The Company's audit committee is comprised of three independent directors, who
are, Grant A. Edey (Chair), Garth A.C. MacRae and A. Murray Sinclair, Jr.
CRITICAL ACCOUNTING POLICIES
The information on critical accounting policies is included under the heading
"Critical Accounting Estimates" in Management's Discussion and Analysis which is
filed as Exhibit II to this Annual Report.
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, Company's 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 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 has no obligation and expressly 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 AND CONSENT TO SERVICE OF PROCESS
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.
The Company has previously filed with the Commission a Form F-X in connection
with its common shares.
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.
By: /s/ George E. Pirie
President and Chief Executive Officer
Date: March 30, 2006
EXHIBITS FILED AS PART OF THIS REPORT
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EXHIBIT NO. DESCRIPTION
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I Annual Information Form for the financial year ended December 31, 2005.
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II Management's Discussion and Analysis for the financial year ended December 31, 2005.
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III Audited Financial Statements and notes thereto for the financial year ended December 31, 2005 including U.S. GAAP
Reconciliation included in Note 18 to the Audited Financial Statements for the financial year ended December 31,
2005.
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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).
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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).
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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.
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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.
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99.5 Consent of Deloitte & Touche LLP
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99.6 Consent of SRK Consulting
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