Annual Report by a Canadian Issuer — Form 40-F — SEA’34
Filing Table of Contents
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24: R3 Consolidated Income Statements HTML 88K
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Income
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30: R9 Description of business and nature of operations HTML 36K
31: R10 Basis of preparation and material accounting HTML 106K
policies
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accounting policies
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43: R22 Reclamation and closure cost obligations HTML 69K
44: R23 Share capital HTML 85K
45: R24 Income and mining taxes HTML 84K
46: R25 Supplemental cash flow information HTML 55K
47: R26 Segmented information HTML 119K
48: R27 Capital risk management HTML 46K
49: R28 Financial risk management HTML 120K
50: R29 Fair value measurement HTML 91K
51: R30 Compensation of Key Management Personnel HTML 44K
52: R31 Commitments HTML 35K
53: R32 Basis of preparation and material accounting HTML 140K
policies (Policies)
54: R33 Basis of preparation and material accounting HTML 37K
policies (Tables)
55: R34 Expenses (Tables) HTML 81K
56: R35 Trade and other receivables (Tables) HTML 42K
57: R36 Investments (Tables) HTML 45K
58: R37 Trade and other payables (Tables) HTML 45K
59: R38 Inventories (Tables) HTML 42K
60: R39 Mining interests (Tables) HTML 113K
61: R40 Long-term debt (Tables) HTML 69K
62: R41 Non-current derivative financial liabilities HTML 63K
(Tables)
63: R42 Leases (Tables) HTML 56K
64: R43 Derivative instruments (Tables) HTML 82K
65: R44 Reclamation and closure cost obligations (Tables) HTML 66K
66: R45 Share capital (Tables) HTML 92K
67: R46 Income and mining taxes (Tables) HTML 84K
68: R47 Supplemental cash flow information (Tables) HTML 54K
69: R48 Segmented information (Tables) HTML 121K
70: R49 Capital risk management (Tables) HTML 43K
71: R50 Financial risk management (Tables) HTML 117K
72: R51 Fair value measurement (Tables) HTML 86K
73: R52 Compensation of Key Management Personnel (Tables) HTML 44K
74: R53 Basis of preparation and material accounting HTML 56K
policies (Details)
75: R54 Expenses - Operating expenses by nature (Details) HTML 61K
76: R55 Expenses - Finance costs and income (Details) HTML 53K
77: R56 Expenses - Other (Losses) and Gains (Details) HTML 52K
78: R57 Trade and other receivables (Details) HTML 43K
79: R58 Investments (Details) HTML 49K
80: R59 Trade and other payables (Details) HTML 53K
81: R60 Inventories (Details) HTML 48K
82: R61 Mining interests - Schedule of property, plant and HTML 97K
equipment (Details)
83: R62 Mining interests - Carrying amount (Details) HTML 63K
84: R63 Long-term debt - Schedule of borrowings (Details) HTML 39K
85: R64 Long-term debt - Narrative (Details) HTML 61K
86: R65 Long-term debt - Borrowings redemption prices HTML 41K
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87: R66 Long-term debt - Credit Facility (Details) HTML 48K
88: R67 Long-term debt - Financial Covenants (Details) HTML 59K
89: R68 Non-current derivative financial liabilities - HTML 56K
Change in stream obligation (Details)
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Narrative (Details)
91: R70 Leases - Right-of-use assets (Details) HTML 41K
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94: R73 Derivative instruments - Derivative assets and HTML 43K
liabilities (Details)
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sales (Details)
96: R75 Derivative instruments - Swap contracts (Details) HTML 43K
97: R76 Derivative instruments - Impact of movements in HTML 37K
market commodity prices (Details)
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99: R78 Reclamation and closure cost obligations - HTML 63K
Schedule of reclamation and closure cost
obligations (Details)
100: R79 Reclamation and closure cost obligations - HTML 44K
Narrative (Details)
101: R80 Share capital - Narrative (Details) HTML 35K
102: R81 Share capital - Common shares issued and HTML 52K
outstanding (Details)
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104: R83 Share capital - Changes in stock option plan HTML 57K
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105: R84 Share capital - Loss per share (Details) HTML 49K
106: R85 Share capital - Stock options excluded from the HTML 35K
calculation of diluted loss per share (Details)
107: R86 Income and mining taxes - Composition of income HTML 46K
tax expense (Details)
108: R87 Income and mining taxes - Income tax recovery HTML 60K
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109: R88 Income and mining taxes - Deferred income tax HTML 61K
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110: R89 Income and mining taxes - Movement in the net HTML 37K
deferred tax liabilities (Details)
111: R90 Income and mining taxes - Narrative (Details) HTML 41K
112: R91 Supplemental cash flow information (Details) HTML 63K
113: R92 Segmented information - Schedule of segment HTML 84K
information (Details)
114: R93 Segmented information - Segmented assets and HTML 55K
liabilities (Details)
115: R94 Segmented information - Narrative (Details) HTML 34K
116: R95 Segmented information - Information about major HTML 54K
customers (Details)
117: R96 Capital risk management - Schedule of capital HTML 45K
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118: R97 Capital risk management - Narrative (Details) HTML 37K
119: R98 Financial risk management - Credit risk (Details) HTML 40K
120: R99 Financial risk management - Credit risk - Aging of HTML 79K
trade and other receivables (Details)
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risk (Details)
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risk (Details)
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127: R106 Fair value measurement - Summary of financial HTML 78K
assets and liabilities by category (Details)
128: R107 Fair value measurement - Summary of carrying HTML 71K
values and fair values of financial instruments
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129: R108 Compensation of Key Management Personnel (Details) HTML 46K
130: R109 Commitments (Details) HTML 35K
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(i212)
i894-8940 (Name, address (including zip code) and telephone number (including area code) of agent for service in the United States)
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class:
Trading Symbol(s):
Name of Each Exchange
On Which Registered:
iCommon Shares, no par value
iNGD
iNYSE American
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:
i☒Annual Information Form i☒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:
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.
☒iYes ☐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).
☒iYes ☐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 i☐
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. ☐
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. i☒
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the
registrant included in the filing reflect the correction of an error to previously issued financial statements. i☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
The Annual Information Form (“AIF”) of New Gold Inc. (the “Registrant”, “New Gold” or the “Company”) for the fiscal year ended December 31, 2023 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, 2023 and 2022, including the related reports 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, 2023 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.
Disclosure regarding our mineral properties, including with respect to mineral reserve and mineral resource estimates included in this annual report on Form 40-F and the documents
incorporated by reference herein, was prepared in accordance with Canadian National Instrument 43-101 — Standards of Disclosure for Mineral Projects (“NI 43-101”). NI 43-101 is a rule developed by the Canadian Securities Administrators that establishes standards for all public disclosure an issuer makes of scientific and technical information concerning mineral projects. NI 43-101 differs significantly from the disclosure requirements of the Commission generally applicable to U.S. companies. For example, the terms “mineral reserve”, “proven mineral reserve”, “probable mineral reserve”, “mineral resource”, “measured mineral resource”, “indicated mineral resource” and “inferred mineral resource” are defined in NI 43-101. These definitions differ from the definitions in the disclosure requirements promulgated by the Commission.
Accordingly,
information contained in this annual report on Form 40-F and the documents incorporated by reference will not be comparable to similar information made public by U.S. companies reporting pursuant to Commission disclosure requirements.
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, including any information relating to New Gold’s future financial or operating performance are “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” within the
meaning of the U.S. Private Securities Litigation Reform Act of 1995 and applicable Canadian Securities laws. 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 and expectations for production, operating expenses per gold equivalent ounce, total cash costs per equivalent ounce, all-in sustaining costs per equivalent ounce and sustaining and growth capital expenditures on a consolidated and mine-by-mine basis, and the factors contributing to those expected results; anticipated mine life; Mineral Reserve and Mineral Resource estimates; grades expected to be mined and milled at the Company’s operations; planned activities and timing for 2024 and future years at the Rainy River Mine (as defined in Exhibit 1) and New Afton Mine (as defined in Exhibit 1), including planned development and exploration activities and related expenses; the Company’s
intention
to be fully compliant with the framework and guidance issued by the TCFD (as defined in Exhibit 1) by 2025; expectations that production at the Rainy River Mine will increase significantly over the next three years and the higher mill feed grades anticipated to result therefrom; accomplishing projected processing and throughput rates at Rainy River and anticipated timing associated therewith; successfully extending the open pit mine life at Rainy River by one year and operating the processing plant at full capacity until at least 2030; successfully completing Phase 3 mining at Rainy River in early 2024;the potential for further extension of open pit mining at Rainy River and successfully expanding existing resource envelopes and testing potential new zones starting in 2024; underground development successfully breaking through into the open pit in 2025 and the ability to haul ore via the open pit haul road as a result thereof;
successfully completing intended development and exploration initiatives in 2024 at Rainy River and New Afton; expectations that the mineralogy in C-Zone will be consistent with the hypogene sulphide mineralization in the West Cave; New Afton’s enhanced capacity to accurately track ground deformations and successfully mitigate potential impacts; successfully completing the overall NATSF (as defined in Exhibit 1) stabilization project in the first half of 2026; successfully achieving commercial production from the C-Zone in the second half of 2024; expectations that copper, gold and silver production will increase significantly over the next three years at New Afton; the Company’s ability to successfully extend New Afton’s mine life beyond 2030; successfully achieving C-Zone hydraulic radius in the second half of 2024; the intended installation of a second gyratory crusher at New Afton
and the anticipated elimination of truck haulage costs resulting therefrom; successful commissioning of the crusher chamber in the second half of 2024; the intention to take advantage of existing processing capacity at the New Afton mill and successfully processing up to 16,000 tpd (as defined in Exhibit 1); expectations that C-Zone operating costs will be significantly lower than current B3 unit mining costs; successfully transitioning to a period of production growth and decreasing costs at New Afton and the generation of strong cash flow expected to result therefrom over the coming years; the Company’s ability to successfully convert Mineral Resources to Mineral Reserves over the next few years; planned focus areas and initiatives regarding New Afton’s underground exploration program; successfully reassessing C-Zone height of draw assumptions in the coming years; the
Company’s ability to successfully establish a Mineral Resource and Mineral Reserve estimate for the East Extension, the evaluation of potential mining methods and anticipated capital investment required; the accuracy of expectations regarding the continued improvement of D-Zone potential with additional drilling; the achievement of developing a critical mass of Mineral Resources in the D-Zone to support a pre-feasibility study and potential step-change in New Afton Mineral Reserves resulting therefrom; the potential for discovery of new mining zones outside the main deposit and above the C-Zone footprint elevation; expectations regarding the sufficiency of New Afton’s processing plant, infrastructure and tailings storage facility to process sufficiently more ore beyond the current mine life; the potential for discovery of porphyry copper-gold deposits in South-Central British Columbia; the
Company’s plans to use regional high-grade ore as supplemental mill feed and the incremental cash flow expected therefrom; successful undertaking of planned underground and regional exploration initiatives at New Afton; and expectations regarding the management and mitigation of risk factors and the possible impacts on the Company.
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 annual and quarterly MD&A and its Technical Reports (as defined in Exhibit 1) filed on SEDAR+
(www.sedarplus.ca) and EDGAR (www.sec.gov). In addition to, and subject to, such assumptions discussed in more detail elsewhere, the forward-looking statements in this annual report Form 40-F are also subject to the following assumptions: (1) there being no significant disruptions affecting New Gold’s operations, including material disruptions to the Company’s supply chain, workforce or otherwise; (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 and the grade of gold, copper and silver expected to be mined; (4) the exchange rate between the Canadian dollar and U.S. dollar,
and commodity prices being approximately consistent with current levels and expectations for the purposes of 2024 guidance and otherwise; (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 the Rainy River Mine and New Afton Mine 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 and the absence of material negative comments or obstacles during any applicable regulatory processes; and (9) the results of the life of mine plans for the Rainy River Mine and the New Afton Mine being realized.
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: price volatility in the spot and forward markets for metals and other commodities; discrepancies between actual and estimated production, between actual and estimated costs, between actual and estimated Mineral Reserves and Mineral Resources and between actual and estimated metallurgical recoveries; equipment malfunction, failure or unavailability; accidents; risks related to early production at the Rainy River Mine, including failure of equipment, machinery, the process circuit or other processes to perform as designed or intended; 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: uncertainties and unanticipated delays associated with obtaining and maintaining necessary licenses, permits and authorizations and complying with permitting requirements; changes in project parameters as plans continue to be refined; changing costs, timelines and development schedules as it relates to construction; the Company not being able to complete its construction projects at the Rainy River Mine or the New Afton Mine on the anticipated timeline or at all; volatility in the market price of the Company’s securities; changes in national and local government legislation
in the countries in which New Gold does or may in the future carry on business; compliance with public company disclosure obligations; controls, regulations and political or economic developments in the countries in which New Gold does or may in the future carry on business; the Company’s dependence on the Rainy River Mine and New Afton Mine; the Company not being able to complete its exploration drilling programs on the anticipated timeline or at all; inadequate water management and stewardship; tailings storage facilities and structure failures; failing to complete stabilization projects according to plan; geotechnical instability and conditions; disruptions to the Company’s workforce at either the Rainy River Mine
or the New Afton Mine, or both; significant capital requirements and the availability and management of capital resources; additional funding requirements; diminishing quantities or grades of Mineral Reserves and Mineral Resources; actual results of current exploration or reclamation activities; uncertainties inherent to mining economic studies including the Technical Reports for the Rainy River Mine and New Afton Mine; impairment; unexpected delays and costs inherent to consulting and accommodating rights of First Nations and other Indigenous groups; climate change, environmental risks and hazards and the Company’s response thereto; ability to obtain and maintain sufficient insurance; actual results of current exploration or reclamation activities; fluctuations in the international currency markets and in the rates of exchange of the currencies of Canada, the United States; global economic
and financial conditions and any global or local natural events that may impede the economy or New Gold’s ability to carry on business in the normal course; inflation; compliance with debt obligations and maintaining sufficient liquidity; the responses of the relevant governments to any disease, epidemic or pandemic outbreak not being sufficient to contain the impact of such outbreak; disruptions to the Company’s supply chain and workforce due to any disease, epidemic or pandemic outbreak; an economic recession or downturn as a result of any disease, epidemic or pandemic outbreak that materially adversely affects the Company’s operations or liquidity position; taxation; fluctuation in treatment and refining charges; transportation and processing of unrefined products; rising costs or availability of
labour, supplies, fuel and equipment; adequate infrastructure; relationships with communities, governments and other stakeholders; labour disputes; effectiveness of supply chain due diligence; the uncertainties inherent in current and future legal challenges to which New Gold is or may become a party; defective title to mineral claims or property or contests over claims to mineral properties; competition; loss of, or inability to attract, key employees; use of derivative products and hedging transactions; reliance on third-party contractors; counterparty risk and the performance of third party service providers; investment risks and uncertainty relating to the value of equity investments in public companies held by the Company from time to time; the adequacy of internal and disclosure controls; conflicts of interest; the lack of certainty with respect to foreign operations and legal
systems, which may not be immune from the influence of political pressure, corruption or other factors that are inconsistent with the rule of law; the successful acquisitions and integration of business arrangements and realizing the intended benefits therefrom; and information systems security threats. In addition, there are risks and hazards associated with the business of mineral exploration, development, construction, operation and mining, including environmental events and hazards, industrial accidents, unusual or unexpected formations, pressures, cave-ins, flooding or drought 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 President and 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, 2023. Based on the evaluation, the Chief Executive Officer and Chief Financial Officer concluded that, as of December 31, 2023the 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 ANNUAL REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING
The Company’s management, including the President and 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 generally accepted accounting principles. The Company’s internal control over financial reporting includes those policies and procedures that:
•pertain
to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company;
•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
•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.
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, 2023. 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, 2023, 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, 2023 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 years ended December 31, 2023 and 2022, filed as Exhibit 2 to this annual report on Form 40-F, Deloitte LLP expressed an unqualified opinion on the effectiveness of the Company’s internal control over financial reporting.
ATTESTATION REPORT OF THE REGISTERED PUBLIC ACCOUNTING FIRM
The report immediately precedes the Company’s audited consolidated financial statements for the years ended December 31, 2023 and 2022, which 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, 2023, 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 President and Chief Executive Officer and the Chief Financial Officer, believes 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 Marilyn Schonberner (Chair), Geoffrey Chater and Margaret Mulligan. Each of Ms. Schonberner, Mr. Chater and Ms. Mulligan is “independent” as that term is defined under the rules of the NYSE American.
The board of directors has determined that each of Marilyn Schonberner, Geoffrey Chater and Margaret Mulligan is 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
A description of New Gold’s pre-approval policies and procedures
and information about fees billed to New Gold for professional services rendered by its principal accountant, iDeloitte LLP (iToronto, Canada, PCAOB ID No. i1208) are included under the headings “Pre-Approval Policies and Procedures” and “Auditors and External Auditor Service Fees (by category)” on page [72] [NTD: To be confirmed
prior to filing] of New Gold’s AIF for the fiscal year ended December 31, 2023, filed as Exhibit 1 to this annual report on Form 40-F.
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 October
25, 2023. 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 amended 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 October 25, 2023. 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. Unless and to the extent specifically referred to herein, the information on the Company’s website shall not be deemed to be incorporated
by reference in this annual report on Form 40-F.
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.
CONTRACTUAL AND OTHER OBLIGATIONS
The
information provided under the heading “Financial Risk Management – (b) Liquidity risk” on page [47] [NTD: To be confirmed prior to filing] of the MD&A for the year ended December 31, 2023 filed as Exhibit 3 to this annual report on Form 40-F, is incorporated by reference herein.
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 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 a written consent to service of process and power of attorney on Form F-X and amendments thereto. 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.
