NextSource Materials Inc 20-F/A, filed Mar 4, 2021
NextSource Materials Inc. (NSRCF)
20-F/A
2021-03-04
For: 2020-06-30
View Original
Added on
August 22, 2026
About this 20-F/A
NextSource Materials Inc filed this 20-F/A on March 4, 2021, covering the fiscal year ended June 30, 2020.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 20-F
☐REGISTRATION
STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES
EXCHANGE ACT OF 1934
OR
☒ ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the
fiscal year ended June 30, 2020
OR
☐
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
OR
☐
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of
event requiring this shell company
report ____________________________
For the
transition period
from_________________to______________
Commission
File Number: 000-05151
NEXTSOURCE MATERIALS INC.
(Exact
name of Registrant as specified in its charter)
Ontario, Canada
(Jurisdiction
of incorporation or organization)
130 King Street West, Exchange Tower Suite 1940
Toronto, Ontario
Canada M5X 2A2
(Address
of principal executive offices)
Craig Scherba, Telephone (416)
364-4911
130 King Street West, Exchange Tower Suite 1940,
Toronto, Ontario
Canada M5X 2A2
(Name,
telephone, e-mail and/or facsimile number and address of company
contact person)
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Securities
registered or to be registered pursuant to section 12(b) of the
Act:
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None
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Securities
registered or to be registered pursuant to Section 12(g) of the
Act:
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Common
Stock, $nil par value
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(Title of
Class)
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Securities for
which there is a reporting obligation pursuant to Section 15(d) of
the Act:
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None
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(Title of
Class)
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The
number of outstanding shares of the issuer’s common stock as
of June 30, 2020:
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536,494,789
shares
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Indicate
by check mark if the registrant is a well-known seasoned issuer, as
defined in Rule 405 of the Securities Act. Yes
☐ No ☒
If this
report is an annual or a transition report, indicate by check mark
if the registrant is not required to file reports pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934.
Yes ☐ 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 Securities
Exchange Act of 1934 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
☒ 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
☐
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, or a non-accelerated filer. See definition of
“accelerated filer and large accelerated filer” in Rule
12b-2 of the Exchange Act. (Check one):
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Large
accelerated filer ☐
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Accelerated
filer ☐
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Non-accelerated
filer ☒
Emerging
growth Company ☐
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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 which basis of accounting the registrant has used to
prepare the financial statements included in this
filing:
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U.S.
GAAP ☐
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International
Financial Reporting Standards
by
the International Accounting Standards Board ☒
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Other ☐
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If
“Other” has been checked in response to the previous
question, indicate by check mark which financial statement item the
registrant has elected to follow. ‘
Item
17 ☐ Item 18 ☐
If this
is an annual report, indicate by check mark whether the registrant
is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes ☐
No ☒
ANNUAL INFORMATION FORM,
AUDITED ANNUAL CONSOLIDATED FINANCIAL STATEMENTS
AND MANAGEMENT DISCUSSION AND ANALYSIS
Annual Information Form
The Registrant’s Annual Information Form for the fiscal year
ended June 30, 2020 is attached as Exhibit 99.1 to this Annual
Report on Form 20-F and is incorporated herein by
reference.
Audited Annual Consolidated Financial Statements
The Registrant’s audited annual consolidated financial
statements for the fiscal year ended June 30, 2020, including the
report of the independent registered public accounting firm with
respect thereto, are attached as Exhibit 99.2 to this Annual Report
on Form 20-F and are incorporated herein by
reference.
Management’s Discussion and Analysis
The Registrant’s Management’s Discussion and Analysis
for the fiscal year ended June 30, 2020 is attached as Exhibit 99.3
to this Annual Report on Form 20-F and is incorporated herein by
reference.
Notice of Annual Meeting and Management Proxy Circular
The Registrant's Notice of Annual Meeting and Management Proxy
Circular for the fiscal year ended June 30, 2020 is attached as
Exhibit 99.4 and 99.4.1 to this Annual Report on Form 20-F and is
incorporated herein by reference.
Additional Information
An Additional Information document is attached as Exhibit 99.5 to
this Annual Report on Form 20-F and is incorporated herein by
reference.
Cross Reference to Form 20-F
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Item No.
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Cross Reference to Form 20-F
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Exhibit
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Part I
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Item 1
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Identity of Directors, Senior Management and Advisers
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99.4
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Item 2
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Offer Statistics and Expected Timetable
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N/A
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Item 3
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Key Information
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A. Selected financial data
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99.2
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B. Capitalization and indebtedness
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N/A
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C. Reasons for the offer and use of proceeds
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N/A
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D. Risk factors
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99.1
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Item 4
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Information on the Company
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A. History and development of the company
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99.1
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B. Business overview
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99.1
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C. Organizational structure
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99.1
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D. Property, plants and equipment
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99.1 and 99.2
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Item 4A
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Unresolved Staff Comments
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N/A
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Item 5
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Operating and Financial Review and Prospects
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A. Operating results
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99.2 and 99.3
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B. Liquidity and capital resources
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99.2 and 99.3
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C. Research and development, patents and licenses,
etc.
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N/A
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D. Trend information
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99.1
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E. Off-balance sheet arrangements
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99.3
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F. Tabular disclosure of contractual obligations
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N/A
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G. Safe harbor
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99.1
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Item 6
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Directors, Senior Management and Employees
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A. Directors and senior management
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99.1 and 99.4
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B. Compensation
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99.1 and 99.4
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C. Board practices
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99.1 and 99.4
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D. Employees
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99.1 and 99.4
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E. Share Ownership
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99.1 and 99.4
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Item 7
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Major Shareholders and Related Party Transactions
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A. Major shareholders
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99.4 and 99.5
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B. Related party transactions
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99.1 and 99.2
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C. Interests of experts and counsel
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99.1
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Item 8
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Financial Information
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A. Consolidated Statements and Other Financial
Information
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99.1 and 99.2
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B. Significant changes
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99.2
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Item 9
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The Offer and Listing
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A. Offer and listing details
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N/A
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A.4 Markets
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99.3
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B. Plan of distribution
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N/A
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C. Markets
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99.3
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D. Selling shareholders
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N/A
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E. Dilution
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N/A
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F. Expenses of the issue
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N/A
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Item 10
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Additional Information
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A. Share Capital
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99.1 and 99.2
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B. Memorandum and articles of association
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1.1 and 1.2
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C. Material contracts
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4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8
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D. Exchange controls
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N/A
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E. Taxation
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N/A
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F. Dividends and paying agents
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N/A
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G. Statement by experts
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99.1
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H. Documents on display
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99.1
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I. Subsidiary information
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N/A
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Item 11
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Quantitative and Qualitative Disclosures About Market
Risk
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N/A
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Item 12
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Description of Securities Other than Equity Securities
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N/A
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Part II
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Item 13
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Defaults, Dividend Arrearages and Delinquencies
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N/A
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Item 14
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Material Modifications to the Rights of Security Holders and Use of
Proceeds
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N/A
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Item 15
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Controls and Procedures
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99.5
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Item 16
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[Reserved]
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Item 16A.
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Audit committee financial expert
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99.5
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Item 16B.
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Code of Ethics
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11
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Item 16C.
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Principal Accountant Fees and Services
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99.4
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Item 16D.
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Exemptions from the Listing Standards for Audit
Committees
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N/A
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Item 16E.
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Purchases of Equity Securities by the Issuer and Affiliated
Purchases
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N/A
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Item 16F.
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Change in Registrant’s Certifying Accountant
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N/A
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Item 16G.
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Corporate Governance
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N/A
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Item 16H.
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Mine Safety Disclosure
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N/A
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Part III
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Item 17
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Financial Statements
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N/A
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Item 18
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Financial Statements
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99.2
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Item 19
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Exhibits
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Exhibit Index
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EXHIBIT
INDEX
Articles of
Continuance of NextSource Materials Inc., dated December 27, 2017
(Previously filed with our 20-F filed with the SEC on October 31,
2018)
By-Law No. 1 of
NextSource Materials Inc., dated December 27, 2017 (Previously
filed with our 20-F filed with the SEC on October 31,
2018)
Amended and
Restated Stock Option Plan of NextSource Materials, Inc.
(Incorporated by reference to the registrant’s current report
on Form 8-K as filed with the SEC on October 16, 2013)
Stock Option Plan
of NextSource Materials, Inc. (Incorporated by reference to
Appendix B to Schedule 14A as filed with the SEC on November 14,
2016)
Form of Warrant
relating to private placement completed during August 2018
(Previously filed with our 20-F filed with the SEC on October 31,
2018)
Form of Warrant
relating to private placement completed during October 2019
(Previously filed with our 20-F filed with the SEC on November 13,
2019)
Form of Warrant
relating to private placement completed during July
2020
Employment
Agreement with Craig Scherba (Previously filed with our Annual
Report on Form 10-K filed with the SEC on September 28,
2017)
Employment
Agreement with Brent Nykoliation (Previously filed with our Annual
Report on Form 10-K filed with the SEC on September 28,
2017)
Management
Consulting Agreement with Marc Johnson (Previously filed with our
Annual Report on Form 10-K filed with the SEC on September 28,
2017)
Management
Consulting Agreement with Robin Borley (Previously filed with our
Annual Report on Form 10-K filed with the SEC on September 28,
2017)
List of
Subsidiaries (see “Corporate Structure” on page 4 of
the Annual Information Form for the fiscal year ended June 30, 2019
filed hereto as Exhibit 99.1.)
Code of Ethics and
Business Conduct (Previously filed with our 20-F filed with the SEC
on October 31, 2018).
Certification of
the Chief Executive Officer pursuant to Rule 13a-14(a) or Rule
15d-14(a) of the Securities Exchange Act of 1934.
Certification of
the Chief Financial Officer pursuant to Rule 13a-14(a) or Rule
15d-14(a) of the Securities Exchange Act of 1934.
Certification of
the Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002.
Certification of
the Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002.
Annual Information
Form for the fiscal year ended June 30, 2020.
Audited Annual
Consolidated Financial Statements for the fiscal year ended June
30, 2020.
Management's
Discussion and Analysis for the fiscal year ended June 30,
2020.
Notice of Annual
Meeting and Management Proxy Circular for the fiscal year ended
June 30, 2020.
Management Proxy
Circular for the fiscal year ended June 30, 2020 Appendix
C
Additional
Information.
The registrant hereby certifies that it meets all of the
requirements for filing on Form 20-F and that it has duly caused
and authorized the undersigned to sign this annual report on its
behalf.
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Dated:
March 4, 2021
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NEXTSOURCE MATERIALS
INC.,
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By: /s/
Marc Johnson
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Name: Marc
Johnson
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Title:
Chief Financial Officer
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Exhibit 99.5 Additional Information
Item 15. Controls and Procedures
Disclosure controls and procedures
Disclosure
controls and procedures are designed to provide reasonable
assurance that all relevant information is gathered and reported to
management, including the Chief Executive Officer and Chief
Financial Officer, on a timely basis so that appropriate decisions
can be made regarding public disclosure.
As of
June 30, 2020, the end of the period covered by this Annual Report,
our management, including our Chief Executive Officer and Chief
Financial Officer, evaluated the effectiveness of our disclosure
controls and procedures (as defined in Rule 13a-15(e) under the
Securities Exchange Act). Based upon that evaluation, our Chief
Executive Officer and Chief Financial Officer concluded that as of
June 30, 2020, the end of the period covered by this Annual Report,
we maintained effective disclosure controls and
procedures
Management’s Annual Report on Internal Control Over Financial
Reporting
Our
management is responsible for establishing and maintaining adequate
internal control over financial reporting (as defined in Rule
13a-15(f) under the Securities Exchange Act). Because of its
inherent limitations, internal control over financial reporting may
not prevent or detect misstatements. Also, projections of any
evaluation of effectiveness to future periods are subject to the
risk that controls may become inadequate because of changes in
conditions, or that the degree of compliance with the policies or
procedures may deteriorate. Internal control over financial
reporting is a process designed to provide reasonable assurance
regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with IFRS.
Our
management, including our Chief Executive Officer and Chief
Financial Officer, conducted an evaluation of the effectiveness of
internal control over financial reporting using the criteria set
forth in the COSO Internal Control – Integrated Framework
(2013). Based on the results of this evaluation, our management
concluded that our internal control over financial reporting was
effective as of June 30, 2020.
Changes in Internal Control Over Financial Reporting
There
were no changes in our internal control over financial reporting
(as defined in Rule 13a-15(f) under the Exchange Act) that occurred
during the fiscal year ended June 30, 2020 that have materially
affected, or are reasonably likely to materially affect, our
internal control over financial reporting.
Item 16A.
The
Audit committee financial expert is Chris Kruba.
Item 7A
In
addition to the major shareholders disclosed in the 2020 Management
Proxy Circular which is attached as Exhibit 99.4 of this Annual
Report on Form 20-F and incorporated herein by reference, to the
best of the Company’s knowledge, the following table sets
forth certain information regarding beneficial ownership of our
common shares as of November 30, 2020 and for the previous three
years by each person who is known by the Company to own
beneficially more than 5% of our common shares.
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Name, Principal Position and Address
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Number of
Common Shares Beneficially Owned
November 2018
(%)
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Number of
Common Shares Beneficially Owned
November 2019
(%)
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Number of
Common Shares Beneficially Owned
November 2020
(%)
|
|
Goodman
& Company, Investment Counsel Inc.,(1)
2100-1
Adelaide Street East,
Ontario,
Canada
|
45,714,286(1a)
43,516,714
(1b)
(18.2%)
|
45,714,286(1a)
43,516,714
(1b)
(17.5%)
|
<
5%
|
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VR
Capital Group Ltd., (2)
Dubai
International Financial Centre,
Gate
Village 4, Suite 402, Dubai, UAE
|
30,658,713
(6.2%)
|
30,658,713
(5.9%)
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<
5%
|
|
JP
Morgan Chase & Co., (3)
270
Park Avenue, New York,
NY10017
|
11,278,000(3c)
(2.4%)
|
11,278,000(3c)
(2.2%)
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Nil
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(1)
Based
on:
a.
Schedule 13G/A
filed on March 7, 2017 by Goodman & Company, Investment Counsel
Inc., on behalf of CMP 2016 Resource Limited
Partnership.
b.
Schedule 13G filed
on March 7, 2017 by Goodman & Company, Investment Counsel Inc.,
on behalf of Dundee Global Resource Class.
(2)
Based
on:
a.
Schedule 13G/A
filed on February 14, 2018 on behalf of (i) VR Global Partners,
L.P. (the “Fund”), a Cayman Islands exempted limited
partnership, (ii) VR Advisory Services Ltd (“VR”), a
Cayman Islands exempted company, as the general partner of the
Fund, (iii) VR Capital Participation Ltd. (“VRCP”), a
Cayman Islands exempted company, as the sole shareholder of VR,
(iv) VR Capital Group Ltd. (“VRCG”), a Cayman Islands
exempted company, as the sole shareholder of VRCP, (v) VR Capital
Holdings Ltd. (“VRCH”), a Cayman Islands exempted
company, as the sole shareholder of VRCG and (vi) Richard Deitz,
the principal of VR, VRCP, VRCG, VRCH. All shares of Common Stock
are held by the Fund and VRCG.
(3)
Based
on:
a.
Schedule 13G/A
filed on January 15, 2016 by JP Morgan Chase & Co. for itself
and its wholly-owned subsidiary, JPMorgan Asset Management (UK)
Limited.
b.
Schedule 13G/A
filed on January 18, 2017 by JP Morgan Chase & Co. for itself
and its wholly-owned subsidiary, JPMorgan Asset Management (UK)
Limited.
c.
Schedule 13G/A
filed on November 7, 2017 by JP Morgan Chase & Co. for itself
and its wholly-owned subsidiary, JPMorgan Asset Management (UK)
Limited.
The
company’s major shareholders do not have different voting
rights than other shareholders.
Item 10E
MATERIAL UNITED STATES FEDERAL INCOME TAX
CONSIDERATIONS
The
following is a general summary of certain material U.S. federal
income tax considerations applicable to a U.S. Holder (as defined
below) arising from and relating to the acquisition, ownership, and
disposition of Common Shares.
This
summary is for general information purposes only and does not
purport to be a complete analysis or listing of all potential U.S.
federal income tax considerations that may apply to a U.S. Holder
arising from and relating to the acquisition, ownership, and
disposition of Common Shares. In addition, this summary does not
take into account the individual facts and circumstances of any
particular U.S. Holder that may affect the U.S. federal income tax
consequences to such U.S. Holder, including specific tax
consequences to a U.S. Holder under an applicable tax treaty.
Accordingly, this summary is not intended to be, and should not be
construed as, legal or U.S. federal income tax advice with respect
to any U.S. Holder. This summary does not address the U.S. federal
alternative minimum, U.S. federal estate and gift, U.S. state and
local, and foreign tax consequences to U.S. Holders of the
acquisition, ownership, and disposition of Common Shares. Except as
specifically set forth below, this summary does not discuss
applicable tax reporting requirements. Each U.S. Holder should
consult its own tax advisor regarding the U.S. federal, U.S.
federal alternative minimum, U.S. federal estate and gift, U.S.
state and local, and foreign tax consequences relating to the
acquisition, ownership and disposition of Common
Shares.
No
legal opinion from U.S. legal counsel or ruling from the Internal
Revenue Service (the “IRS”) has been requested, or will
be obtained, regarding the U.S. federal income tax consequences of
the acquisition, ownership, and disposition of Common Shares. This
summary is not binding on the IRS, and the IRS is not precluded
from taking a position that is different from, and contrary to, the
positions taken in this summary. In addition, because the
authorities on which this summary is based are subject to various
interpretations, the IRS and the U.S. courts could disagree with
one or more of the positions taken in this summary.
Scope of this Summary
Authorities
This
summary is based on the Internal Revenue Code of 1986, as amended
(the “Code”), Treasury Regulations (whether final,
temporary, or proposed), published rulings of the IRS, published
administrative positions of the IRS, the Convention Between Canada
and the United States with Respect to Taxes on Income and on
Capital, signed September 26, 1980, as amended (the
“Canada-U.S. Tax Convention”), and U.S. court decisions
that are applicable and, in each case, as in effect and available,
as of the date of this document. Any of the authorities on which
this summary is based could be changed in a material and adverse
manner at any time, and any such change could be applied on a
retroactive or prospective basis which could affect the U.S.
federal income tax considerations described in this summary. This
summary does not discuss the potential effects, whether adverse or
beneficial, of any proposed legislation that, if enacted, could be
applied on a retroactive or prospective basis.
U.S. Holders
For
purposes of this summary, the term "U.S. Holder" means a beneficial
owner of Common Shares that is for U.S. federal income tax
purposes:
●
an individual who
is a citizen or resident of the United States;
●
a corporation (or
other entity taxable as a corporation for U.S. federal income tax
purposes) organized under the laws of the U.S., any state thereof
or the District of Columbia;
●
an estate whose
income is subject to U.S. federal income taxation regardless of its
source; or
●
a trust that (1) is
subject to the primary supervision of a court within the U.S. and
the control of one or more U.S. persons for all substantial
decisions or (2) has a valid election in effect under applicable
Treasury Regulations to be treated as a U.S. person.
Non-U.S. Holders
For
purposes of this summary, a “non-U.S. Holder” is a
beneficial owner of Common Shares that is not a U.S. Holder or is a
partnership. This summary does not address the U.S. federal income
tax consequences to non-U.S. Holders arising from and relating to
the acquisition, ownership, and disposition of Common Shares.
Accordingly, a non-U.S. Holder should consult its own tax advisor
regarding the U.S. federal, U.S. federal alternative minimum, U.S.
federal estate and gift, U.S. state and local, and foreign tax
consequences (including the potential application of and operation
of any income tax treaties) relating to the acquisition, ownership,
and disposition of Common Shares.
U.S. Holders Subject to Special U.S. Federal Income Tax Rules Not
Addressed
This
summary does not address the U.S. federal income tax considerations
applicable to U.S. Holders that are subject to special provisions
under the Code, including, but not limited to, U.S. Holders that:
(a) are tax-exempt organizations, qualified retirement plans,
individual retirement accounts, or other tax-deferred accounts; (b)
are financial institutions, underwriters, insurance companies, real
estate investment trusts, or regulated investment companies; (c)
are broker-dealers, dealers, or traders in securities or currencies
that elect to apply a mark-to-market accounting method; (d) have a
“functional currency” other than the U.S. dollar; (e)
own Common Shares as part of a straddle, hedging transaction,
conversion transaction, constructive sale, or other arrangement
involving more than one position; (f) acquired Common Shares in
connection with the exercise of employee stock options or otherwise
as compensation for services; (g) hold Common Shares other than as
a capital asset within the meaning of Section 1221 of the Code
(generally, property held for investment purposes); or (h) own or
have owned (directly, indirectly, or by attribution) 10% or more of
the total combined voting power of the outstanding shares of the
Company. This summary also does not address the U.S. federal income
tax considerations applicable to U.S. Holders who are: (a) U.S.
expatriates or former long-term residents of the U.S.; (b) persons
that have been, are, or will be a resident or deemed to be a
resident in Canada for purposes of the Income Tax Act (Canada) (the
“Tax Act”); (c) persons that use or hold, will use or
hold, or that are or will be deemed to use or hold Common Shares in
connection with carrying on a business in Canada; (d) persons whose
Common Shares constitute “taxable Canadian property”
under the Tax Act; or (e) persons that have a permanent
establishment in Canada for the purposes of the Canada-U.S. Tax
Convention. U.S. Holders that are subject to special provisions
under the Code, including, but not limited to, U.S. Holders
described immediately above, should consult their own tax advisors
regarding the U.S. federal, U.S. federal alternative minimum, U.S.
federal estate and gift, U.S. state and local, and foreign tax
consequences relating to the acquisition, ownership and disposition
of Common Shares.
If an
entity or arrangement that is classified as a partnership (or
“pass-through” entity) for U.S. federal income tax
purposes holds Common Shares, the U.S. federal income tax
consequences to such partnership and the partners (or owners) of
such partnership generally will depend on the activities of the
partnership and the status of such partners (or owners). This
summary does not address the tax consequences to any such
partnership or partner (or owner). Partners (or owners) of entities
or arrangements that are classified as partnerships for U.S.
federal income tax purposes should consult their own tax advisors
regarding the U.S. federal income tax consequences arising from and
relating to the acquisition, ownership, and disposition of Common
Shares.
Ownership and Disposition of Common Shares
The
following discussion is subject to the rules described below under
the heading “Passive Foreign Investment Company
Rules.”
Distributions on Common Shares
Subject
to the PFIC (as defined below) rules discussed below, a U.S. Holder
that receives a distribution, including a constructive
distribution, with respect to a Common Share will be required to
include the amount of such distribution in gross income as a
dividend (without reduction for any Canadian income tax withheld
from such distribution) to the extent of the current or accumulated
“earnings and profits” of the Company, as computed for
U.S. federal income tax purposes. A dividend generally will be
taxed to a U.S. Holder at ordinary income tax rates if the Company
is a PFIC. To the extent that a distribution exceeds the current
and accumulated “earnings and profits” of the Company,
such distribution will be treated first as a tax-free return of
capital to the extent of a U.S. Holder's tax basis in the Common
Shares and thereafter as gain from the sale or exchange of such
Common Shares. (See “Sale or Other Taxable Disposition of
Common Shares” below.) However, the Company may not maintain
the calculations of earnings and profits in accordance with U.S.
federal income tax principles, and each U.S. Holder should
therefore assume that any distribution by the Company with respect
to the Common Shares will constitute ordinary dividend income.
Dividends received on Common Shares generally will not be eligible
for the “dividends received deduction.” Subject to
applicable limitations and provided the Company is eligible for the
benefits of the Canada-U.S. Tax Convention or the Common Shares are
readily tradable on a U.S. securities market, dividends paid by the
Company to non-corporate U.S. Holders, including individuals,
generally will be eligible for the preferential tax rates
applicable to long-term capital gains for dividends, provided
certain holding period and other conditions are satisfied,
including that the Company not be classified as a PFIC in the tax
year of distribution or in the preceding tax year. The dividend
rules are complex, and each U.S. Holder should consult its own tax
advisors regarding the application of such rules.
Sale or Other Taxable Disposition of Common Shares
Subject
to the PFIC rules discussed below, upon the sale or other taxable
disposition of Common Shares, a U.S. Holder generally will
recognize capital gain or loss in an amount equal to the difference
between the amount of cash plus the fair market value of any
property received and such U.S. Holder’s tax basis in such
Common Shares sold or otherwise disposed of. Subject to the PFIC
rules discussed below, gain or loss recognized on such sale or
other disposition generally will be long-term capital gain or loss
if, at the time of the sale or other disposition, the Common Shares
have been held for more than one year.
Preferential
tax rates apply to long-term capital gain of a U.S. Holder that is
an individual, estate, or trust. There are currently no
preferential tax rates for long-term capital gain of a U.S. Holder
that is a corporation. Deductions for capital losses are subject to
significant limitations under the Code.
Passive Foreign Investment Company Rules
If the
Company were to constitute a “passive foreign investment
company” (“PFIC”) for any year during a U.S.
Holder’s holding period, then certain potentially adverse
rules would affect the U.S. federal income tax consequences to a
U.S. Holder resulting from the acquisition, ownership and
disposition of its Common Shares. The Company believes that it was
not a PFIC for its tax year ended March 31, 2016. The determination
of whether any corporation was, or will be, a PFIC for a tax year
depends, in part, on the application of complex U.S. federal income
tax rules, which are subject to differing interpretations. In
addition, whether the Company will be a PFIC for any future tax
year depends on the assets and income of the Company over the
course of each such tax year, and, as a result, cannot be predicted
with certainty as of the date of this document. There can be no
assurance that the IRS will not challenge any determination made by
the Company concerning its PFIC status. Each U.S. Holder should
consult its own tax advisors regarding the PFIC status of the
Company.
In any
year in which the Company is classified as a PFIC, a U.S. Holder
will be required to file an annual report with the IRS containing
such information as Treasury Regulations and/or other IRS guidance
may require. In addition to penalties, a failure to satisfy such
reporting requirements may result in an extension of the time
period during which the IRS can assess a tax. U.S. Holders should
consult their own tax advisors regarding the requirements of filing
such information returns under these rules, including the
requirement to file an IRS Form 8621 annually.
The
Company generally will be a PFIC if, after the application of
certain “look-through” rules with respect to
subsidiaries in which the Company holds at least 25% of the value
of such subsidiary, for a tax year, (a) 75% or more of the gross
income of the Company for such tax year is passive income (the
“income test”) or (b) 50% or more of the value of the
Company’s assets either produce passive income or are held
for the production of passive income (the “asset
test”), based on the quarterly average of the fair market
value of such assets. “Gross income” generally includes
all sales revenues less the cost of goods sold, plus income from
investments and from incidental or outside operations or sources,
and “passive income” generally includes, for example,
dividends, interest, certain rents and royalties, certain gains
from the sale of stock and securities, and certain gains from
commodities transactions. Royalties are generally treated as active
income if such royalties are derived from licensing property that
the licensor has developed, created, or produced, or has acquired
and added substantial value to, but only so long as the licensor is
regularly engaged in the development, creation or production of, or
in the acquisition of and addition of substantial value to,
property of such kind.
If the
Company were a PFIC in any tax year during which a U.S. Holder held
its Common Shares, such U.S. Holder generally would be subject to
special rules with respect to “excess distributions”
made by the Company on the Common Shares and with respect to gain
from the disposition of Common Shares. An “excess
distribution” generally is defined as the excess of
distributions with respect to the Common Shares received by a U.S
Holder in any tax year over 125% of the average annual
distributions such U.S. Holder has received from the Company during
the shorter of the three preceding tax years, or such U.S.
Holder’s holding period for the Common Shares. Generally, a
U.S. Holder would be required to allocate any excess distribution
or gain from the disposition of the Common Shares ratably over its
holding period for the Common Shares. Such amounts allocated to the
year of the disposition or excess distribution would be taxed as
ordinary income, and amounts allocated to prior tax years would be
taxed as ordinary income at the highest tax rate in effect for each
such year and an interest charge at a rate applicable to
underpayments of tax would apply.
While
there are U.S. federal income tax elections that sometimes can be
made to mitigate these adverse tax consequences (including the
“QEF Election” under Section 1295 of the Code and the
“Mark-to-Market Election” under Section 1296 of the
Code), such elections are available in limited circumstances and
must be made in a timely manner.
U.S.
Holders should be aware that, for each tax year, if any, that the
Company is a PFIC, the Company can provide no assurances that it
will satisfy the record keeping requirements or make available to
U.S. Holders the information such U.S. Holders require to make a
QEF Election with respect to the Company or any subsidiary that
also is classified as a PFIC. U.S. Holders should consult their own
tax advisors regarding the potential application of the PFIC rules
to the ownership and disposition of Common Shares, and the
availability of certain U.S. tax elections under the PFIC
rules.
Additional Considerations
Additional Tax on Passive Income
Individuals,
estates and certain trusts whose income exceeds certain thresholds
will be required to pay a 3.8% Medicare surtax on “net
investment income” including, among other things, dividends
and net gain from disposition of property (other than property held
in certain trades or businesses). Special rules apply to PFICs.
U.S. Holders should consult their own tax advisors regarding the
effect, if any, of this tax on their ownership and disposition of
Common Shares.
Receipt of Foreign Currency
The
amount of any distribution paid to a U.S. Holder in foreign
currency, or on the sale, exchange or other taxable disposition of
Common Shares, generally will be equal to the U.S. dollar value of
such foreign currency based on the exchange rate applicable on the
date of receipt (regardless of whether such foreign currency is
converted into U.S. dollars at that time). A U.S. Holder will have
a basis in the foreign currency equal to its U.S. dollar value on
the date of receipt. Any U.S. Holder who converts or otherwise
disposes of the foreign currency after the date of receipt may have
a foreign currency exchange gain or loss that would be treated as
ordinary income or loss, and generally will be U.S. source income
or loss for foreign tax credit purposes. Different rules apply to
U.S. Holders who use the accrual method of tax accounting. Each
U.S. Holder should consult its own U.S. tax advisors regarding the
U.S. federal income tax consequences of receiving, owning, and
disposing of foreign currency.
Foreign Tax Credit
Subject
to the PFIC rules discussed above, a U.S. Holder that pays (whether
directly or through withholding) Canadian income tax with respect
to dividends paid on the Common Shares generally will be entitled,
at the election of such U.S. Holder, to receive either a deduction
or a credit for such Canadian income tax paid. Generally, a credit
will reduce a U.S. Holder’s U.S. federal income tax liability
on a dollar-for-dollar basis, whereas a deduction will reduce a
U.S. Holder’s income subject to U.S. federal income tax. This
election is made on a year-by-year basis and applies to all foreign
taxes paid (whether directly or through withholding) by a U.S.
Holder during a year.
Complex
limitations apply to the foreign tax credit, including the general
limitation that the credit cannot exceed the proportionate share of
a U.S. Holder’s U.S. federal income tax liability that such
U.S. Holder’s “foreign source” taxable income
bears to such U.S. Holder’s worldwide taxable income. In
applying this limitation, a U.S. Holder’s various items of
income and deduction must be classified, under complex rules, as
either “foreign source” or “U.S. source.”
Generally, dividends paid by a foreign corporation should be
treated as foreign source for this purpose, and gains recognized on
the sale of stock of a foreign corporation by a U.S. Holder should
be treated as U.S. source for this purpose, except as otherwise
provided in an applicable income tax treaty, and if an election is
properly made under the Code. However, the amount of a distribution
with respect to the Common Shares that is treated as a
“dividend” may be lower for U.S. federal income tax
purposes than it is for Canadian federal income tax purposes,
resulting in a reduced foreign tax credit allowance to a U.S.
Holder. In addition, this limitation is calculated separately with
respect to specific categories of income. The foreign tax credit
rules are complex, and each U.S. Holder should consult its own U.S.
tax advisors regarding the foreign tax credit rules.
Backup Withholding and Information Reporting
Under
U.S. federal income tax law, certain categories of U.S. Holders
must file information returns with respect to their investment in,
or involvement in, a foreign corporation. For example, U.S. return
disclosure obligations (and related penalties) are imposed on
individuals who are U.S. Holders that hold certain specified
foreign financial assets in excess of certain threshold amounts.
The definition of specified foreign financial assets includes not
only financial accounts maintained in foreign financial
institutions, but also, unless held in accounts maintained by a
financial institution, any stock or security issued by a non-U.S.
person, any financial instrument or contract held for investment
that has an issuer or counterparty other than a U.S. person and any
interest in a foreign entity. U.S. Holders may be subject to these
reporting requirements unless their Common Shares are held in an
account at certain financial institutions. Penalties for failure to
file certain of these information returns are substantial. U.S.
Holders should consult with their own tax advisors regarding the
requirements of filing information returns including the
requirement to file an IRS Form 8938.
Payments
made within the U.S. or by a U.S. payor or U.S. middleman, of
dividends on, and proceeds arising from the sale or other taxable
disposition of, Common Shares will generally be subject to
information reporting and backup withholding tax, at the rate of
28%, if a U.S. Holder (a) fails to furnish such U.S. Holder’s
correct U.S. taxpayer identification number (generally on IRS Form
W-9), (b) furnishes an incorrect U.S. taxpayer identification
number, (c) is notified by the IRS that such U.S. Holder has
previously failed to properly report items subject to backup
withholding tax, or (d) fails to certify, under penalty of perjury,
that such U.S. Holder has furnished its correct U.S. taxpayer
identification number and that the IRS has not notified such U.S.
Holder that it is subject to backup withholding tax. However,
certain exempt persons generally are excluded from these
information reporting and backup withholding rules. Any amounts
withheld under the U.S. backup withholding tax rules generally will
be allowed as a credit against a U.S. Holder’s U.S. federal
income tax liability, if any, or will be refunded, if such U.S.
Holder furnishes required information to the IRS in a timely
manner.
The
discussion of reporting requirements set forth above is not
intended to constitute a complete description of all reporting
requirements that may apply to a U.S. Holder. A failure to satisfy
certain reporting requirements may result in an extension of the
time period during which the IRS can assess a tax, and under
certain circumstances, such an extension may apply to assessments
of amounts unrelated to any unsatisfied reporting requirement. Each
U.S. Holder should consult its own tax advisors regarding the
information reporting and backup withholding rules.