UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
[Check one]
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REGISTRATION STATEMENT PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
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ANNUAL REPORT PURSUANT TO SECTION 13(a) OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended
Commission File Number
(Exact name of Registrant as specified in its charter)
(Province or other jurisdiction of incorporation or organization)
(Primary Standard Industrial Classification Code Number (if applicable))
(I.R.S. Employer Identification Number (if applicable))
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(Address and telephone number of Registrant’s principal executive offices)
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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 |
Trading Symbol(s) |
Name of each exchange on which registered |
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Securities registered or to be registered pursuant to Section 12(g) of the Act:
Not Applicable
(Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:
Not Applicable
(Title of Class)
For annual reports, indicate by check mark the information filed with this Form:
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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.
557,492,516 Common Shares outstanding as of December 31, 2021
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.
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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).
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 12b-2 of the Exchange Act.
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.
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
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.
This Annual Report on Form 40-F shall be incorporated by reference into the Registration Statements on Form S-8 (File Nos. 333-222384, 333-222385 and 333-226295) of the registrant. In addition, the registrant’s Annual Information Form; Management’s Discussion and Analysis; Audited Annual Consolidated Financial Statements for the fiscal year ended December 31, 2021, including Management’s Annual Report on Internal Control over Financial Reporting; Consent of KPMG LLP, Independent Registered Public Accounting Firm; and Consent of Craig Funk, B.Sc., M.Sc., P.Eng., P.Geo., included as Exhibits 99.1, 99.2, 99.3, 99.4 and 99.8, respectively, to this Annual Report on Form 40-F, are incorporated by reference into and as an exhibit to the registrant’s Registration Statement on Form F-10 (File No. 333-237068).
Principal documents
The following documents have been filed as part of this Annual Report:
CONTROLS AND PROCEDURES
A. Certifications
The required disclosure is included in Exhibits 99.5, 99.6 and 99.7 to this Annual Report, and is incorporated herein by reference.
B. Evaluation of Disclosure Controls and Procedures
The required disclosure is included in “ Controls and Procedures—Disclosure Controls and Procedures ” in the 2021 MD&A, filed as Exhibit 99.2 to this Annual Report, and is incorporated herein by reference.
C. Management’s Annual Report on Internal Control over Financial Reporting
Management is responsible for establishing and maintaining an adequate system of internal control over financial reporting as defined in Rules 13a-15(f) and 15d-15(f) under the Securities Exchange Act of 1934, as amended. The required disclosure is included in “ Management’s Responsibility—Management’s Annual Report on Internal Control over Financial Reporting ” that accompanies the 2021 Audited Annual Financial Statements, filed as Exhibit 99.3 to this Annual Report, and is incorporated herein by reference.
D. Attestation Report of the Independent Registered Public Accounting Firm
The required disclosure is included in the “ Report of Independent Registered Public Accounting Firm ” that accompanies the 2021 Audited Annual Financial Statements, filed as Exhibit 99.3 to this Annual Report, and is incorporated herein by reference.
E. Changes in Internal Control over Financial Reporting
During the period covered by this report, there was no change in Nutrien’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, its internal control over financial reporting. See “ Controls and Procedures—Internal Control Over Financial Reporting ” in the 2021 MD&A, filed as Exhibit 99.2 to this Annual Report and incorporated herein by reference.
IDENTIFICATION OF THE AUDIT COMMITTEE
The Board has a separately-designated standing audit committee established in accordance with section 3(a)(58)(A) of the Exchange Act. The members of the Audit Committee are Maura J. Clark, Christopher M. Burley, Alice D. Laberge, Keith G. Martell and Aaron W. Regent.
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AUDIT COMMITTEE FINANCIAL EXPERT
The Nutrien Board of Directors (the “Board”) has determined that it has at least one “audit committee financial expert” (as such term is defined in paragraph 8(b) of General Instruction B to Form 40-F) serving on its Audit Committee. Ms. Maura J. Clark has been determined to be such audit committee financial expert and was “independent” as such term is defined under the Canadian Securities Administrators’ National Instrument 52-110 (Audit Committees) and the standards of the U.S. Securities and Exchange Commission (the “SEC”) and the New York Stock Exchange (the “NYSE”) relating to the independence of audit committee members.
The Board’s designation of Ms. Maura J. Clark as an audit committee financial expert does not impose on her any duties, obligations or liability that are greater than the duties, obligations and liability imposed on her as a member of the Audit Committee and Board in the absence of such designation or identification. In addition, the designation of Ms. Maura J. Clark as an audit committee financial expert does not affect the duties, obligations or liability of any other member of the Audit Committee or Board. See also “Item 17—Audit Committee” of Nutrien’s 2021 AIF, filed as Exhibit 99.1 to this Annual Report, and incorporated herein by reference.
COMPLIANCE WITH NYSE LISTING STANDARDS ON CORPORATE
GOVERNANCE
Our common shares are listed on the NYSE, but as a listed foreign private issuer, the NYSE does not require us to comply with all of its listing standards regarding corporate governance. Notwithstanding this exemption, we are in compliance in all material respects with the NYSE listing standards and we intend to continue to comply with such standards so as to ensure that there are no significant differences between our corporate governance practices and those practices required by the NYSE of other publicly listed companies.
CODE OF CONDUCT AND ETHICS
Nutrien has adopted a “code of ethics” (as that term is defined in Form 40-F), entitled the Nutrien Code of Conduct that applies to all directors, officers, employees and representatives of Nutrien and its subsidiaries (the “Nutrien Code”). A copy of the Nutrien Code is posted on Nutrien’s website at https://www.nutrien.com/what-we-do/governance. Copies may be obtained, free of charge, by contacting Nutrien in writing at 211 19th Street East, Suite 1700, Saskatoon, Saskatchewan, Canada S7K 5R6, by telephone at (306) 933-8500 or on Nutrien’s website at www.nutrien.com. Nutrien intends to post any amendments to and waivers from the Nutrien Code on its website as identified above.
NOTICES PURSUANT TO REGULATION BTR
Not applicable.
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PRINCIPAL ACCOUNTANT FEES AND SERVICES
The following table sets out the fees billed to Nutrien by
| Category |
Year Ended December 31, | |
|
|
2021 US$ |
2020 US$ |
| Audit Fees 1 |
8,167,000 |
6,477,700 |
| Audit-Related Fees 2 |
236,200 |
133,600 |
| Tax Fees 3 |
191,100 |
132,700 |
| All Other Fees 4 |
31,500 |
239,200 |
| Total |
8,625,800 |
6,983,200 |
1 For professional services rendered by KPMG LLP for the integrated audit of the Company’s annual financial statements, interim review of the Company’s interim financial statements, and audits of statutory financial statements of controlled subsidiaries.
2 For professional services rendered by KPMG LLP for attestation reporting in accordance with US environmental agency requirements and consent orders; limited assurance over Nutrien greenhouse gas footprint (reported in other fees in 2020); attestation reports over various Nutrien subsidiaries for the purpose of compliance with local laws and regulations, and work in connection with the renewal of the Company’s base shelf prospectus in 2020 and the Company's prospectus supplement relating to the offering of notes in 2020, and translation of the Company’s annual and quarterly reports.
3 For professional services rendered by KPMG LLP for assistance with preparation and review of tax filings and related tax compliance, assistance in responding to tax authorities, including reassessments and tax audits, assistance with the preparation of the tax provision for immaterial subsidiaries, routine tax planning and advice. These amounts include fees paid to KPMG LLP specifically for tax compliance and preparation services rendered in 2021 and 2020 in the amount of $181,000 and $122,300, respectively.
4 For an assessment of the Company’s cyber security maturity level against a globally recognized framework.
AUDIT COMMITTEE’S PRE-APPROVAL POLICIES AND PROCEDURES
The required disclosure is included in “Item 17—Audit Committee—17.4—Pre-approval Policies and Procedures” of Nutrien’s 2021 AIF, filed as Exhibit 99.1 to this Annual Report, and incorporated herein by reference.
OFF-BALANCE SHEET ARRANGEMENTS
The information included in “Off-Balance Sheet Arrangements” of the 2021 MD&A, filed as Exhibit 99.2 to this Annual Report, is incorporated herein by reference.
TABULAR DISCLOSURE OF CONTRACTUAL OBLIGATIONS
The information included in “Liquidity & Capital Resources—Cash Requirements” of the 2021 MD&A, filed as Exhibit 99.2 to this Annual Report, is incorporated herein by reference.
RESERVE AND RESOURCE ESTIMATES
All mining terms used herein but not otherwise defined have the meanings set forth in National Instrument 43-101 - Standards of Disclosure for Mineral Projects (“NI 43-101”), which references the guidelines set out in the Canadian Institute of Mining, Metallurgy and Petroleum Definition Standards on Mineral Resources and Mineral Reserves (the “CIM Standards”).
In addition, the terms “mineral resource”, “measured mineral resource”, “indicated mineral resource” and “inferred mineral resource” are defined in and required to be disclosed in accordance with NI 43-101. Investors are cautioned not to assume that any part or all of the mineral deposits in these categories will ever be converted into mineral reserves. “Inferred mineral resources” have a significant amount of uncertainty as to their existence, and significant 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 of mineral resources or mineral reserves. Under
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Canadian securities laws, estimates of inferred mineral resources may not form the basis of feasibility or prefeasibility studies, except in certain specific cases. Additionally, disclosure of “contained ounces” in a mineral resource is permitted disclosure under Canadian securities laws.
The SEC adopted amendments to its disclosure rules to modernize the mineral property disclosure requirements for issuers whose securities are registered with the SEC under the Exchange Act. These amendments became effective February 25, 2019 (the “SEC Modernization Rules”), with compliance required for the first fiscal year beginning on or after January 1, 2021. Under the SEC Modernization Rules, the historical property disclosure requirements for mining registrants included in SEC Industry Guide 7 were rescinded and replaced with the disclosure requirements in subpart 1300 of SEC Regulation S-K. Following the transition period, as a foreign private issuer that is eligible to file reports with the SEC pursuant to the multi-jurisdictional disclosure system, the Company is not required to provide disclosure under the SEC Modernization Rules and will continue to provide disclosure under NI 43-101. As a result of the adoption of the SEC Modernization Rules, the SEC now recognizes estimates of “measured mineral resources”, “indicated mineral resources” and “inferred mineral resources”. In addition, the SEC has amended its definitions of “proven mineral reserves” and “probable mineral reserves” to be “substantially similar” to the corresponding definitions under the CIM Standards, as required under NI 43-101.
U.S. investors are cautioned that there are differences in the definitions under the SEC Modernization Rules and the CIM Standards. Accordingly, there is no assurance any mineral reserves or mineral resources that the Company may report as “proven mineral reserves”, “probable mineral reserves”, “measured mineral resources”, “indicated mineral resources” and “inferred mineral resources” under NI 43-101 would be the same had the Company prepared the mineral reserve or resource estimates under the standard adopted under the SEC Modernization Rules. Accordingly, information contained in this Annual Report and the documents incorporated by reference herein containing descriptions of the Company's mineral reserves and resources may not be comparable to similar information made public by U.S. companies subject to the reporting and disclosure requirements of U.S. federal securities laws and the rules and regulations thereunder.
MINE SAFETY DISCLOSURE
The information concerning mine safety violations or other regulatory matters required by Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act and Item 16 of General Instruction B to Form 40-F is included in Exhibit 99.9 to this Annual Report.
DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
Not applicable.
WEBSITE INFORMATION
Notwithstanding any reference to Nutrien’s website or other websites on the World Wide Web in this Annual Report or in the documents attached as exhibits hereto, the information contained in Nutrien’s website or any other website on the World Wide Web referred to in this Annual Report or in the documents attached as exhibits hereto, or referred to in Nutrien’s website, is not a part of this Annual Report and, therefore, is not filed with the SEC.
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
The Registrant undertakes to make available, in person or by telephone, representatives to respond to inquiries made by the SEC staff, and to furnish promptly, when requested to do so by the SEC staff, information relating to: the securities registered pursuant to Form 40-F; the securities in relation to which the obligation to file an annual report on Form 40-F arises; or transactions in said securities.
The Registrant has previously filed an Appointment of Agent for Service of Process and Undertaking on Form F-X with respect to the class of securities in relation to which the obligation to file the Form 40-F arises. Any change to the name or address of the Registrant’s agent for service of process shall be communicated promptly to the SEC by amendment to the Form F-X referencing the file number of the Registrant.
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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.
| NUTRIEN LTD.
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| By: |
/s/ Robert A. Kirkpatrick |
| Name: Title: |
Robert A. Kirkpatrick SVP & Corporate Secretary |
Date: February 25, 2022
EXHIBIT INDEX
| Exhibit Number |
Description |
| Annual Information Form for the fiscal year ended December 31, 2021 | |
| Management’s Discussion and Analysis for the fiscal year ended December 31, 2021 | |
| Audited Annual Consolidated Financial Statements for the fiscal year ended December 31, 2021 | |
| Consent of KPMG LLP, Independent Registered Public Accounting Firm | |
| Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
| Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
| Certifications pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | |
| Consent of Craig Funk, B.Sc., M.Sc., P.Eng., P.Geo. | |
| Mine Safety Disclosure | |
| 101 |
Interactive Data File (formatted as Inline XBRL) |
| 104 |
Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) |