40-F/A 1 form40fa.htm AMENDMENT NO. 1 TO ANNUAL REPORT FOR THE FISCAL YEAR ENDED DECEMBER 31, 2003 Filed by Automated Filing Services Inc. (604) 609-0244 - Bema Gold Corporation - Form 40-F/A

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 40-F/A
AMENDMENT NO. 1

¨  REGISTRATION STATEMENT PURSUANT TO SECTION 12 OF THE
SECURITIES EXCHANGE ACT OF 1934 OR

x  ANNUAL REPORT PURSUANT TO SECTION 13(a) OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2003

Commission File Number 1-12838

BEMA GOLD CORPORATION
(Exact name of Registrant as specified in its charter)

Canada
(Province or other jurisdiction of incorporation or organization)

1041
(Primary Standard Industrial Classification Code Number)

N/A
(I.R.S. Employer Identification Number)

3100 Three Bentall Centre
595 Burrard Street
Vancouver, British Columbia, Canada, V7X 1J1
Telephone (604) 681-8371
(Address and telephone number of Registrant's principal executive offices)

DL Services, Inc.
1420 Fifth Avenue, Suite 3400
Seattle, Washington 98101
Telephone (206) 903-8800
(Name, address and telephone number of agent for service in the United States)

Securities registered or to be registered pursuant to Section 12(b) of the Act:

Title of each class    Name of each exchange on which registered 
Common Shares without par value    American Stock Exchange 

Securities registered or to be 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, indicated by check mark the information filed with this Form:

x Annual information form               x Audited annual financial statements

At December 31, 2003, the Registrant had outstanding 355,688,190 Common Shares without par value.

 

               Indicate by check mark whether the Registrant by filing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934 (the "Exchange Act"). If "Yes" is marked, indicate the filing number assigned to the Registrant in connection with such Rule.

YES  ¨     NO x

               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.

YES x     NO  ¨

               Explanatory Note: Bema Gold Corporation (the "Company" or the "Registrant") is filing this Amendment No. 1 on Form 40-F/A to its Form 40-F for the year ended December 31, 2003 to file a corrected copy of the Company's Annual Information Form and Form 40-F which was originally filed on May 20, 2004 in Canada and the United States. A complete copy of the AIF and amended pages of the 40-F, to correct certain typographical errors, are included in this submission.

FORWARD-LOOKING STATEMENTS

               This report contains forward-looking statements within the meaning of Section 21E of the Securities Exchange Act of 1934 concerning the Registrant’s plans at its Julietta, Petrex, Cerro Casale, Refugio and Kupol mineral properties, and other matters. These statements relate to analyses and other information that are based on forecasts of future results, estimates of amounts not yet determinable and assumptions of management.

               Statements concerning reserves and mineral resource estimates may also be deemed to constitute forward-looking statements to the extent that they involve estimates of the mineralization that will be encountered if the property is developed, and in the case of mineral reserves, such statements reflect the conclusion based on certain assumptions that the mineral deposit can be economically exploited. Any statements that express or involve discussions with respect to predictions, expectations, beliefs, plans, projections, objectives, assumptions or future events or performance (often, but not always, using words or phrases such as “expects” or “does not expect”, “is expected”, “anticipates” or “does not anticipate”, “plans”, “estimates” or “intends”, or stating that certain actions, events or results “may”, “could”, “would”, “might” or “will” be taken, occur or be achieved) are not statements of historical fact and may be “forward-looking statements.” Forward-looking statements are subject to a variety of risks and uncertainties which could cause actual events or results to differ from those reflected in the forward-looking statements, including, without limitation:

  • risks and uncertainties relating to the interpretation of drill results, the geology, grade and continuity of mineral deposits;
     
  • results of initial feasibility, prefeasibility and feasibility studies, and the possibility that future exploration, development or mining results will not be consistent with the Registrant’s expectations;
     
  • mining and development risks, including risks related to accidents, equipment breakdowns, labour disputes or other unanticipated difficulties with or interruptions in production;
     
  • the potential for delays in exploration or development activities or the completion of feasibility studies;
     
  • risks related to the inherent uncertainty of production and cost estimates and the potential for unexpected costs and expenses;
     
  • risks related to commodity price fluctuations;
     
  • the uncertainty of profitability based upon the Registrant’s history of losses;
     
  • risks related to failure to obtain adequate financing on a timely basis and on acceptable terms;
     
  • risks related to environmental regulation and liability;
     
  • political and regulatory risks associated with mining and exploration; and
     
  • and other risks and uncertainties related to the Registrant’s prospects, properties and business strategy.

               Some of the important risks and uncertainties that could affect forward looking statements as described further in the Registrant’s Renewal Annual Information Form for the year ended December 31, 2003, a copy of which is filed as an exhibit hereto (the “2003 AIF”), under the heading “Risk Factors”. Should one or more of these risks and uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those described in forward-looking statements. Forward looking statements are made based on management’s beliefs, estimates and opinions on the date the statements are made and the Registrant undertakes no obligation to update forward-looking statements if these beliefs, estimates and opinions or other circumstances should change. Investors are cautioned against attributing undue certainty to forward-looking statements.

Currency

Unless otherwise indicated, all dollar amounts in this report are United States dollars.

NOTE TO UNITED STATES READERS-
DIFFERENCES IN UNITED STATES AND CANADIAN REPORTING PRACTICES

The Registrant is permitted, under a multijurisdictional disclosure system adopted by the United States, to prepare this annual report in accordance with Canadian disclosure requirements, which are different from those of the United States. The Company prepares its financial statements, which are filed with this report on Form 40-F in accordance with Canadian generally accepted accounting practices (“GAAP”), and they may be subject to Canadian auditing and auditor independence standards. They may not be comparable to financial statements of the United States companies. Significant differences between Canadian GAAP and United States GAAP are described in Note 17 of the audited consolidated financial statements of the Registrant.

RESOURCE AND RESERVE ESTIMATES

The terms “Mineral Reserve”, “Proven Mineral Reserve” and “Probable Mineral Reserve” used in the Company's disclosure are Canadian mining terms as defined in accordance with National Instrument 43-101 – Standards of Disclosure for Mineral Projects under the guidelines set out in the Canadian Institute of Mining, Metallurgy and Petroleum (the “CIM”) Standards on Mineral Resource and Mineral Reserves, adopted by the CIM Council on August 20, 2000 as they may be amended from time to time by the CIM. These definitions differ from the definitions in the United States Securities and Exchange Commission ("SEC") Guide 7. In the United States, a mineral reserve is defined as a part of a mineral deposit which could be economically and legally extracted or produced at the time the mineral reserve determination is made.

The terms "Mineral Resource" "Measured Mineral Resource", "Indicated Mineral Resource" and "Inferred Mineral Resource" used in the Company's disclosure are Canadian mining terms as defined in accordance with National Instrument 43-101 - Standards of Disclosure for Mineral Projects under the guidelines set out in the CIM Standards. Mineral Resources which are not Mineral Reserves do not have demonstrated economic viability. See, “Supplement to the Glossary of Terms Included in the 2003 AIF,” below, for a summary of the differences between CIM and U.S. standards.

The terms “Mineral Reserve”, “Proven Reserve”, “Probable Reserve”, “Mineral Resource”, “Indicated Resource” and “Inferred Resource” used in the Company's disclosure with respect to the Company’s South Africa properties are South African mining terms as defined in accordance with the South African Code for Reporting Mineral Resources and Reserves (“SAMEC”. The definitions for the terms “Mineral Reserve”, “Proven Reserve” and “Probable Reserve” under SAMEC may differ from the definitions in SEC Guide 7. SEC Guide 7 does not recognize the terms “Mineral Resource”, “Indicated Resource” and “Inferred Resource”, and these terms generally may not be included in documents filed with the SEC by U.S. companies.

ANNUAL INFORMATION FORM

The Company’s Annual Information Form for the fiscal year ended December 31, 2003 is included herein as Document A.

AUDITED ANNUAL FINANCIAL STATEMENTS AND
MANAGEMENT’S DISCUSSION AND ANALYSIS

Audited Annual Financial Statements

The audited consolidated financial statements of the Company for the years December 31, 2003 and 2002, including the report of the auditors with respect thereto, included herein as Document B. For a reconciliation of important differences between Canadian and United States generally accepted accounting principles, see Note 17 of the Company’s audited consolidated financial statements.

Management’s Discussion and Analysis

The Company’s management’s discussion and analysis (“MD&A”) following the Company’s audited consolidated financial statements was filed with the original AIF on May 20, 2004.

CONTROLS AND PROCEDURES

               The Registrant’s management, with the participation of the Registrant’s Chief Executive Officer and Vice President, Finance, evaluated the effectiveness of the Registrant’s disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) as of the end of the period covered by this report (the “Evaluation Date”). Based upon the evaluation described above, the Chief Executive Officer and Vice President, Finance concluded that as of the Evaluation Date, the Registrant’s disclosure controls and procedures were effective in timely alerting them to the material information relating to the Registrant (or its consolidated subsidiaries) required to be included in reports that the Registrant files or submits under the Exchange Act.

               No changes were made in the Registrant’s internal control over financial reporting during the period covered by this report that have materially affected, or are reasonably likely to materially affect, the Registrant’s internal control over financial reporting.

               The Registrant’s management, including the Chief Executive Officer and Vice President, Finance, does not expect that the Company’s disclosure controls and procedures or internal control over financial reporting will prevent all error and all fraud. A control system, 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, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within the Registrant have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that 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 management override of the 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; over time, control may become inadequate because of changes in conditions, or the degree of compliance with the policies or procedures may deteriorate. 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 FINANCIAL EXPERT

               The Registrant’s Audit Committee of the Board of Directors currently consists of three members. The Registrant’s Board of Directors has determined that Dr. Robert Gayton, Chairman of the Audit Committee, who has a Ph.D. in Finance and Accounting, is an “audit committee financial expert” within the meaning of the Commission’s rules. Dr. Gayton satisfies the criteria for director independence under the rules of the American Stock Exchange as in effect as of the date of this annual report on Form 40-F.

INDEPENDENT ACCOUNTANTS’ FEES

               The following table sets forth the aggregate fees billed to the Registrant for the years ended December 31, 2003 and 2002 by its independent accountants, PricewaterhouseCoopers LLP:

  Year ended   Year ended  
  December 31, 2003   December 31, 2002  
Audit Fees $782,727   $640,445  
Audit-Related Fees $37,300   $16,435  
Tax Fees $312,167   $202,024  
All Other Fees -   -  
Total $1,132,194   $858,904  

"Audit Fees" are the aggregate fees billed by PricewaterhouseCoopers LLP for the audit of the Company’s consolidated annual financial statements, reviews of interim financial statements and attestation services that are provided in connection with statutory and regulatory filings or engagements.

"Audit-Related Fees" are fees charged by PricewaterhouseCoopers LLP for assurance and related services that are reasonably related to the performance of the audit or review of the Company’s financial statements and are not reported under "Audit Fees." This category includes advisory services associated with the Company’s financial reporting.

"Tax Fees" are fees for professional services rendered by PricewaterhouseCoopers LLP for tax compliance, tax advice on actual or contemplated transactions.

No fees were paid under the category "All Other Fees."

PRE-APPROVAL OF AUDIT AND NON-AUDIT SERVICES PROVIDED BY
INDEPENDENT AUDITORS

               The Audit Committee pre-approves all audit services to be provided to the Company by its independent auditors. The Audit Committee’s policy regarding the pre-approval of non-audit services to be provided to the Company by its independent auditors is that all such services shall be pre-approved by the Audit Committee. Non-audit services that are prohibited to be provided to the Company by its independent auditors may not be pre-approved. In addition, prior to the granting of any pre-approval, the Audit Committee must be satisfied that the performance of the services in question will not compromise the independence of the independent auditors. Since the enactment of the Sarbanes-Oxley Act of 2002, all non-audit services, performed by the Company’s auditor, for the fiscal year ended December 31, 2003, have been pre-approved by the Audit Committee of the Company. No non-audit services were approved pursuant to the de minimis exemption to the pre-approval requirement.

CODE OF ETHICS

               The Registrant has adopted a code of ethics that applies to its principal executive officer, principal financial officer, principal accounting officer or controller and persons performing similar functions. A copy of the code of ethics is being filed as an exhibit to this report.

OFF-BALANCE SHEET ARRANGEMENTS

               The Registrant does not have any off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on the Registrant's financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that is material to investors.

TABULAR DISCLOSURE OF CONTRACTUAL OBLIGATIONS

               The following table presents, as at December 31, 2003, the Registrant’s known contractual obligations, aggregated by type of contractual obligation as set forth below (expressed in thousands of dollars):

   Contractual Obligation Total   2004   2005   2006   2007   2008+  
Long-Term Debt (1) $52,948   $16,666   $11,083   $5,000   $9,500   $10,699  
Purchase Obligations 500   500   -   -   -   -  
Other Long Term Obligations 1,133   625   508   -   -   -  
Total Contractual Obligations $54,581   $17,791   $11,591   $5,000   $9,500   $10,699  

(1)
As Petrex was in breach of several loan coverage ratios relating to its project loan as at December 31, 2003 and is not expected to meet some of its forward-looking loan coverage ratios in 2004 mainly as a result of the strength of the South African rand, the entire outstanding balances of the Petrex project loan facility and working capital facility totaling $34.7 million have been classified as current liabilities on the balance sheet.

AMEX CORPORATE GOVERNANCE

               The Company’s common shares are listed on The American Stock Exchange (“AMEX”). Section 110 of the AMEX company guide permits AMEX to consider the laws, customs and practices of foreign issuers in relaxing certain AMEX listing criteria, and to grant exemptions from AMEX 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 AMEX standards is posted on the Company’s website at www.bemagold.com and a copy of such description is available by written request made to the Company.

UNDERTAKING

               The Registrant 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 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.

CONSENT TO SERVICE OF PROCESS

               The Registrant has previously filed with the Commission a written consent to service of process and power of attorney on Form F-X.

SUPPLEMENT TO THE GLOSSARY OF TERMS
INCLUDED IN THE 2003 AIF

Mineral Reserve

The definitions of “mineral reserves”, “proven mineral reserves” and “probable mineral reserves,” as used in this report, are Canadian mining terms as defined in accordance with National Instrument 43-101 – Standards of Disclosure for Mineral Projects under the guidelines set out in the Canadian Institute of Mining, Metallurgy and Petroleum (the “CIM”) Standards on Mineral Resources and Mineral Reserves Definitions and guidelines adopted by the CIM Council on August 20, 2000. CIM standards differs from the standards in the United States.

Under United States standards, a “mineral reserve” is defined as a part of a mineral deposit which could be economically and legally extracted or produced at the time the mineral reserve determination is made, where:

     
  •
“reserve” means that part of a mineral deposit which can be economically and legally extracted or produced at the time of the reserve determination;
     
  •
“economically” implies that profitable extraction or production has been established or analytically demonstrated to be viable and justifiable under reasonable investment and market assumptions; and
     
  •
while “legally” does not imply that all permits needed for mining and processing have been obtained or that other legal issues have been completely resolved, for a reserve to exist, there should be a reasonable certainty based on applicable laws and regulations that issuance of permits or resolution of legal issues can be accomplished in a timely manner.
     
 

Mineral reserves are categorized as follows on the basis of the degree of confidence in the estimate of the quantity and grade of the deposit.

Under United States standards, proven or measured reserves are defined as reserves for which (a) quantity is computed from dimensions revealed in outcrops, trenches, workings or drill holes; (b) grade and/or quality are computed from the results of detailed sampling and (c) the sites for inspection, sampling and measurement are spaced so closely and the geographic character is so well defined that size, shape, depth and mineral content of reserves are well established.

Under United States standards, probable reserves are defined as reserves for which quantity and grade and/or quality are computed from information similar to that of proven reserves (under United States standards), but the sites for inspection, sampling, and measurement are further apart or are otherwise less adequately spaced, and the degree of assurance, although lower than that for proven mineral reserves, is high enough to assume continuity between points of observation. The degree of assurance, although lower than that for proven



  mineral reserves, is high enough to assume continuity between points of observation.
     
Mineral Resource
While the terms “mineral resource,” “measured mineral resource,” “indicated mineral resource,” and “inferred mineral resource” are recognized and required by Canadian regulations, they are not defined terms under standards in the United States. As such, information contained in this report concerning descriptions of mineralization and resources under Canadian standards may not be comparable to similar information made public by U.S. companies subject to the reporting and disclosure requirements of the Securities and Exchange Commission. “Indicated mineral resource” and “inferred mineral resource” have a great amount of uncertainty as to their existence and a great uncertainty as to their economic and legal feasibility. It can not be assumed that all or any part of an “indicated mineral resource” or “inferred mineral resource” will ever be upgraded to a higher category. Investors are cautioned not to assume that any part or all of mineral deposits in these categories will ever be converted into reserves.

DOCUMENTS INCLUDED AS PART OF THIS REPORT

   DOCUMENT DESCRIPTION
   
A. Annual Information Form dated May 19, 2004 of Bema Gold Corporation
   
B.*
Management’s Discussion and Analysis for 2003 and Audited Consolidated Financial Statements of Bema Gold Corporation for the financial year ended December 31, 2003 (including reconciliation with United States generally accepted accounting principles) together with the auditors’ report dated March 12, 2004 of PricewaterhouseCoopers LLP, Chartered Accountants, thereon

* Filed with the original Form 40-F, on May 20, 2004.

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 Amendment No. 1 to the annual report to be signed on its behalf by the undersigned, thereto duly authorized.

Registrant:  BEMA GOLD CORPORATION 
     
     
  By: /s/ Clive Johnson 
    Clive T. Johnson 
    Chairman, President and Chief Executive Officer 
     
Date: June 30, 2004     

EXHIBIT INDEX

The following documents are being filed with the Commission as exhibits to this Amendment No. 1 on Form 40-F/A to the annual report on Form 40-F.

EXHIBIT NO. DESCRIPTION 
   
1
   
2
   
3
 
4