**UNITED STATES**

**SECURITIES AND EXCHANGE COMMISSION**

**Washington, D.C. 20549**

 

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**FORM 40-F**

 

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**[Check one]**

 

**o****          ****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, 2012              Commission File Number   001-34244**

 

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**HUDBAY MINERALS INC.**

(Exact name of Registrant as specified in its charter)

 

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**N/A**

(Translation of Registrant’s name into English (if applicable))

 

**Canada**

(Province or other jurisdiction of incorporation or organization)

 

**1000**

(Primary Standard Industrial Classification Code Number (if applicable))

 

**98-0485558**

(I.R.S. Employer Identification Number (if applicable))

 

**25 York Street**

**Suite 800**

**Toronto, Ontario**

**M5J 2V5, Canada**

**416 362-8181**

(Address and telephone number of Registrant’s principal executive offices)

 

**Andrew W. Bongiorno**

**Bevan, Mosca, Giuditta & Zarillo, P.C.**

**200 Madison Avenue, Suite 510**

**New York, N.Y. 10016**

**908 385-4289**

(Name, address (including zip code) and telephone number (including area code)

of agent for service in the United States)

 

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**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, no par value** | ** ** | **The New York Stock Exchange**               |

 

**Securities registered or to be registered pursuant to Section 12(g) of the Act.**

 

**N/A**

(Title of Class)

 

**Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act.**

 

**9.500% Senior Notes due 2020**

(Title of Class)

 

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For annual reports, indicate by check mark the information filed with this form:

 

| x  Annual Information Form |   | x  Audited Annual Financial Statements |
|---------------------------------|--------|---------------------------------------------|

 

Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report: As at December 31, 2012, 171,984,487 common shares outstanding.

 

Indicate by check mark whether the registrant by filing the information contained in this form is also thereby furnishing the information to the U.S. Securities and Exchange Commission (the “Commission”) pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934 (the “Exchange Act”). If “Yes” is marked, indicate the file number assigned to the registrant in connection with such rule.

 

| Yes  o |   | No  x |
|------------------|--------|-----------------|

 

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13(d) 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 in the past 90 days.

 

| Yes  x |   | No  o |
|------------------|--------|-----------------|

 

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  o |   | No  o |
|------------------|--------|-----------------|

 

 

 

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**EXPLANATORY NOTE**

 

HudBay Minerals Inc. (the “Registrant”) is a Canadian issuer eligible to file its annual report (“Annual Report”) pursuant to Section 13(a) of the Exchange Act, on Form 40-F pursuant to the multi-jurisdictional disclosure system under the Exchange Act. The Registrant is a “foreign private issuer” as defined in Rule 405 under the Securities Act of 1933, as amended, and Rule 3b-4 under the Exchange Act. The equity securities of the Registrant are accordingly exempt from Sections 14(a), 14(b), 14(c), 14(f) and 16 of the Exchange Act pursuant to Rule 3a12-3 under the Exchange Act.

 

The Registrant is permitted, under the multi-jurisdictional disclosure system adopted by the United States and Canada, to prepare this Annual Report on Form 40-F in accordance with Canadian disclosure requirements, which are different from those of the United States.

 

This Annual Report contains references to both United States dollars and Canadian dollars. All dollar amounts referenced, unless otherwise indicated, are expressed in Canadian dollars, and United States dollars are referred to as “United States dollars” or “US$”.

 

**DOCUMENTS INCORPORATED BY REFERENCE**

 

The Registrant’s Annual Information Form (“AIF”) for the fiscal year ended December 31, 2012 is incorporated herein by reference as Exhibit 99.1.

 

The audited consolidated financial statements (the “Audited Annual Financial Statements”) of the Registrant for the years ended December 31, 2012 and 2011, including the reports of the auditors with respect thereto, are incorporated herein by reference as Exhibit 99.2. The Audited Annual Financial Statements have been prepared using accounting policies consistent with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board.

 

The Registrant’s MD&A for the year ended December 31, 2012 is incorporated herein by reference as Exhibit 99.3.

 

The Registrant’s Disclosure Pursuant to Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act is incorporated herein by reference as Exhibit 99.4.

 

The Registrant’s amended Code of Business Conduct and Ethics is incorporated herein by reference as Exhibit 99.5.

 

**DISCLOSURE CONTROLS AND PROCEDURES**

 

As of the end of the period covered by this Annual Report for the Registrant’s fiscal year ended December 31, 2012, an evaluation of the effectiveness of the Registrant’s “disclosure controls and procedures” (as such term is defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) was carried out by the Registrant’s management with the participation and supervision of the principal executive officer and principal financial officer. Based upon that evaluation, the Registrant’s principal executive officer and principal financial officer have concluded that as of the end of that fiscal year, the Registrant’s disclosure controls and procedures are effective to ensure that information required to be disclosed by the Registrant in reports that it files or submits under the Exchange Act is (i) recorded, processed, summarized and reported within the time periods specified in Commission rules and forms and (ii) accumulated and communicated to the Registrant’s management, including its principal executive officer and principal financial officer, to allow timely decisions regarding required disclosure.

 

**INTERNAL CONTROL OVER FINANCIAL REPORTING**

 

The disclosure provided under “Internal control over financial reporting (“ICFR”)” on page 56 of Exhibit 99.3, Management’s Discussion & Analysis for the Year Ended December 31, 2012, is incorporated by reference herein.

 

During the first quarter of 2012, the Registrant’s Corporate office began using a new enterprise resource planning (“ERP”) information system that it previously implemented at its Manitoba business unit during the second quarter of 2011. The implementation of the new ERP system followed the Registrant’s project plans, which included a number of typical project controls, such as the testing of data conversion and system reports, user training and user acceptance testing, in order to ensure internal controls were in

 

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place during and after the implementation. The Registrant did not make any other changes to its “internal control over financial reporting” (as such term is defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) during the year ended December 31, 2012 that materially affected, or are reasonably likely to materially affect, its internal control over financial reporting.

 

All internal control systems, no matter how well designed, have inherent limitations. As a result, even systems determined to be effective may not prevent or detect misstatements on a timely basis, as systems can provide only reasonable assurance that the objectives of the control system are met. In addition, projections of any evaluation of the effectiveness of internal control over financial reporting 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 change.

 

**ATTESTATION REPORT OF THE REGISTERED PUBLIC ACCOUNTING FIRM**

 

The two reports of Deloitte LLP (“Deloitte”) titled “Report of Independent Registered Chartered Accountants” immediately preceeding the Registrant’s audited consolidated financial statements attached as Exhibit 99.2, Audited Annual Financial Statements for the years ended December 31, 2012 and 2011, are incorporated herein by reference.

 

**BLACKOUT PERIODS**

 

There were no “blackout periods”, as defined under Rule 100(b) of Regulation BTR, requiring notice pursuant to Rule 104 of Regulation BTR during the fiscal year ended December 31, 2012.

 

**AUDIT COMMITTEE IDENTIFICATION AND FINANCIAL EXPERT**

 

As at December 31, 2012, the Registrant’s audit committee consisted of J. Bruce Barraclough, Alan J. Lenczner and John. L. Knowles.  Mr. Barraclough, the Registrant’s esteemed Chair of the audit committee, passed away in March 2013. Following Mr. Barraclough’s passing, on the recommendation of the corporate governance and nominating committee, the Registrant’s board of directors appointed Alan R. Hibben as the Interim Chair of the audit committee. The Registrant’s corporate governance and nominating committee has commenced a search to find a permanent Chair for the audit committee. The Registrant’s board of directors has determined that each of Messrs. Hibben, Lenczner and Knowles is an “audit committee financial expert” within the meaning of the Commission’s rules.  Each of Messrs. Hibben, Lenczner and Knowles is also “independent” under the criteria of Rule 10A-3 of the Exchange Act as required by the New York Stock Exchange (the “NYSE”).  The Commission has indicated that the designation of Messrs. Hibben, Lenczner and Knowles as audit committee financial experts does not make any of them an “expert” for any purpose or impose any duties, obligations or liability on Messrs. Hibben, Lenczner and Knowles that are greater than those imposed on members of the audit committee and board of directors who do not carry this designation. The audit committee’s charter sets out its responsibilities and duties, qualifications for membership, procedures for committee appointment and reporting to the Registrant’s board of directors.  A copy of the current charter is attached to the AIF as Schedule C and is available on the Registrant’s website at www.hudbayminerals.com/English/About-Us/Governance/default.aspx.

 

**CODE OF ETHICS**

 

The Registrant has adopted a Code of Business Conduct and Ethics (the “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 available on the Registrant’s website at www.hudbayminerals.com/English/About-Us/Governance/default.aspx. The Registrant undertakes to provide to any person, without charge, upon request, a copy of the Code of Ethics.  Requests for copies of the Code of Ethics should be made by contacting the Registrant’s Vice President, Legal and Corporate Secretary at 416 362-8181.  No waivers of the Registrant’s Code of Ethics were granted to any principal officer of the Registrant or any person performing similar functions during the fiscal year ended December 31, 2012.

 

During the fiscal year ended December 31, 2012, the Registrant conducted a review of its Code of Ethics to consider whether any amendments were advisable or required.  The following is a summary of the material amendments that were made to the Registrant’s Code of Ethics following that review and during

 

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the fiscal year ended December 31, 2012.  All further amendments to the Code of Ethics, and all waivers of the Code of Ethics with respect to any of the officers covered by it, will be posted on the Registrant’s website at www.hudbayminerals.com/English/About-Us/Governance/default.aspx. The following description is qualified in its entirety by reference to the Registrant’s amended Code of Ethics, which is attached hereto as Exhibit 99.5 and incorporated herein by reference.

 

***Use of Company Property***

 

The Registrant added a provision to its Code of Ethics which provides that any theft or fraud by an employee of company assets will result in immediate termination of the responsible employee and could also result in the Registrant seeking criminal prosecution or civil charges against such employee.

 

**PRINCIPAL ACCOUNTANT FEES AND SERVICES**

 

The information provided under the heading “Audit Committee Disclosure” on pages 36 through 38 of the AIF attached hereto as Exhibit 99.1 is incorporated by reference herein. All audit services, audit-related services, tax services, and other services provided for the fiscal year ended December 31, 2012 were preapproved by the audit committee in accordance with the Registrant’s preapproval policy as described under the subheading “Policy Regarding Non-Audit Services Rendered by Auditors” on pages 37 through 38 of the AIF attached hereto as Exhibit 99.1.

 

***Audit Fees***

 

The aggregate fees billed by Deloitte, the Registrant’s independent auditor, for the fiscal years ended December 31, 2011 and December 31, 2012, respectively, for auditing annual financial statements and reviewing the interim financial statements, as well as services normally provided by Deloitte in connection with the Registrant’s statutory and regulatory filings for such fiscal years were $1,245,553 and $1,066,374, respectively.

 

***Audit-Related Fees***

 

The aggregate fees billed by Deloitte for the fiscal years ended December 31, 2011 and December 31, 2012, respectively, for audit-related fees, which are fees for assurance and services related to Deloitte’s role, including attest services not required by statute or regulation and other audit related services, for such fiscal years were $476,640 and $372,076, respectively.

 

***Tax Fees***

 

There were no tax fees billed by Deloitte for the fiscal years ended December 31, 2011 and December 31, 2012.

 

***All Other Fees***

 

There were no fees billed by Deloitte for the fiscal years ended December 31, 2011 and December 31, 2012, except as described above.

 

**OFF-BALANCE SHEET ARRANGEMENTS**

 

The Registrant has no 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 operation, liquidity, capital expenditures or capital resources that is material to investors.

 

**TABULAR DISCLOSURE OF CONTRACTUAL OBLIGATIONS**

 

The disclosure provided under “Contractual Obligations and Commitments” on page 38 of Exhibit 99.3, Management’s Discussion & Analysis for the Year Ended December 31, 2012, is incorporated by reference herein.

 

**COMPARISON WITH NEW YORK STOCK EXCHANGE GOVERNANCE RULES**

 

The NYSE requires that each listed company meet certain corporate governance standards.  These standards supplement the corporate governance reforms adopted by the United State Securities and Exchange Commission pursuant to the Sarbanes-Oxley Act of 2002.

 

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Under the NYSE’s Listed Company Manual, a “foreign private issuer”, such as the Registrant, is not required to comply with most of the NYSE corporate governance standards.  However, foreign private issuers are required to disclose any significant ways in which their corporate governance practices differ from those followed by U.S. companies under the NYSE corporate governance standards.

 

The Registrant is subject to the listing standards of the Toronto Stock Exchange (the “TSX”) and the corporate governance rules of Canadian Securities Administrators.  These listing standards and corporate governance rules are substantially similar to the NYSE listing standards.  The Registrant complies with these TSX listing standards and Canadian corporate governance rules.

 

The following are the significant ways in which the Registrant’s governance practices differ from those followed by domestic companies under the NYSE corporate governance standards:

 

***Director Independence***

 

The Registrant determines independence of its directors under the policies of the Canadian Securities Administrators.  For a director to be considered independent under the policies of the Canadian Securities Administrators, he or she must have no direct or indirect material relationship with us, being a relationship that could, in the view of the board of directors reasonably be expected to interfere with the exercise of his or her independent judgment, and must not be in any relationship deemed to be not independent pursuant to such policies.  To assist in determining the independence of directors for purposes that include compliance with applicable legal and regulatory requirements and policies, the board of directors has adopted certain categorical standards, which are part of our Corporate Governance Guidelines.  The Registrant’s board of directors also determines whether each member of the Registrant’s audit committee is independent pursuant to National Instrument 52-110 Audit Committees and Rule 10A-3 of the Exchange Act.  The Registrant’s board of directors has not adopted the director independence standards contained in Section 303A.02 of the NYSE’s Listed Company Manual.

 

***Approval of Equity Compensation Plans***

 

Section 303A.08 of the NYSE’s Listed Company Manual requires shareholder approval of all equity compensation plans and material revisions to such plans.  The definition of “equity compensation plans” covers plans that provide for the delivery of both newly issued and treasury securities, as well as plans that rely on securities re-acquired in the open market by the issuing company for the purpose of redistribution to employers and directors. The TSX rules provide that the creation of any equity compensation plans that provide for new issuances of securities is subject to shareholder approval.  Any amendments to such plans are subject to shareholder approval unless the specific equity compensation plan contains detailed provisions, approved by the shareholders, that specify those amendments requiring shareholder approval and those amendments which can be made without shareholder approval.  The Registrant follows the TSX rules with respect to the requirements for shareholder approval of equity compensation plans and revisions to such plans.

 

***Shareholder Approval Requirement***

 

In lieu of Section 312 of the NYSE’s Listed Company Manual, the Registrant will follow the TSX rules for shareholder approval of new issuances of its common shares.  Following the TSX rules, shareholder approval is required for certain issuances of shares that (i) materially affect control of the Registrant or (ii) provide consideration to insiders in aggregate of 10% or greater of the market capitalization of the listed issuer and have not been negotiated at arm’s length.  Shareholder approval is also required, pursuant to the TSX rules, in the case of private placements (x) for an aggregate number of listed securities issuable greater than 25% of the number of securities of the listed issuer which are outstanding, on a non-diluted basis, prior to the date of closing of the transaction if the price per security is less than the market price or (y) that during any six month period are to insiders for listed securities or options, rights or other entitlements to listed securities greater than 10% of the number of securities of the listed issuer which are outstanding, on a non-diluted basis, prior to the date of the closing of the first private placement to an insider during the six month period.

 

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**MINE SAFETY DISCLOSURE**

 

Pursuant to Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, issuers that are operators, or that have a subsidiary that is an operator, of a coal or other mine are required to disclose in their periodic reports filed with the Commission information regarding specified health and safety violations, orders and citations, related assessments and legal actions, and mining-related fatalities. For information regarding the Registrant’s mine safety disclosures, see “Disclosure Pursuant to Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act” filed as Exhibit 99.4 to this Annual Report on Form 40-F.

 

**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. Any change to the name or address of the Registrant’s agent for service shall be communicated promptly to the Commission 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.

 
|   |                     |
|--------|--------------------------|
|   | **HUDBAY MINERALS INC.** |
|   |                     |
|   |                     |
|   | By:                      | /s/   Patrick Donnelly |
|   | Name:                    | Patrick   Donnelly |
|   | Title:                   | Vice   President, Legal and Corporate Secretary |
|   | Date:                    | March 28,   2013 |

 

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**EXHIBIT INDEX**

 

**Exhibit  Description and Date of Document**

 

**Annual Information; Management’s Discussion and Analysis; Mine Safety Disclosure**

 

99.1                        Annual Information Form for the Year Ended December 31, 2012

 

99.2                        Audited Annual Financial Statements for the Years Ended December 31, 2012 and 2011

 

99.3                        Management’s Discussion & Analysis for the Year Ended December 31, 2012

 

99.4                        Disclosure Pursuant to Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act

 

99.5                        Amended Code of Business Conduct and Ethics

 

**Certifications**

 

99.6                        Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

99.7                        Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

99.8                        Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

99.9                        Certification of Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

**Consents**

 

99.10                 Consent of Cashel Meagher, P.Geo., dated March 28, 2013

 

99.11                 Consent of Robert Carter, P.Eng., dated March 28, 2013

 

99.12                 Consent of Deloitte LLP, March 28, 2013

 

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