UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 40-F/A
Amendment No. 2
[ ]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, 2011 | Commission File Number:001-35278 |
PRIMERO MINING CORP.
(Exact name of Registrant as specified in its charter)
British Columbia, Canada | 1040 | Not Applicable |
(Province or Other Jurisdiction of | (Primary Standard Industrial | (I.R.S. Employer |
Incorporation or Organization) | Classification Code) | Identification No.) |
Suite 1640, One Bentall Centre |
505 Burrard Street, Box 24 |
Vancouver, British Columbia, Canada |
( 604) 669 0040 |
(Address and telephone number of Registrant’s principal executive offices) |
Corporation Service Company |
Suite 400, 2711 Centerville Road |
Wilmington, Delaware 19808 |
(800) 927-9800 |
(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 | Name Of Each Exchange On Which Registered |
Common Shares, no par value | New York 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, 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 Company’s classes of capital or common stock as of the close of the period covered by the annual report:88,259,831 Common Shares as at December 31, 2011
Indicate by check mark whether the Company 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 file number assigned to the Company in connection with such Rule.
Yes[ ] No[ x ]
Indicate by check mark whether the Company (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 Company was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes[ x ] No[ ]
Indicate by check mark whether the Company 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 Company was required to submit and post such files).
Yes[ ] No[ ]
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EXPLANATORY NOTE
Primero Mining Corp. (the “Company” or “Primero”) is filing this Amendment No. 2 to its Annual Report on Form 40-F for the year ended December 31, 2011, as originally filed on April 3, 2012 and subsequently amended on May 24, 2012 (the “Annual Report”) in order to amend the Annual Report by filing with the United States Securities and Exchange Commission (the “SEC”) the restated audited financial statements of the Company for the years ended December 31, 2011 and 2010, including the report of its auditor with respect thereto, together with the Amended and Restated Management Discussion and Analysis of the Company for the year ended December 31, 2011. In addition, the Company is amending its earlier disclosure regarding its conclusion as to the effectiveness of its disclosure controls and procedures in order to disclose that such disclosure controls and procedures were not effective as at December 31, 2011 as a result of a material weakness that led to the amendment and restatement of the Company’s audited financial statements for the years ended December 31, 2011 and 2010 that were included in the original Annual Report. The Company has also amended its Forward Looking Statement disclosure to reflect recently announced corporate developments. No other amendments are being made to the Annual Report as originally filed and subsequently amended and this Amendment No 2 does not purport to amend any other item of the Annual Report to reflect events that have occurred after the original date that the initial Annual Report was filed.
ANNUAL INFORMATION FORM, AUDITED FINANCIAL STATEMENTS AND MD&A
The following documents of the Company are filed and incorporated by reference into this Annual Report:
Document | Exhibit No. |
Amended Annual Information Form of the Company for the year ended December 31, 2011 (the “AIF”) | 99.1(1) |
Restated audited financial statements of the Company for the years ended December 31, 2011 and 2010, including the report of auditor with respect thereto | 99.2(2) |
Amended and restated Management Discussion and Analysis of the Company for the year ended December 31, 2011 (the “MD&A”) | 99.3(2) |
(1) | Previously filed as an exhibit to the Company’s Amendment No. 1 to Annual Report filed with the SEC on May 24, 2012 |
(2) | Filed as an exhibit hereto. |
FORWARD-LOOKING STATEMENTS
This Annual Report, as amended, includes or incorporates by reference certain statements that constitute “forward-looking statements” within the meaning of the United StatesPrivate Securities Litigation Reform Act of 1995. These statements appear in a number of places in this Annual Report, as amended, and documents incorporated by reference herein and include statements regarding the Company’s intent, belief or current expectation and that of the Company’s officers and directors. These forward-looking statements involve known and unknown risks and uncertainties that may cause the Company’s actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. When used in this Annual Report, as amended, or in documents incorporated by reference in this Annual Report, as amended, words such as “believe,” “anticipate,” “estimate,” “project,” “intend,” “expect,” “may,” “will,” “plan,” “should,” “would,” “contemplate,” “possible,” “attempts,” “seeks” and similar expressions are intended to identify these forward-looking statements. These forward-looking statements are based on various factors and were derived utilizing numerous assumptions that could cause the Company’s actual results to differ materially from those in the forward-looking statements. Accordingly, readers are cautioned not to put undue reliance on these forward-looking statements.
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Forward-looking statements include, among others, statements regarding:
the ability of the Company to expand production at the San Dimas Mine (as defined in the AIF, as amended,);
the ability of the Company to successfully operate the San Dimas Mine;
the ability of the Company to identify appropriate acquisition opportunities, or if an opportunity is identified, to conclude a transaction on satisfactory terms;
the expected results of exploration activities;
the recording of revenue under the Amended and Restated Silver Purchase Agreement (as defined in the AIF, as amended,) at the fixed price realization and the recording of taxes on this basis;
the identification of potential taxes as a contingent liability and retaining access to sufficient cash to satisfy such contingent liability;
increased delineation at the San Dimas Mine that will lead to better grade control and the attainment of more consistent production targets in the future;
the expected results of reclamation activities at the San Dimas Mine;
the estimation or realization of Minerals Reserves (as defined in the AIF, as amended,) and Mineral Resources (as defined in the AIF, as amended,) and the realization of Mineral Reserve estimates (including all assumptions),
the ability to identify new Mineral Resources and convert Mineral Resources into Mineral Reserves;
the impact of new estimation methodologies on mine and production planning;
the timing and success of exploration activities;
the timing and the ability to expand the mill;
intentions to become an intermediate gold producer;
the timing and amount of estimated future production;
the ability to generate cash flows that exceed capital requirements;
capital expenditures and costs, including forecasted cash costs;
the timing of the development of new mineral deposits;
the sufficiency of future cash flows;
requirements for additional capital and ability to complete future financings to raise additional capital for exploration, development and operational activities and for acquisitions;
projected gold and silver production;
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expected ore grades, recovery rates and throughput;
the ability of the Company to comply with environmental, safety and other regulatory requirements;
expected or proposed development or construction activities, including additional tunnels, plant expansion, tailings improvements and hydro-electric improvements, and the expected costs thereof;
expected environmental capital expenditures;
expectations regarding currency fluctuations;
future prices of precious and base metals;
the ability of the Company to achieve a favourable advance ruling on its restructuring plan from Mexican tax authorities;
the ability of the Company to obtain government approvals or permits in connection with the continued operation and development of the San Dimas Mines;
the timing and results of union contract negotiations;
the resolution of title disputes relating to the Company’s properties;
the ability of the Company to maintain effective internal controls over financial reporting; and
the timing and possible outcome of pending litigation.
The above forward-looking information is necessarily based upon a number of factors and assumptions that, while considered reasonable by the Company as of the date of such statements, are inherently subject to significant business, economic and competitive uncertainties and contingencies. Key assumptions upon which the Company’s forward-looking statements are based include the following:
the specific assumptions set forth in the AIF, as amended, and the MD&A, as amended;
the expectations and beliefs of management;
assumptions relating to the existence of companies that may wish to dispose of producing or near-term producing precious metals assets;
that there are no significant disruptions affecting operations, whether due to labour disruptions, supply disruptions, damage to or loss of equipment, whether as a result of natural occurrences including flooding, political changes, title issues, intervention by local landowners, loss of permits, or environmental concerns or otherwise;
that there are no disruptions in the supply of power from the Las Truchas power generation facility, whether as a result of damage to the facility or unusually limited amounts of precipitation;
that development and expansion at the San Dimas Mine proceeds on a basis consistent with current expectations and the Company does not change its development and exploration plans;
that the exchange rate between the Canadian dollar, Mexican peso and the United States dollar remains consistent with current levels or as set out in the AIF, as amended,;
that prices for gold and silver remain consistent with the Company’s expectations;
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that prices for key mining supplies, including labour costs and consumables, remain consistent with the Company’s current expectations;
that production meets expectations and is consistent with estimates;
that plant, equipment and processes will operate as anticipated;
that the Company’s current estimates of Mineral Reserves, Mineral Resources, mineral grades and mineral recovery are accurate;
that the Company identifies higher grade veins in sufficient quantities of minable ore in the Central Block and Sinaloa Graben;
that the geology and vein structures in the Sinaloa Graben are as expected;
that the Company completes the proposed tunnels and access routes;
that the ratio of gold to silver price is maintained in accordance with the Company’s expectations;
that there are no material variations in the current tax and regulatory environment or the tax positions taken by the Company;
that the Company will maintain access to surface rights;
that the Company will be able to obtain and maintain government approvals or permits in connection with the continued operation and development of the San Dimas Mine;
that the Company will be able to repay its indebtedness under the Promissory Note and Convertible Promissory Note (as defined in the AIF, as amended,);
that the Company can access financing, appropriate equipment and sufficient labour; and
that the political environment within Mexico will continue to support the development of environmentally safe mining projects.
No assurance can be given that these assumptions will prove to be correct. These assumptions should be considered carefully by readers. Readers are cautioned not to place undue reliance on the forward-looking information and statements or the assumptions on which the Company’s forward-looking information and statements are based.
Forward-looking information is 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. Such risks include, but are not limited to:
the specific risks set forth in the AIF, as amended, and the MD&A, as amended;
the ability of the Company to continue to pay taxes on silver sold under the Amended and Restated Silver Purchaser Agreement at realized prices;
the ability of the Company to achieve projected gold and silver production and, gold and silver grades;
projected cash costs of production and capital expenditures may be greater than anticipated;
the volatility of prices of gold, silver and other metals;
the ratio between the market prices of gold and silver;
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uncertainty of Mineral Reserves, Mineral Resources, exploration potential, mineral grades and mineral recovery estimates;
uncertainty of future production, delays in completion of the mill expansion, exploration and development plans;
insufficient capital to complete mill expansion, development and exploration plans;
inability to maintain or acquire attractive mining properties on terms it considers acceptable or at all, and other risks inherent with acquisitions;
potentially unknown liabilities associated with the acquisition of the San Dimas Assets (as defined in the AIF, as amended, under “Corporate Structure”) and the shares of Silver Trading (as defined in the AIF, as amended, under “Corporate Structure”);
delays in obtaining governmental approvals, permits or financing or in the completion of development or construction activities;
the Company’s ability to repay its indebtedness under the Promissory Note and Convertible Promissory Note and the Company’s limited ability to incur additional indebtedness;
the possibility that the Mexican government will contest the entitlement of the Company to a credit against federal tax payable;
currency fluctuations;
limitations on insurance coverage;
financing of additional capital requirements;
commercial viability of mineral deposits;
cost of exploration and development programs;
inability to complete the proposed tunnels, access routes or other development, for whatever reason;
risks associated with having adequate infrastructure, including unexpected interruptions in power supply from the hydroelectric project;
mining risks, including unexpected formations and cave-ins, which delay operations or prevent extraction of material;
risks associated with competition in the mining industry;
risks associated with the ability to retain key executives and certain operating personnel;
risks associated with conflicting legal obligations of directors and officers of the Company who are directors and/or officers of other companies;
risks associated with foreign operations;
adverse changes to in labour relations legislation or in the relationship between the Company with its employees and unions at the San Dimas Mine;
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title disputes or claims;
changes in governmental and environmental regulation that results in increased costs;
cost of environmental expenditures and potential environmental liabilities;
landowner dissatisfaction and disputes;
failure of plant, equipment or processes to operate as anticipated;
accidents, labour disputes and road blocks; and
risks associated with having a significant shareholder.
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.
Investors are advised to carefully review and consider the risk factors identified in the AIF, as amended, under the heading “Risk Factors” for a discussion of the factors that could cause the Company’s actual results, performance and achievements to be materially different from any anticipated future results, performance or achievements expressed or implied by the forward-looking statements. Readers are further cautioned that the foregoing list of assumptions and risk factors is not exhaustive and it is recommended that prospective investors consult the more complete discussion of the Company’s business, financial condition and prospects that is included in the AIF, as amended, and the MD&A, as amended. Although the Company believes that the assumptions on which the forward-looking statements are made are reasonable, based on the information available to the Company on the date such statements were made, no assurances can be given as to whether these assumptions will prove to be correct. Accordingly, readers should not place undue reliance on forward-looking information. The forward-looking information and statements contained in this AIF, as amended, and the MD&A, as amended, are made as of the date thereof and, accordingly, are subject to change after such date. The Company does not undertake to update any forward-looking information, except as, and to the extent, required by applicable securities laws, including applicable United States federal securities laws. The forward-looking statements contained herein are expressly qualified by this cautionary statement.
CAUTIONARY NOTE TO UNITED STATES INVESTORS CONCERNING
ESTIMATES OF MEASURED, INDICATED AND INFERRED RESOURCES
The disclosure in this Annual Report, as amended, including the documents incorporated by reference herein, uses terms that comply with reporting standards in Canada and certain estimates are made in accordance with Canadian National Instrument 43-101Standards of Disclosure for Mineral Projects(“NI 43-101”). NI 43-101 is a rule developed by the Canadian Securities Administrators that establishes standards for all public disclosure an issuer makes of scientific and technical information concerning mineral projects. Unless otherwise indicated, all reserve and resource estimates contained in or incorporated by reference in this Annual Report, as amended, have been prepared in accordance with NI 43-101. These standards differ significantly from the requirements of the SEC, and reserve and resource information contained herein and incorporated by reference herein may not be comparable to similar information disclosed by U.S. companies.
This Annual Report, as amended, includes estimates of mineral reserves (“Mineral Reserves”) that have been calculated in accordance with NI 43-101, as required by Canadian securities regulatory authorities. For United States reporting purposes, SEC Industry Guide 7 under the Exchange Act, as interpreted by staff of the SEC, applies different standards in order to classify mineralization as a reserve. As a result, the definitions of proven and probable reserves used in NI 43-101 differ from the definitions in SEC Industry Guide 7. Under SEC standards, mineralization may not be classified as a "reserve" unless the determination has been made that the mineralization could be economically and legally produced or extracted at the time the reserve determination is made. Among other things, all necessary permits would be required to be in hand or issuance imminent in order to classify mineralized material as reserves under the SEC standards. Accordingly, mineral reserve estimates contained in this Annual Report, as amended, may not qualify as “reserves” under SEC standards.
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In addition, this Annual Report, as amended, uses the terms “measured mineral resources”, “indicated mineral resources” and “inferred mineral resources” (together “Mineral Resources”) to comply with the reporting standards in Canada. The Company advises United States investors that while those terms are recognized and required by Canadian regulations, the SEC does not recognize them. United States 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. These terms have a great amount of uncertainty as to their existence, and great uncertainty as to their economic and legal feasibility.
Further, “inferred mineral resources” have a great amount of uncertainty as to their existence and as to whether they can be mined legally or economically. Therefore, United States investors are also cautioned not to assume that all or any part of the “inferred resources” exist. In accordance with Canadian securities laws, estimates of “inferred resources” cannot form the basis of feasibility or other economic studies.
It cannot be assumed that all or any part of “measured mineral resources”, “indicated mineral resources”, or “inferred mineral resources” will ever be upgraded to a higher category. Investors are cautioned not to assume that any part of the reported “measured mineral resources”, “indicated mineral resources”, or “inferred mineral resources” in this Annual Report, as amended, is economically or legally mineable.
NI 43-101 also permits the inclusion of disclosure regarding the potential quantity and grade, expressed as ranges, of a target for further exploration provided that the disclosure (i) states with equal prominence that the potential quantity and grade is conceptual in nature, that there has been insufficient exploration to define a mineral resource and that it is uncertain if further exploration will result in the target being delineated as a mineral resources, and (ii) states the basis on which the disclosed potential quantity and grade has been determined. Disclosure regarding exploration potential has been included in the Company’s AIF, as amended, that is incorporated into this Annual Report, as amended,. United States investors are cautioned that disclosure of such exploration potential is conceptual in nature by definition and there is no assurance that exploration of the mineral potential identified will result in any category of NI 43-101 Mineral Resources being identified.
In addition, disclosure of “contained ounces” is permitted disclosure under Canadian securities laws; however, the SEC only permits issuers to report mineralization as in place tonnage and grade without reference to unit measures.
For the above reasons, information contained in this Annual Report, as amended, and the documents incorporated by reference herein containing descriptions of the Company’s mineral deposits may not be comparable to similar information made public by U.S. companies subject to the reporting and disclosure requirements under the United States federal securities laws and the rules and regulations thereunder.
DISCLOSURE CONTROLS AND PROCEDURES
Disclosure Controls and Procedures
Disclosure controls and procedures are defined in Rule 13a-15(e) and 15d-15(e) under the Exchange Act to mean controls and other procedures of an issuer that are designed to ensure that information required to be disclosed by the issuer in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms and includes. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that such information is accumulated and communicated to the issuer’s management, including its principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.
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Management’s Re-Evaluation of Disclosure Controls and Procedures
For the end of the period covered by this annual report on Form 40-F, being the fiscal year ended December 31, 2011, a re-evaluation was carried out under the supervision of and with the participation of the Company’s management, including the Chief Executive Officer (“CEO”) and Chief Financial Officer (“CFO”), of the effectiveness of the design and operations of the Company’s disclosure controls and procedures (as defined in Rule Rule 13a-15(e) and 15d-15(e) under the Exchange Act). Based on that re-evaluation the CEO and the CFO have concluded that, as of the end of the period covered by this Annual Report and as a result of the material weakness identified in the Amended and Restated Management Discussion and Analysis under “Internal control over financial reporting, as restated”, the Company’s disclosure controls and procedures were not effective to give reasonable assurance that the information required to be disclosed by the Company in reports that it files or submits to the SEC under the Exchange Act is:
recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and
accumulated and communicated to our management, including our CEO and CFO, as appropriate, to allow timely decisions regarding required disclosure.
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UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
Undertaking
The Company undertakes to make available, in person or by telephone, representatives to respond to inquiries made by the Commission staff, and to furnish promptly, when requested to do so by the Commission staff, information relating to:
the securities 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
Concurrently with the filing of its Registration Statement on Form 40-F with the SEC on August 11, 2011, the Company filed an Appointment of Agent for Service of Process and Undertaking on Form F-X signed by the Company and its agent for service of process with respect to the class of securities in relation to which the obligation to file this Annual Report on Form 40-F arises.
Any change to the name or address of the Company’s agent for service shall be communicated promptly to the Commission by amendment to Form F-X referencing the file number of the Company.
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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.
Date: November 7, 2012 | PRIMERO MINING CORP. | |
By: | /s/ Joseph F. Conway | |
Joseph F. Conway | ||
President and Chief Executive Officer |
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EXHIBIT INDEX
Exhibit Number | Exhibit Description |
Principal | |
Documents | |
99.1 | Amended Annual Information Form of the Company for the year ended December 31, 2011 (2) |
99.2 | |
99.3 | |
Certifications | |
99.4 | Certification of Chief Executive Officer pursuant to Rule 13a-14(a) of the Exchange Act(3) |
99.5 | Certification of Chief Financial Officer pursuant to Rule 13a-14(a) of the Exchange Act(3) |
99.6 | |
99.7 | |
Consents | |
99.8 | |
99.9 | Consent of Gordon Watts dated April 2, 2012(1) |
99.10 | Consent of Velasquez Spring dated April 2, 2012(1) |
99.11 | Consent of Herbert A. Smith dated May 23, 2012(2) |
99.12 | Consent of J. Morton Shannon dated May 23, 2012(2) |
99.13 | Consent of Rodney Webster dated May 23, 2012(2) |
99.14 | Consent of Alan Riles dated May 23, 2012(2) |
(1) Previously filed as an exhibit to the Annual Report on Form 40-F of the Company for the year ended December 31, 2011 filed on April 3, 2012.
(2) Filed as an exhibit to the Amendment No. 1 to Annual Report on Form 40-F of the Company for the year ended December 31, 2011 filed on May 24, 2012.
(3) Filed as an exhibit to this Amendment No. 2 to Annual Report on Form 40-F of the Company for the year ended December 31, 2011.
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