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, 2009
Commission file number: 001-31586
MINEFINDERS CORPORATION LTD.
(Exact Name of Registrant as Specified in its Charter)
| Ontario | 1000 | N/A |
| (Province or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code) | (I.R.S. Employer Identification No.) |
2288 – 1177 West Hastings Street
Vancouver, British Columbia, Canada V6E 2K3
(604) 687-6263
(Address and Telephone Number of Registrant’s Principal Executive Offices)
| Dorsey & Whitney LLP | Copies to: |
| Republic Plaza Building, Suite 4700 | Kenneth G. Sam |
| 370 Seventeenth Street | Dorsey & Whitney LLP |
| Denver, Colorado 80202 | Republic Plaza Building, Suite 4700 |
| (303) 629-3400 | 370 Seventeenth Street |
| (Name, address (including zip code) and telephone number (including area | Denver, Colorado 80202 |
| code) of agent for service in the United States) | (303) 629-3445 |
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 | NYSE Amex Equities |
Securities registered or to be registered pursuant to Section 12(g) of the Act: N/A
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: N/A
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:65,773,032
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.
[ X ] Yes [ ] No
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter)during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
[ X ] Yes [ ] No
EXPLANATORY NOTE
Minefinders Corporation Ltd. (the “Company” or the “Registrant”) is a Canadian issuer eligible to file its annual report pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on Form 40-F pursuant to the multi-jurisdictional disclosure system of the Exchange Act . The equity securities of the Company are accordingly exempt from Sections 14(a), 14(b), 14(c), 14(f) and 16 of the Exchange Act pursuant to Rule 3a12-3.
The Company hereby files this amendment number one to its annual report on Form 40-F for the year ended December 31, 2009, as originally filed with the United States Securities and Exchange Commission (the "SEC") on March 2, 2010 (the "Original Report"), to re-file the Auditors' Report on Consolidated Financial Statements as of and for the years ended December 31, 2009 and 2008 to correct a typographical error and to re-file the consent from its independent auditor which inadvertently failed to consent to the incorporation by reference of their audit reports contained in this annual report into the Company's effective registration statements filed with the SEC. Other than the correction to the Auditors' Report on Consolidated Financial Statements as of and for the years ended December 31, 2009 and 2008, as included in Exhibit 2 and to the consent included as Exhibit 9, no disclosure contained in any Item of the Original Report is being amended, updated or otherwise revised.
UNDERTAKING
The Company 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.
CONSENT TO SERVICE OF PROCESS
The Company filed an Appointment of Agent for Service of Process and Undertaking on Form F-X with the SEC on November 21, 2008, which is hereby incorporated by reference, with respect to the class of securities in relation to which the obligation to file the Form 40-F/A arises.
EXHIBITS
| 1.* | Annual Information Form of the Company for the year ended December 31, 2009 | |
2. | The following audited consolidated financial statements of the Company, are exhibits to and form a part of this annual report: | |
Auditors’ Report on Consolidated Financial Statements as of and for the years ended December 31, 2009 and 2008 and *Auditors’ Report on Effectiveness of Internal Control Over Financial Reporting as at December 31, 2009; | ||
| *Consolidated Balance Sheets as of December 31, 2009 and 2008; | ||
| *Consolidated Statements of Operations and Comprehensive Loss for the years ended December 31, 2009, 2008 and 2007; | ||
| *Consolidated Statement of Shareholders’ Equity for the years ended December 31, 2009, 2008 and 2007; | ||
| *Consolidated Statements of Cash Flows for the years ended December 31, 2009, 2008 and 2007; | ||
| *Notes to Consolidated Financial Statements (which includes a reconciliation with United States GAAP); | ||
| 3.* | Management’s Discussion and Analysis | |
4.* | Auditors’ Report on Consolidated Financial Statements for the year ended December 31, 2007 | |
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CERTIFICATIONS
| 5. | Certificate of Chief Executive Officer Pursuant to Rule 13a-14(a) of the Exchange Act |
Certificate of Chief Financial Officer Pursuant to Rule 13a-14(a) of the Exchange Act | |
CONSENTS
| 9. | Consent of KPMG LLP |
| 10.* | Consent of BDO Canada LLP |
| 11.* | Consent of Mark H. Bailey |
| 12.* | Consent of Gustavson Associates LLC. |
| 13.* | Consent of William J. Crowl R.G., Gustavson Associates LLC. |
| 14.* | Consent of Donald E. Hulse P.E., Gustavson Associates LLC. |
| 15.* | Consent of Chlumsky, Armbrust & Meyer, LLC |
| 16.* | Consent of Richard L. Nielsen, Ph.D., Chlumsky, Armbrust and Meyer LLC. |
| 17.* | Consent of Robert L. Sandefur, P.E., Chlumsky, Armbrust and Meyer LLC. |
| 18.* | Consent of Kappes, Cassiday & Associates |
| 19.* | Consent of Daniel W. Kappes, Kappes, Cassiday & Associates |
| 20.* | Consent of Ralph R. Sacrison, Sacrison Engineering |
21.* | Consent of David Linebarger, Sacrison Engineering |
* -Previously filed as an exhibit to the Company’s Annual Report on Form 40-F, as filed with the SEC on March 2, 2010.
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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/A and has duly caused this annual report to be signed on its behalf by the undersigned, thereto duly authorized.
| MINEFINDERS CORPORATION LTD. | |||
| By: | /s/ Mark H. Bailey | ||
| Name: | Mark H. Bailey | ||
| Title: | President and Chief Executive Officer | ||
| Date: | March 5, 2010 | ||
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CERTIFICATION
I, Mark H. Bailey, certify that:
| 1. | I have reviewed this annual report on Form 40-F/A of Minefinders Corporation Ltd.; | |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the issuer as of, and for, the periods presented in this report; | |
| 4. | The issuer’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the issuer and have: | |
| a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the issuer, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | |
| b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | |
| c) | Evaluated the effectiveness of the issuer’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | |
| d) | Disclosed in this report any change in the issuer’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the issuer’s internal control over financial reporting; and | |
| 5. | The issuer’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the issuer’s auditor and the audit committee of the issuer’s board of directors (or persons performing the equivalent functions): | |
| a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the issuer’s ability to record, process, summarize and report financial information; and | |
| b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the issuer’s internal control over financial reporting. | |
| Date | March 5, 2010 | By | /s/ Mark H. Bailey | |||
| Mark H. Bailey | ||||||
| Chief Executive Officer | ||||||
CERTIFICATION
I, Greg D. Smith, certify that:
| 1. | I have reviewed this annual report on Form 40-F/A of Minefinders Corporation Ltd.; | ||
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | ||
| 3. | Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the issuer as of, and for, the periods presented in this report; | ||
| 4. | The issuer’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the issuer and have: | ||
| a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the issuer, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
| b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
| c) | Evaluated the effectiveness of the issuer’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
| d) | Disclosed in this report any change in the issuer’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the issuer’s internal control over financial reporting; and | ||
| 5. | The issuer’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the issuer’s auditor and the audit committee of the issuer’s board of directors (or persons performing the equivalent functions): | ||
| a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the issuer’s ability to record, process, summarize and report financial information; and | ||
| b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the issuer’s internal control over financial reporting. | ||
| Date | March 5, 2010 | By | /s/ Greg D. Smith | |||
| Greg D. Smith | ||||||
| Chief Financial Officer | ||||||
CERTIFICATION PURSUANT TO
18 U.S.C. §1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the annual report of Minefinders Corporation Ltd. (the “Company”) on Form 40-F/A for the period ended December 31, 2009 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Mark H. Bailey, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
| (1) | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and | |
| (2) | The information contained in this Report fairly presents, in all material respects, the financial condition and results of operations of the Company. | |
| March 5, 2010 | /s/ Mark H. Bailey | |||
| Mark H. Bailey | ||||
| Chief Executive Officer | ||||
A signed original of this written statement required by Section 906 has been provided to Minefinders Corporation Ltd. and will be retained by Minefinders Corporation Ltd. and furnished to the Securities and Exchange Commission or its staff upon request.
CERTIFICATION PURSUANT TO
18 U.S.C. §1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the annual report of Minefinders Corporation Ltd. (the “Company”) on Form 40-F/A for the period ended December 31, 2009 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Greg D. Smith, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
| (1) | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and | |
| (2) | The information contained in this Report fairly presents, in all material respects, the financial condition and results of operations of the Company. | |
| March 5, 2010 | /s/ Greg D. Smith | |||
| Greg D. Smith | ||||
| Chief Financial Officer | ||||
A signed original of this written statement required by Section 906 has been provided to Minefinders Corporation Ltd. and will be retained by Minefinders Corporation Ltd. and furnished to the Securities and Exchange Commission or its staff upon request.
