40FR12B 1 eh1100633_40fr12b.htm 40FR12B eh1100633_40fr12b.htm


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM 40-F
 
[Check one]
 
 
 
þ
 
 
REGISTRATION STATEMENT PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934
   
OR
 
o
 
ANNUAL REPORT PURSUANT TO SECTION 13(a) or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
For the fiscal year ended:
Commission File Number:
 
FORTUNA SILVER MINES INC.
(Exact name of Registrant as specified in its charter)
 
Not applicable
(Translation of Registrant’s name into English (if applicable))
 
British Columbia
(Province or other jurisdiction of incorporation or organization)
 
1040
(Primary Standard Industrial
Classification Code Number (if applicable))
 
Not applicable
(I.R.S. Employer
Identification Number (if applicable))
 
355 Burrard Street, Suite 840
Vancouver, British Columbia, Canada V6C 2G8
(604) 484-4085
(Address and telephone number of Registrant’s principal executive offices)
 
National Corporate Research, Ltd.
10 East 40th Street, 10th Floor
New York, New York 10016
(212) 947-7200
(Name, address (including zip code) and telephone number (including area code)
of agent for service in the United States)
 
copies to:
 
Sally Whittall
Edwin S. Maynard
Fortuna Silver Mines Inc.
Paul, Weiss, Rifkind, Wharton & Garrison LLP
355 Burrard Street, Suite 840
1285 Avenue of the Americas
Vancouver, British Columbia, Canada V6C 2G8
New York, New York 10019-6064
(604) 484-4085
(212) 373-3000

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
(Title of Class)
 
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act.
 
None
(Title of Class)
 
For Annual Reports indicate by check mark the information filed with this Form:
 
o    Annual information form
o    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:
 
Not applicable
 
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, please indicate the filing number assigned to the Registrant in connection with such Rule.
 
Yes    o
82-_____________
No   þ
 
Indicate by check mark whether the Registrant (1) has filed all reports 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 filing requirements for the past 90 days.
 
Yes     o
 No     þ
 
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



 
 
 
 
 
 
DOCUMENTS FILED AS PART OF THIS REGISTRATION STATEMENT
 
The following documents have been filed as part of this Registration Statement on Form 40-F as Exhibits hereto:
 
Exhibits
 
Documents
Annual Information
99.1
 
99.2
  
99.3
  
99.4
  
99.5
 
99.6
  
99.7
  
Quarterly Information
99.8
  
99.9
  
99.10
  
99.11
  
99.12
  
99.13
  
99.14
  
99.15
  
99.16
  
99.17
  
Shareholder Meeting Materials
99.18
 
99.19
  
99.20
  
99.21
  
Material Change Reports
99.22
  
99.23
 
99.24
  
99.25
  
99.26
  
99.27
  
99.28
  
99.29
  
 
 
 
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99.30
  
99.31
 
News Releases
99.32
  
99.33
  
99.34
  
99.35
  
99.36
  
99.37
  
99.38
  
99.39
  
99.40
  
99.41
  
99.42
  
Other Material Documents Filed with Canadian Securities Regulators
99.43
 
99.44
 
99.45
  
99.46
 
99.47
 
Consents
99.48
 
99.49
 
99.50
  
99.51
  
99.52
  
 
 
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OFF-BALANCE SHEET ARRANGEMENTS
 
Fortuna Silver Mines Inc. does not have any off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on its 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 summarizes the contractual obligations of Fortuna Silver Mines Inc. as of December 31, 2010:
 
Contractual Obligations (in thousands of U.S. dollars)
  
Total
    
Less than 1 year
    
1-3 years
    
3-5 years
    
More than 5 years
  
Accounts payable and accrued liabilities
     13,496       13,496       —       —       —  
Interest on long-term debt obligations
     175       —       175       —       —  
Long-term debt obligations
     705       —       705       —       —  
Capital lease obligations
     1,545       1,083       462       —       —  
Operating lease obligations
     2,579       499       898       692       490  
Purchase obligations
     —       —       —       —       —  
Pensions and employee future benefits obligations
     2,086       87       44       1,955       —  
Asset retirement obligations
     4,924       583       522       626       3,193  
Total
     25,510       15,748       2,806       3,273       3,683  
 
For additional information on Fortuna Silver Mine Inc.’s commitments, see Notes 11, 13, 14 and 20 (d) to the Audited Annual Consolidated Financial Statements for the years ended December 31, 2010 and 2009 included in Exhibit 99.5.
 
FORWARD LOOKING INFORMATION
 
The safe harbor provided in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Exchange Act applies to forward-looking information provided pursuant to “Off-Balance Sheet Arrangements” and “Tabular Disclosure of Contractual Obligations” in this Registration Statement on Form 40-F. See “Cautionary Statement – Forward Looking Statements” in the Annual Information Form filed as Exhibit 99.1 to this Registration Statement on Form 40-F.
 
DIFFERENCES IN UNITED STATES AND CANADIAN REPORTING PRACTICES

Fortuna Silver Mines Inc.’s financial statements, including those incorporated by reference into this Registration Statement, have been prepared in accordance with Canadian disclosure requirements and (with the exception of the interim consolidated financial statements for the periods ended June 30 and March 31, 2011, which were prepared in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board) in accordance with Canadian generally accepted accounting principles (“Canadian GAAP”), and are subject to Canadian auditing and auditor independence standards, which disclosure, accounting and auditing requirements, principles and standards are different from those of the United States.

Under the multijurisdictional disclosure system adopted by the United States Securities and Exchange Commission (the “SEC”), the Corporation is permitted to incorporate by reference into this Registration Statement financial statements prepared in accordance with Canadian GAAP, accompanied with a reconciliation of Fortuna Silver Mines Inc.’s financial statements to United States generally accepted accounting principles (“U.S. GAAP”). Significant differences between Canadian GAAP and U.S. GAAP as they pertain to Fortuna Silver Mines Inc. for the years ended December 31, 2010, 2009 and 2008 are described in the Reconciliation to United States Generally Accepted Accounting Principles filed as Exhibit 99.7 to this Registration Statement.
 

 
 
4
 
 
RESOURCE AND RESERVE ESTIMATES
 
Mineral reserve and resource estimates included or incorporated by reference in this Registration Statement were prepared in accordance with the Canadian Securities Administrators’ NI 43-101, which sets out Canadian standards for public disclosure of scientific and technical information concerning mineral projects.  The requirements of NI 43-101 are materially different from the SEC’s regarding disclosure of mineral reserve and resource estimates.   For example, the SEC generally prohibits disclosure of estimates of mineral resources.   Under the rules of the SEC, a deposit may not be recognized as a “reserve” unless a determination has been made that it may be economically and legally produced or extracted at the time the determination is made.  “Resources” are not “reserves” and “resources” may never be converted into “reserves”.  Further, “resources” classified as “inferred resources” have a greater amount of uncertainty and may never be upgraded to a higher category.  It cannot be assumed that all or any part of an “inferred resource” exists or can be legally or economically mined.
 
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
 
A.  Undertaking
 
Fortuna Silver Mines Inc. 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.
 
B.  Consent to Service of Process
 
Concurrently with the filing of this registration statement on Form 40-F, Fortuna Silver Mines Inc. has filed with the Commission a written irrevocable consent and power of attorney on Form F-X.
 
Any change to the name or address of the agent for service of Fortuna Silver Mines Inc. shall be communicated promptly to the Commission by amendment to Form F-X referencing the file number of Fortuna Silver Mines Inc.
 
 
 
5
 
 
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 registration statement to be signed on its behalf by the undersigned, thereunto duly authorized.
 

Date:  September 13, 2011
FORTUNA SILVER MINES INC.
 
 
 
 
By:
/s/ Sally Whittall
 
 
 
Name:
Sally Whittall
 
 
 
Title:
Secretary
 
 
 
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