UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 40-F
--12-31 FY 2021
☐ REGISTRATION STATEMENT PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934
☒ ANNUAL REPORT PURSUANT TO SECTION 13(a) OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2021. | Commission File Number 001-33574. |
MAG SILVER CORP. | |
(Exact name of Registrant as specified in its charter) | |
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)) | |
800 West Pender Street, Suite 770 Vancouver, British Columbia V6C 2V6 Tel: (604) 630-1399 | |
(Address and telephone number of Registrant's principal executive offices) | |
Puglisi & Associates 850 Library Avenue, Suite 204 Newark, DE 19711 Tel: (302) 738-6680 | |
(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 | Trading Symbol(s) | Name of each exchange on which registered |
Common Shares, without par value | MAG | NYSE American |
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:
☒ Annual information form | ☒ Audited annual consolidated financial statements |
Indicate the number of outstanding shares of each of the Registrant’s classes of capital or common stock as of the close of the period covered by the annual report.
97,809,441 outstanding shares of the Registrant’s common stock as of the fiscal year ended December 31, 2021.
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 ☒ | No ☐ |
Indicate by check mark whether the Registrant has submitted electronically every Interac‐tive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preced‐ing 12 months (or for such shorter period that the Registrant was required to submit such files).
Yes ☒ | No ☐ |
Indicate by check mark whether the Registrant is an emerging growth company as defined in Rule 12b-2 of the Exchange Act.
Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the Registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
EXPLANATORY COMMENT
MAG Silver Corp. (the “Company” or the “Registrant”) is a British Columbia corporation and a “foreign private issuer” as defined in Rule 3b-4 promulgated under the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”) by the U.S. Securities and Exchange Commission (the “SEC”). Under the SEC’s rules, the Company is eligible to prepare and file this Annual Report on Form 40-F, and to present the disclosures herein primarily in accordance with Canadian disclosure requirements, which differ in certain material respects from those which the SEC requires of United States companies.
For example, the Company has prepared its financial statements, which are included as Exhibit 99.2 to this Annual Report on Form 40-F, in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”), and such statements are not in many respects directly comparable to financial statements of United States companies.
Similarly, and as discussed in greater detail below in “ESTIMATES OF RESOURCES AND RESERVES,” the resource and reserve estimates included in the accompanying Annual Information Form (including the Schedules thereto), found at Exhibit 99.1 of this Form 40-F Annual Report, and management’s discussion and analysis for the fiscal year ended December 31, 2021 filed as Exhibit 99.2 to this Annual Report on Form 40-F, have been prepared in accordance with the requirements of National Instrument 43-101 – Standards of Disclosure for Mineral Projects (“NI 43-101”), which differ from the practices used to estimate resources and reserves in reports and other materials filed with the SEC by United States companies.
As a “foreign private issuer”, the Company is exempt from certain proxy-related requirements found in Sections 14(a), 14(b), 14(c), and 14(f) of the Exchange Act, and the insider reporting, “short swing profit” and short sale provisions found in Section 16 thereof are not applicable to the Company’s common shares.
PRINCIPAL DOCUMENTS
The following documents have been filed by the Company with this Annual Report on Form 40-F, and are incorporated herein by reference:
A. Annual Information Form
The Company’s Annual Information Form (“AIF”) for the fiscal year ended December 31, 2021: see Exhibit 99.1 of this Annual Report on Form 40-F.
B. Audited Annual Consolidated Financial Statements and accompanying Management’s Discussion and Analysis
The Company’s Audited Annual Consolidated Financial Statements including the reports of the Independent Registered Public Accounting Firm with respect thereto and accompanying Management’s Discussion and Analysis for fiscal year ended December 31, 2021: see Exhibit 99.2 of this Annual Report on Form 40-F. The Company’s Audited Annual Consolidated Financial Statements have been prepared in accordance with IFRS as issued by IASB.
CAUTIONARY COMMENT ON FORWARD-LOOKING STATEMENTS
Forward Looking Statements
Certain information contained in this Annual Report on Form 40-F and the documents incorporated by reference herein, including any information relating to the Company’s future oriented financial information are forward-looking statements within the meaning of the US Private Securities Litigation Reform Act of 1995 and applicable Canadian securities laws (collectively “forward-looking statements”). All statements in this Annual Report on Form 40-F and the documents incorporated by reference herein, other than statements of historical facts, are forward-looking statements. Such forward-looking statements and information include, but are not limited to, statements regarding: the future price of silver, gold, lead, zinc and copper; the estimation of mineral resources; preliminary economic estimates relating to the Minera Juanicipio Project (the “Juanicipio Project”); estimates of the time and amount of future silver, gold, lead, zinc and copper production for specific operations; estimated future exploration and development expenditures and other expenses for specific operations; permitting timelines; the Company’s expectations regarding impairments of mineral properties; the expected timeline to commercial production at the Juanicipio Project; the expected timeline to complete construction at the Juanicipio Project; the expected timeline for the Comisión Federal de Electricidad to complete the tie-in of the Juanicipio Project to the national power grid and, as a consequence, the expected extended timeline for the processing plant at the Juanicipio Project to commence commissioning; the closing of the Company’s acquisition of Gatling Exploration Inc. (the “Gatling Acquisition”) within the expected timeline, if at all; the expected benefits of the Gatling Acquisition; the Company’s provision of a convertible C$3 million secured bridge loan to Gatling Exploration Inc. in connection with the Gatling Acquisition; the amount of mineralized development material to be processed through the Fresnillo plc (“Fresnillo”) plant; the annual exploration expenditures to be paid by the Company on the Company’s 100% interest in the Deer Trail project; the expected capital requirements to achieve commercial production at the Juanicipio Project; proposed amendments to the Federal Labour Law on labour subcontracting in Mexico; the Company’s expectations regarding the sufficiency of its capital resources and requirements for additional capital; the Company’s expectations regarding the sufficiency of its capital resources and requirements for additional capital; litigation risks; currency fluctuations; environmental risks and reclamation cost; the Company’s commitment to corporate social responsibility; and changes to governmental laws and regulations.
Forward-looking statements are often, but not always, identified by the use of words o such as “seek”, “anticipate”, “plan”, “continue”, “estimate”, “expect”, “may”, “will”, “project”, “predict”, “potential”, “targeting”, “intend”, “could”, “might”, “should”, “believe” and similar expressions. Forward-looking statements are necessarily based upon estimates and assumptions, which are inherently subject to significant business, economic and competitive uncertainties and contingencies, many of which are beyond the Company’s control and many of which, regarding future business decisions, are subject to change. Assumptions and other factors underlying the Company’s expectations regarding forward-looking statements or information contained in this prospectus include, among others: the Company’s ability to manage growth effectively; the absence of material adverse changes in the mining industry or the global economy; trends in the mining industry and markets; the Company’s ability to maintain good business relationships; the Company’s ability to manage and integrate acquisitions; the Company’s Mineral Resource estimates, and the assumptions upon which they are based; the Company’s ability to comply with current and future environmental, safety and other regulatory requirements and to obtain and maintain required regulatory approvals; the Company’s expectation that its operations will not be significantly disrupted as a result of political instability, nationalization, terrorism, sabotage, social or political activism, breakdown, natural disasters, governmental or political actions, litigation or arbitration proceedings, equipment or infrastructure failure, labour shortages, transportation disruptions or accidents, or other development or exploration risks; the Company’s expectations regarding the level of disruption to operations at the Juanicipio Project as a result of the novel coronavirus (“COVID-19”) and variants thereof; the Company’s ability to meet the expected timelines to production; the Company’s ability to retain key personnel; the Company’s ability to raise sufficient debt or equity financing to support the Company’s continued growth; the timely receipt of required approvals and permits; that the Company will continue to have sufficient working capital to fund its operations; the global financial markets and general economic conditions will be stable and prosperous in the future; preliminary economic estimates and the assumptions upon which they are based relating to the Juanicipio Project; and the Company’s Mineral Resource estimates and the assumptions upon which they are based.
Many factors could cause actual results to differ materially from those in forward-looking statements, including, but not limited to: the potential for no commercially mineable deposits due to the speculative nature of the Company’s business; none of the properties in which the Company has an interest having any mineral reserves; the Company’s material property is in the development stage and many such projects experience cost overruns or delays; estimates of mineral resources being based on interpretation and assumptions which are inherently imprecise; no guarantee of surface rights for the Company’s mineral properties or those it has an interest in; no guarantee of the Company’s ability to obtain all necessary licenses and permits that may be required to carry out exploration and development of its mineral properties or those it has an interest in; risks related to the properties in which the Company has an interest being primarily located in foreign jurisdictions, including Mexico, which may be subject to political instability, governmental relations, adverse government policies and increased police and military enforcement action against criminal activities; the effect of global economic and political instability on the Company’s business; the effect of the COVID-19 outbreak as a global pandemic on the Company’s business; risks related to maintaining a positive relationship with the communities in which the Company operates; risks related to the Company’s ability to finance substantial expenditures required for commercial operations on its mineral properties or those it has an interest in; the Company’s history of losses and no revenues from operations; risks related to the Company’s ability to arrange additional financing, and possible loss of the Company’s interests in its properties or those it has an interest in due to a lack of adequate funding; risks related to access and availability of infrastructure, power and water; risks related to ground water levels at the Juanicipio Project; risks related to a lack of access to a skilled workforce; risks related to the Juanicipio Project mine plan and mine design and the development timeline to production; risks related to the Juanicipio Project not achieving the financial results and the development timeline consistent with the 2017 PEA (as defined herein); risks related to the capital requirements for the Juanicipio Project and the timeline to production; risks related to the Company’s decision to participate in the development of the Juanicipio Project; risks related to the mine plan and mine design; risks related to title, challenge to title, or potential title disputes regarding the Company’s mineral properties or those it has an interest in; risks related to the Company being a minority shareholder of Minera Juanicipio, S.A. de C.V. (“Minera Juanicipio”); risks related to disputes with joint venture shareholders; risks related to the influence of the Company’s significant shareholders over the direction of the Company’s business; the potential for legal proceedings to be brought against the Company; risks related to environmental regulations; physical risks related to extreme climate events and natural disasters such as high temperatures, droughts and extreme rainfall; the highly competitive nature of the mineral exploration industry; risks related to the Company’s ability to manage and integrate acquisitions; risks related to equipment shortages, access restrictions and lack of infrastructure on the Company’s mineral properties or those it has an interest in; the Company’s dependence upon key personnel; the Company’s dependence on certain related party service providers (Minera Cascabel S.A. de C.V. and IMDEX Inc.) to conduct some of its operations in Mexico; the Company’s dependence on Fresnillo to attract, train and retain qualified personnel; the Company’s dependence on Fresnillo to supervise and operate the Juanicipio Project; risks related to directors being, or becoming, associated with other natural resource companies which may give rise to conflicts of interest; currency fluctuations (particularly the C$/U.S.$ and U.S.$/Mexican Peso exchange rates) and inflationary pressures; risks related to mining operations generally; risks related to fluctuation of mineral prices and marketability; risks related to the adverse application of new or existing laws, including without limitation anti-corruption laws, human rights laws and Mexican foreign investment, income tax laws and Mexican laws; the Company being subject to Canadian disclosure practices concerning its mineral resources which allow for more disclosure than is permitted for domestic U.S. reporting companies; risks related to maintaining adequate internal control over financial reporting; funding and property commitments that may result in dilution to the Company’s shareholders; the volatility of the price of the common shares of the Company (the “Common Shares”); the uncertainty of maintaining a liquid trading market for the Common Shares; the difficulty of U.S. litigants effecting service of process or enforcing any judgments against the Company, as the Company, its principals and assets are located outside of the United States; all of the Company’s mineral property assets being located outside of Canada; risks related to the decrease of the market price of the Common Shares if the Company’s shareholders sell substantial amounts of Common Shares; risks related to future sales or issuances of equity securities diluting voting power and reducing future earnings per share; risks related to dilution to existing shareholders if new shares are issued; Fresnillo’s ability to maintain community relations programs; risks related to dilution to existing shareholders if deferred share units, restricted share units or performance share units are converted into Common Shares; the history of the Company with respect to not paying dividends and anticipation of not paying dividends in the foreseeable future; and the absence of a market through which the Company’s securities, other than Common Shares, may be sold. The reader is referred to the Company’s filings with the SEC and Canadian securities regulators for disclosure regarding these and other risk factors. There is no certainty that any forward-looking statement will come to pass and investors should not place undue reliance upon forward-looking statements. The Company does not undertake to provide updates to any of the forward-looking statements in this Annual Report on Form 40-F, except as required by law.
Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those described herein. The foregoing list is not exhaustive of the factors that may affect any of the Company’s forward-looking statements and information. Forward-looking statements are statements about the future and are inherently uncertain, and actual achievements of the Company or other future events or conditions may differ materially from those reflected in the forward-looking statements and information due to a variety of risks, uncertainties and other factors, including without limitation, those referred to in the AIF under the heading “Risk Factors” and documents incorporated by reference herein.
The Company’s forward-looking statements and information are based on the reasonable beliefs, expectations and opinions of management on the date the statements are made and, other than as required by applicable securities laws, the Company does not assume any obligation to update forward-looking statements and information if circumstances or management’s beliefs, expectations or opinions should change. For the reasons set forth above, investors should not attribute undue certainty to or place undue reliance on forward-looking statements and information.
Adjacent Property Disclosure
The AIF filed as Exhibit 99.1 to this Annual Report on Form 40-F contains information regarding adjacent properties on which we have no right to explore or mine, and is considered by management to be of material importance to the Company and its land holdings in the area. Investors are cautioned that mineral deposits on adjacent properties are not necessarily probative of the existence, nature or extent of mineral deposits on our properties.
ESTIMATES OF MINERAL RESOURCES
The Company’s AIF filed as Exhibit 99.1 to this Annual Report on Form 40-F and management’s discussion and analysis for the fiscal year ended December 31, 2021 filed as Exhibit 99.2 to this Annual Report on Form 40-F have been prepared in accordance with National Instrument 43-101 – Standards of Disclosure for Mineral Projects (“NI 43-101”). NI 43-101 is an instrument developed by the Canadian Securities Administrators that establishes standards for all public disclosure an issuer makes of scientific and technical information concerning mineral projects. NI 43-101 differs significantly from the disclosure requirements of the United States Securities and Exchange Commission (the “SEC”) generally applicable to U.S. companies. Accordingly, information contained in the Company’s AIF for the fiscal year ended December 31, 2021 and Management’s Discussion and Analysis for the fiscal year ended December 31, 2021 are not comparable to similar information made public by U.S. companies reporting pursuant to SEC disclosure requirements.
DISCLOSURE CONTROLS AND PROCEDURES
After evaluating the effectiveness of the Company’s disclosure controls and procedures as required by paragraph (b) of Exchange Act Rule 13a-15, the Chief Executive Officer and Chief Financial Officer of the Company have concluded that, as of the end of the period covered by this Annual Report on Form 40-F, the Company’s disclosure controls and procedures were effective to ensure that information required to be disclosed by the Company 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 accumulated and communicated to the Company’s management, including its principal executive and principal financial officers, or persons performing similar functions, as appropriate, to allow timely decisions regarding required disclosure.
MANAGEMENT’S REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING
Management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Exchange Act Rule 13a-15(f).
Management recognizes that effective internal control over financial reporting may nonetheless not prevent or detect all possible misstatements or frauds. Also, projections of any evaluation of effectiveness 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 policies or procedures may deteriorate.
Management has evaluated the effectiveness of the Company's internal control over financial reporting as of the end of the Company’s fiscal year ended December 31, 2021 using the framework Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on this evaluation, management concluded that, as of December 31, 2021, the Company maintained effective internal control over financial reporting.
ATTESTATION REPORT OF THE INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Company’s internal control over financial reporting as of December 31, 2021 has been audited by Deloitte LLP, Independent Registered Public Accounting Firm, who also audited the Registrant’s Consolidated Financial Statements for the years ended December 31, 2021 and 2020. Deloitte LLP expressed an unqualified opinion on the effectiveness of the Registrant’s internal control over financial reporting. The reports of Deloitte LLP are found under the heading “Report of Independent Registered Public Accounting Firm” in the Registrant’s Audited Annual Consolidated Financial Statements for fiscal year ended December 31, 2021, included as Exhibit 99.2 to this Annual Report on Form 40-F.
CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING
During the period covered by this Annual Report on Form 40-F, no changes occurred in the Company’s internal control over financial reporting that were identified in connection with the evaluation required by paragraph (d) of Exchange Act Rule 13a-15 that materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.
NOTICES PURSUANT TO REGULATION BTR
Not applicable.
AUDIT COMMITTEE FINANCIAL EXPERT
As at December 31, 2021, the Audit Committee was comprised of Dale Peniuk, Peter Barnes and Jill Leversage. The Company’s Board of Directors has determined that each of the members of the Audit Committee is an “audit committee financial expert” as that term is defined in paragraph (8) of General Instruction B of Form 40-F, and each is an “independent director” as that term is defined under the listing standards applicable to the Company contained in Section 803A of the NYSE American Company Guide. A description of the relevant experience of each of such director can be found in the AIF. The SEC has indicated that the designation of a director as an audit committee financial expert does not make that director an “expert” for any purpose, impose any duties, obligations or liability on him or her that are greater than those imposed on members of the Audit Committee and Board of Directors who do not carry this designation, or affect the duties, obligations or liability of any other member of the Audit Committee or Board of Directors.
CODE OF ETHICS FOR CHIEF EXECUTIVE OFFICER, CHIEF FINANCIAL OFFICER,
AND OFFICERS AND DIRECTORS
The Company has adopted a Code of Business Conduct and Ethics (the “Code of Conduct”) for its Chief Executive Officer, Chief Financial Officer, directors and officers. The Company furnished the latest version of the Code of Conduct with the SEC on March 28, 2022, as Exhibit 99.1 to its Form 6-K. Individuals may obtain a copy upon request, addressed to the Corporate Secretary, MAG Silver Corp., #770-800 West Pender Street, Vancouver, British Columbia, V6C 2V6. The Company has also posted the Code of Conduct on its internet website at www.magsilver.com. The Code of Conduct is reviewed annually, most recently on March 25, 2022. No waivers were granted from the Code of Conduct during the fiscal year ended December 31, 2021.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
The aggregate fees billed by the Company’s current external auditor, Deloitte LLP, Vancouver, British Columbia, Canada, Audit Firm ID 1208, in each of the last two fiscal years are as follows:
Year ended December 31, 2021 Canadian $ | Year ended December 31, 2020 Canadian $ | ||||||
Audit Fees | 333,882 | 350,494 | |||||
Audit-Related Fees | 0 | 0 | |||||
Tax Fees | 100,870 | 82,462 | |||||
All Other Fees | 0 | 0 | |||||
Total | 434,752 | 432,956 |
The nature of the services provided by Deloitte LLP under each of the categories indicated in the table is described below.
Audit Fees
Audit fees are those incurred for professional services rendered by Deloitte LLP for the audit of the Company’s annual consolidated financial statements, and for the quarterly interim reviews of the Company’s unaudited condensed interim consolidated financial statements.
Audit-Related Fees
There are no audit-related fees to report under this category for professional services rendered by Deloitte LLP for the Company.
Tax Fees
Tax fees are those incurred for professional services rendered by Deloitte LLP for tax compliance, including the review of tax returns, tax planning and advisory services relating to common forms of domestic and international taxation, continued tax planning and advisory services on potential restructuring and spin-out projects, and services related to the Company’s transfer pricing report.
All Other Fees
There are no other fees to report under this category for professional services rendered by Deloitte LLP for the Company.
PRE-APPROVAL POLICIES AND PROCEDURES
It is within the mandate of the Company’s Audit Committee to pre-approve all audit and non-audit related fees. The Audit Committee is informed routinely as to the non-audit services actually provided by the auditor pursuant to this pre-approval process. The auditors also present the estimate for the annual audit related services to the Audit Committee for approval prior to undertaking the annual audit of the financial statements. No audit-related services or other services were approved by the Audit Committee pursuant to the de minimis exception provided by Section (c)(7)(i)(C) of Rule 2-01 or Regulation S-X.
OFF-BALANCE SHEET ARRANGEMENTS
The Company does not have any off-balance sheet arrangements required to be disclosed in this Annual Report on Form 40-F.
IDENTIFICATION OF THE AUDIT COMMITTEE
The Company has a separately designated standing Audit Committee established in accordance with section 3(a)(58)(A) of the Exchange Act. As at December 31, 2021, the Audit Committee was comprised of the following members:
Chair: | Dale Peniuk | |
Members: | Peter Barnes | |
Jill Leversage |
MINE SAFETY DISCLOSURE
Not applicable.
CORPORATE GOVERNANCE PRACTICES
There are certain differences between the corporate governance practices applicable to the Company and those applicable to U.S. companies under the NYSE American Company Guide. Any significant differences will be described on the Company’s website at www.magsilver.com. Information contained in or otherwise accessible through the Company’s website does not form part of this Form 40-F and is not incorporated into this Form 40-F by reference.
UNDERTAKING
The Registrant 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 has filed an Appointment of Agent for Service of Process and Undertaking on Form F-X with respect to the class of securities in relation to which the obligation to file this Form 40-F arises.
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 on Form 40-F to be signed on its behalf by the undersigned, thereto duly authorized.
Registrant: MAG SILVER CORP.
By: /s/ George Paspalas
Name: George Paspalas
Title: President and Chief Executive Officer
Dated: March 31, 2022
EXHIBITS
101 | Interactive Data File (formatted as Inline XBRL). |
104 | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101). |