Item 1 - Business
Overview
ERHC Energy Inc., a Colorado corporation, (“ERHC” or the “Company”) was incorporated in 1986 and was engaged in a variety of businesses until 1996, when it began its current operations. The Company’s goal is to maximize its value through exploration and exploitation of oil and gas reserves in the Gulf of Guinea offshore of central West Africa including its rights to working interests in exploration acreage in the Joint Development Zone (“JDZ”) between the Democratic Republic of Sao Tome and Principe (“DRSTP or “Tome”) and the Federal Republic of Nigeria (“FRN or “Nigeria”) and in the exclusive territorial waters of Sao Tome (the “Exclusive Economic Zone” or “EEZ”). ERHC does not directly carry out the exploration and production operations in the JDZ but is relying on reputable technical operators with whom the Company has entered into partnership relationships, such as Addax Petroleum Inc. and Sinopec Corporation to carry out those operations. The Company has formed relationships with these upstream oil and gas companies to assist the Company in exploiting its assets in the JDZ. The Company currently has no other operations but is exploring opportunities in other areas of the oil and gas industry, including supply and trading.
The Company’s business strategy includes but is not limited to farm out its rights to working interests in the JDZ and EEZ to entities which we believe are established, well capitalized oil and gas operators for upfront cash payments and negotiate contracts with them to carry our share of the capital costs. This has been done successfully on Blocks 2, 3 and 4. The Company will attempt to adopt a similar approach for JDZ Blocks 5, 6 and 9 as well as the EEZ. ERHC is also pursuing other business development activities in the broad petroleum and related industries.
General Development of the Business
In April 2003, the Company and the DRSTP entered into an Option Agreement (the “2003 Option Agreement”) in which the Company relinquished certain financial interests in the JDZ in exchange for exploration rights in the JDZ. The Company additionally entered into an Administration Agreement with the Nigeria-Sao Tome and Principe Joint Development Authority (“JDA”). The Administration Agreement is the formal agreement by the JDA that it will fully implement ERHC’s preferential rights to working interests in the JDZ acreage as set forth in the 2003 Option Agreement and describes certain procedures regarding the exercising of these rights. However, ERHC retained the following rights to participate in exploration and production activities in the EEZ subject to certain restrictions: (a) the right to receive 100% working interest free signature bonus for two blocks of ERHC’s choice and (b) the option to acquire up to a 15% of additional paid working interest in up to two blocks of ERHC’s choice in EEZ. The Company would be responsible for its proportionate share of exploration and exploitation costs in the EEZ blocks.
This exercise of ERHC’s rights in the JDZ is subject to the condition that if no license is awarded or a license is awarded and subsequently withdrawn by the JDA prior to the commencement of operations, ERHC is entitled to receive its working interest in that block in a future license awarded for that block.
ERHC entered into a series of negotiations and agreements that positioned the Company to enter into a Participation Agreement dated November 17, 2005 (the “Participation Agreement”) with Addax Petroleum (Nigeria Offshore 2) Limited (“Addax”). Under the Participation Agreement, as amended, Addax ultimately paid ERHC $18 million in February and March 2006 in exchange for the sale of a 40.5% participating interest (the “Assigned Interest”) in Block 4 while ERHC retained a 19.5% interest (“Retained Interest”). Under the Participation Agreement, as amended, Addax currently serves as operator and pays all of ERHC’s current and future costs in respect of all petroleum operations in Block 4 subject to reimbursement upon production. Addax is to receive 100% of ERHC’s allocation of costs plus up to 50% of ERHC’s allocation of profit until Addax recovers all costs advanced on behalf of ERHC.
In February 2006, ERHC assigned a 15% participating interest in Block 3 of the JDZ to Addax Petroleum Resources Nigeria Limited (“Addax Sub”) for $7.5 million which was paid in the second quarter of fiscal 2006. ERHC retained a 10% interest in Block 3. Under the participation agreement between ERHC and Addax Sub, Addax Sub is currently “carrying” all of ERHC’s current and future costs in respect of petroleum operations in Block 3. Addax Sub is to receive 100% of ERHC’s allocation of costs oil plus up to 50% of ERHC’s allocation of profit until Addax Sub recovers all costs advanced on behalf of ERHC.
In March 2006, ERHC assigned a 28.67% participating interest in Block 2 of the JDZ to Sinopec International Petroleum Exploration and Production Corporation Nigeria (“Sinopec”), and a 14.33% participating interest to Addax Energy Nigeria Limited (“Addax Ltd.”). ERHC retained a 22% participating interest in Block 2. In connection with these sales, Sinopec paid ERHC $13.6 million and Addax Ltd. paid ERHC $6.8 million in the second quarter of fiscal 2006. Under the participation agreement among ERHC, Sinopec and Addax Ltd., Sinopec currently serves as operator, and Sinopec and Addax Ltd. pay all of ERHC’s current and future costs in respect of petroleum operations in Block 2. Sinopec and Addax Ltd. are to receive to 100% of ERHC’s allocation of cost plus up to 50% of ERHC’s allocation of profit until they recover all costs advanced on behalf of ERHC. Additionally, Sinopec is to receive 6% interest on its current and future costs, up to $35 million, but only to the extent that those interest costs are recoupable out of production.
Related to the assignment of the participating interest in Block 2 to Sinopec, ERHC paid a $3 million in cash success fee to a British Virgin Island company (“Feltang”), $1.5 million was paid to Feltang in March 2006 and the remaining $1.5 million was paid in March 2007. In August 2010, ERHC issued to Feltang 5,250,000 shares of common stock and warrants to purchase 6,500,000 shares at a fixed exercise price of $0.355 per share. The payment and issuance of stock and warrants were made to Feltang pursuant to an agreement made in January 2006 between the Company and Feltang whereby the Company contracted Feltang to seek and introduce potential partners to ERHC as a replacement operator for the Company’s previous operating partner in Block 2. The Company’s obligation to pay Feltang arose under the agreement as a result of the former operating partner’s withdrawal from Block 2, the execution of a participation agreement between the Company and Sinopec (introduced to the Company by Feltang), and the execution of a PSC covering Block 2 with Sinopec as operator.
Current Business Operations
ERHC’s operations are currently focused in the Gulf of Guinea, off the coast of central West Africa. ERHC believes this region has the possibility of significant oil and gas reserves. ERHC has worked to realize the value of the assets it has acquired in this region. The Company’s current holdings include those below, details of which can be found at the link: http://www.erhc.com
JDZ - ERHC has interests in six of the nine Blocks in the JDZ, a 34,548 square kilometer area approximately 200 kilometers off the coastline of Nigeria and Săo Tomé & Principe that is adjacent to several large petroleum discovery areas.
EEZ - The government of Săo Tomé & Principe has awarded ERHC rights to participate in exploration and production activities in the EEZ, which encompasses an area of approximately 160,000 square kilometers. These rights were granted in a May 21, 2001 Memorandum of Agreement between the DRSTP and the Company. The Company’s rights in the EEZ expire on October 1, 2024 or, if the company has a producing working interest in any Block(s) at October 1, 2024, the Company’s rights extend in such Block(s), as long as the Block(s) remains in production.
In 2009, the National Petroleum Agency of São Tomé & Príncipe (“ANP-STP”) delineated the EEZ into 19 Blocks and, accordingly, ERHC exercised its preferential rights arising from prior agreements between ERHC and São Tomé & Príncipe. In February 2010, the ANP-STP confirmed the award to ERHC of 100 percent working interests in Blocks 4 and 11, signature bonus free. The ANP-STP has indicated that it expects to invite ERHC to negotiate Production Sharing Contracts on the two Blocks in due course.
ERHC has been active in the EEZ, which is situated southeast of the JDZ, since 1997. ERHC was one of the first companies to identify the possibility of significant oil and gas reserves in the offshore of Sao Tome and Principe. The two Blocks selected and awarded to ERHC in the EEZ sit directly to the east of the islands of Sao Tome and Principe. EEZ Block 4 is directly to the east of the island of Principe, which is at the very top of an exceptional steep volcanic structure where water depths drop precipitously.
EEZ Block 11 is directly to the east of the island of Sao Tome. This Block is also situated on a volcanic structure that juts up from the floor of the Gulf of Guinea. There has been less seismic imaging conducted in this area. As we have experienced with the JDZ, oil and gas exploration can be a long process. The next step will be to open discussions with potential technical partners to farm into Blocks 4 and 11 to assume operatorship and compensate ERHC for percentage ownership in the Blocks.
In addition to the two Blocks already awarded, ERHC has rights to acquire up to a 15 percent paid working interest in two additional Blocks of its choice in the EEZ. The ANP-STP has informed the Company that selection of these other Blocks will take place at a later date.
Although ERHC is working toward realizing the value of its oil and gas assets in the Gulf of Guinea, it is still a long way away from the point at which any of these potential oil and gas assets can begin to produce revenues. ERHC therefore seeks to identify and acquire assets with a shorter time horizon for revenue generation.
ERHC has identified and examined potential acquisition prospects and is holding discussions regarding a number of potential exploration and production opportunities in West Africa. Ultimately, ERHC seeks a diverse portfolio of assets and companies from which it can derive significant strategic value. The success of potential acquisitions depends on the availability of adequate financing. ERHC’s principal assets remain its interests in the JDZ and the EEZ.
Operations in the JDZ
ERHC has working interests in six of the nine Blocks in the JDZ, as follow:
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JDZ Block 2: 22.0%
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JDZ Block 3: 10.0%
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JDZ Block 4: 19.5%
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JDZ Block 5: 15.0% (in Arbitration)
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JDZ Block 6: 15.0% (in Arbitration)
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JDZ Block 9: 20.0%
The working interest percentages represents ERHC’s share of all the potential hydrocarbon production from the blocks and obligates ERHC to pay a corresponding percentage of the costs of drilling, production and operating the blocks. These costs in blocks 2, 3 and 4 are currently being carried by the operators until production, whereupon the operators will recover their costs from the production revenues.
ERHC’s interests in JDZ Blocks are in various stages of exploration. JDZ Blocks 2, 3 and 4 were the focus of an exploratory drilling campaign that concluded in January 2010. To date, no Production Sharing Contracts have been signed in either JDZ Block 5 or 6, and no operatorship has been awarded yet in JDZ Block 9.
In 2009, Sinopec and Addax, our technical partners and operators in Blocks 2, 3 and 4 undertook an exploratory drilling campaign across the three blocks that was completed in January 2010. That drilling campaign was a coordinated effort made possible by two important transactions undertaken by Addax and Sinopec during 2009: 1) Sinopec’s acquisition of Addax and 2) Addax’s acquisition of Anadarko Petroleum’s interest in Block 3, allowing Addax to become the operator in the Block 3.
The drilling campaign was completed in January 2010 with five wells drilled in the following locations and order:
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The Kina-1 well in JDZ Block 4
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The Bomu-1 well in JDZ Block 2
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The Lemba-1 well in JDZ Block 3
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The Malanza-1 well and Oki East-1 well in Block 4
The following is an analysis of activity that took place in each
The following is a summary of results of the drilling campaign:
General Information on Current Operations in Blocks 2, 3 and 4
Currently, the analysis of the information gathered during drilling is ongoing. The Joint Development Authority {JDA} has granted an extension of Exploration Phase 1 until March 2011 to enable contracting parties complete the analysis.
No guarantees can be given at this stage that there will be any commercial discovery or production in commercial quantities or at all.
As has been the practice in the JDZ, accurate, material information on the progress in the JDZ Blocks will emanate from the operators or the JDA. ERHC will publish such information in a timely manner in accordance with our contractual and regulatory obligations.
Background of the JDZ
In the spring of 2001, the governments of Săo Tomé & Principe and Nigeria reached an agreement over a long-standing maritime border dispute. Under the terms of the agreement, the two countries established the JDZ to govern commercial activities within the disputed boundaries. The JDZ is administered by the JDA which oversees all future exploration and development activities in the JDZ. Revenues derived from the JDZ will be shared 60/40 between the governments of Nigeria and Săo Tomé & Principe, respectively.
Background of the EEZ
The government of Săo Tomé & Principe has awarded ERHC rights to participate in exploration and production activities in Săo Tomé & Principe’s EEZ. ERHC’s rights include the following:
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The right to receive 100% working interest free signature bonus of two blocks of ERHC’s choice; and
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The option to acquire up to a 15 percent paid working interest in additional two blocks of ERHC’s choice.
ERHC would be responsible for its proportionate share of exploration and exploitation costs in the EEZ blocks.
The EEZ describes waters of Săo Tomé that encompasses an area of approximately 160,000 square km. It is measured from claimed archipelagic baselines - territorial sea: 12 nautical miles, exclusive economic zone: 200 nautical miles. Oil and gas are produced in the neighboring countries of Nigeria, Equatorial Guinea, Gabon and Congo.
The following chart represents ERHC’s current rights in the JDZ blocks:
(1)
The Original Participating Interest was the interest granted pursuant to the Option Agreement, dated April 2, 2003, between DRSTP and ERHC (the “2003 Option Agreement”).
The following is an analysis of the participation agreements under which the company assigned participating interests in Blocks 2, 3 and 4.
Particulars of Participating Agreements
Under the terms each of the Participation Agreements Sinopec and Addax agreed to pay all of ERHC’s future costs for petroleum operations (“the carried costs”) in respect of ERHC's retained interests in the blocks. Additionally, Sinopec and Addax are entitled to 100% of ERHC’s allocation of cost oil plus up to 50% of ERHC’s allocation of profit oil from the retained interests on individual blocks until Sinopec and Addax Sub recover 100% of ERHC’s carried costs
On October 2, 2009, Sinopec International Petroleum Exploration and Production Corporation acquired all of the outstanding shares of Addax Petroleum Corporation.
Current Plans for Operations
The Company is currently focused on exploiting its interests in Blocks 2, 3 and 4 but it has no current sources of income from operations other than interest income from cash generated from sale of participation interests in Blocks 2, 3 and 4 to Sinopec and Addax Ltd. The Company believes that the participation agreements that it has entered into will be its primary source of future cash flow; however, the Company is exploring plans to generate operating income from new sources. The Company plans to diversify its business activity by pursuing other growth opportunities possibly including acquiring revenue-producing assets in diverse geographical areas and forging new strategic business partnerships and alliances. To expand operations, ERHC is currently in negotiations for potential investments that would increase the Company’s presence in the West African oil and gas industry.
ERHC cannot currently predict the outcome of negotiations for acquisitions in West Africa, or, if successful, their impact on the Company's operations, or future revenue generations.
Plans for Funding of Potential Acquisitions
ERHC's future plans may be dependent on the Company's ability to attract new funding.
On July 7, 2010, the Company filed a registration statement on Form S-3 with the US Securities and Exchange Commission (“ SEC”), utilizing a “shelf” registration process or continuous offering process. Under this shelf registration process, the Company may, from time to time, sell up to $50,000,000 of the securities described in the prospectus in one or more offerings. Each time the Company offers securities, it will provide stockholders with a prospectus supplement that will describe, among other things, the specific amounts and prices of the securities being offered and the terms of the offering.
Unless otherwise provided in the applicable prospectus supplement, the Company intends to use the net proceeds from the sale of securities under the shelf registration to acquire or invest in working interests and other oil and natural gas businesses that are complementary to the Company's operations, although the Company has no such transactions currently in place. Additionally, the Company may use a portion of net proceeds from time to time for general corporate purposes, including exploration and development activities, regulatory affairs expenses, capital expenditures, additions to working capital and general and administrative expenses.
Government Regulation
In the event the Company begins direct exploration and exploitation of hydrocarbons, it will be required to make necessary expenditures to comply with applicable health and safety, environmental and other regulations.
The oil and gas industry is subject to various types of regulations throughout the world. Legislation affecting the oil and gas industry has been pervasive and is under constant review for amendment or expansion. Pursuant to such legislation, numerous government agencies have enacted extensive laws and regulations binding on the oil and gas industry and companies engaged in this industry, some of which carry substantial penalties for failure to comply. Such laws and regulations have a significant impact on oil and gas exploration, production and marketing and midstream activities. These laws and regulations increase the cost of doing business and, consequently, will affect results of operations. In as much as new legislation affecting the oil and gas industry is commonplace and existing laws and regulations are frequently amended or reinterpreted, the Company is unable to predict the future cost or the impact of complying with such laws and regulations. However, the Company does not expect that any of these laws and regulations will affect its operations in a manner materially different than they would affect other oil and gas companies of similar size and scope of operations.
Having interest outside the United States requires the Company to comply with United States laws and other foreign jurisdiction laws related to pursuing, owing, and exploiting foreign investments, agreements and other relationships. The Company is subject to all such laws, including, but not limited to, the Foreign Corrupt Practices Act of 1977 (“FCPA”).
Competition
Significant competition exists in all sectors of the oil and gas industry. ERHC competes with other oil and gas companies for equipment and personnel required to explore, develop and operate properties as well as marketing of oil, gas and natural gas liquids. Commodity price increases have raised the costs of potential acquisition properties and we compete with a number of companies to pursue acquisition opportunities. Many of the Company’s competitors have substantially larger financial and other resources than ours, and they have also established strategic long-term positions and maintain strong relationships in countries in which the Company may seek entry. As a consequence, ERHC may be at a competitive disadvantage in bidding for exploration rights. In addition, many of the Company’s larger competitors have a competitive advantage when responding to factors that affect demand for oil and natural gas production, such as changing worldwide prices and levels of production, the cost and availability of alternative fuels and the application of government regulations.
Employees
As of September 30, 2010, the Company and its subsidiaries had 8 (eight) employees. From time to time, however, the Company utilizes the services of specialized consultants on an adhoc basis, to supplement the activities of its employee in the execution of the Company’s work.
Availability of Information
The Company files annual, quarterly and current reports, proxy statements and other documents with the Securities and Exchange Commission (“SEC”) under the Securities Act of 1934. The public may read and copy any materials that the Company files with the SEC at the SEC’s Public Reference Room at 100 F Street NE, Washington, DC 20549. The public may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Also, the SEC maintains an Internet website that contains reports, proxy and information statements, and other information regarding issuers, including us, that file electronically with the SEC. The public can obtain any documents that we file with the SEC at hhttp://www.sec.gov after we electronically file such material with, or furnish it to, the SEC.
The Company provides free of charge on our website our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable.
Item 1A.
Item 1A. Risk Factors
You should carefully consider the risks described below before making any investment decision related to the Company’s securities. The risks and uncertainties described below are not the only ones facing the Company. Additional risks and uncertainties not presently known or that the Company currently deems immaterial also may impair its business operations. If any of the following risks actually occur, the Company’s business could be affected.
The Company has no sources of revenue and a history of losses from operations
The Company’s business is in an early stage of development. The Company has not generated any operating revenue since its entry into the oil and gas industry and has incurred significant operating losses. The Company expects to incur additional operating losses for the foreseeable future.
The Company has a limited operating history in the oil and gas industry
The Company’s operations have consisted solely of acquiring rights to working interests in the JDZ and EEZ and entering into production sharing contracts. The Company will not be the operator with respect to these contracts. The Company’s future financial results depend primarily on (1) the ability of the Company’s venture partners to provide or obtain sufficient financing to meet their financial commitments in the production sharing contracts, (2) the ability to discover commercial quantities of oil and gas, and (3) the market price for oil and gas. Management cannot predict if or when the production sharing contracts will result in future wells being drilled or if drilled, whether oil and/or gas will be discovered in commercial quantities.
Financing may be needed to fund the financial commitments of the production sharing contracts
While the Company is not required to fund any financial commitments pursuant to current production sharing contracts, it is likely that project financing will be required to fund other exploration activities. The Company’s failure or the failure of our venture partners to provide or obtain the necessary financing will preclude the continuation of exploration activities.
The Company may not discover commercially productive reserves in the JDZ or EEZ
The Company’s future success depends on its ability to economically discover oil and gas reserves in commercial quantities in the JDZ and EEZ. There can be no assurance that the Company’s planned projects in the JDZ or EEZ will result in significant, if any, reserves or that the Company and its partners will have future success in drilling productive wells.
The Company’s non-operator status limits its control over oil and gas projects in the JDZ and EEZ
The Company will focus primarily on creating exploration opportunities and forming relationships with oil and gas companies to develop those opportunities in the JDZ and EEZ. As a result, the Company will have only a limited ability to exercise control over a significant portion of a project’s operations and the associated costs of those operations in the JDZ or EEZ. The success of a future project is dependent upon a number of factors that are outside the Company’s control. These factors include:
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the availability of future capital resources to the Company and the other participants for drilling additional wells;
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the approval of other participants for determining well locations and drilling time-tables;
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the economic conditions at the time of drilling, including the prevailing and anticipated price of oil and gas; and
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the availability and cost of deep water drilling rigs and the availability of operating personnel
The Company’s reliance on its consortium partners and its limited ability to directly control future project costs could have a material adverse effect on its future rates of return.
The Company’s success depends on its ability to exploit its limited assets
The Company’s primary assets are rights to working interests in exploration acreage in the JDZ and EEZ under agreements with the JDA and DRSTP. The Company’s operations have been limited to managing and sustaining its rights under these agreements. The Company’s viability depends on its ability to exploit these assets. However, there is no assurance that it will be successful.
The Company’s competition includes oil and gas conglomerates that have significant advantages over it
The oil and gas industry is highly competitive. Many companies are engaged in exploring for crude oil and natural gas and acquiring crude oil and natural gas properties, resulting in significant competition for desirable exploratory and producing properties. The companies with which the Company competes are much larger and have greater financial resources and technical expertise than the Company.
Various factors beyond the Company’s control will affect prices of oil and gas
The availability of a ready market for the Company’s future crude oil and natural gas production if any depends on numerous factors beyond its control, including the level of consumer demand, the extent of worldwide crude oil and natural gas production, the costs and availability of alternative fuels, the costs and proximity of transportation facilities, regulation by authorities and the costs of complying with applicable environmental and other regulations.
The Company’s business interests are located outside of the United States which subjects it to risks associated with international activities beyond its control.
At September 30, 2010, the Company’s major assets are located outside the United States. The Company’s primary assets are cash in various financial institutions and agreements with DRSTP and the JDA, which provide ERHC with rights to participate in exploration and production activities in the Gulf of Guinea off the coast of central West Africa. Production is subject to political risks which are inherent in all foreign operations. The Company’s ability to exploit its interests in this area pursuant to such agreements may be adversely impacted by these circumstance.
The future success of the Company’s international operations may also be adversely affected by risks associated with international activities, including economic and labor conditions, political instability, risk of war, expropriation, termination, renegotiation or modification of existing contracts, tax laws (including host-country import-export, excise and income taxes and United States taxes on foreign subsidiaries) and changes in the value of the U.S. dollar relative to the local currencies in which future oil and gas producing activities may be denominated. Changes in exchange rates may also adversely affect the Company’s future results of operations and financial position.
In addition, to the extent the Company engages in operations and activities outside the United States, it is subject to the Foreign Corrupt Practices Act (the “FCPA”) which, among other restrictions, prohibits U.S. companies and their intermediaries from making payments to foreign officials for the purpose of obtaining or keeping business or otherwise obtaining favorable treatment, and requires companies to maintain adequate record-keeping and internal accounting practices to accurately reflect their financial and other transactions with foreign officials. The FCPA applies to companies, individual directors, officers, employees and agents. The FCPA also applies to foreign companies and persons taking any action in furtherance of such payments while in the United States. Under the FCPA, U.S. companies may also be held liable for actions taken by strategic or local partners or representatives.
The FCPA imposes civil and criminal penalties for violations of its provisions. Civil penalties may include fines of up to $500,000 per violation, and equitable remedies such as disgorgement of profits causally connected to the violation (including prejudgment interest on such profits) and injunctive relief. Criminal penalties for violations of the payments provisions could range up to the greater of $2 million per violation or twice the gross pecuniary gain sought by making the payment, and/or incarceration for up to 5 years per violation. Moreover, if a director, officer or employee of a company is found to have willfully violated the FCPA books and records provisions, the maximum penalty would be imprisonment for 20 years per violation. Maximum fines of up to $25 million may also be imposed for willful violations of the books and records provisions by a company.
The SEC and/or the Department of Justice (“DOJ”) could assert that there have been multiple violations of the FCPA, which could lead to multiple fines. The amount of any fines or monetary penalties which could be assessed would depend on, among other factors, findings regarding the amount, timing, nature and scope of any improper payments, whether any such payments were authorized by or made with knowledge of ERHC or its affiliates, the amount of gross pecuniary gain or loss involved, and the level of cooperation provided to the government authorities during the investigations. Negotiated dispositions of these types of violations also frequently result in an acknowledgement of wrongdoing by the entity and the appointment of a monitor on terms agreed upon with the SEC and DOJ to review and monitor current and future business practices, including the retention of agents, with the goal of assuring future FCPA compliance. Other potential consequences could be significant and include suspension or debarment of ERHC’s ability to contract with governmental agencies of the United States and of foreign countries. Any determination that ERHC has violated the FCPA could result in sanctions that could have a material adverse effect on the Company’s business, prospects, operations, financial condition and cash flow.
The Company’s business interests are located in the Gulf of Guinea offshore of central West Africa and are subject to the volatility of foreign governments
All of our primary assets are located in the Gulf of Guinea offshore of central West Africa. The governments of Nigeria and the island nation of Sao Tome and Principe granted our participation interests in various concessions in their offshore waters. The governments of Nigeria and Sao Tome and Principe exist in a volatile political and economic environment and the Company is subject to all the risks associated with those governments. These risks include, but are not limited to:
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Loss of future revenue and concessions as a result of hazards such as war, acts of terrorism, insurrection and other political risks
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Increases in taxes and governmental interests
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Unilateral renegotiation of contracts by government entities
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Difficulties in enforcing our rights against a governmental agency because of the doctrine of sovereign immunity and foreign sovereignty over international operations
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Changes in laws and policies governing operations of foreign-based companies, and
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Currency restrictions and exchange rate fluctuations
Our foreign operations may also be adversely affected by laws and policies of the United States affecting foreign trade and taxation. Realization of any of these factors could materially and adversely affect our financial position, results of operations and cash flows.
The Company has filed suit to prevent tampering with its interest and any adverse ruling related to JDZ Blocks 5 and 6. This action could have a material adverse effect on ERHC’s business, prospects, operations, financial condition and cash flow.
On November 3, 2008, the Company filed a suit in Nigeria to prevent any tampering with its rights in JDZ Blocks 5 and 6 pending the outcome of arbitration over those rights. The lawsuit comes after the JDA and the Joint Ministerial Council (JMC) of the Nigeria-Săo Tomé and Príncipe JDZ failed to give a satisfactory response to the Company’s letters seeking clarification of the Company’s rights in JDZ Blocks 5 and 6 following media reports stating that the JMC had approved of the Company’s removal from the Blocks. The Company was awarded a 15 percent working interest in each of the Blocks in a 2005 bid/licensing round conducted by the JDA, following the exercise by ERHC of preferential rights in the Blocks as guaranteed by contract and treaty. The dispute is entirely contractual. The JDA and the Government of DRSTP contend that certain correspondence issued by a previous CEO/President of the Company in 2006 amount to a relinquishment of the Company’s rights in Blocks 5 & 6 under the Company’s contracts with DRSTP which provide for the rights. The Company contends that no such relinquishment has occurred and has sought recourse to arbitration accordingly. In November 2008, the Company dispatched notices of arbitration for service on the JDA and the governments of Nigeria and Sao Tome & Principe to commence arbitration in London. ERHC wants the London Court of International Arbitration to clarify that ERHC's interests in JDZ Blocks 5 and 6 remain intact. If the Company fails to prevail in its lawsuit or arbitration proceedings, there could be significant adverse effects on the Company’s future planned operations in JDZ Blocks 5 and 6. These adverse effects could include but not be limited to a loss of ERHC’s rights JDZ Block 5 and 6. At this time, ERHC is unable to reasonably estimate the economic impact if the Company fails to prevail in its suit and arbitration.
The Company is under investigation by the SEC, the DOJ and a U.S. Senate Subcommittee, and the results of these investigations could have a material adverse effect on its business, prospects, operations, financial condition and cash flow.
On May 4, 2006, a search warrant issued by the U.S. District Court of the Southern District of Texas, Houston Division, was executed on ERHC seeking various records including, among others, documents, if any, related to correspondence with foreign governmental officials or entities in Săo Tomé and Nigeria. The search warrant cited, among other things, possible violations of the FCPA, Section 10(b) of the Exchange Act, Rule 10b-5 under the Exchange Act and criminal conspiracy and wire fraud statutes. ERHC filed suit in federal district court in Texas in June 2006 seeking to protect the Company’s attorney-client privileged documents and to allow its counsel to determine the factual basis for the DOJ’s search warrant affidavit, which is currently under seal.
A related SEC subpoena was issued on May 9, 2006, and a second related subpoena issued on August 29, 2006. The subpoenas requested from ERHC a range of documents including all documents related to correspondence with foreign governmental officials or entities in Sao Tome and Nigeria, personnel records (specifically, those regarding the Company’s former Chief Financial Officer, Franklin Ihekwoaba) and other corporate records. ERHC’s attorneys, Akin Gump Strauss Hauer & Feld LLP, assisted ERHC in responding to the subpoenas.
On July 5, 2007, the U.S. Senate Committee on Homeland Security and Governmental Affairs’ Permanent Subcommittee on Investigations served ERHC with a subpoena, in connection with its review of matters relating to the potential abuse of payments made to foreign governments. The subpoena, as amended on July 18, 2007, seeks documents and information regarding ERHC’s activities, particularly those related to the acquisition of ERHC’s interests in the Gulf of Guinea. ERHC’s attorneys, Akin Gump Strauss Hauer & Feld LLP, assisted ERHC in responding to the subpoena. Please see “Legal Proceedings” for more information.
These investigations could also result in:
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third party claims against the Company, which may include claims for special, indirect, derivative or consequential damages;
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damage to our business, operations and reputation;
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loss of, or adverse effect on, cash flow, assets, goodwill, operations and financial condition, business, prospects, profits or commercial value;
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adverse consequences on the Company’s ability to obtain or continue financing for current or future projects; and/or
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claims by directors, officers, employees, affiliates, advisors, attorneys, agents, debt holders or other interest holders or constituents of ERHC.
Continuing negative publicity arising from these investigations could also adversely affect the Company’s business and prospects in the commercial market. In addition, these investigations have resulted in significant expenses to ERHC, including substantial legal fees and the diversion of management’s attention from its operations and other activities. If the Company incurs costs or losses as a result of these matters, it may not have the liquidity or funds to address those costs or losses, in which case such costs or losses could have a material adverse effect on its business, prospects, operations, financial condition and cash flow.
Through September 30, 2010, ERHC has incurred substantial costs in responding to the investigations by the DOJ, SEC and Senate Subcommittee. Those costs consist primarily of legal fees paid to the Company’s legal counsel, Akin Gump Strauss Hauer & Feld LLP and document reproduction costs. These costs have had a significant negative impact on the Company’s cash flows from operations. ERHC anticipates the use of even more of its cash reserves to address the investigations and that could have a serious negative impact on the Company’s liquidity. Neither management nor its legal counsel can assess the magnitude of future cash requirements that could result from prolonged investigations or any negative findings that might arise from the investigations. In a worst case scenario, the Company’s cash resources could be exhausted and the Company’s status as a going concern could also be brought into question.
The Company has limited sources of working capital
The Company believes that its working capital requirements for 2011 will be approximately $4,800,000 based on maintaining operations at their current level and the generation of interest income at levels similar to 2010. Our consortium partners will pay all of ERHC’s future costs in respect of all operations in JDZ Blocks 2, 3 and 4 subject to total reimbursement upon production.
The Company is currently focused on exploiting its interests in JDZ Blocks 2, 3, 4, 5, 6 and 9 but has no current source of income other than interest income from cash investments generated from the sale of participation interests in Blocks 2, 3 and 4 to Sinopec and Addax Ltd. The Company hopes to enter into participation agreements in JDZ Blocks 5, 6 and 9 and also in the EEZ, but the timing or likelihood of such transactions cannot be predicted. The Company might be required to exercise further rights in EEZ in 2011. In that event the Company may be required to incur significant capital cost in exercise of those rights.
The Company’s results of operations are susceptible to general economic conditions
The Company’s revenues and results of operations will be subject to fluctuations based upon the general economic conditions both in the United States and internationally. A general economic downturn or a recession in the industry, will adversely impact the Company’s prospective future revenues, the value of its oil and natural gas exploration concession, as well as its ability to exploit its assets.
One shareholder controls approximately 43% of the Company’s outstanding common stock
Chrome Oil Services (“Chrome”) beneficially owns approximately 43% of the Company’s outstanding common stock. As a result, Chrome has the ability to substantially influence, and may effectively control the outcome of corporate actions that require stockholder approval, including the election of directors. This concentration of ownership may have the effect of delaying or preventing a future change in control of the Company or a liquidity event.
The Company’s stock price is highly volatile
The Company’s common stock is currently traded on the Over-the-Counter (OTC) Bulletin Board. The market price of the Company’s common stock has experienced fluctuations that are unrelated to its operating performance. The market price of the common stock has been highly volatile over the last several years. The Company can provide no assurance regarding its stock price.
The Company does not currently pay dividends on its common stock and does not anticipate doing so in the near future
The Company has paid no cash dividends on its common stock, and there is no assurance that the Company will achieve sufficient earnings to pay cash dividends on its common stock in the foreseeable future. The Company intends to retain any earnings to fund its future operations.
The Company’s stock is considered a “penny stock”
The SEC has adopted rules that regulate broker-dealer practices in connection with transactions in “penny stocks.” Penny stocks generally are equity securities with a share price of less than $5.00. The penny stock rules require a broker-dealer, prior to a transaction in a penny stock not otherwise exempt from the rules, to deliver a standardized risk disclosure document prepared by the SEC that provides information about penny stocks and the nature and level of risks in the penny stock market. These disclosure requirements may have the effect of reducing the level of trading activity in any secondary market for a stock that becomes subject to the penny stock rules. The Company’s common stock may be subject to the penny stock rules, and accordingly, investors in the common stock may find it difficult to sell their shares in the future, if at all.
The Internal Revenue Service is currently conducting an examination of the Company’s tax returns.
The Internal Revenue Service is currently examining the tax returns for the Company’s 2005 and 2006 tax years. If adjustments are required, the Company may be subject to taxes, penalties and interest and these could have a material adverse effect on ERHC’s operations, financial condition and cash flow.
Item 1B.
Item 1B. Unresolved Staff Comments
None
Item 2.
Item 2. Properties
Substantially all of the Company’s properties are in the form of working interest which represents ERHC’s share of all the potential hydrocarbon production from the blocks awarded and obligates ERHC to pay a corresponding percentage of the costs of drilling, production and operating these blocks. These costs in Blocks 2, 3 and 4 are currently being carried by the operators until production, whereupon the operators will recover their costs from production revenues. ERHC has working interests in Blocks 2, 3, 4, 5, 6, and 9 in the offshore JDZ and in addition has interests in the EEZ. The subsistence of the company’s interests in JDZ Blocks 5 and 6, are currently the subject of arbitration between the Company, the JDA and the governments of Nigeria and DRSTP.
Joint Development Zone
ERHC has interests in six of the nine Blocks in the Joint Development Zone (JDZ), a 34,548 sq km area approximately 200 km off the coast of Nigeria and Sao Tome and Principe that is adjacent to several large petroleum discovery areas. ERHC’s rights in the JDZ include:
•
JDZ Block 2: 22.0%
•
JDZ Block 3: 10.0%
•
JDZ Block 4: 19.5%
•
JDZ Block 5: 15.0% (in Arbitration)
•
JDZ Block 6: 15.0% (in Arbitration)
•
JDZ Block 9: 20.0%
Sao Tome and Principe Exclusive Economic Zone
The government of Sao Tome and Principe awarded ERHC rights to participate in exploration and production activities in Sao Tome and Principe’s EEZ. ERHC’s rights include the following:
•
EEZ Block 4: 100% and no signature bonus
•
EEZ Block 11: 100% and no signature bonus
•
The option to acquire up to a 15% paid working interest in additional two blocks of ERHC’s choice.
ERHC will be responsible for its proportionate share of exploration and exploitation costs in the EEZ blocks.
The EEZ describes waters of Sao Tome that encompasses an area of approximately 160,000 square km. It is measured from claimed archipelagic baselines - territorial sea: 12 nautical miles, exclusive economic zone: 200 nautical miles.
Corporate Office
The Company’s corporate office is located at 5444 Westheimer Road, Suite 1440, Houston, Texas 77056 pursuant to a lease that expires in December 2011.
Item 3.
Item 3. Legal Proceedings
On May 4, 2006, a search warrant issued by the U.S. District Court of the Southern District of Texas, Houston Division, was executed on ERHC seeking various records including, among others, documents, if any, related to correspondence with foreign governmental officials or entities in Sao Tome and Nigeria. The search warrant cited, among other things, possible violations of the FCPA, Section 10(b) of the Exchange Act, Rule 10b-5 under the Exchange Act and criminal conspiracy and wire fraud statutes.
A related SEC subpoena was issued on May 9, 2006, and a second related subpoena issued on August 29, 2006. The subpoenas requested from ERHC a range of documents including all documents related to correspondence with foreign governmental officials or entities in Sao Tome and Nigeria, personnel records (specifically, those regarding the Company’s former Chief Financial Officer, Franklin Ihekwoaba) and other corporate records. ERHC’s attorneys, Akin Gump Strauss Hauer & Feld LLP, assisted ERHC in responding to all subpoenas. On July 5, 2007, the U.S. Senate Committee on Governmental Affairs’ Permanent Subcommittee on Investigations served ERHC with a subpoena, in connection with its review of matters relating to the potential abuse of payments made to foreign governments. The subpoena, as amended on July 18, 2007, sought documents and information regarding ERHC’s activities, particularly those related to the acquisition of ERHC’s interests in the Gulf of Guinea. ERHC’s attorneys, Akin Gump Strauss Hauer & Feld LLP, assisted ERHC in responding to all subpoenas.
In January 2010, all the documents taken by federal investigators from the Company’s corporate headquarters in May 2006 were returned to the Company. A total of 106 boxes containing original archival records from the Company’s inception until 2006 were returned. As of September 30, 2010, the Company does not have any reason to believe that the investigations by the Department of Justice (DOJ) and the U.S. Senate Committee on Governmental Affairs’ Permanent Subcommittee Investigations are active. The Company has not received any formal communication of conclusion of the investigations however, if any of the investigations were to proceed, the Company anticipates that these investigations may be lengthy and does not know when they will conclude. If violations are found, the Company may be subject to criminal, civil and/or administrative sanctions, including substantial fines, and the resolution or disposition of these matters could have a material adverse effect on its business, prospects, operations, financial condition and cash flows.
On November 3, 2008, the Company filed a suit at the Federal High Court in Nigeria to prevent any tampering with its rights in JDZ Blocks 5 and 6. The suit comes after the JDA and Joint Ministerial Council (JMC) of the Nigeria-Sao Tome and Principe JDZ failed to give a satisfactory response to the Company’s letters seeking clarification on the Company’s rights in JDZ Blocks 5 and 6 following media reports stating that the JMC had approved of the Company’s removal from the Blocks. The Company was awarded a 15 percent working interest in each of the Blocks in a 2005 bid/licensing round conducted by the JDA following the exercise by ERHC of preferential rights in the Blocks as guaranteed by contract and treaty. The dispute is entirely contractual. The JDA and the Government of DRSTP contend that certain correspondence issued by a previous CEO/President of the Company in 2006 amount to a relinquishment of the Company’s rights in Blocks 5 and 6 under the Company’s contracts with DRSTP which provide for the rights. The Company contends that no such relinquishment has occurred and has sought recourse to arbitration accordingly.
In November 2008, the Company dispatched notices of arbitration for service on the JDA and the governments of Nigeria and Sao Tome & Principe to commence arbitration in London. ERHC wants the London Court of International Arbitration to clarify that ERHC's interests in JDZ Blocks 5 and 6 remain intact. The arbitration has been currently suspended while the Company pursues amicable settlement with the governments of Nigeria and Sao Tome Principe.
Mr. Angelo de Jesus Bomfim, a Sao Tome licensed attorney is claiming against ERHC the sum of twenty six thousand ($26,000) US dollars plus interest. The claim stems from an alleged retainer owed to Mr. Bomfim by the Company under an alleged retainer agreement entered into in 1998 between the Company and Mr. Bomfim, and alleged retainer services rendered thereafter between 1998 and 1999. The Company’s lawyers are handling the claim on behalf of the Company. The Company has instructed its lawyers to arrange for the vigorous defense of the case if it proceeds to litigation as Mr. Bomfim has threatened. However, the Company has also instructed its lawyers attempt to negotiate an amicable settlement with Mr. Bomfim to avoid incurring exorbitant litigation cost.
From time to time, ERHC may be subject to routine litigation, claims, or disputes in the ordinary course of business. ERHC intends to defend these matters vigorously; the Company cannot predict with certainty, however, the outcome or effect of any of the litigation or investigatory matters specifically described above or any other pending litigation or claims. There can be no assurance as to the ultimate outcome of these lawsuits and investigations.
Item 4.
Item 4. Submission of Matters to a Vote of Security Holders
None.
PART II
Item 5.
Item 5. Market for Registrant’s Common Equity, Related Shareholder Matters and Issuer Purchases of Equity Securities
Market and Related Information
ERHC’s common stock is currently traded on the OTC Bulletin Board under the symbol “ERHE.” The market for the Company’s common stock is unpredictable and highly volatile. The following table sets forth the closing sales price per share of the common stock for the past three fiscal years. These prices reflect inter-dealer prices, without retail mark-ups, markdowns or commissions, and may not necessarily represent actual transactions.
Stock Price Highs & Lows
As of November 30, 2010, there were approximately 2,532 stockholders of record. The closing price of the common stock as reported on the OTC Bulletin Board on November 30, 2010 was $0.22. The Company has not paid any dividends during the last three fiscal years and does not anticipate paying any cash dividends in the foreseeable future.
Securities Authorized for Issuance under Equity Compensation Plans
In November 2004, the Board of Directors adopted a 2004 Compensatory Stock Option Plan pursuant to which it reserved 20,000,000 shares for issuance. This plan was approved at a special meeting of the stockholders of the Company in February 2005. Under this plan, 8,026,756 shares have been issued.
Recent Sales of Unregistered Securities
The Company has issued the following unregistered securities:
•
During the first quarter of fiscal 2008, the Company issued an aggregate of 300,000 shares of common stock to the Company’s directors for services rendered in 2007.
•
During the second quarter of fiscal 2009, the Company issued an aggregate of 450,000 shares of common stock to the Company’s directors for services rendered in 2005 and 2008.
•
During the fourth quarter of fiscal 2009, the Company approved the issuance of an aggregate of 361,875 shares of common stock to the Company’s directors and non-management staff for services rendered in 2009.
•
During the third and fourth quarter of 2010, we issued 1,017,500 shares for 2010 to employees and directors, for services rendered in 2010.
With respect to the sale of the unregistered securities referenced above, all transactions were exempt from registration pursuant to Section 4(2) of the Securities Act of 1933, as amended. No sales commissions were paid in connection with these transactions.
Issuer Purchases of Equity Securities
The Company has not repurchased any of its Common Stock.
Item 6.
Item 6. Selected Financial Data
The selected financial data of the Company presented below as of and for each of the five years in the period ended September 30, 2010, has been derived from the audited financial statements of the Company. The financial statements as of and for the years ended September 30, 2009, 2008, 2007, 2006 and 2005 have been audited by MaloneBailey, LLP, an independent registered public accounting firm. The data set forth below should be read in conjunction with the Company’s financial statements, related notes thereto and Management’s Discussion and Analysis of Financial Condition and Plan of Operations, contained elsewhere herein.
Item 7.
Item 7. Management’s Discussion and Analysis of Financial Condition and Plan of Operations
Introduction
The following discussion and analysis presents management’s perspective of the Company’s business and, financial condition and its overall performance. This information is intended to provide investors with an understanding of our past performance, current financial condition and outlook for the future. You must read the following discussion of the results of the operations and financial condition of the Company in conjunction with its financial statements, including the notes thereto included in this Form 10-K filing. The Company’s historical results are not necessarily an indication of trends in operating results for any future period.
Reference is made to “Item 6. Selected Financial Data” and “Item 8. Financial Statements and Supplementary Data.”
CAUTIONARY STATEMENT ON FORWARD-LOOKING INFORMATION
This Annual Report on Form 10-K contains forward-looking statements. Forward-looking statements include statements concerning plans, objectives, goals, strategies, expectations, future events or performance and underlying assumptions and other statements which are other than statements of historical facts. Certain statements contained herein are forward-looking statements and, accordingly, involve risks and uncertainties which could cause actual results or outcomes to differ materially from those expressed in the forward-looking statements. Our expectations, beliefs and projections are expressed in good faith and are believed by us to have a reasonable basis, including without limitations, management's examination of historical operating trends, data contained in our records and other data available from third parties, but there can be no assurance that management's expectations, beliefs or projections will result or be achieved or accomplished. In addition to other factors and matters discussed elsewhere herein and the risks discussed in Item 1A. Risk Factors, the following are important factors that, in our view, could cause actual results to differ materially from those discussed in the forward-looking statements: geopolitical instability where we operate; our ability to meet our capital needs; our ability to raise sufficient capital and/or enter into one or more strategic relationships with one or more industry partners to execute our business plan; our ability and success in finding, developing and acquiring oil and gas reserves; our ability to respond to changes in the oil exploration and production environment, competition, and the availability of personnel in the future to support our activities.
Overview
ERHC Energy Inc., a Colorado corporation, (“ERHC” or the “Company”) was incorporated in 1986 and was engaged in a variety of businesses until 1996, when it began its current operations. The Company’s goal is to maximize its value through exploration and exploitation of oil and gas reserves in the Gulf of Guinea offshore of central West Africa including its rights to working interests in exploration acreage in the Joint Development Zone (“JDZ”) between the Democratic Republic of Sao Tome and Principe (“DRSTP or “Tome”) and the Federal Republic of Nigeria (“FRN or “Nigeria”) and in the exclusive territorial waters of Sao Tome (the “Exclusive Economic Zone” or “EEZ”). ERHC does not directly carry out the exploration and production operations in the JDZ but is relying on reputable technical operators with whom the Company has entered into partnership relationships, such as Addax Petroleum Inc. and Sinopec Corporation to carry out those operations. The Company has formed relationships with these upstream oil and gas companies to assist the Company in exploiting its assets in the JDZ. The Company currently has no other operations but is exploring opportunities in other areas of the Oil and Gas industry, including supply and trading.
The Company’s business strategy is to farm out its rights to working interests in the JDZ and EEZ to entities which we believe are established, well capitalized oil and gas operators for upfront cash payments and negotiate contracts with them to carry our share of the capital costs. This has been done successfully on Blocks 2, 3 and 4. ERHC will attempt to adopt a similar approach for JDZ Blocks 5, 6 and 9 as well as the EEZ. ERHC is also pursuing other business development activities in the broad petroleum and related industries.
General Development of the Business
In April 2003, the Company and the DRSTP entered into an Option Agreement (the “2003 Option Agreement”) in which the Company relinquished certain financial interests in the JDZ in exchange for exploration rights in the JDZ. The Company additionally entered into an Administration Agreement with the Nigeria-Sao Tome and Principe Joint Development Authority (“JDA”). The Administration Agreement is the formal agreement by the JDA that it will fully implement ERHC’s preferential rights to working interests in the JDZ acreage as set forth in the 2003 Option Agreement and describes certain procedures regarding the exercising of these rights. However, ERHC retained the following rights to participate in exploration and production activities in the EEZ subject to certain restrictions: (a) the right to receive 100% working interest signature free bonus of two blocks of ERHC’s choice and (b) the option to acquire up to a 15% paid working interest in additional two blocks of ERHC’s choice in the EEZ. The Company would be responsible for its proportionate share of exploration and exploitation costs in the EEZ blocks.
This exercise of ERHC’s rights is subject to the condition that if no license is awarded or a license is awarded and subsequently withdrawn by the JDA prior to the commencement of operations, ERHC is entitled to receive its working interest in that block in a future license awarded for that block.
ERHC entered into a series of negotiations and agreements that positioned the Company to enter into a Participation Agreement dated November 17, 2005 (the “Participation Agreement”) with Addax Petroleum (Nigeria Offshore 2) Limited (“Addax”). Under the Participation Agreement, as amended, Addax ultimately paid ERHC $18 million in February and March 2006 in exchange for the assignment of a 40.5% participating interest (the “Assigned Interest”) in Block 4 while ERHC retained a 19.5% interest (“Retained Interest”). Under the Participation Agreement, as amended, Addax currently serves as operator and pays all of ERHC’s current and future costs in respect of all petroleum operations in Block 4 subject to reimbursement upon production. Addax is to receive 100% of ERHC’s allocation of costs plus up to 50% of ERHC’s allocation of profit until Addax recovers all costs advanced on behalf of ERHC.
In February 2006, ERHC assigned a 15% participating interest in Block 3 of the JDZ to Addax Petroleum Resources Nigeria Limited (“Addax Sub”) for $7.5 million which was paid in the second quarter of fiscal 2006. ERHC retained a 10% interest in Block 3. Under the participation agreement between ERHC and Addax Sub, Addax Sub is currently “carrying” all of ERHC’s current and future costs in respect of petroleum operations in Block 3. Addax Sub is to receive to 100% of ERHC’s allocation of costs plus up to 50% of ERHC’s allocation of profit until Addax Sub recovers all costs advanced on behalf of ERHC.
In March 2006, ERHC assigned a 28.67% participating interest in Block 2 of the JDZ to Sinopec International Petroleum Exploration and Production Corporation Nigeria (“Sinopec”), and a 14.33% participating interest to Addax Energy Nigeria Limited (“Addax Ltd.”). ERHC retained a 22% participating interest in Block 2. In connection with these assignments, Sinopec paid ERHC $13.6 million and Addax Ltd. paid ERHC $6.8 million in the second quarter of fiscal 2006. Under the participation agreement between ERHC, Sinopec and Addax Ltd., Sinopec currently serves as operator, and Sinopec and Addax Ltd. pay all of ERHC’s current and future costs in respect of petroleum operations in Block 2. Sinopec and Addax Ltd. are to receive to 100% of ERHC’s allocation of cost oil plus up to 50% of ERHC’s allocation of profit until they recover all costs advanced on behalf of ERHC.
Related to the assignment of the participating interest in Block 2 to Sinopec, ERHC paid a $3 million in cash success fee to a British Virgin Island company (“Feltang”). $1.5 million was paid to Feltang in March 2006 and the remaining $1.5 million was paid in March 2007. In August 2010, ERHC issued to Feltang 5,250,000 shares of common stock and warrants to purchase 6,500,000 shares at a fixed exercise price of $0.355 per share. The payment and issuance of stock and warrants were made to Feltang pursuant to an agreement made in January 2006 between the Company and Feltang whereby the Company contracted Feltang to seek and introduce potential partners to ERHC as a replacement operator for the Company’s previous operating partner in Block 2. The company’s obligation to pay Feltang arose under the agreement as a result of the former operating partner’s withdrawal from Block 2, the execution of a participation agreement between the Company and Sinopec (introduced to the Company by Feltang), and the execution of a PSC covering Block 2 with Sinopec as operator. Without the quick finding of a replacement for the Company’s former operating partner in Block 2, the Company’s ability to proceed to the execution of a Production Sharing Contract and therefore the maintenance or retention of its interests in JDZ Block 2 would have been put in serious jeopardy.
On June 24, 2009, Addax Petroleum Corporation announced that it had entered into a definitive agreement with Sinopec pursuant to which Sinopec had agreed, subject to the terms of the Support Agreement, to make an offer to acquire all of the outstanding common shares of Addax Petroleum. On August 24, 2009, the sale of Addax Petroleum Corporation to Sinopec was finalized.
Current Business Operations
ERHC’s operations are currently focused in the Gulf of Guinea, off the coast of central West Africa. ERHC believes this region has potentially significant oil and gas reserves. ERHC has worked to realize the value of the assets it has acquired in this region. The Company’s current holdings include those below, details of which can be found at the link: http://www.erhc.com
JDZ - ERHC has interests in six of the nine Blocks in the JDZ, a 34,548 square kilometer area approximately 200 kilometers off the coastline of Nigeria and Săo Tomé & Principe that is adjacent to several large petroleum discovery areas.
EEZ - The government of Săo Tomé & Principe has awarded ERHC rights to participate in exploration and production activities in the EEZ, which encompasses an area of approximately 160,000 square kilometers. These rights were granted in a May 21, 2001 Memorandum of Agreement made between the DRSTP and the Company. The Company’s rights in the EEZ expire on October 1, 2024 or, if the company has a producing working interest in any Block(s) at October 1, 2024, the Company’s rights extend in such Block(s), as long as the Block(s) remains in production.
In 2009, the National Petroleum Agency of São Tomé & Príncipe (“ANP-STP”) delineated the EEZ into 19 Blocks and, accordingly, ERHC exercised its preferential rights arising from prior agreements between ERHC and São Tomé & Príncipe. In February, the ANP-STP confirmed the award to ERHC of 100 percent working interests in Blocks 4 and 11, signature bonus free. The ANP-STP has indicated that it expects to invite ERHC to negotiate Production Sharing Contracts on the two Blocks in due course.
ERHC has been active in the EEZ, which is situated southeast of the JDZ, since 1997. ERHC was one of the first companies to identify the possibility of significant oil and gas reserves in the offshore of Sao Tome and Principe. The two Blocks selected and awarded to ERHC in the EEZ sit directly to the east of the islands of Sao Tome and Principe.
EEZ Block 4 is directly to the east of the island of Principe.EEZ Block 11 is directly to the east of the island of Sao Tome. There has been less seismic imaging conducted in this area. As we have experienced with the JDZ, oil and gas exploration can be a long process. The next step will be to open discussions with potential technical partners to farm into Blocks 4 and 11 to assume operatorship and compensate ERHC for percentage ownership in the Blocks.
In addition to the two Blocks already awarded, ERHC has rights to acquire up to a 15 percent paid working interest in two additional Blocks of its choice in the EEZ. The ANP-STP has informed the Company that selection of these other Blocks will take place at a later date.
Although ERHC is making considerable progress toward realizing the value of the Company’s oil and gas assets in the Gulf of Guinea, it is still a long way away from the point at which any of these oil and gas assets can begin to produce revenues. ERHC therefore seeks to identify and acquire assets with a shorter time horizon for revenue generation.
ERHC has identified and examined potential acquisition prospects and is holding discussions regarding a number of potential exploration and production opportunities in West Africa. Ultimately, ERHC seeks a diverse portfolio of assets from which it can derive significant strategic value. The success of potential acquisitions depends on the availability of adequate financing. ERHC’s principal assets remain its interests in the JDZ and the EEZ.
Operations in the JDZ
ERHC has working interests in six of the nine Blocks in the JDZ, as follow:
•
JDZ Block 2: 22.0%
•
JDZ Block 3: 10.0%
•
JDZ Block 4: 19.5%
•
JDZ Block 5: 15.0% (in Arbitration)
•
JDZ Block 6: 15.0% (in Arbitration)
•
JDZ Block 9: 20.0%
The working interest percentages represents ERHC’s share of all the potential hydrocarbon production from the blocks and obligates ERHC to pay a corresponding percentage of the costs of drilling, production and operating the blocks. These costs in blocks 2, 3 and 4 are currently being carried by the operators until production, whereupon the operators will recover their costs from the production revenues.
ERHC’s interests in JDZ Blocks are in various stages of exploration. JDZ Blocks 2, 3 and 4 were the focus of an exploratory drilling campaign that concluded in January 2010. To date, no Production Sharing Contracts have been signed in either JDZ Block 5 or 6, and no operatorship has been awarded yet in JDZ Block 9.
In 2009, Sinopec and Addax, our technical partners and operators in Blocks 2, 3 and 4 undertook an exploratory drilling campaign across the three blocks that was completed in January 2010. That drilling campaign was a coordinated effort made possible by two important transactions undertaken by Addax and Sinopec during 2009: 1) Sinopec’s acquisition of Addax and 2) Addax’s acquisition of Anadarko Petroleum’s interest in Block 3, allowing Addax to become the operator in the Block 3.
The drilling campaign was completed in January 2010 with five wells drilled in the following locations and order:
•
The Kina-1 well in JDZ Block 4
•
The Bomu-1 well in JDZ Block 2
•
The Lemba-1 well in JDZ Block 3
•
The Malanza-1 well and Oki East-1 well in Block 4
The following is an analysis of activity that took place in each block in connection with the drilling campaign:
The following is a summary of results of the drilling campaign:
General Information on Current Operations in Blocks 2, 3 and 4
Currently, the analysis of the information gathered during drilling is ongoing. The Joint Development Authority {JDA} has granted an extension of Exploration Phase 1 until March 2011 to enable contracting parties complete the analysis.
No guarantees can be given at this stage that there will be any commercial discovery or production in commercial quantities or at all.
As has been the practice in the JDZ, accurate, material information on the progress in the JDZ Blocks will emanate from the operators or the JDA. ERHC will publish such information in a timely manner in accordance with our contractual and regulatory obligations.
Management understands that each stage in the process requires considerable expertise and any resulting production, if in commercial quantities, may considerably enhance shareholder value. No guarantees can be given at this stage that there will be production in commercial quantities.
Management also understands that analyzing drilling results and incorporating them into the relevant geologic and fluid models takes time. Further, moving from field appraisal and development onto production takes time. As has been the practice in the JDZ, accurate, material information on the progress in the JDZ Blocks will emanate from the operators or the JDA. ERHC will publish such information in a timely manner in accordance with our contractual and regulatory obligations.
Background of the JDZ
In the spring of 2001, the governments of Săo Tomé & Principe and Nigeria reached an agreement over a long-standing maritime border dispute. Under the terms of the agreement, the two countries established the JDZ to govern commercial activities within the disputed boundaries. The JDZ is administered by the JDA which oversees all future exploration and development activities in the JDZ. The Revenues derived from the JDZ will be shared 60/40 between the governments of Nigeria and Săo Tomé & Principe, respectively.
Background of the EEZ
The government of Săo Tomé & Principe has awarded ERHC rights to participate in exploration and production activities in Săo Tomé & Principe’s EEZ. ERHC’s rights in the EEZ include the following:
•
100 percent working interests free signature bonus in Blocks 4 and 11, and
•
The option to acquire up to a 15 percent paid working interest in additional two blocks of ERHC’s choice.
ERHC would be responsible for its proportionate share of exploration and exploitation costs in the EEZ blocks.
The EEZ describes waters offshore Săo Tomé that encompasses an area of approximately 160,000 square km. It is measured from claimed archipelagic baselines - territorial sea: 12 nautical miles, exclusive economic zone: Oil and gas are produced in the neighboring countries of Nigeria, Equatorial Guinea, Gabon and Congo.
The following chart represents ERHC’s current rights in the JDZ blocks.
(1)
The Original Participating Interest granted pursuant to the Option Agreement, dated April 2, 2003, between DRSTP and ERHC (the “2003 Option Agreement”).
Following is an analysis of the participation agreements under which the company sold participating interests in Blocks 2, 3 and 4. No participating interests have been sold related to Blocks 5, 6 or 9.
Particulars of Participating Agreements
Under the terms each of the Participation Agreements Sinopec and Addax agreed to pay all of ERHC’s future costs for petroleum operations (“the carried costs”) in respect of ERHC's retained interests in the blocks. Additionally, Sinopec and Addax are entitled to 100% of ERHC’s allocation of cost oil plus up to 50% of ERHC’s allocation of profit oil from the retained interests on individual blocks until Sinopec and Addax Sub recover 100% of ERHC’s carried costs
On October 2, 2009, Sinopec International Petroleum Exploration and Production Corporation acquired all of the outstanding shares of Addax Petroleum Corporation.
Current Plans for Operations
The Company is currently focused on exploiting its interests in Blocks 2, 3 and 4 but it has no current sources of income from operations other than interest income from cash generated from sale of participation interests in Blocks 2, 3 and 4 to Sinopec and Addax Ltd. The Company hopes to enter into Participation Agreements in Blocks 5, 6 and 9, but the timing or likelihood of such transactions cannot be predicted. The Company believes that the participation agreements that it has entered into will be its primary source of future cash flow; however, the Company is exploring plans to generate operating income from new sources. The Company plans to diversify its business activity by pursuing other growth opportunities possibly including acquiring revenue-producing assets in diverse geographical areas and forging new strategic business partnerships and alliances. To expand operations, ERHC is currently in negotiations for potential investments that would increase the Company’s presence in the West African oil and gas industry.
ERHC cannot currently predict the outcome of negotiations for acquisitions in West Africa, or, if successful, their impact on the Company's operations.
Plans for Funding of Potential Acquisitions
ERHC's future plans may be dependent on the Company's ability to attract new funding. On July 7, 2010, the Company filed a registration statement on Form S-3 with the US Securities and Exchange Commission, or SEC, utilizing a “shelf” registration process or continuous offering process. Under this shelf registration process, the Company may, from time to time, sell up to $50,000,000 of the securities described in the prospectus in one or more offerings. Each time the Company offers securities, it will provide stockholders with a prospectus supplement that will describe, among other things, the specific amounts and prices of the securities being offered and the terms of the offering.
Unless otherwise provided in the applicable prospectus supplement, the Company intends to use the net proceeds from the sale of securities under the shelf registration to acquire or invest in working interests and other oil and natural gas businesses that are complementary to the Company's operations, although the Company has no such transactions currently in place. Additionally, the Company may use a portion of net proceeds from time to time for general corporate purposes, including exploration and development activities, regulatory affairs expenses, capital expenditures, additions to working capital and general and administrative expenses.
Under the shelf registration, in October 2010, ERHC entered into a definitive agreement with institutional investors for a registered direct placement of approximately $2.0 million shares of common stock at a price of $0.22 per share, for a total of 9,090,910 shares. In addition, the Company issued the investors warrants to purchase shares of common stock, which, if fully exercised, would provide an additional $1.9 million in gross proceeds to the Company. The warrants have an exercise price of $0.28 per share and are exercisable over a five (5) year period.
Critical Accounting Policies
The Company has identified the policies below as critical to its business operations and the understanding of its results of operations. The impact and any associated risks related to these policies on the Company’s business operations are discussed throughout this section where such policies affect the Company’s reported and expected financial results. Management’s preparation of this Annual Report on Form 10-K requires it to make estimates and assumptions that affect the reported amount of assets and liabilities, and the disclosure of contingent assets and liabilities. There is no assurance that actual results will not differ from those estimates and assumptions.
Concentration of Risks
The Company’s current focus is to exploit assets consisting of agreements with the DRSTP concerning oil and gas exploration in its EEZ and with the JDA concerning oil and gas exploration in the JDZ. The Company has formed relationships with other oil and gas companies with the technical and financial capabilities to assist the Company in leveraging its interests in the EEZ and the JDZ. The Company currently has no other operations.
Impairment of Long-lived Assets
ERHC evaluates the recoverability of long-lived assets when events and circumstances indicate that such assets might be impaired. ERHC determines impairment by comparing the undiscounted future cash flows estimated to be generated by these assets to their respective carrying amounts. Impairments are charged to operations in the period to which events and circumstances indicate that such assets might be impaired. ERHC has evaluated its investment in its DRSTP concession fee in light of its 2003 Option Agreement and there have been no events or circumstances that would indicate that such asset might be impaired.
Recent Accounting Pronouncements
In January 2010, the FASB issued authoritative guidance on Fair Value Measurements and Disclosures - Improving Disclosures About Fair Value Measurements. The new guidance requires new disclosures about transfers into and out of Levels 1 and 2 and separate disclosures about purchases, sales, issuances, and settlements relating to Level 3 measurements. It also clarifies existing fair value disclosures about the level of disaggregation and about inputs and valuation techniques used to measure fair value. The new disclosures and clarifications of existing disclosures was effective in the Company’s second quarter of fiscal year 2010, except for the disclosures about purchases, sales, issuances, and settlements relating to Level 3 measurements, which are effective for the Company’s first quarter of fiscal year 2011. Other than requiring additional disclosures, the adoption of this standard will not have a material impact on the Company’s consolidated financial position and results of operations.
.
Former Operations - Asset Retirement Obligation
For several years the Company has accrued $485,000 as a liability on the balance sheet relating to the estimated costs on plugging and abandonment of certain oil and gas properties in Wichita Falls, Texas. The Company acquired a lease in oil fields located in Wichita County, Texas. The Company uses ASC Topic 410 to account for this obligation. These properties were abandoned and written off during the year ended September 30, 1999. During the year ended September 30, 2009, the Company reached a settlement with the state of Texas under which the Company paid $120,000 to fully satisfy its obligation for plugging and abandonment of the properties and recognized a gain of $365,000 on settlement of the obligation.
Results of Operations
Year Ended September 30, 2010 Compared with Year Ended September 30, 2009
General and administrative expenses increased from $4,202,809 in the year ended September 30, 2009 to $5,156,778 in the year ended September 30, 2010. This increase came despite an ongoing effort to reduce operating expenses and was due primarily to the following:
•
Expenses related to the Company's proposed listing on the Alternative Investment Market ("AIM") of the London Stock Exchange.
•
General increase in expenses related to evaluation of new acquisition opportunities.
During the year ended September 30, 2010, the Company had a net loss of $6,230,811 compared with a net loss of $7,689,137 for the year ended September 30, 2009. The reduction was due to the following:
In 2009, the Company recognized a provision for loss of $4,234,317 when certain restrictions were placed on a financial institution where the Company had investments in Certificate of Deposit. An additional provision of $1,058, 579 was made during the year ended September 30, 2010. However the resulting reduction in loss during the year ended September 30, 2010 as compared to the year ended September 30, 2009 was partially offset by:
•
An increase in expenses related to evaluation of new acquisition opportunities during the year ended September 30, 2010
•
And a decrease in interest income from $421,729 in the year ended September 30, 2009 to $18,106 in the year ended September 30, 2010, due to a loss of interest income as the Company switched from interest bearing but not guaranteed deposit accounts to non-interest bearing accounts by the Federal Deposit Insurance Corporation.
Year ended September 30, 2009 Compared to Year Ended September 30, 2008
During 2009, the Company had general and administrative expenses of $4,202,809 compared with $4,249,572 in fiscal 2008. This decrease of $46,763 reflects the fact that the Company’s operations and expenditures were tightly maintained.
During 2009, the Company had a net loss of $7,689,137, compared to a net loss of $3,071,157 for fiscal 2008. The three primary reasons for the $4,617,980 increase in net loss for the year ended September 30, 2009 were: (i) a $4,234,317 provision for loss on certificates of deposits in a financial institution where certain restrictions were placed on the investment and a receiver was appointed to takeover the institution. (ii) a $819,460 decline in interest income as management moved deposits to non-interest bearing accounts that provided greater security from loss; and (iii) partially offset by a $365,000 gain from settlement of an asset retirement obligation with the State of Texas.
During fiscal 2009 and 2008, the Company had no revenues from which cash flows could be generated to support operations. In fiscal 2009, the Company continued to rely on cash generated from the 2006 sale of participation interests in the three JDZ Blocks under production sharing contracts with various joint venture partners to fund operations.
Liquidity and Capital Resources
As of September 30, 2010, the Company had $17,914,207 in cash and cash equivalents and US Treasury Bills and positive working capital of $17,596,590. Management believes that this cash position should be sufficient to support the Company’s working capital requirements for more than 12 months.
Off-Balance Sheet Arrangements
At September 30, 2010, the Company had no off-balance sheet arrangements.
Short -Term Obligations
As of September 30, 2010, the Company had a total of $517,425 in short-term obligations; it includes $83,938 in accrued Directors’ compensation.
Contractual Obligations and Commercial Commitments
The following table provides information at September 30, 2010, about the Company’s contractual obligations and commercial commitments. The table presents contractual obligation by due dates and related contractual commitments by expiration dates.
(1)
This represents a convertible note to Joseph Charles and Associates. However, the Company has been unable to locate the payee.
(2)
Lease obligations consist of operating lease for office space. Office lease represent non-cancelable leases for office space used in our daily operations.
Contingencies and Legal Matters
For a detailed discussion of contingencies and legal matters, see “Item 3 “Legal Proceedings”.
Item 7A.
Item 7A. Quantitative and Qualitative Disclosures about Market Risk
The Company’s current focus is to exploit its primary assets, which are rights to working interest in the JDZ and EEZ under agreements with the JDA and DRSTP respectively. The Company intends to continue to form relationships with other oil and gas companies with operational, technical and financial capabilities to assist the Company in leveraging its interests in the EEZ and the JDZ. The Company currently has no other operations.
At September 30, 2010, all of the Company’s operations were located outside the United States. The Company’s primary assets are agreements with DRSTP and the JDA, which provide ERHC with rights to participate in exploration and production activities in the Gulf of Guinea off the coast of West Africa. This geographic area of interest is controlled by foreign governments that have historically experienced volatility, which is out of management’s control. The Company’s ability to exploit its interests in the agreements in this area may be impacted by this circumstance.
The future success of the Company’s international operations may also be adversely affected by risks associated with international activities, including financial, economic and labor conditions, political instability, risk of war, expropriation, renegotiation or modification of existing contracts, tax laws (including host-country import-export, excise and income taxes and United States taxes on foreign subsidiaries) and changes in the value of the U.S. dollar relative to the local currencies in which future oil and gas producing activities may be denominated. Furthermore, changes in exchange rates may adversely affect the Company’s future results of operations and financial condition.
Market risks relating to the Company’s operations result primarily from changes in interest rates as well as credit risk concentrations. The Company’s interest expense is generally not sensitive to changes in the general level of interest rates in the United States, particularly because a substantial majority of its indebtedness is at fixed rates.
The Company holds no derivative financial or commodity instruments.
Item 8.
Item 8. Financial Statements and Supplementary Data
ERHC ENERGY INC.
A CORPORATION IN THE DEVELOPMENT STAGE
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
All schedules for which provision is made in the applicable accounting regulations of the Securities and Exchange Commission are not required under instructions or are inapplicable and therefore have been omitted.
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
ERHC Energy Inc.
Houston, Texas
We have audited the internal control of ERHC Energy Inc. over its financial reporting as of September 30, 2010 based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying “Management’s Annual Report on Internal Control over Financial Reporting.” Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
A company’s internal control over financial reporting is a process designed 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. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. 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 the policies or procedures may deteriorate.
In our opinion, ERHC Energy Inc. maintained, in all material respects, effective internal control over financial reporting as of September 30, 2010, based on criteria established in the Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of ERHC Energy Inc. as of September 30, 2010 and 2009, and the related consolidated statements of operations, shareholders’ equity and cash flows for each of the three years ended September 30, 2010, 2009 and 2008 and our report dated December 14, 2010 expressed an unqualified opinion on those consolidated financial statements.
Malone Bailey,LLP
www.malone-bailey.com
Houston, Texas
December 14, 2010
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
ERHC Energy Inc.
Houston, Texas
We have audited the accompanying consolidated balance sheets of ERHC Energy Inc., a development stage corporation, as of September 30, 2010 and 2009 and the related consolidated statements of operations, shareholders’ equity and cash flows for each of the three years ended September 30, 2010, 2009 and 2008. These financial statements are the responsibility of ERHC’s management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of ERHC as of September 30, 2010 and 2009, and the results of its operations and its cash flows for each of the three years ended September 30, 2010, 2009 and 2008 in conformity with accounting principles generally accepted in the United States of America.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the effectiveness of ERHC’s internal control over financial reporting as of September 30, 2010, based on criteria established in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO), and our report dated December 14, 2010 expressed an unqualified opinion.
MaloneBailey, LLP
www.malone-bailey.com
Houston, Texas
December 14, 2010
ERHC ENERGY INC.
A CORPORATION IN THE DEVELOPMENT STAGE
CONSOLIDATED BALANCE SHEETS
September 30, 2010 and 2009
The accompanying notes are an integral part of these consolidated financial statements
ERHC ENERGY INC.
A CORPORATION IN THE DEVELOPMENT STAGE
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Years Ended September 30, 2010, 2009, and 2008 and for the Period
From Inception, September 5, 1995, to September 30, 2010
The accompanying notes are an integral part of these consolidated financial statements
ERHC ENERGY INC.
A CORPORATION IN THE DEVELOPMENT STAGE
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
For the Period from Inception, September 5, 1995, to September 30, 2010, (Unaudited for the
Period from Inception to September 30, 1998)
The accompanying notes are an integral part of these financial statements
ERHC ENERGY INC.
A CORPORATION IN THE DEVELOPMENT STAGE
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
For the Period from Inception, September 5, 1995, to September 30, 2010, (Unaudited for the
Period from Inception to September 30, 1998)
The accompanying notes are an integral part of these financial statements
ERHC ENERGY INC.
A CORPORATION IN THE DEVELOPMENT STAGE
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
For the Period from Inception, September 5, 1995, to September 30, 2010, (Unaudited for the
Period from Inception to September 30, 1998)
The accompanying notes are an integral part of these financial statements
ERHC ENERGY INC.
A CORPORATION IN THE DEVELOPMENT STAGE
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
For the Period from Inception, September 5, 1995, to September 30, 2010, (Unaudited for the
Period from Inception to September 30, 1998)
ERHC ENERGY INC.
A CORPORATION IN THE DEVELOPMENT STAGE
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Years Ended September 30, 2010, 2009 and 2008 and for the Period From
Inception, September 5, 1995 to September 30, 2010
The accompanying notes are an integral part of these financial statements
ERHC ENERGY INC.
A CORPORATION IN THE DEVELOPMENT STAGE
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Years Ended September 30, 2010, 2009 and 2008 and for the Period From
Inception, September 5, 1995 to September 30, 2010
The accompanying notes are an integral part of these financial statements
ERHC ENERGY INC.
A CORPORATION IN THE DEVELOPMENT STAGE
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Years Ended September 30, 20010, 2009 and 2008 and for the Period From
Inception, September 5, 1995 to September 30, 2010
Note 1 - Summary of Significant Accounting Policies
General Business and Nature of Operations
ERHC Energy Inc. is an independent oil and gas company that reports as a development stage enterprise because there are currently no significant operations and no revenue has been generated from business activities. ERHC was formed in 1986, as a Colorado corporation, and was engaged in a variety of businesses until 1996, when it began its current operations as an independent oil and gas company. ERHC’s goal is to maximize its value through exploration and exploitation of oil and gas reserves in the Gulf of Guinea offshore of central West Africa. The Company’s current focus is to exploit its primary assets, which are rights to working interests in exploration acreage in the JDZ between the Democratic Republic of Sao Tome and Principe (“DRSTP”) and the Federal Republic of Nigeria (“FRN”) and in the exclusive waters of Sao Tome (the “Exclusive Economic Zone” or “EEZ”). The Company has formed relationships with upstream oil and gas companies to assist the Company in exploiting its assets in the JDZ as further described in Note 5. ERHC currently has no other operations.
Consolidated Financial Statements
The consolidated financial statements include the accounts of ERHC and its wholly owned subsidiaries, after elimination of all significant inter-company accounts and transactions.
Use of Estimates
The consolidated financial statements have been prepared in conformity with US. generally accepted accounting principles. In preparing the consolidated financial statements, management is required to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and revenues and expenses during the reporting period for the years then ended. Actual results could differ significantly from those estimates.
Concentration of Risks
ERHC primarily transacts its business with four financial institutions. From time to time the amount on deposit in one or all of these institutions may exceed the $250,000 federally insured limit. The balances are maintained in demand accounts to minimize risk.
ERHC’s focus is to exploit its assets which are agreements with the DRSTP concerning oil and gas exploration in EEZ and with the JDA concerning oil and gas exploration in the JDZ. ERHC has formed relationships with Sinopec International Petroleum Exploration and Production Corporation Nigeria (“Sinopec”), and Addax Energy Nigeria Limited (“Addax Ltd.”) to assist ERHC in leveraging its interests in the EEZ and the JDZ. ERHC currently has no other operations.
Cash Equivalents
ERHC considers all highly liquid short-term investments with an original maturity of three months or less, when purchased, to be cash equivalents.
Marketable Securities
The Company’s Investment in United States Treasury Bills bears maturity dates in excess of three months, are treated as held to maturity and carried at amortized cost.
Furniture, Fixtures and Equipments
Furniture, fixtures and equipment are stated at cost and include expenditures for renewals and improvements and capitalized interest. Maintenance and repairs are charged to current operations. When property is retired or otherwise disposed of, the cost and related accumulated depreciation are removed from the respective accounts, and any gain or loss on disposition is included in income. Depreciation is provided principally on the straight-line method over the estimated service lives of the assets. In general, office furniture is depreciated over 7 years, office equipment over 5 years and computer equipment over 3 years.
Fair Value of Financial Instruments
Effective October 1, 2008, ERHC adopted new fair value measurements guidance for financial assets and financial liabilities. In adopting the guidance the Company delayed application of the fair value measurements for non-financial assets and non-financial liabilities, until October 1, 2009. The new guidance defines fair value, establishes a framework for measuring fair value in generally accepted accounting principles and expands disclosures about fair value measurements.
The new guidance defines fair value as the price that would be received to sell an asset, or paid to transfer a liability, in an orderly transaction between market participants. The new guidance establishes a fair value hierarchy for valuation inputs that gives the highest priority to quoted prices in active markets for identical assets or liabilities and the lowest priority to unobservable inputs. The fair value hierarchy is as follows:
•
Level 1 Inputs-Unadjusted quoted prices in active markets for identical assets or liabilities that the reporting entity has the ability to access at the measurement date.
•
Level 2 Inputs-Inputs other than quoted prices included in Level 1 that are observable for the asset or liability, either directly or indirectly. These might include quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, inputs other than quoted prices that are observable for the asset or liability (such as interest rates, volatilities, prepayment speeds, credit risks, etc.) or inputs that are derived principally from or corroborated by market data by correlation or other means.
•
Level 3 Inputs-Unobservable inputs for determining the fair values of assets or liabilities that reflect an entity's own assumptions about the assumptions that market participants would use in pricing the assets or liabilities.
Marketable securities - We obtain quoted market prices in identical markets to estimate the fair value of our US Treasury Bills.
See Note 2 “Fair Value of Financial Instruments” for further information.
The adoption of the new guidance did not significantly change the valuation techniques we had previously utilized prior to its adoption. Financial instruments consist of cash and cash equivalents, accounts receivable, installments receivable, collateralized receivables, accounts payable and secured borrowings.
Successful Efforts
ERHC uses the successful efforts method of accounting for oil and gas producing activities. Under this method, acquisition costs for proved and unproved properties are capitalized when incurred. Exploration costs, including geological and geophysical costs, the costs of carrying and retaining unproved properties and exploratory dry hole drilling costs, are expensed. Development costs, including the costs to drill and equip development wells and successful exploratory drilling costs to locate proved reserves are capitalized. Exploratory drilling costs are capitalized when incurred pending the determination of whether a well has found proved reserves. A determination of whether a well has found proved reserves is made after drilling is completed. The determination is based on a process that relies on interpretations of available geologic, geophysic, and engineering data. If a well is determined to be successful, the capitalized drilling costs will be reclassified as part of the cost of the well. If a well is determined to be unsuccessful, the capitalized drilling costs will be charged to expense in the period the determination is made. If an exploratory well requires a major capital expenditure before production can begin, the cost of drilling the exploratory well will continue to be carried as an asset pending determination of whether proved reserves have been found only as long as: i) the well has found a sufficient quantity of reserves to justify its completion as a producing well if the required capital expenditure is made and ii) drilling of the additional exploratory wells is under way or firmly planned for the near future. If drilling in the area is not under way or firmly planned, or if the well has not found a commercially producible quantity of reserves, the exploratory well is assumed to be impaired, and its costs are charged to expense.
In the absence of a determination as to whether the reserves that have been found can be classified as proved, the costs of drilling such an exploratory well is not carried as an asset for more than one year following completion of drilling. If, after that year has passed, a determination that proved reserves exist cannot be made, the well is assumed to be impaired, and its costs are charged to expense. Its costs can, however, continue to be capitalized if sufficient quantities of reserves are discovered in the well to justify its completion as a producing well and sufficient progress is made in assessing the reserves and the well’s economic and operating feasibility.
The impairment of unamortized capital costs is measured at a lease level and is reduced to fair value if it is determined that the sum of expected future net cash flows is less than the net book value. ERHC determines if impairment has occurred through either adverse changes or as a result of the annual review of all fields.
Development costs of proved oil and gas properties, including estimated dismantlement, restoration and abandonment costs and acquisition costs, are depreciated and depleted on a field basis by the units-of-production method using proved developed and proved reserves, respectively. The costs of unproved oil and gas properties are generally combined and impaired over a period that is based on the average holding period for such properties and the Company’s experience of successful drilling.
Asset Retirement Obligation
ERHC’s asset retirement obligation relates to the plugging and abandonment of certain oil and gas properties in Wichita Falls, Texas. The provisions of ASC Topic 410, “Asset Retirement and Environmental Obligations”require the fair value of a liability for an asset retirement obligation to be recorded and a corresponding increase in the carrying amount of the associated asset. The cost of the tangible asset, including the initially recognized asset retirement cost is depleted over the useful life of the asset. If the fair value of the estimated asset retirement obligation changes, an adjustment is recorded to the retirement obligation and the asset retirement cost. The offsetting ARO liability is recorded at fair value, and accretion expense recognized as the discounted liability is accreted to its expected settlement value. The fair value of the ARO asset and liability is measured using expected future cash out flows discounted at the Company’s credit adjusted risk free interest rate. These oil and gas properties were abandoned and written off during the year ended September 30, 1999. During the year ended September 30, 2009, the Company settled its asset retirement obligation by paying $120,000, resulting in a gain of $365,000.
Impairment of Long-lived Assets
ERHC evaluates the recoverability of long-lived assets when events and circumstances indicate that such assets might be impaired. ERHC determines impairment by comparing the undiscounted future cash flows estimated to be generated by these assets to their respective carrying amounts. Impairments are charged to operations in the period to which events and circumstances indicate that such assets might be impaired. ERHC has evaluated its investment in its DRSTP concession fee in light of its 2003 Option Agreement (see Note 5) and there have been no events or circumstances that would indicate that such asset might be impaired.
Income Taxes
Income taxes are accounted for under the assets and liability method. Under this method, the deferred tax assets and liabilities are estimated based upon the difference between the financial statement and tax bases of assets and liabilities using tax rates in effect for the year in which the Company expects the differences to affect taxable income. The tax consequences of most events recognized in the current year’s financial statements are included in determining income taxes currently payable. However, because tax laws and financial accounting standards differ in their recognition and measurement of assets, liabilities, equity, revenues, expenses, gains and losses, differences arise between the amount of taxable income and pretax financial income for a year and between the tax bases of assets or liabilities and their reported amounts in the financial statements. Because the Company assumes that the reported amounts of assets and liabilities will be recovered and settled, respectively, a difference between the tax basis of an asset or a liability and its reported amount in the balance sheet will result in a taxable or a deductible amount in some future years when the related liabilities are settled or the reported amounts of the assets are recovered, which gives rise to a deferred tax asset. The Company must then assess the likelihood that the deferred tax assets will be recovered from future taxable income and to the extent the Company believes that recovery is not likely, the Company must establish a valuation allowance.
The Company estimates the provision for income taxes based on income before income taxes for each tax jurisdiction in which the Company has established operations. The Company does not provide incremental U.S. income taxes on un-remitted foreign earnings taxed at rates less than the U.S. tax rates as such earnings are considered permanently invested.
On October 1, 2007, the Company adopted new FASB guidance on accounting for uncertainty in income taxes which provides a financial statement recognition threshold and measurement attribute for a tax position taken or expected to be taken in a tax return. Under this guidance, the Company may recognize the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained on examination by the taxing authorities, based on the technical merits of the position. The tax benefits recognized in the financial statements from such a position should be measured based on the largest benefit that has a greater than 50% likelihood of being realized upon ultimate settlement. The guidance also extends to derecognition of income tax assets and liabilities, classification of current and deferred income tax assets and liabilities, accounting for interest and penalties associated with tax positions, and income tax disclosures.
Net Loss Per Share
Basic net loss per share is computed by dividing net loss by the weighted average number of common shares outstanding during the period. Diluted loss per share is computed by dividing net loss by the weighted average number of shares outstanding, after giving effect to potentially dilutive common share equivalents outstanding during the period. Potentially dilutive common share equivalents are not included in the computation of diluted income (loss) per share if they are anti-dilutive. Diluted loss per common share is the same as basic for all periods presented because the effect of potentially dilutive common shares arising from outstanding stock warrants and options was anti-dilutive For the years ended September 30, 2010, 2009 and 2008, potential dilutive securities had an anti-dilutive effect and were not included in the calculation of diluted net loss per common share.
Stock-based Compensation
On October 1, 2005, ERHC began recording compensation expense associated with stock options and other forms of equity compensation in accordance with new fair value guidance issued by the Financial Accounting Standards Board and interpreted by the SEC.
New Accounting Pronouncements
Recently Adopted Accounting Guidance
On February 1, 2010, the Company adopted ASU 2010-01, Equity (Topic 505) - Accounting for Distributions to Shareholders with Components of Stock and Cash. ASU 2010-01, issued January 2010, clarifies that the stock portion of a distribution to shareholders that allows them to elect to receive cash or stock with a potential limitation on the total amount of cash that all shareholders can elect to receive in the aggregate is considered a share issuance that is reflected in earnings per share prospectively and is not a stock dividend. ASU 2010-01 is effective for interim and annual periods ending on or after December 15, 2009, and should be applied on a retrospective basis. Adoption of ASU 2010-01 had no impact on the Company's consolidated financial statements.
On March 1, 2010, the Company adopted ASU 2010-06, Improving Disclosure about Fair Value Measurements. ASU 2010-06, issued January 2010, requires additional disclosures regarding fair value measurements, amends disclosures about post-retirement benefit plan assets, and provides clarification regarding the level of disaggregation of fair value disclosures by investment class. The ASU is effective for interim and annual reporting periods beginning after December 15, 2009, except for certain Level 3 activity disclosure requirements that will be effective for reporting periods beginning after December 15, 2010.
Note 2 - Fair Value of Financial Instruments
The following table summarizes financial assets and financial liabilities measured at fair value on a recurring basis as of September 30, 2010 and 2009, segregated by the level of the valuation inputs within the fair value hierarchy utilized to measure fair value:
September 30, 2010
September 30, 2009
Changes in Level 3 Assets
The table below sets forth a summary of changes in the fair value of the Plan’s level 3 assets for the years ended September 30, 2010 and 2009:
During the years ended September 30, 2010 and 2009, the Company recognized losses on certificates of deposit of $1,058,579 and $4,234,317 to record the certificates at their estimated net realizable basis, based on the fact that certain restrictions were placed on the investment and a receiver was appointed to takeover the institution.
Note 3 - Accounts Payable and Accrued Liabilities
Accounts payable and accrued liabilities consisted of the following as of September 30, 2010 and 2009:
Note 4 - Revision to Financial Statements
ERHC revised its financial statements to report as a development stage company for the year ended September 30, 2006 and subsequent periods. Accordingly, the statements of operations, stockholders’ equity and cash flows include inception to date amounts. The consolidated statements of stockholders’ equity of the Company for the years ended from inception (September 5, 1995) through September 30, 1998 were audited by other auditors who are no longer members of the Public Company Accounting Oversight Board ("PCAOB") and whose reports for each of the years ended from inception (September 5, 1995) through September 30, 1998 expressed an unqualified opinion on those statements. Because the other auditors were no longer members of the PCAOB, the inception to date amounts shown in the accompanying statements of operations and statement of cash flows are considered unaudited.
Note 5 - Sao Tome Concession
In April 2003, the Company and the DRSTP entered into an Option Agreement (the “2003 Option Agreement”) in which the Company relinquished certain financial interests in the JDZ in exchange for exploration rights in the JDZ. The Company additionally entered into an administration agreement with the Nigeria-Sao Tome and Principe JDA. The administration agreement is the formal agreement by the JDA that it will fully implement ERHC’s preferential rights to working interests in the JDZ acreage as set forth in the 2003 Option Agreement and describes certain procedures regarding the exercising of these rights. However, ERHC retained under a previous agreement the following rights to participate in exploration and production activities in the EEZ subject to certain restrictions: (a) the right to receive 100% working interest signature free bonus of two blocks of ERHC’s choice and (b) the option to acquire up to a 15% paid working interest in up to two additional blocks of ERHC’s choice in the EEZ. The Company would be responsible for its proportionate share of exploration and exploitation costs in the EEZ blocks.
The following represents ERHC’s current rights in the JDZ blocks:
The Original Participating Interest is the interest granted pursuant to the Option Agreement, dated April 2, 2003, between DRSTP and ERHC (the “2003 Option Agreement”). No participating interests have been sold related to Blocks 5, 6 or 9.
This exercise of the Company’s rights is subject to the condition that if no license is awarded or a license is awarded and subsequently withdrawn by the JDA prior to the commencement of operations, ERHC is entitled to receive its working interest in that block in a future license awarded for the block.
Following is an analysis of the participation agreements under which the company sold participating interests in Blocks 2, 3 and 4 for $45,900,000 during 2006. No participating interests have been sold related to Blocks 5, 6 or 9.
Particulars of Participating Agreements
The following is an analysis of the assignment of the participating interests in blocks 2, 3 and 4.
Upon assignment of the participation interests, ERHC removed the entire cost of the related blocks due to the uncertainty surrounding their unproved interests. ERHC’s goal is to enter into agreements to exploit its interests in Blocks 5, 6 and 9 and also to exploit its rights in the EEZ.
Under the terms each of the Participation Agreements Sinopec and Addax agreed to pay all of ERHC’s future costs for petroleum operations (“the carried costs”) in respect of ERHC's retained interests in the blocks. Additionally, Sinopec and Addax are entitled to 100% of ERHC’s allocation of cost oil plus up to 50% of ERHC’s allocation of profit oil from the retained interests on individual blocks until Sinopec and Addax Sub recover 100% of ERHC’s carried costs
In connection with the 2006 sale of the participating interest in Block 2, ERHC paid Feltang International Inc. (a British Virgin Island company that was responsible for obtaining Sinopec’s participation) a $3 million cash success fee. ERHC also agreed to issue to Feltang 5,250,000 shares of common stock and warrants to purchase 6,500,000 shares at an exercise price of $0.355 per share. The common stock was valued at $4,803,750 (recognized as accounts payable in 2006) based on the quoted market value of the common stock on the date Sinopec signed the production sharing agreement. The warrants were valued at $5,154,500 based on a valuation using the Black-Scholes Option Pricing Model and the following assumptions; market price of $0.915, strike price of $0.355, volatility of 115%, interest rate of 4.42%, dividend yield of 0% and expected life of 4 years. The related expense for both the common stock and warrants was recognized in 2006 since the related service was completed at that time,
The share and warrant portion of the success fee were not issued to Feltang because ERHC did not receive the requested documentation for issuance of the securities. In 2010 Feltang brought legal action against the Company and in connection with that legal action, provided the requisite documentation for issuance of the shares and warrants. In August 2010, the Company resolved the legal action under terms determined by the court by issuing the securities originally agreed. Under the Agreement with Feltang, the warrants would have already expired by August 2010 (the settlement date of the litigation) if issued in March 2006 as envisaged by the agreement: consequently, under the terms of the settlement, the term of the warrants was amended to expire on August 2, 2014. The Company determined that the extension of the term does not qualify as a modification of the related warrants since these were not legally issued by the Company until 2010 after documentation to support the transfer has been provided by Feltang. As such, no incremental cost was recognized by the Company for these warrants.
Note 6 - Convertible Debt
At September 30, 2010 and 2009, ERHC had $33,513 of nonaffiliated convertible debt and $12,406 and $10,561, respectively, of accrued but unpaid interest outstanding, respectively. At September 30, 2010 and 2009, this note was in default and ERHC was unable to locate the investor. If the outstanding convertible debt were converted using the conversion price of $0.20 per share, ERHC would be required to issue 229,595 shares of common stock based on an outstanding principal amount of $33,513 and accrued interest of $12,406.
Note 7 - Income Taxes
At September 30, 2010, ERHC had a consolidated net operating loss carry-forward (“NOL”) of approximately $18,206,000.
The composition of deferred tax assets and the related tax effects at September 30, 2010 and 2009 are as follows:
The $2,018,398 deferred tax asset at September 30, 2010 and 2009 represents a refundable amount of $2,018,398 to be claimed by ERHC because of overpayment made in its 2006 tax return.
The difference between the income tax benefit (provision) in the accompanying statement of operations and the amount that would result if the U.S. federal statutory rate of 34% were applied to pre-tax income (loss) for years ended September 30, 2010, 2009 and 2008, is as follows:
In preparing the Company’s consolidated financial statements, the Company assesses the likelihood that its deferred tax assets will be realized from future taxable income. The Company establishes a valuation allowance if it determines that it is more likely than not that some portion of the deferred tax assets will not be realized. Changes in the valuation allowance, when recorded, would be included in its consolidated statements of operations as a provision for (benefit from) income taxes. The Company exercise significant judgment in determining its provisions for income taxes, its deferred tax assets and liabilities and its future taxable income for purposes of assessing its ability to utilize any future tax benefit from its deferred tax assets. During 2010, the Company assessed the need for a valuation allowance against its deferred tax assets. The deferred tax asset valuation allowance was $6,721,707 as of September 30, 2010. The valuation allowance relates primarily to the net operating losses and various expense deductions for which a tax benefit is currently unavailable.
At September 30, 2010, the Company has Federal net operating loss carry forward of approximately $18,206,000. The federal loss carry forward expires on various dates through 2030.
FIN 48
On October 1, 2007, the Company adopted the guidance related to accounting for uncertainty in income taxes, which provides a financial statement recognition threshold and measurement attribute for a tax position taken or expected to be taken in a tax return. Under ASC 740, the Company may recognize the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained upon examination by the taxing authorities, based on the technical merits of the position. The tax benefits recognized in the financial statements from such a position should be measured based on the largest benefit that has a greater than 50% likelihood of being realized upon ultimate settlement. ASC 740 also provides guidance on de-recognition of income tax assets and liabilities, classification of current and deferred income tax assets and liabilities, accounting for interest and penalties associated with tax positions, and income tax disclosures.
The Company is subject to taxation in the United States and various foreign jurisdictions. The Company’s tax years for 2006 through 2010 are subject to examination by the tax authorities. The Company is currently under examination by the Internal Revenue Service for the 2006 tax year.
Note 8 - Shareholders’ Equity
Common Stock Issued for Services:
During the years ended September 30, 2010, 2009 and 2008, ERHC issued 2,019,356, shares of common stock for payment of director and employee services as follows:
2010 issuances
(i)
237,500 shares for 2010 employee services rendered and fair value of $46,381 was recorded by the Company in 2010 as of September 30, 2010, unamortized compensation cost for these shares amounted to $110,369.
(ii)
780,000 shares to Directors for 2010 services rendered and the fair value of $220,800 was recorded by the Company.
(iii)
5,250,000 shares issued to Feltang International, Inc. as settlement of the unpaid success fees (see Note 5)
2009 issuances
(iii)
315,000 shares to Directors for 2009 services rendered and the fair value of $226,800 was recorded by the Company.
(iv)
240,000 shares to Directors for 2005 services rendered (these shares were issued in the second quarter of 2009).
(v)
46,875 shares to company non-management staff for 2009 services rendered and the fair value of $33,755 was recorded by the Company.
2008 issuances
(vi)
210,000 shares for 2008 services rendered and fair value of $72,450 was recorded 2008 issuances
(vii)
300,000 shares for 2007 services rendered and fair value of $88,500 was recorded (these shares were issued in the second quarter of 2008).
Stock Options
During the year ended September 30, 2007, the Company issued 1,000,000 options to purchase common stock of the Company to an employee. These options are for a term of three years, have an exercise price of $0.43 and vest over one year. Fair value of $223,900 was calculated using the Black-Scholes Model. Variables used in the Black-Scholes option-pricing model during the year ended September 30, 2007, include (1) 4.90% discount rate, (2) warrant life is the expected remaining life of the options as of each year end, (3) expected volatility of 75.00%, and (4) zero expected dividends. Option expense of $48,460 and $175,440 was recorded during the years ended September 30, 2008 and 2007, respectively, related to these options.
Stock Warrants
During the years ended September 30, 2010, 2009 and 2008, a total of 6,901,940 warrants and 1,000,000 options expired unexercised as shown in the table below. These warrants and options had exercise prices ranging from $0.31 per share to $0.43 per share. At September 30, 2010, 6,500,000 warrants remain outstanding with an exercise price of $0.355 per share and expiring on August 2, 2014, indicating a remaining life of 3.8 years.
Stock Warrants / Stock Options Summary
Information regarding warrants/options, their respective changes and their weighted average exercise prices as of and for the fiscal years ended September 30, 2010, 2009 and 2008 are as follows:
There were no unrecognized compensation cost for the above options and warrants as of September 30, 2010 and 2009.
Note 9 - Commitments and Contingencies
Legal Proceedings
DOJ, SEC and U>s> Senate Committee Subpoenas
On May 4, 2006, a search warrant issued by the U.S. District Court of the Southern District of Texas, Houston Division, was executed on ERHC seeking various records including, among others, documents, if any, related to correspondence with foreign governmental officials or entities in Sao Tome and Nigeria. The search warrant cited, among other things, possible violations of the FCPA, Section 10(b) of the Exchange Act, Rule 10b-5 under the Exchange Act and criminal conspiracy and wire fraud statutes.
A related SEC subpoena was issued on May 9, 2006, and a second related subpoena issued on August 29, 2006. The subpoenas requested from ERHC a range of documents including all documents related to correspondence with foreign governmental officials or entities in Sao Tome and Nigeria, personnel records (specifically, those regarding the Company’s former Chief Financial Officer, Franklin Ihekwoaba) and other corporate records. The Company actively responded to both subpoenas.
On July 5, 2007, the U.S. Senate Committee on Governmental Affairs’ Permanent Subcommittee on Investigations served ERHC with a subpoena, in connection with its review of matters relating to the potential abuse of payments made to foreign governments. The subpoena, as amended on July 18, 2007, sought documents and information regarding ERHC’s activities, particularly those related to the acquisition of ERHC’s interests in the Gulf of Guinea. ERHC’s attorneys, Akin Gump Strauss Hauer & Feld LLP, assisted ERHC in responding to all subpoenas.
In January 2010, all the documents taken by federal investigators from the Company’s corporate headquarters in May 2006 were returned to the Company. A total of 106 boxes containing original archival records from the Company’s inception until 2006 were returned. The Company has not received any formal communication of conclusion of the investigations however. If any of the investigations were to proceed, the Company anticipates that these investigations may be lengthy and does not know when they will conclude. If violations are found, the Company may be subject to criminal, civil and/or administrative sanctions, including substantial fines, and the resolution or disposition of these matters could have a material adverse effect on its business, prospects, operations, financial condition and cash flows.
JDZ Blocks 5 and 6
On November 3, 2008, the Company filed a suit at the Federal High Court in Nigeria to prevent any tampering with its rights in JDZ Blocks 5 and 6. The suit came after the JDA and Joint Ministerial Counsel (JMC) of the Nigeria-Sao Tome and Principe JDZ failed to give a satisfactory response to the Company’s letters seeking clarification on the Company’s rights in JDZ Blocks 5 and 6 following media reports stating that the JMC had approved of the Company’s removal from the Blocks. The Company was awarded a 15 percent working interest in each of the Blocks in a 2005 bid/licensing round conducted by the JDA following the exercise by ERHC of preferential rights in the Blocks as guaranteed by contract and treaty. The dispute is entirely contractual. The JDA and the Government of DRSTP contend that certain correspondence issued by a previous CEO/President of the Company in 2006 amount to a relinquishment of the Company’s rights in Blocks 5 and 6 under the Company’s contracts with DRSTP which provide for the rights. The Company contends that no such relinquishment has occurred and has sought recourse to arbitration accordingly.
In November 2008, the Company dispatched notices of arbitration for service on the JDA and the governments of Nigeria and Sao Tome & Principe to commence arbitration in London. ERHC wants the London Court of International Arbitration to clarify that ERHC's interests in JDZ Blocks 5 and 6 remain intact. The arbitration has been currently suspended while the Company pursues amicable settlement with the governments of Nigeria and Sao Tome and Principe.
SAO TOME CLAIM
Mr. Angelo de Jesus Bomfim, a Sao Tome licensed attorney is claiming against ERHC the sum of twenty six thousand ($26,000) US dollars plus interest. The claim stems from an alleged retainer owed to Mr. Bomfim by the Company under an alleged retainer agreement entered into in 1998 between the Company and Mr. Bomfim, and alleged retainer services allegedly rendered thereafter between 1998 and 1999. The Company’s lawyers are handling the claim on behalf of the Company. The Company has instructed its lawyers to arrange for the vigorous defense of the case if it proceeds to litigation as Mr. Bomfim has threatened. However, the Company has also instructed its lawyers to attempt to neogotiate an amicable settlement with Mr. Bomfim to avoid incurring exorbitant litigation cost.
From time to time, ERHC may be subject to routine litigation, claims, or disputes in the ordinary course of business. ERHC intends to defend these matters vigorously; the Company cannot predict with certainty, however, the outcome or effect of any of the litigation or investigatory matters specifically described above or any other pending litigation or claims. There can be no assurance as to the ultimate outcome of these lawsuits and investigations.
Operating Lease
ERHC leases office space at 5444 Westheimer Road, Houston, Texas. The lease for office space expires December 2011. The monthly base rent payment is $8,920 for approximately 5,200 square feet. During the years ended September 30, 2010, 2009 and 2008, ERHC incurred lease expenses of $107,040, $104,330 and $107,124, respectively. The future remaining annual lease payments under this lease are as follows:
Note 10 - Related Party Transactions
Mr. Emeka Offor resigned, effective August 12, 2007, as ERHC’s non-executive Chairman of the Board. As of September 30, 2007, Mr. Offor, through Chrome Oil Services, Ltd. (“Chrome”) and Chrome Energy, LLC (“Chrome Energy”), beneficially owns approximately 43% of the common stock of ERHC. At September 30, 2007, ERHC owed Chrome Energy $62,314 for furniture. This liability was fully paid during the year ended September 30, 2008. There were no related party transactions in 2009 and 2010.
Note 11 - Subsequent Events
On October 6, 2010, pursuant to a securities purchase agreement, the Company sold 9,090,910 common shares for total proceeds of $2 million. An equivalent of 6,818,183 warrants was issued along with the common shares sold. The warrants have an exercise price of $0.28 and a term of 5 years.
Note 12 - Quarterly Financial Information (Unaudited)
The sum of the individual quarterly basic and diluted loss per share amounts may not agree with year-to-date basis and diluted loss per share amounts as a result of each period’s computation being based on the weighted average number of common shares outstanding during that period.
Item 9.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosures
None.
Item 9A.
Item 9A. Controls and Procedures
Disclosure Controls and Procedures
We have established disclosure controls and procedures to ensure that material information relating to ERHC Energy, including its consolidated subsidiaries, is made known to the officers who certify ERHC’s financial reports and to other members of senior management and the Board of Directors.
Based on their evaluation, ERHC’s principal executive and principal financial officers have concluded that ERHC’s disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934) were effective as of September 30, 2010 to ensure that the information required to be disclosed by ERHC in the reports that it files or submits under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in the SEC rules and forms. Our officers also concluded that our disclosure controls and procedures are effective to ensure that information required to be disclosed in the reports that we file or submit under the Exchange Act is accumulated and communicated to our management, including our principal executive and principal financial officers to allow timely decisions regarding required disclosure.
Management’s Annual Report on Internal Control Over Financial Reporting
Management of ERHC is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act). ERHC’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Therefore, even those systems determined to be effective can provide only reasonable assurance of achieving their control objectives.
Management, with the participation of the Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of ERHC’s internal control over financial reporting as of September 30, 2010. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control - Integrated Framework. Based on this evaluation, management, with the participation of the Chief Executive Officer and Chief Financial Officer, concluded that, as of September 30, 2010, ERHC’s internal control over financial reporting was effective.
The effectiveness of ERHC’s internal control over financial reporting as of September 30, 2010 has been audited by Malone & Bailey PC, an independent registered public accounting firm who audited ERHC’s consolidated financial statements as of and for the year ended September 30, 2010, as stated in their report, which is included under “Item 8. Financial Statements and Supplementary Data.”
Changes in Internal Control Over Financial Reporting
There were no changes in ERHCs internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) during the quarter ended September 30, 2010, that have materially affected, or are reasonably likely to materially affect, ERHC’s internal control over financial reporting.
Item 9B.
Item 9B. Other Information
None.
PART III
Item 10.
Item 10. Directors and Executive Officers of the Registrant; and Corporate Governance
The following are the Directors and Principal Executive Officer of the Company as of November 30, 2010:
Ambassador (rtd.) Howard F. Jeter
Ambassador Jeter is the former President and CEO of the Leon H. Sullivan Foundation. He has also served as Executive Vice President of GoodWorks International, LLC, an international consulting firm focused on business facilitation and investment promotion for Africa and the Caribbean. A former career diplomat, Ambassador Jeter served for 27 years in the American Foreign Service and retired from the U.S. State Department with the rank of Career Minister. Ambassador Jeter was U.S. Ambassador to Nigeria, to the Republic of Botswana, and also served as Deputy Assistant Secretary of State for African Affairs, Director of West African Affairs, and Special Presidential Envoy to Liberia. Other diplomatic postings held by Ambassador Jeter include those in Namibia, Lesotho, Tanzania, and Mozambique. Ambassador Jeter holds a BA in Political Science from Morehouse College, a MA in International Relations and Comparative Politics from Columbia University, and a MA in African Studies from UCLA. He is a member of Phi Beta Kappa, the American Foreign Service Association, and the Council on Foreign Relations. Ambassador Jeter is a former Chairman of the U.S. Export-Import Bank’s Advisory Committee on Africa and a member of the Board of Directors of Africare. For the past two years, Ambassador Jeter has served as Chair of the Selection Panel for the Rangel Fellowship Program, a collaborative program administered by the State Department and Howard University. Ambassador Jeter has received numerous awards and recognition for his work and service, including a Presidential Meritorious Award, State Department Superior Honor Awards, Senior Foreign Service Performance Awards, the Rainbow/Push Coalition International Peace and Justice Award, and the prestigious Bennie Trailblazer Award from Morehouse College.
Andrew Uzoigwe, Ph. D
Dr. Uzoigwe retired from Nigerian National Petroleum Corporation (“NNPC”), in 2002, where he served as the Group Executive Director (Exploration & Production), from 1999 until 2002. Prior to that position he served as Managing Director of NNPC’s subsidiary companies, Warri Refining and Petrochemicals Company and Eleme Petrochemicals Company Ltd. During his long tenure at NNPC, Dr. Uzoigwe also held several senior technical and management positions including Chief Engineer and Project Coordinator (Petrochemicals), and Group General Manager (R&D Division), prior to becoming a Managing Director of NNPC’s subsidiary companies. He started his career with Dow Chemical Company where he held various senior positions in its Walnut Creek Research Center and in its Specialty Chemicals Facility in Pittsburg, California. Dr. Uzoigwe has also served on the Governing Boards of the Raw Material Research and Development Council and the National Emergency Management Agency. Dr. Uzoigwe is a Registered Professional Mechanical Engineer and a Registered Professional Chemical Engineer in the State of California. He is a fellow of the Nigerian Society of Chemical Engineers and a Fellow of the Polymer Institute of Nigeria. He holds a Bachelors of Science in Mechanical Engineering and an MBA from the University of California at Berkeley. He also holds a MS and a Doctorate in Petroleum/Chemical Engineering from Stanford University California.
Leslie Blair
Mr. Leslie Blair has over 35 years of upstream oil and gas industry experience principally in Asia and West Africa. From 1998 he was with the Addax Petroleum Corporation where he held several senior management positions including Managing Director, Middle East (based in Dubai), General Manager, Taq Taq Operating Company (based in Kurdistan, Iraq), and Executive Director Business Development (based in Nigeria). Mr. Blair played a big part in building Addax Petroleum into the largest independent oil company in Nigeria with production rising from 8,000 bopd to over 120,000 bopd in ten years. He was also instrumental in Addax Petroleum’s acquisition of interests in the Nigeria-Sao Tome and Principe Joint Development Zone as well as other interests in OPL 291 and the Okwok Field in Nigeria. Addax Petroleum was recently acquired by the Sinopec Group and Mr. Blair resigned his position in January 2010. Prior to joining Addax Petroleum, Mr. Blair was General Manager/Commercial Manager, Hardy Oil and Gas Company in India from 1996 to 1998. Prior to that he was based in Vietnam from 1989 to 1996 initially with Enterprise Oil plc, a major independent oil company based in Ho Chi Minh City, as Finance Manager and latterly as General Manager, British Gas Exploration and Production where he directed the upstream activities and together with a downstream British Gas/BP team produced the first National Gas Master Plan which was subsequently adopted by the Vietnamese Government. Mr. Blair is a fellow of the Chartered Association of Certified Accountants and he has a Master of Arts Degree in Economics and Finance from Aberdeen University, Scotland. Since May 1, 2010, Mr. Blair has been a director and the Chief Executive Officer of Eland Oil and Gas Limited , a start-up E&P Company, based in Nigeria.
Friday Oviawe, CPA
Mr. Friday Oviawe is the Managing Partner/CEO of Jackson Friday CPA, LLC (“the Firm”). He has over 20 years of professional audit and accounting experience. The Firm is involved in providing tax, audit and accounting services to small and medium-sized companies. Prior to establishing the Firm, Mr. Oviawe worked at BDO, Seidman, LLP as a Senior Audit Manager in General Audit Services. Before joining BDO Seidman, Friday Oviawe was a Manager in the New York office of McGladrey & Pullen, LLP where he provided audit and business advice services to middle market companies in both the private and public sectors and not-for-profit organizations including A-133 Audits. Before joining McGladrey & Pullen, Mr. Oviawe spent over six years with Mitchell & Titus, LLP. At Mitchell & Titus, he provided audit and business services to fortune 500 companies as well as small and medium-sized companies. Mr. Oviawe is a Certified Public Accountant and a member of the American Institute of Certified Public Accountants (AICPA). Mr. Oviawe is a Chartered Accountant as well as a Chartered Banker. In addition, he holds Bachelors and Masters Degrees in Finance.
Peter Ntephe
Mr. Peter Ntephe was appointed Chief Executive Officer and Executive Director of ERHC Energy in April 2010. He had been the Chief Operating Officer and acting Chief Executive Officer since 2008. Mr. Ntephe has been involved in fundamental aspects of the Company's executive management since 2001, having joined initially as Corporate Secretary. His roles have included key participation in the negotiation, securing and maintenance of the Company's oil and gas interests in the Gulf of Guinea. As Chief Executive Officer, he oversees the executive management of ERHC Energy and its subsidiaries. He is responsible for ensuring that the group's strategic objectives are met. Mr. Ntephe has had a career spanning over 22 years, in the public and private sectors. Mr. Ntephe has a Master of Science degree from the University of Oxford. He also has three degrees in law (including one with a specialization in regulatory issues from the University of London) and a degree in management from Brunel University, London. Mr. Ntephe has taught Business Law as part of adjunct faculty in the Business School of the American Intercontinental University, London. .
Mr. Ntephe, like all officers, serves at the discretion of the Board of Directors, subject to contract. There are no family relationships between or among any Executive Officers and Directors. There are no arrangements or understandings between any Executive Officer or Director and any other person pursuant to which he was or is to be selected as an Executive Officer or Director.
Our Other Executive Officers
David Bovell, Vice President - Corporate Development - David A. Bovell 53, has held the position of Vice President - Corporate Development since May 2008. Prior to joining the ERHC and since 1993, Mr. Bovell served as a Managing Director for Green Corporate Finance Ltd, in the United Kingdom. Green Corporate Finance is an independent company advising small and medium sized companies on corporate finance, strategy and restructuring, including listing on stock exchanges. Mr. Bovell has a Bachelor of Commerce in Economics & Financial Management from the University of Cape Town. He is a Certified institute of Chartered Accountants (South Africa), and a member of UK Institute of Chartered Management Accountants.
Daniel Gralla, Vice President - Technical - Daniel S. Gralla was the Vice President Technical of ERHC Energy Inc. and its subsidiaries from December 2008 to November 30, 2010. Prior to joining ERHC and since 1993 Mr. Gralla served as an Engineering Consultant for Kerr McGee, Arco, ConocoPhillips and Aspect Energy. Mr. Gralla has 25 years of technical experience as a petroleum engineer working for both major and independent oil and gas exploration and production companies. Mr. Gralla has a Bachelor of Science in Petroleum Engineering from the Colorado School of Mines.
Sylvan Odobulu, Financial Controller and Principal Accounting Officer - Sylvan Odobulu 50, is the Financial Controller and Principal Accounting Officer of ERHC. He directs the daily operation of ERHC’s finance function, including treasury, budgeting, auditing, tax, accounting, capital purchasing, investor relations, forecasting and insurance activities. In this capacity, Mr. Odobulu is responsible for regulatory and disclosure issues including preparation of financial statements and other requisite disclosure documents, accounting, payroll, tax and audit matters, including liaison with external auditors, maintenance of financial controls, liaison with various governmental and regulatory agencies, as well as procurement and logistics. Mr. Odobulu provides counsel to ERHC’s President & CEO relating to financial and tax considerations and develops long-range strategies to establish and maintain the Company’s financial self-sufficiency, establishes ERHC’s accounting systems and procedures to ensure they are up-to-date and in compliance with all applicable statutory and regulatory requirements, and provides advice and review for compliance with appropriate statutory and regulatory requirements. Additionally, Mr. Odobulu prepares and issues quarterly and annual audited financial statements and reports. Prior to joining ERHC and since 1999, Mr. Odobulu was employed by Ernst and Young LLP, serving in various capacities, most recently as an Accounting Supervisor. He holds a Bachelor of Science degree from the University of North Texas, majoring in Accounting.
Compensation of Directors
The Company's Directors’ compensation program is designed to enhance the Company's ability to attract and retain highly qualified Directors and to align their interests with the long-term interests of the Company's shareholders. The program consists of both a cash component, designed to compensate independent Directors for their service on the Board and its Committees, and an equity component, designed to align the interests of independent Directors and shareholders.
The number of stock awards granted to each director during years prior to the 2009 fiscal year was determined by reference to the awards in an equal amount that would yield thirty to fifty percent of total compensation of each director. In 2010 and 2009, based on the recommendations of Compensation Committee, the Company increased total compensations for Directors for serving on the Board. Stock awards to Directors are restricted shares under Rule 144 of the Securities Act of 1933, but they include no conditions for vesting.
Cash Compensation - During 2010, the basic annual cash retainer paid to each Director (other than the Board Chairman) was $20,000. Each Board member is paid a meeting fee of $1,500 per Board meeting attended.
The Chairman of the Audit Committee is paid an annual retainer of $10,000. The Chairman of the Compensation Committee is paid an annual retainer of $ 5,000. The Chairman of the Governance and Nominating Committee is paid an annual retainer of $5,000. Each member of the Audit Committee is paid an annual retainer of $3,125. Each member of the Compensation Committee is paid an annual retainer of $2,500. Each member of the Governance and Nominating Committee is paid an annual retainer of $2,500. In addition, each member of a Committee is paid a meeting fee of $1,000 per Committee meeting attended.
The following table sets forth information concerning total director compensation during the 2010 fiscal year for each non-employee director:
(1)
The amounts included in the “Stock Awards” column represent the compensation cost recognized by the Company in 2010 related to non-option awards to directors, computed in accordance with ASC 718. As of September 30, 2010, no non-employee directors had any aggregate outstanding deferred shares. The number of shares underlying stock awards to directors during fiscal 2010 were as follows: Howard Jeter - 105,000 shares, Andrew Uzoigwe -105,000 shares, Leslie Blair - 190,000 and Friday Oviawe - 190,000 shares. The disclosure relates solely to grants of restricted stock (Under Rule 144) in 2010. Certain of the shares awarded to directors in 2010 have not been issued.
(2)
The amounts included in the “Option Awards” column represent the compensation cost recognized by the Company in related to stock option awards to directors, computed in accordance with ASC 718. There were no stock option awards to directors in 2010.
No table of the grant date fair value of stock option and deferred share awards made to each non-employee director has been included because no stock option or deferred share awards occurred during 2010.
It is expected that the directors will receive compensation in fiscal 2011.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires the Company’s Directors and Executive Officers, and persons who own beneficially more than ten percent (10%) of the common stock, to file reports of ownership and changes of ownership with the Securities and Exchange Commission. Copies of all filed reports are required to be furnished to the Company. Based solely on the reports received and the representations of the reporting person, the Company believes that these persons have complied with all applicable filing requirements during the fiscal year ended September 30, 2010.
Corporate Governance
The Board of Directors has adopted a Code of Ethics to govern the conduct of all of the Officers, Directors and employees of the Company. In addition, the Board has adopted Charters for its Governance and Nominating Committee, Audit Committee and Compensation Committee. The Code of Ethics and Committee Charters, along with ERHC’s FCPA Policy and Whistleblower Protection Policy, can be accessed on the Company’s website www.erhc.com
Director Independence
The Company’s Board of Directors is required to have a majority of independent directors and has adopted director independence guidelines based upon and as defined in the NASDAQ listing standards. The Company is not listed on NASDAQ and is not subject to the rules of NASDAQ but applies the rules established by NASDAQ to establish director independence. The Company’s Board of Directors periodically analyzes the independence of each director and has determined that the following directors meet the standards of independence under our Corporate Governance Guidelines and director independence guidelines, including that each member is free of any relationship that would interfere with his or her individual exercise of independent judgment: Messrs. Jeter, Uzoigwe, Blair and Oviawe. No Director is deemed independent unless the Board affirmatively established his/her independence.
Audit Committee
The Company’s Audit Committee is constituted of Messrs. Oviawe (Chair) , Jeter, Uzoigwe, and Blair. The ultimate responsibility for good corporate governance rests with the Board, whose primary role is oversight, counseling and direction to the Company's management in the best long-term interests of the Company and its stockholders. The Audit Committee, in accordance with its charter, has been established for the purpose of overseeing the accounting and financial reporting processes of the Company and audits of the Company's annual financial statements. As described more fully in its charter, the purpose of the Audit Committee is to assist the Board in its general oversight of the Company's financial reporting, internal controls and audit functions. Management is responsible for the preparation, presentation and integrity of the Company's financial statements; establishing and applying accounting and financial reporting principles; designing and implementing systems of internal controls; and establishing procedures designed to reasonably assure compliance with accounting standards, applicable laws and regulations. The Company's independent auditing firm is responsible for performing an independent audit of the consolidated financial statements in accordance with generally accepted auditing standards. In accordance with law, the Audit Committee has ultimate authority and responsibility to select, compensate, evaluate and, when appropriate, replace the Company's independent auditors. The Audit Committee has the authority to engage its own outside advisers, including experts in particular areas of accounting, as it determines appropriate, apart from counsel or advisers hired by management. All of the members of the Audit Committee meet the independence and experience requirements of the SEC. The Board of Directors determined that Mr. Oviawe qualifies as an “Audit Committee Financial Expert” as defined by the SEC.
The Audit Committee members are not professional accountants or auditors, and their functions are not intended to duplicate or to certify the activities of management and the independent auditors, nor can the Audit Committee certify that the independent auditors are “independent” under applicable rules. The Audit Committee serves a Board-level oversight role, in which it provides advice, counsel and direction to management and the auditors on the basis of the information it receives, discussions with management and the auditors, and the experience of the Audit Committee's members in business, financial and accounting matters. Stockholders should understand that the designation of “an Audit Committee Financial Expert” is an SEC disclosure requirement related to Mr. Oviawe’s experience and understanding with respect to certain accounting and auditing matters. The designation does not impose on Mr. Oviawe any duties, obligations or liability greater than generally imposed on them as members of the Audit Committee and the Board, and this designation as an Audit Committee Financial Expert pursuant to this SEC requirement does not affect the duties, obligations or liability of any other member of the Audit Committee or the Board.
Item 11.
Item 11. Executive Compensation
Compensation Discussion and Analysis
The following discussion and analysis of compensation arrangements of our named executive officers should be read together with the compensation tables and related disclosures set forth below. This discussion contains forward-looking statements that are based on our current plans, as well as considerations, expectations and determinations regarding future compensation programs. Actual compensation programs that we adopt may differ materially from currently planned programs as summarized in this discussion.
Overview
ERHC’s current business activity is to exploit its assets, which are rights to working interests in exploration acreage in the JDZ between the DRSTP and the FRN and in the EEZ. Our current business plan is based on attracting and retaining a limited group of highly qualified professionals. ERHC and its subsidiaries had 8 employees at September 30, 2010.
At this time in our development, it is critical to retain and motivate our current employees, as well as attract new talented personnel to the Company, in order to continue to work on the implementation of our business plan. The Company offers a competitive compensation and benefits package to enable us to recruit new employees and retain our current employees. The same benefits are generally available to each of our employees regardless of position.
Compensation Philosophy and Objectives
Our executive compensation program and objectives are based on our need to attract and retain executives with the talent and experience necessary for ERHC to achieve its goal of fully developing its assets. ERHC competes with large energy companies that have substantially greater resources. Therefore, the Company must provide a total compensation package that is sufficiently competitive to attract and retain the required executive personnel. In determining a total compensation package, the Company does not rely on benchmarking to determine total compensation or any material element of compensation. Because we are a developing company, we sometimes use a combination of equity and cash as a compensation incentive. Our compensation and benefits include:
•
a base salary rate typically targeted at a level that is competitive in our market as determined by the Compensation Committee,
•
other equity awards, including equity grants to new hires to attract talented personnel and occasional grants of options/restricted shares to retain our talented employees, and
•
a comprehensive benefits package.
Since 2004, the equity portion of annual incentives has been paid primarily in restricted Company common stock. The incentive amount is generally converted to shares based on the closing price of the Company’s common stock on the date of grant.
Compensation Consultant
Each year, the Compensation Committee, working with independent compensation experts, evaluates the compensation earned by executive officers to assess if it is reasonable and adequate to retain the services of those executive officers and recommends to the Board of Directors appropriate compensation for the Named Executive Officers. The Board reviews such recommendations and then adopts compensation for the upcoming year. As the Company grows, it intends to explore more complex procedures for evaluating and fixing compensation for its executive officers.
Role of Compensation Committee and Executive Officers in Compensation Decisions
The Compensation Committee has the responsibility to review and approve annual compensation, including the competitiveness of the total compensation package, for the Chief Operating Officer and Chief Executive Officer, the Technical Vice President, the Controller and Head Office Administrator, Principal Financial Officer, and Vice President - Corporate Development (collectively, the “Executive Officers”). The Compensation Committee endeavors to provide a compensation package for the Executive Officers that they believe is reasonable and competitive. Generally, the components of compensation provided to our Executive Officers are similar to those provided to our general employee population.
Base salaries, annual incentives and other equity awards for the Executive Officers are based on comparative industry salary produced by compensation consultant hired by the Committee. The Compensation Committee makes the final determination as to base salaries, annual incentives and equity awards for each of the Executive Officers based on Company performance and executive performance and their understanding of the employment market.
2010 Executive Compensation
Base Salaries
Base salaries for our Executive Officers and other employees are designed to be comparable to like positions in the marketplace from where we recruit. These competitive salaries are proposed by the Compensation Committee based on their familiarity with the current market for employees with similar qualifications.
Equity Awards
Overview
We may grant restricted stock, stock options and other equity-based awards to employees, consultants and non-employee directors under our 2004 Plan. As previously mentioned, our annual grants of equity awards are tied to the achievement of our annual performance objectives. Equity awards are also used for new hire incentives. We do not have a formal policy for the timing of granting equity awards but do not time equity awards to increase the economic value of the award to plan participants.
The Board has authorized the Compensation Committee to act on behalf of the Board in granting equity-based awards, including restricted stock and stock options, to eligible employees and consultants (other than Executive Officers).
We do not currently intend to grant stock or stock options except under limited circumstances, including stock awards granted to a director upon his or her initial election to the Board. Under the provisions of the 2004 Plan, stock awards or stock options cannot be granted at an exercise price of less than the closing price of a share of the Company’s common stock as reported on NASDAQ on the date of grant of such stock options. All equity grants to Executive Officers must be approved by the Compensation Committee or a subcommittee thereof. Stock options or stocks granted to members of the Board must be approved by the Compensation Committee.
Retention Plan
The Company does not have a formal retention plan in place.
Perquisites
Perquisites are not provided to our officers.
Benefits
We provide the same level of benefits to all of our employees and Executive Officers.
Accounting and Tax Implications
Our 2004 Plan is designed to grant stock awards that are performance-based compensation expense that is fully deductible for federal income tax purposes. When the awards vest or are otherwise includible in the taxable compensation of the affected executives, we may not be able to recognize current or future tax benefits that may otherwise be available to the Company related to such awards. We began expensing equity awards in 2006 in accordance with guidance issued by the Financial Accounting Standards Board. In general, the accounting rules did not impact the types of equity awards granted to plan participants.
COMPENSATION COMMITTEE REPORT
The Compensation Committee has reviewed and discussed the Compensation Discussion and Analysis required by Item 402(b) of Regulation S-K with management and, based on such review and discussions, the Compensation Committee recommended to the Board that the Compensation Discussion and Analysis be included in this Annual Report on Form 10-K.
THE COMPENSATION COMMITTEE
Dr. Andrew Uzoigwe-Chairman
Ambassador Howard Jeter-Member
Mr. Friday Oviawe -Member
SUMMARY COMPENSATION TABLE
The following table sets forth the aggregate compensation awarded to, earned by or paid to the Company’s named executive officers for 2010 and 2009 and 2008
(1)
Mr. Ntephe is contracted through ERHC’s holding company, ERHC Energy Cayman Limited and is paid a salary of $236,000 per year for his services as a COO and CEO. Stock awards and other compensation were awarded for his service as a director from April 2010 when he was elected to the board
(3)
Mr. Bovell became VP of Corporate Development on May 1, 2008 and receives a salary of $235,000 per year. Mr. Bovell is contracted through ERHC’s holding company, ERHC Energy Cayman Limited.
(4)
Mr. Odobulu joined the Company in July 2006 as controller and has acted as Principal Accounting Officer since joining the Company. He is also the Corporate Administrator
(5)
Mr. Gralla became Technical VP in December 2008 and received a base salary of $4,000 per month for four days service plus $1,400 per day for any additional services (if such additional services are required.) until the termination of the contract by mutual agreement on November 30, 2010.
(6)
ERHC does not provide either a pension plan or a nonqualified deferred compensation plan for any of its employees.
GRANTS OF PLAN-BASED AWARDS
The following table sets forth the information about grants made to the Company’s named executive officers in 2010 pursuant to the 2004 Plan.
(1)
The number in this column reflects the rule 144 restricted stocks awarded in 2010 pursuant to the 2004 Plan.
(2)
Reflects the dollar amounts recognized for financial statement reporting purposes for the fiscal year ended September 30, 2010 in accordance with ASC 505-50 of awards made pursuant to the 2005 Plan excluding any reduction in value due to potential service-based forfeitures.
OUTSTANDING EQUITY AWARDS AT FISCAL YEAR-END
The following table reflects all outstanding equity awards held by the Company’s named executive officers as of September 30, 2010.
OPTION EXERCISES AND STOCK VESTED
The following table reflects the stock options exercised by the Company’s named executive officers during 2010 and their restricted stock that vested during 2010.
POTENTIAL PAYMENTS UPON TERMINATION OR CHANGE OF CONTROL
As of September 30, 2010, Company has entered into four employment or other agreements that include a change of control severance provisions with an executive officer, including the named executive officers. The Company’s employment agreements with provide that certain officers are eligible for payments upon any termination without cause prior to expiration of the contract as described below under Employment Contracts.
Employment Contracts
Following is an analysis of the Company’s employment contracts with named executive officers at September 30, 2010:
(*)
In the first six months of the employment contracts, no termination benefits accrue to the employees.
(1)
Daniel Gralla's contract was intially for a six month period at a base rate of $4,000 per month for four working days per month plus additional compensation of $1,400 per day for services, if required, performed in excess of four days per month. The contract renewed under the same terms based on the mutual agreement of Mr. Gralla and the Company until it was terminated by mutual agreement on November 30, 2010. For termination without cause, Mr. Gralla received payment for services performed through the date of termination.
The above contracts provides for the following:
An extension provision that at any time before the expiration of the primary term of the agreement that it may be renewed upon mutual agreement on the same terms and conditions contained in the current agreement herein or on such other terms and conditions as the Company and the employee mutually agree.
The employee's status as an employee of the Company terminates immediately and automatically upon the earliest to occur of: (i) his death or “Disability", (ii) his/her discharge by the Company "For Cause", (iii) his/her termination by the Company by notice or, (iv) the expiration, without renewal, of the employment term. Termination of the employment agreement with cause results in the Company having no further responsibility under the agreement.
For termination without cause for reasons of bankruptcy, insolvency, dissolution or liquidation of the Company, the Company is obligated to the employees for all amounts due during the remaining term of the employment agreement in either a lump sum or in the current monthly amounts for the remaining term together with all unpaid benefits awarded or accrued up to the date of termination.
If the employee is terminated without cause for other reasons, he/she is entitled to one to six months compensation depending on the time he/she has spent with the Company.
Annual paid vacation ranging from four to five weeks.
Reimbursement of authorized general business and travel expenses.
Relocation allowance in the event that the terms of employment require the employee to relocate from his or her city or country of residence.
Incentive compensation as approved by the Company's Board of Directors.
Mr. Ntephe was paid annual compensation of $60,000, in the form of consultancy fees for his services as Secretary until April 2008. Mr. Ntephe became COO (and began acting as interim CEO) upon Mr. Luca’s resignation in April 2008. Then in April 2010, Mr. Peter was appointed Chief Executive Officer and Executive Director. Mr. Ntephe is contracted in that capacity through ERHC’s holding company, ERHC Energy Cayman Limited.
Mr. Bovell became Vice President Corporate Development from May 1 2008. Mr. Bovell is contracted in that capacity through EHRC’s holding company, ERHC Energy Cayman Limited.
Mr. Odobulu was employed by the Company in July 2006 and was placed under contract as shown above.
Securities Authorized for Issuance Under Equity Compensation Plans
In November 2004, the Board of Directors adopted a 2004 Compensatory Stock Option Plan pursuant to which it reserved 20,000,000 shares for issuance. This plan was approved at a special meeting of the stockholders of the Company in February 2005. Under this plan, 8,576,756 shares have been issued.
Compensation Committee Interlocks Insider Participation
The Company’s Compensation Committee is comprised Messrs. Uzoigwe (Chair) , Jeter and Oviawe. None of the members of the Compensation Committee has been or is an officer or employee of the Company, or is involved with a related transaction or a relationship as defined by Item 404 of Regulation S-K. None of the Company’s Executive Officers serves on the Board of Directors or compensation committee of a company that has an Executive Officer that serves on the Company’s Board or Compensation Committee. No member of the Company’s Board is an Executive Officer of a company in which one of the Company’s Executive Officers serves as a member of the Board of Directors or compensation committee of that company.
Item 12.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The following table and notes thereto set forth certain information regarding beneficial ownership of the common stock as of November 30, 2010 by (i) each person known by the Company to beneficially own more than five percent of the common stock, (ii) each Director, (iii) each named Executive Officer and (iv) all Directors and Officers of the Company as a group. As of November 30, 2010 there were 737,518,835 shares of common stock issued and outstanding. Beneficial ownership is determined in accordance with rules of the SEC and generally includes voting or dispositive power with respect to such shares.
*
Less than one percent.
(1)
The number of shares beneficially owned by each person or group as of September 30, 2010 (except where another date is indicated) includes shares of common stock that such person or group had the right to acquire on or within 60 days after that date, including, but not limited to, upon the exercise of options and vesting and release of restricted stock units. To our knowledge, except as otherwise indicated in the footnotes to this table and subject to applicable community property laws, each stockholder named in the table has sole voting and investment power with respect to the shares set forth opposite such stockholder’s name.
(2)
Sir Emeka Offor is the beneficial owner of the shares held of record by Chrome Oil Services, Ltd., and Chrome Energy, LLC as the sole voting and investment power over these shares. He also holds 4,205,000 shares in his own name. As a result of the shares held of record by Chrome Oil Services Ltd and Chrome Energy LLC, in addition to the shares held in his own name, Sir Emeka Offor is the beneficial owner of a total of 307,796,433 shares of common stock in ERHC as of November 30, 2010.
(3)
c/o Suite 1440, 5444 Westheimer Road, Houston, TX 77056
Item 13.
Item 13. Certain Relationships and Related Transactions
Review, Approval or Ratification of Transactions With Related Persons
The Audit Committee of the Company is responsible for reviewing, approving or ratifying related party transactions, including any related-party transaction that the Company would be required to disclose pursuant to Item 404 of Regulation S-K promulgated pursuant to the rules and regulations of the SEC.
Policy
The Audit Committee, which consists solely of independent Directors, must review all “Related Person Transactions” as defined by Item 404 of Regulation S-K of the rules promulgated by the SEC. The Audit Committee will approve a Related Person Transaction only if it determines that the Related Person Transaction is consistent with the business interests of the Company. In considering the Related Person Transaction, the Committee will consider all relevant factors, including as applicable: (i) the Company’s business rationale for entering into the Related Person Transaction; (ii) whether the Related Person Transaction is on terms comparable to those available to third parties, or in the case of employment relationships, to employees generally; (iii) the potential for the Related Person Transaction to lead to an actual or apparent conflict of interest and any safeguards imposed to prevent such actual or apparent conflicts; and (iv) the overall fairness of the Related Person Transaction to the Company.
Procedure
Directors and executive officers are responsible for bringing a potential Related Person Transaction to the attention of the Chair of the Audit Committee.
Transactions in 2009 and 2010
None
Item 14.
Item 14. Principal Accounting Fees and Services
Aggregate fees for professional services rendered by MaloneBailey, LLP for the fiscal years ended September 30, 2010 and 2009, were as follows:
Audit fees for the fiscal years ended September 30, 2010 and 2009 represent the aggregate fees billed for professional services rendered for the audit of the Company’s annual financial statements and review of financial statements included in its quarterly reports on Form 10-Q or services that are normally provided in connection with statutory and regulatory filings or engagements for those fiscal years.
Tax fees for the fiscal year ended September 30, 2010 and 2009, represents the aggregate fees billed for professional services rendered for tax compliance, tax advice, and tax planning.
All other fees for the fiscal year ended September 30, 2010 and 2009, represents the aggregate fees billed for products and services provided by the Company’s audit professionals other than the services reported in the other categories. All other fees generally relate to fees assessed for corporate tax restructuring and other general corporate tax related matters.
Audit Committee Pre-Approval Policies and Procedures
The Audit Committee on an annual basis reviews audit and non-audit services performed by the independent auditor. All audit and non-audit services are pre-approved by the Audit Committee, which considers, among other things, the possible effect of the performance of such services on the auditors’ independence. The Audit Committee has considered the role of MaloneBailey in providing services to us for the fiscal year ended September 30, 2010 and has concluded that such services are compatible with Malone Bailey’s independence as the Company’s auditors.
PART IV
Item 15.
Item 15. Exhibits and Financial Statement Schedules and Reports on Form 8-K
(32)Consolidated Financial Statements and Schedules:
1.
Consolidated Financial Statements: See Index to Consolidated Financial Statements immediately following the signature pages of this report.
2.
Consolidated Financial Statement Schedule: See Index to Consolidated Financial Statements immediately following the signature pages of this report.
3.
The following documents are filed as exhibits to this report:
* Previously filed
SIGNATURES
In accordance with the Section 13 or 15(d) of the Exchange Act, the registrant caused this report to be signed on November 30, 2010 on its behalf by the undersigned, thereunto duly authorized.
In accordance with the Exchange Act, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature
Title
Date
//s// Howard Jeter
Director
December 14,, 2010
Howard Jeter
Member Audit Committee
//s// Andrew Uzoigwe
Director
December 14, 2010
Andrew Uzoigwe
Member Audit Committee
//s// Leslie Blair
Director
December 14, 2010
Leslie Blair
Member Audit Committee
//s// Friday Oviawe
Director
December 14, 2010
Friday Oviawe
Chairman Audit Committee