ITEM 1. DESCRIPTION OF BUSINESS
OVERVIEW
ERHC Energy Inc. ("ERHC" or the "Company") is an independent oil and gas company. The Company 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. 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. The Company's current focus is to exploit its assets, which are rights to working interests in exploration acreage in the Joint Development Zone ("JDZ") between the Democratic Republic of Sao Tome & Principe ("DRSTP") and the Federal Republic of Nigeria ("FRN") and in the exclusive territorial 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. The Company currently has no other operations.
CORPORATE HISTORY; FORMER OPERATIONS
The Company acquired a lease in oil fields located in Wichita County, Texas, which was subsequently assigned to a former shareholder. However, in connection with the lease in Wichita County, the Company may remain liable for certain plugging and abandonment costs, estimated to be approximately $485,000, which have been accrued as of September 30, 2005 and 2004.
CURRENT BUSINESS OPERATIONS
In May 1997, the Company entered into an exclusive joint venture with the DRSTP (the "1997 Agreement"). On May 21, 2001, the 1997 Agreement was replaced by a Memorandum of Agreement (the "2001 Agreement"), which was embodied in a Consent Award issued by the arbitrator as a result of the satisfaction of several conditions, including the ratification of a treaty between the FRN and the DRSTP. The 2001 Agreement gave the Company rights to participate in exploration and production activities in both the exclusive territorial waters of Sao Tome referred to as the EEZ and an area between Sao Tome and the FRN that the two nations have designated as a JDZ.
In April 2003, the Company and 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. In April 2003, 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 under the 2001 Agreement the following rights to participate in exploration and production activities in the EEZ subject to certain restrictions: (a) right to receive up to two blocks of ERHC's choice, and (b) the option to acquire up to a 15% paid working interest in up to two blocks of ERHC's choice in the EEZ. The Company will be required to pay its proportionate share of the signature bonus and all other costs related to the exploration and exploitation of the blocks in the EEZ.
Under the 2003 Option Agreement, ERHC may exercise options to acquire fractional working interests in six (6) of the nine (9) blocks that have been announced by the JDA and will be available for bidding in the JDZ. A block is an area designated as an individual unit for exploration or production of crude oil and natural gas. Additionally, the amount of signature bonus that is payable by ERHC to acquire these working interests is zero in four (4) blocks. ERHC must pay its proportionate share of any signature bonuses in two (2) blocks.
On April 13, 2004, the Company submitted a letter to the JDA exercising its option rights in the JDZ. The options exercised by the Company were:
Option Pick- Working Interest Signature Bonus ERHC Choice Percentage JDZ Block # Payable ----------- --------------- ----------- --------------------- 1 15% 6 Signature Bonus Free 2 15% 5 100% of 15% of the total Signature Bonus 3 20% 3 Signature Bonus Free 4 30% 2 Signature Bonus Free 5 25% 4 Signature Bonus Free 6 20% 9 100% of 20% of the total Signature Bonus
Interpretation carried out by WesternGeco has enabled the identification of 56 prospective structures with Blocks 1 to 9 in the JDZ, of which 17 were defined as prospects and 39 as leads. WesternGeco used reservoir parameters similar to those known from nearby fields in Nigeria and Equatorial Guinea. Combined recoverable reserves potential of the 17 prospects was estimated by WesternGeco to be 14.4 billion barrels of oil. The scope of the WesternGeco report was to interpret and map seismic data, highlight prospectivity and calculate volumetrics. It did not include an attempt to comply with any SEC definition reserves. The SEC permits oil and gas companies, in their filings with the United States Securities and Exchange Commission ("SEC") SEC, to disclose only proved reserves that a company has demonstrated by actual production or conclusive formation tests to be economically and legally producible under existing economic conditions and operating conditions.
This exercise of the Company's rights was 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 will be entitled to receive its working interest in that block in a future license awarded for the block.
On April 26, 2004, the Company announced that, at meetings on April 23rd and 24th, 2004, the Joint Ministerial Council ("JMC") of the JDZ acknowledged the Company's option selections for award of interests pursuant to the exercise of rights under the April 7, 2003 Administration Agreement.
In August 2004, the Company entered into a Participation Agreement with Pioneer whereby the companies will jointly apply for rights in the production sharing contract for Block 2 of the JDZ.
In September 2004, the Company entered into a Participation Agreement with Noble whereby the companies will jointly apply for rights in the production sharing contract for Block 4 of the JDZ.
In December 2004, the Company entered into a Participation Agreement with Pioneer under which the companies jointly applied for rights in the production sharing contract for Block 3 of the JDZ.
In May 2005, the JDA announced the awards for the blocks in the 2004 JDZ Licensing Round. The awards included both the preferential rights interests in Blocks plus additional bid interests awarded to bid groups. The awards were:
o In Block 2, the Pioneer and ERHC group was awarded 35% interest as a result of the joint bid submitted by the companies. In addition the JDA confirmed the award to ERHC of its 30% Option Interest, free of any signature bonus.
o In Block 3, the Pioneer and ERHC group was awarded 5% interest as a result of the joint bid submitted by the companies. In addition the JDA confirmed the award to ERHC of its 20% Option Interest, free of any signature bonus.
o In Block 4, the Noble and ERHC group was awarded 35% interest as a result of the joint bid submitted by the companies. In addition the JDA confirmed the award to ERHC of its 25% Option Interest, free of any signature bonus. The Company originally formed a relationship Noble Energy Resources ("Noble") to negotiate a production sharing agreement for Block 4. However, Noble subsequently withdrew from negotiations and the company has entered into an agreement with Addax Petroleum ("Addax") under which Addax will replace Noble in the ERHC/Noble group. Approval for Addax to participate in Block 4 has been requested from the JDA.
o In Block 5, the JDA confirmed the award to ERHC of its 15% Option Interest, with signature bonus payable.
o In Block 6, the JDA confirmed the award to ERHC of its 15% Option Interest, free of any signature bonus payable.
In June 2005, ERHC accepted the awards by the JDA for Blocks 2, 3, 4, 5 and 6, subject to the execution of a mutually acceptable production sharing contract and joint operating agreement for each block. Since the acceptance of the awards, the participants in each block have been negotiating the production sharing contract and joint operating agreement. As of the date of this report, negotiations were continuing.
The above is only a brief summary of the terms of the 2001 Agreement and the 2003 Option Agreement and such summaries do not purport to be complete and are qualified in their entirety by reference to the 2001 Agreement and 2003 Option Agreement, respectively (any and all related documents). The 2001 Agreement and 2003 Option Agreement have been filed with the SEC and are available on the U.S. Securities and Exchange Commission's ("SEC") web site at www.sec.gov.
GOVERNMENT REGULATION
In the event the Company begins activities relating to the exploration and exploitation of hydrocarbons, it will be required to make the necessary expenditures to comply with the applicable health and safety, environmental and other regulations.
EMPLOYEES
The Company currently has three officers and support staff that provide services to the Company. The Company directly employs the President and Chief Executive Officer and one support staff individual. The remaining two officers and support staff are provided pursuant to consulting agreements. Through December 31, 2004, a management services agreement with Chrome Oil Services, Ltd. ("COS") existed. Pursuant to that agreement, COS provided the Company with management and business development services. COS provides these services to the Company for a management fee of $68,000 per month. The Chief Financial Officer and Secretary were consultants of COS who received salaries and overhead expense reimbursement from COS, not from the Company. Expenses not covered under the management services agreement were paid by the Company and included primarily general office supplies. This agreement was cancelled effective December 31, 2004. Beginning January 1, 2005, ERHC was directly responsible for all costs and expenses of officers and staff, on the same or similar terms that each individual had with COS.
RISK FACTORS THAT MAY AFFECT THE RESULTS OF OPERATIONS AND FINANCIAL CONDITION OF THE COMPANY
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 harmed.
THE COMPANY HAS NO SOURCES OF REVENUE AND A HISTORY OF LOSSES.
The Company's business is at an early stage of development. The Company has not generated any revenue since its entry into the oil and gas business and has incurred significant operating losses. The Company has incurred net losses of $11,270,478, $3,593,388, and $3,153,882 in fiscal years 2005, 2004 and 2003, respectively, and expects to incur additional operating losses for the foreseeable future. The Company may never be profitable.
THE COMPANY'S CURRENT LIQUIDITY IS INSUFFICIENT TO FUND ITS OPERATIONS FOR FISCAL 2006.
To execute its business strategy, the Company will require more capital than it currently has or has commitments to receive. As of September 30, 2005, the Company had cash and other current assets totaling $1,020,583, and current liabilities of $2,779,011, resulting in a working capital deficit of $1,758,428. The Company has previously relied on the best-effort sales of its common stock and debt securities to provide working capital. The Company currently has no firm commitments for equity or debt financing nor does it anticipate entering into such arrangements in the near future. The Company does not expect to generate cash flows from operations for fiscal 2006, and expects to use proceeds from future best-efforts debt or equity financing to fund working capital requirements for the next twelve months. If the Company is unable to raise sufficient capital from external sources to fund its operations, it may need to sell assets to meet working capital needs or curtail operations.
THE ACCOMPANYING CONSOLIDATED FINANCIAL STATEMENTS HAVE BEEN PREPARED ASSUMING THAT THE COMPANY WILL CONTINUE AS A GOING CONCERN.
As shown in the financial statements and discussed in Note 2, the Company has incurred significant recurring losses from operations since inception, has a negative working capital and is dependent on outside sources of financing for continuation of its operations. These factors raise substantial doubt about the Company's ability to continue as a going concern.
THE COMPANY HAS A LIMITED OPERATING HISTORY IN THE OIL AND GAS BUSINESS.
The Company's operations to date have consisted solely of acquiring rights to working interests in the JDZ and EEZ. The Company's future financial results depend primarily on (1) its ability to enter into production sharing contracts; (2) its ability to obtain sufficient financing to meet its financial commitments in the production sharing contracts; (3) its ability to discover commercial quantities of oil and gas; and (4) the market price for oil and gas. Management cannot predict that the Company's future operations will be profitable. In addition, the Company's operating results may vary significantly during any financial period. These variations may be caused by significant periods of time between discovery and development of oil or gas reserves, if any, in commercial quantities.
THE COMPANY HAS NOT ENTERED INTO ANY PRODUCTION SHARING CONTRACTS.
The Company's success will depend on its ability to enter into production sharing contracts for Blocks 2, 3, 4, 5 and 6 in the JDZ. Although the Company is in preliminary negotiations to enter into productions sharing contracts in these Blocks, it has no executed contracts. Because of the relative complexity of these types of contracts, the large number of parties involved in these Blocks and the relative inexperience of the JDA in processing these contracts, it is impossible to estimate when, if at all, these contracts will be executed and become effective. There is no assurance the Company will be able to successfully enter into any production sharing contracts.
THE COMPANY WILL LIKELY BE REQUIRED TO RAISE MONEY TO FUND ITS FINANCIAL COMMITMENTS PURSUANT TO ANY PRODUCTION SHARING CONTRACTS.
When, and if the Company enters into a production-sharing contract, it will likely be required to fund its financial commitments. The Company will have to raise money in an equity or debt financing to meet its financial commitments, and to date it has no firm commitments for such financing. If the Company is unsuccessful in raising money in the financing, it will be unable to pay its financial commitment under any production-sharing contract that will result in its default.
THE COMPANY MAY NOT DISCOVER COMMERCIALLY PRODUCTIVE RESERVES IN THE JDZ OR EEZ.
The Company's future success depends on its ability to economically locate oil and gas reserves in commercial quantities in the JDZ and EEZ. This is a region in which no drilling operations have been conducted to date. 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 will have future success in drilling productive wells.
THE COMPANY'S NON-OPERATOR STATUS LIMITS ITS CONTROL OVER ITS OIL AND GAS PROJECTS IN THE JDZ OR 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 or EEZ. As a result, the Company will have only a limited ability to exercise control over a significant portion of a project's operations or 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 areas of control. These factors include:
o the availability of future capital resources to the Company and the other participants to be used for drilling wells;
o the approval of other participants for the drilling of wells on the projects; and
o the economic conditions at the time of drilling, including the prevailing and anticipated prices for oil and gas.
The Company's reliance on other project participants and its limited ability to directly control future project costs could have a material adverse effect on its future expected rates of return.
THE COMPANY'S SUCCESS DEPENDS ON ITS ABILITY TO EXPLOIT ITS LIMITED ASSETS.
The Company's only assets are rights to working interest in exploration acreage in the JDZ and EEZ under agreements with the JDA and DRSTP. The Company's operations have been limited to sustaining and managing its rights under these agreements. The Company's success depends on its ability to exploit these assets, of which there is no assurance that it will be successful.
APPROXIMATELY 85% OF THE COMPANY'S TOTAL ASSETS ARE COMPRISED OF INTANGIBLE ASSETS INCLUDING THE DRSTP CONCESSION FEE WHICH IS SUBJECT TO REVIEW ON A PERIODIC BASIS TO DETERMINE WHETHER IMPAIRMENT ON THIS ASSET IS REQUIRED. IMPAIRMENT WOULD NOT ONLY GREATLY DIMINISH THE COMPANY'S ASSETS, BUT WOULD ALSO REQUIRE IT TO RECORD A SIGNIFICANT CHARGE AGAINST ITS EARNINGS.
The Company is required under generally accepted accounting principles to review its intangible assets for impairment when events or changes in circumstances indicate the carrying value may not be recoverable. At the fiscal year ended September 30, 2005, management evaluated its investment in its DRSTP concession fee in light of its 2003 Option Agreement and believed that there were no events or circumstances that would indicate that such asset might be impaired. If management later determines that impairment exists, the Company will be required to record a significant charge to earnings in its financial statements during the period in which any impairment of the DRSTP concession fee is determined.
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 and individuals are engaged in exploring for crude oil and natural gas and acquiring crude oil and natural gas properties, resulting in a high degree of competition for desirable exploratory and producing properties. The companies with which the Company competes are much larger and have greater financial resources 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 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 regulations.
THE COMPANY'S OPERATIONS ARE LOCATED OUTSIDE OF THE UNITED STATES WHICH SUBJECTS IT TO RISKS ASSOCIATED WITH INTERNATIONAL ACTIVITIES.
At September 30, 2005, all of the Company's operations were located outside the United States. The Company's only 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 central 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 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 versus the local currencies in which future oil and gas producing activities may be denominated. As well, changes in exchange rates may adversely affect the Company's future results of operations and financial condition.
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. If there were to be a general economic downturn or a recession in the oil and gas industry, the Company's future revenues and the value of its oil and natural gas exploration concession could be materially adversely affected. If there were to be a general economic downturn or a recession in the oil and gas industry, the Company's ability to exploit its assets in the JDZ and EEZ could be materially adversely affected
ONE SHAREHOLDER CONTROLS APPROXIMATELY 43% OF THE COMPANY'S OUTSTANDING COMMON STOCK.
Chrome Oil Services Ltd. beneficially owns approximately 43% of the 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.
THE COMPANY'S STOCK PRICE IS HIGHLY VOLATILE.
The Company's common stock is currently traded on the Over-the-Counter 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 that its current price will be maintained.
THE COMPANY DOES NOT CURRENTLY PAY DIVIDENDS ON ITS COMMON STOCK AND DO NOT ANTICIPATE DOING SO IN THE 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 future. The Company intends to retain any earnings to fund its operations. Therefore, the Company does not anticipate paying any cash dividends on the common stock in the foreseeable future.
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.
ITEM 2.
ITEM 2. DESCRIPTION OF PROPERTY
The Company's office is located at 5444 Westheimer Road, Suite 1570, Houston, Texas 77056. Prior to December 31, 2004, these premises were leased by COS and pursuant to a management services agreement, COS provided the space to the Company. This lease for approximately 1,900 sq. ft. of office space expires in February 2006. On December 23, 2004, the Company and COS cancelled, effective December 31, 2004, the management services agreement. On January 1, 2005, ERHC assumed this lease pursuant to its terms.
ITEM 3.
ITEM 3. LEGAL PROCEEDINGS
The Company is not aware of any material legal proceedings pending to which it is a party or its property is subject. From time to time, the Company may be subject to proceedings, lawsuits and other claims in the ordinary course of business, the resolution of which, in the opinion of management should not have a materially adverse effect on the Company's financial position.
ITEM 4.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not Applicable.
PART II
ITEM 5.
ITEM 5. MARKET FOR REGISTRANT'S COMMON STOCK AND RELATED SHAREHOLDER MATTERS
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 sporadic and highly volatile. The following table sets forth the closing sales price per share of the common stock for the past two fiscal years. These prices reflect inter-dealer prices, without retail mark-ups, markdowns or commissions, and may not necessarily represent actual transactions.
HIGH LOW -------------- --------------- (PER SHARE) --------------------------------- FISCAL YEAR 2004 ---------------- First Quarter $0.41 $0.28 Second Quarter $0.44 $0.28 Third Quarter $0.94 $0.42 Fourth Quarter $0.70 $0.43
FISCAL YEAR 2005 ---------------- First Quarter $0.55 $0.28 Second Quarter $0.75 $0.42 Third Quarter $0.94 $0.43 Fourth Quarter $0.50 $0.32
On December 20, 2005, the closing price of the common stock as reported on the "OTC Bulletin Board" was $0.33. As of November 30, 2005, there were approximately 2,460 record owners of the common stock. It is the Company's present policy not to pay cash dividends and to retain future earnings to support growth. Any payment of cash dividends in the future will be dependent upon the amount of funds legally available, the Company's earnings, financial condition, capital requirements, and other factors that the board of directors may deem relevant. The Company has not paid any dividends during the last two fiscal years and does not anticipate paying any cash dividends in the foreseeable future.
RECENT SALES OF UNREGISTERED SECURITIES
During the fourth quarter ended September 30, 2005, the Company issued no securities that had not been previously reported.
EQUITY COMPENSATION PLANS
The following table gives information about the Company's common stock that may be issued upon the exercise of options under its 2004 Compensatory Stock Option Plan, which was approved by the Company's shareholders.
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, 2005, has been derived from the audited financial statements of the Company. The financial statements as of and for the year ended September 30, 2005 have been audited by Malone & Bailey, PC, and the financial statements as of and for each of the four years in the period ended September 30, 2004 have been audited by Pannell Kerr Forster of Texas, P.C., independent registered public accounting firms, and such financial information for the three years ended September 30, 2005 is included elsewhere in this Form 10-K. 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
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 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.
OVERVIEW
The Company's current focus is to exploit its only assets, which are rights to working interests in exploration acreage in the JDZ and the EEZ. The Company has entered into agreements with upstream oil and gas companies to jointly evaluate and apply for interest in production sharing contracts in these JDZ Blocks. The technical and operation expertise in conducting exploration operations will be provided by the Company's co-ventures.
Critical accounting policies - ----------------------------
In December 2001, the SEC requested that companies discuss their most "critical accounting policies" in the Management's Discussion and Analysis section of their reports. The SEC indicated that a "critical accounting policy" is one that is important to the portrayal of a company's financial condition and operating results and requires management's most difficult, subjective or complex judgments, often as a result of the need to make estimates about the effect of matters that are inherently uncertain.
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 that effect 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 primarily transacts its business with two financial institutions. From time to time the amount on deposit in either one of these institutions may exceed the $100,000 federally insured limit. The balances are maintained in demand accounts to minimize risk.
The Company's current focus is to exploit its only 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. 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. Should circumstances impede the Company from perfecting its interests in the 2001 Agreement with DRSTP, or the 2003 Option Agreement the Company's business would be materially affected. Should the Company perfect its interests in the 2001 Agreement and the 2003 Option Agreement, there is no certainty that the Company will be able to obtain sufficient financial and other resources to develop its interests. The Company currently has no other operations.
Stock-based compensation - ------------------------
The Company has adopted Statement of Financial Accounting Standards ("SFAS") No. 123 - "Accounting for Stock Based Compensation." Under SFAS No. 123, we are permitted to either record expenses for stock options and other employee compensation plans based on their fair value at the date of grant or to continue to apply the Company's current accounting policy under Accounting Principles Board, ("APB") Opinion No. 25 "Accounting for Stock Issued to Employees," and recognize compensation expense, if any, based on the intrinsic value of the equity instrument at the measurement date. In December of 2002, the FASB issued SFAS No. 148, "Accounting for Stock- Based Compensation - Transition and Disclosure - An Amendment to FASB Statement No. 123" to provide alternative methods of transition for a voluntary change to the fair value based method of accounting for stock-based employee compensation. The Company elected to not change to the fair value based method of accounting for stock based compensation. Additionally, the statement amended disclosure requirements of SFAS No. 123 to require more prominent disclosure in both annual and interim financial statements. We elected to continue following APB No. 25 and when required, provide the pro forma provisions of SFAS No. 123.
Impairment of long-lived assets - -------------------------------
The Company evaluates the recoverability of long-lived assets when events and circumstances indicate that such assets might be impaired. The Company 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. Management of the Company has evaluated its investment in its DRSTP concession fee and believes that there have been no events or circumstances that would indicate that such asset might be impaired.
New accounting pronouncements - -----------------------------
On December 16, 2004, as amended on April 14, 2005, the FASB issued SFAS No. 123 (revised 2004), "Share-Based Payment" ("SFAS No. 123(R)"). SFAS No. 123(R) will require companies to measure all employee stock-based compensation awards using a fair value method and record such expense in its consolidated financial statements. In addition, the adoption of SFAS No. 123(R) requires additional accounting and disclosure related to the income tax and cash flow effects resulting from share-based payment arrangements. SFAS No. 123(R) is effective beginning as of the first interim reporting period for fiscal years beginning after December 15, 2005. We are in the process of determining the impact of the requirements of SFAS No. 123(R). The financial statement impact from the implementation of the requirements of SFAS No. 123(R) may significantly impact the Company's future results of operations and the Company will continue to evaluate it to determine the degree of significance.
On November 2004, the FASB issued SFAS No. 151, "Inventory Costs, an Amendment of ARB No. 43, Chapter 4. The standard requires that abnormal amounts of idle capacity and spoilage costs within inventory be excluded from the cost of inventory and expensed when incurred. The provisions of SFAS No. 151 are applicable to inventory costs incurred during fiscal years beginning after June 15, 2005. The adoption of SFAS No. 151 is expected to have no impact on the Company's consolidated financial statements.
In December 2004, the FASB issued SFAS No. 153, "Exchanges of Nonmonetary Assets--an amendment of Accounting Principles Board ("APB") Opinion No. 29" is effective for fiscal years beginning after June 15, 2005. This Statement addresses the measurement of exchange of nonmonetary assets and eliminates the exception from fair value measurement for nonmonetary exchanges of similar productive assets in paragraph 21(b) of APB Opinion No. 29, "Accounting for Nonmonetary Transactions" and replaces it with an exception for exchanges that do not have commercial substance. The adoption of SFAS No. 153 is expected to have no impact on the Company's consolidated financial statements.
In May 2005, the FASB issued SFAS No. 154, "Accounting Changes and Error Corrections, a replacement of APB Opinion No. 20 and FASB Statement No. 3". This statement changes the requirements for the accounting for and reporting of a change in accounting principle. This statement applies to all voluntary changes in accounting principle. It also applies to changes required by an accounting pronouncement in the unusual instance that the pronouncement does not include specific transition provisions. SFAS 154 is effective for accounting changes and corrections of errors made in fiscal years beginning after December 15, 2005. Adoption of SFAS No. 154 is not expected to have an effect on the Company's consolidated financial statements.
RESULTS OF OPERATIONS
YEAR ENDED SEPTEMBER 30, 2005 COMPARED TO YEAR ENDED SEPTEMBER 30, 2004
During the year ended September 30, 2005, the Company incurred a net loss of $11,270,478, compared to a net loss of $3,593,388 for the year ended September 30, 2004. A significant portion of the increase in net loss for the year ended September 30, 2005 was attributable to a $5,749,575 loss on extinguishment of debt related to the inducement to Chrome to convert debt into common stock and the addition of board compensation of $1,990,361.
Effective December 31, 2004, the Company cancelled its management services agreement with Chrome and began to cover all its operating expenses.
During 2005 and 2004, the Company had no revenues from which cash flows could be generated to support operations and thus relied on borrowings funded from its line of credit provided by Chrome as well as the sale of common stock.
YEAR ENDED SEPTEMBER 30, 2004 COMPARED TO YEAR ENDED SEPTEMBER 30, 2003
During the year ended September 30, 2004, the Company incurred a net loss of $3,593,388, compared to a net loss of $3,153,882 for the year ended September 30, 2003. A significant portion of the increase in net loss for the year ended September 30, 2004 was attributable to a $463,000 increase in interest expense related primarily to the amortization of the debt discount which was recorded due to the beneficial conversion feature attributable to borrowings on the Chrome line of credit during the year ended September 30, 2004 and the recording of $308,000 in compensation expense for options granted to an employee during the year ended September 30, 2004. This corresponding increase in expense was offset by a decrease of approximately $167,000 of various expenses incurred in carrying out the ongoing activities of the Company, of which no one single amount was deemed to be significant. Also during the year ended September 30, 2004 other income increased by $163,796 as a result of receipt of net proceeds from an insurance claim. There was no comparable amount in 2003.
During February 2001, the Company negotiated a management services agreement by and between COS and the Company whereby the Company would pay a monthly management fee of $68,000 for various services to be provided by COS inclusive of all general office expenses. Total expenses incurred under this management services agreement were $816,000 for each of the years ended September 30, 2004 and 2003. The Company's executive officers incurred significant travel expenses of approximately $418,000 and $434,000 for the years ended September 30, 2004 and 2003, respectively, as they continued negotiations with officials of the FRN and DRSTP as well as numerous trips to the United States from Nigeria by several Chrome executives while managing the ongoing affairs of the Company. The Company anticipates travel related expenses will continue to be significant as the Company further develops its business interests. The net loss per common share was $0.01, basic and diluted, for the year ended September 30, 2004 compared to a net loss per common share of $0.01, basic and diluted, for the year ended September 30, 2003.
During 2004 and 2003, the Company had no revenues from which cash flows could be generated to support operations and thus relied on borrowings funded from its line of credit provided by Chrome as well as the sale of common stock.
LIQUIDITY AND CAPITAL RESOURCES
As of September 30, 2005, the Company had negative working capital of $1,758,428. Subsequent to September 30, 2005, the Board of Directors has approved the Company raising an additional $1,000,000 of working capital in the market as soon as practicable.
Historically, the Company has financed its operations from the sale on a best-efforts basis of debt and equity securities (including the issuance of its securities in exchange for goods and services). There have been no cash flows generated from operations in the past two years. During the fiscal year ended September 30, 2005, the Company received advances on the Chrome line of credit for $2,750,000 before conversion of this line into common stock of the Company. In fiscal year 2004, the Company raised additional capital of $975,000 from the sales of its common stock and $752,607 from borrowings under its Chrome line of credit.
Management will be required to raise additional capital through the sale on a best-efforts basis of common stock and debt securities, and will attempt to continue raising capital resources until such time as the Company generates revenues sufficient to maintain itself as a viable entity. It is expected that a minimum of $2,500,000 will need to be raised to fund working capital requirements in fiscal 2006. However, there is no assurance that such financing will be obtained.
The Company presently intends to utilize any available sources of funds to provide for general corporate overhead and to continue to pursue its interests in the JDZ and EEZ. If the Company is successful in negotiating production-sharing agreements in Blocks 2, 3 and 4, The Company expects to receive funding from its partners that will support its operations in those blocks.
DEBT FINANCING ARRANGEMENTS
As of September 30, 2005, $33,513 of convertible debt of the Company was outstanding. At September 30, 2004, $11,024,774 of convertible debt of the Company was outstanding (of which $9,398,741 was owed to Chrome) with maturity dates ranging from demand to February 15, 2005, bearing interest at rates ranging from 5.5% to 20%, and convertible at $0.20 per share.
The total convertible debt includes the Company's two lines of credit. The first is a 10% working line of credit in the amount of $1,800,000, all of which is outstanding. The $1,800,000 line of credit matured September 2004, but was extended until January 2005. The second is a $5,000,000 senior convertible promissory note bearing interest at a rate of 10% per annum, maturing in February 2004. In February 2004, the Company extended the maturity on the $5,000,000 line of credit to February 15, 2005 under similar terms. As of September 30, 2004, approximately $3,962,761 is outstanding under this line of credit. Additionally, interest accrued and unpaid on these notes as of September 30, 2004 is $2,192,182, of which $2,126,265 is owed to Chrome. At the option of the note holders, unpaid interest can be converted into common stock of the Company.
The Company agreed to restructure all Chrome debt, including the lines of credit. As of December 24, 2004, Chrome has agreed to cancel all outstanding debt (the "Old Notes") in exchange for a new 12% note with a principal amount of $10,134,084, convertible at the option of the Company at $0.175 per share, and expiring on January 31, 2007. Chrome also agreed to provide the Company with a new 10% working capital loan in the amount of $2,500,000, which expires in January 2007 and is convertible at the option of the Company at $0.175 per share. In exchange for the cancellation and exchange of the Old Notes and the new working capital line of credit, the Company agreed to issue Chrome 14,023,352 shares of common stock, 12,465,202 issued immediately, 623,260 shares issued on the advance of $1,000,000 and the remainder issued throughout the term of the working capital loan. In addition ERHC issued 12,308,560 shares of common stock to satisfy current interest accrued but not paid of $2,461,712. Furthermore, as of December 24, 2004, ERHC has received agreements from the nonaffiliated note holders to convert $1,678,999 of convertible debt and accrued interest into 8,386,855 shares of common stock. As of September 30, 2005, the Company has $33,513 of nonaffiliated convertible debt and $3,189 of accrued but unpaid interest outstanding.
CONTRACTUAL OBLIGATIONS AND COMMERCIAL COMMITMENTS
The following table provides information at September 30, 2005, 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) See Note 5 to the Financial Statements in this Annual Report on Form 10K.
ITEM 7A.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company's current focus is to exploit its only assets, which are rights to working interest in the JDZ and EEZ under agreements with the JDA and DRSTP. The Company intends to form relationships with other oil and gas companies with technical and financial capabilities to assist the Company in leveraging its interests in the EEZ and the JDZ. Should circumstances impede the Company from perfecting its interests in the 2001 Agreement with DRSTP or the 2003 Option Agreement, the Company's business would be materially affected and could possibly cease to exist. Should the Company perfect its interests in the 2001 Agreement and the 2003 Option Agreement, there is no certainty that the Company will be able to obtain sufficient financial and other resources to develop its interests. The Company currently has no other operations.
At September 30, 2005, all of the Company's operations were located outside the United States. The Company's only 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 central 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 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 versus the local currencies in which future oil and gas producing activities may be denominated. As well, 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, nor does it engage in any foreign currency denominated transactions.
ITEM 8.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
See Index to Financial Statements and Schedule at page. The financial statements with the report of the independent registered public accounting firms are included on pages through of this document. Financial statement schedules other than those included herein have been omitted because the required information is contained in the financial statements or related notes, or such information is not applicable.
ITEM 9.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURES
On November 4, 2005, Pannell Kerr Forster of Texas, P.C. ("PKF") notified the Company that it resigned as the Company's independent auditor. PKF's report on the financial statements for the fiscal years ended September 30, 2004 and 2003, contained no adverse opinion or disclaimer of opinion and was not qualified or modified as to uncertainty, audit scope or accounting principles. The Audit Committee of the Company's Board of Directors was informed of, but did not recommend or approve, PKF's resignation.
During the Company's fiscal years September 30, 2004 and 2003, and the subsequent interim periods preceding PKF's resignation, there were no disagreements between the Company and PKF on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure, which disagreements, if not resolved to PKF's satisfaction, would have caused PKF to make reference to the subject matter of the disagreement in connection with their report.
On November 14, 2005, the audit committee of the board of directors of the Company engaged Malone & Bailey, PC as the Company's new independent auditor for the fiscal year ended September 30, 2005. During the two most recent fiscal years ended September 30, 2004 and September 30, 2003 and the subsequent interim periods prior to the Company's engagement of Malone & Bailey, the Company did not consult with Malone & Bailey regarding the application of accounting principles to a specific Transaction, either completed or proposed, or the type of audit opinion that might be rendered on the Company's consolidated financial statements.
ITEM 9A.
ITEM 9A. CONTROLS AND PROCEDURES
EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES
The Company maintains disclosure controls and procedures that are designed to ensure that information required to be disclosed in the Company's reports under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms, and that such information is accumulated and communicated to management, including the Company's Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. The Company's management, with participation of the Company's Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of the Company's disclosure controls and procedures as of the end of the fiscal year covered by this Annual Report on Form 10-K. As described below under Management's Report on Internal Control Over Financial Reporting, the Company has identified material weaknesses in the Company's internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)). The Company's Chief Executive Officer and Chief Financial Officer have concluded that as a result of the material weaknesses, as of the end of the period covered by this Annual Report on Form 10-K, the Company's disclosure controls and procedures were not effective.
MANAGEMENT'S REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING
The management of the Company is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rules 13a-15(f) and 15d-15(f) under the Securities Exchange Act of 1934. The Company's internal control over financial reporting is 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 in the United States of America. The Company's internal control over financial reporting includes those policies and procedures that: (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company; (ii) 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 (iii) 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. Management assessed the effectiveness of the Company's internal control over financial reporting as of September 30, 2005. 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 our assessment and those criteria, management has concluded that the Company did not maintain effective internal control over financial reporting as of September 30, 2005 as a result of material weaknesses in (a) internal controls surrounding corporate governance, and (b) internal controls surrounding the accounting for common stock issuances.
A material weakness is a control deficiency, or combination of control deficiencies, that results in more than a remote likelihood that a material misstatement of the annual or interim financial statements will not be prevented or detected.
INTERNAL CONTROLS SURROUNDING CORPORATE GOVERNANCE: - --------------------------------------------------- The principal factors contributing to the material weakness in corporate governance are as follows:
o Inadequate number of independent directors. o Lack of independent audit committee. o Lack of audit committee financial expert.
If these weaknesses are not addressed, they could result in material misstatements of annual or interim financial statements that might not be detected, corrected or disclosed in a timely manner, or at all.
INTERNAL CONTROLS SURROUNDING THE ACCOUNTING FOR TRANSACTIONS INVOLVING COMMON STOCK: - -------------------------------------------------------------------------------- The principal factor contributing to the material weakness in the accounting for issuances of shares of common stock is based on:
o The existence of differences in the number of shares of common stock outstanding as reflected in the Company's accounting records and prior financial reports and the number reported by the Company's stock transfer agent that resulted in a change in previously issued financial statements at September 30, 2005.
o An error in accounting for conversion of debt to equity that occurred in fiscal 2005 and resulted in a $347,517 audit adjustment at September 30, 2005.
The Company's independent registered public accounting firm has audited management's assessment of the effectiveness of the Company's internal control over financial reporting as of September 30, 2005, as stated in their report which appears on page of this Form 10-K under the heading, Report of Independent Registered Public Accounting Firm.
REMEDIATION PLANS FOR MATERIAL WEAKNESSES IN INTERNAL CONTROL OVER FINANCIAL REPORTING
CORPORATE GOVERNANCE - --------------------
The Company has retained an executive recruiting firm to aid them in a search of an independent financial expert to chair the audit committee. The Company is also is the process of amending their Audit Committee Charter to include the responsibilities of the financial expert and to ensure independent directors fill all positions on the committee.
ACCOUNTING FOR STOCK ISSUANCES - ------------------------------
The Company is implementing enhancements to its internal control over financial reporting to provide reasonable assurance those errors and control deficiencies in its accounting for stock issuances will not recur. These steps include the engagement of independent financial reporting consultants for review of critical accounting areas and disclosures and material non-standard transactions.
Until these changes are completed, weaknesses will continue to exist. Management presently anticipates that the changes necessary to remediate these weaknesses will be in place by the conclusion of the next fiscal year.
CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING
Except as otherwise discussed herein, there have been no changes in our internal control over financial reporting during the most recently completed fiscal quarter that have materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
PART III
ITEM 10.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this Item 10 is incorporated by reference from the Company's proxy statement.
ITEM 11.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item 11 is incorporated by reference from the Company's proxy statement.
ITEM 12.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The information required by this Item 12 is incorporated by reference from the Company's proxy statement.
ITEM 13.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this Item 13 is incorporated by reference from the Company's proxy statement.
ITEM 14.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
Aggregate fees for professional services rendered by PKF for the fiscal years ended September 30, 2005 and September 30, 2004, were as follows:
2005 2004 ----------- ------------
Audit fee $ 107,000* $ 47,290 Tax-related fees $ - $ - All other fees $ 990 $ 4,275
* Malone & Bailey was not engaged until subsequent to September 30, 2005.
Audit fees for the fiscal years ended September 30, 2005 and 2004 represent the aggregate fees billed for professional services rendered by PKF for the audit of our annual financial statements and review of financial statements included in our 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-related fees for the fiscal year ended September 30, 2005 and 2004, represents the aggregate fees billed for professional services rendered by PKF for tax compliance, tax advice, and tax planning.
All other fees for the fiscal year ended September 30, 2005 and 2004, represents the aggregate fees billed for products and services provided by PKF, other than the services reported in the other categories. All other fees generally relate to tax fees assessed for corporate tax restructuring and other general corporate tax related matters.
AUDIT COMMITTEE PRE-APPROVAL POLICIES AND PROCEDURES
A representative of the independent registered public accounting firm normally attends each meeting of the Audit Committee. 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 Malone & Bailey, PC in providing services to us for the fiscal year ended September 30, 2005 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, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
a) 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:
EXHIBIT NO. IDENTIFICATION OF EXHIBIT
Exhibit 3.1* Articles of Incorporation
Exhibit 3.2* Bylaws
Exhibit 4.1* Specimen Common Stock Certificate.
Exhibit 4.2* Form of Amended and Restated 12% Convertible Promissory Note, dated effective January 2001. Exhibit 4.3* Form of Amended and Restated 5.5% Convertible Promissory Note, dated effective January 2001.
Exhibit 4.4* 20% Convertible Promissory Note, dated January 31, 2001, in favor of Chrome.
Exhibit 4.5* Term Loan Agreement, dated February 15, 2001, by and between Chrome and ERHC.
Exhibit 4.6* Senior Secured 10% Exchangeable 10% Convertible Promissory Note, dated January 31, 2001, in favor of Chrome.
Exhibit 4.7* Form of Warrant entitling Chrome to purchase common stock of the Company, exercise price of $0.40 per share.
Exhibit 10.1* Option Agreement, dated April 7, 2003, by and between the Company and the Democratic Republic of Sao Tome and Principe (incorporated herein by reference to Exhibit 10.1 of Form 8-K filed April 2, 2003)
Exhibit 10.2* Management and Administrative Services Agreement by and between Chrome Oil Services, Ltd. and the Company. (Incorporated by reference to Form 10-KSB filed September 24, 2001).
Exhibit 10.4* Letter Agreement, dated November 29, 2004, by and between the Company and Chrome (incorporated herein by reference to Exhibit 10.1 of Form 8-K filed December 29, 2004).
Exhibit 10.5* Promissory Note, dated December 15, 2004, made by the Company in favor of Chrome (incorporated herein by reference to Exhibit 10.2 of Form 8-K filed December 29, 2004).
Exhibit 10.6* Promissory Note, dated December 15, 2004, made by the Company in favor of Chrome (incorporated herein by reference to Exhibit 10.3 of Form 8-K filed December 29, 2004).
Exhibit 10.7* Employment Agreement with Ali Memon.
Exhibit 10.8* Audit committee charter
Exhibit 31.1 Certification Pursuant to 18 U.S.C Section 1350, as adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
Exhibit 31.2 Certification Pursuant to 18 U.S.C Section 1350, as adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
Exhibit 32.1 Certification Pursuant to 18 U.S.C Section 1350, as adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
Exhibit 32.2 Certification Pursuant to 18 U.S.C Section 1350, as adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
* Previously filed
b) Form 8-K Filings
Current Report on Form 8-K dated December 28, 2004, reporting Item 1 and Item 5.
SIGNATURES
In accordance with the Section 13 or 15(d) of the Exchange Act, the registrant caused this report to be signed on December 29, 2005 on its behalf by the undersigned, thereunto duly authorized.
ERHC Energy Inc.
By: /s/ Ali Memon --------------------------------------- Ali Memon, Chief Executive Officer and President
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/ Sir Emeka Offor Chairman of the Board December 29, 2005 - -------------------------------- Sir Emeka Offor
/s/ Ali Memon Chief Executive Officer, December 29, 2005 - -------------------------------- President and Director Ali Memon
/s/ Nicolae Luca Director December 29, 2005 - -------------------------------- Nicolae Luca
Chief Financial Officer /s/ Cosmas (Ike) Okpala (Principal Accounting - -------------------------------- Officer) December 29, 2005 Cosmas (Ike) Okpala
- --------------------------------
/s/ Peter C. Ntephe Secretary December 29, 2005 - -------------------------------- Peter C Ntephe
ERHC ENERGY INC. INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
PAGE ----
Report of Independent Registered Public Accounting Firm on Management's Assessment of Internal Control Over Financial Reporting as of September 30, 2005
Report of Independent Registered Public Accounting Firm on the Financial Statements for the Year ended September 30, 2005
Report of Independent Registered Public Accounting Firm on the Financial Statements for the Years ended September 30, 2004 and 2003
Financial Statements:
Consolidated Balance Sheets as of September 30, 2005 and 2004
Consolidated Statements of Operations for the Years Ended September 30, 2005, 2004 and 2003
Consolidated Statements of Shareholders' Equity (Deficit) for the Years Ended September 30, 2005, 2004 and 2003
Consolidated Statements of Cash Flows for the Years Ended September 30, 2005, 2004 and 2003
Notes to Consolidated Financial Statements
Financial Statement Schedules
None
All schedules for which provision is made in the applicable accounting regulations of the Securities and Exchange Commission are not required under related 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.
We have audited management's assessment, included in Management's Report on Internal Control Over Financial Reporting appearing under Item 9A, that ERHC Energy Inc. ("ERHC") did not maintain effective internal control over financial reporting as of September 30, 2005, because of the effect of material weaknesses in (a) internal controls surrounding corporate governance and (b) internal controls surrounding the accounting for common stock issuances based on criteria established in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). ERHC'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. Our responsibility is to express an opinion on management's assessment and on the effectiveness of the ERHC's internal control over financial reporting based on our audit.
We conducted our audit of internal control over financial reporting 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, evaluating management's assessment, testing and evaluating the design and operating effectiveness of internal control, and performing such other procedures as we consider 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 (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) 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 (iii) 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.
A material weakness is a control deficiency, or combination of control deficiencies, that results in more than a remote likelihood that a material misstatement of the annual or interim financial statements will not be prevented or detected. The following material weaknesses have been identified and included in management's assessment. Material weaknesses in (a) internal controls surrounding corporate governance and (b) internal controls surrounding the accounting for common stock issuances. These material weaknesses were considered in determining the nature, timing, and extent of audit tests applied in our audit of the 2005 financial statements, this report does not affect our report dated December 28, 2005 on those financial statements.
In our opinion, management's assessment that ERHC did not maintain effective internal control over financial reporting as of September 30, 2005, is fairly stated, in all material respects, based on criteria established in Internal Control - Integrated Framework issued by the COSO. Also, in our opinion, because of the effects of the material weaknesses described above on the achievement of the objectives of the control criteria, ERHC has not maintained effective internal control over financial reporting as of September 30, 2005, based on criteria established in Internal Control - Integrated Framework issued by the COSO.
/s/ Malone & Bailey, PC Malone & Bailey, PC www.malone-bailey.com Houston, Texas
December 28, 2005
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of ERHC Energy Inc.
We have audited the accompanying consolidated balance sheet of ERHC Energy Inc. ("ERHC") as of September 30, 2005 and the related consolidated statements of operations, cash flows, and shareholders' equity (deficit) for the year then ended. These financial statements are the responsibility of ERHC's management. Our responsibility is to express an opinion on these financial statements 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 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 audit provides 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, 2005, and the results of its operations and its cash flows for the year then ended in conformity with accounting principles generally accepted in the United States of America.
The accompanying consolidated financial statements have been prepared assuming that ERHC will continue as a going concern. As shown in the financial statements and discussed in Note 2, ERHC has incurred significant recurring losses from operations since inception and is dependent on outside sources of financing for continuation of its operations. These factors raise substantial doubt about ERHC's ability to continue as a going concern. Management's plans with regard to this matter are also discussed in Note 2. These financial statements do not include any adjustments that might result from the outcome of this uncertainty.
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, 2005, 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 28, 2005 expressed an unqualified opinion on management's assessment of internal control over financial reporting and an adverse opinion on the effectiveness of internal control over financial reporting.
/s/ Malone & Bailey, PC Malone & Bailey, PC www.malone-bailey.com Houston, Texas
December 28, 2005
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Board of Directors and Shareholders
ERHC Energy Inc.
We have audited the accompanying consolidated balance sheet of ERHC Energy Inc. (the "Company") as of September 30, 2004, and the related consolidated statements of operations, cash flows, and shareholders' equity (deficit) for each of the two years in the period ended September 30, 2004 and 2003. These financial statements are the responsibility of the Company'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 Energy Inc. as of September 30, 2004 and 2003, and the results of its operations and its cash flows for each of the two years in the period ended September 30, 2004 in conformity with U.S. generally accepted accounting principles.
/s/ Pannell Kerr Forster of Texas, P.C. Pannell Kerr Forster of Texas, P.C. Houston, Texas December 28, 2004
ERHC ENERGY INC. CONSOLIDATED BALANCE SHEETS SEPTEMBER 30, 2005 AND 2004 - --------------------------------------------------------------------------------
The accompanying notes are an integral part of these financial statements
ERHC ENERGY INC. CONSOLIDATED STATEMENTS OF OPERATIONS FOR THE YEARS ENDED SEPTEMBER 30, 2005, 2004 AND 2003 - --------------------------------------------------------------------------------
The accompanying notes are an integral part of these financial statements
ERHC ENERGY INC. CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY (DEFICIT) FOR THE YEARS ENDED SEPTEMBER 30, 2005, 2004 AND 2003 - --------------------------------------------------------------------------------
The accompanying notes are an integral part of these financial statements
ERHC ENERGY INC. CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE YEARS ENDED SEPTEMBER 30, 2005, 2004 AND 2003 - --------------------------------------------------------------------------------
The accompanying notes are an integral part of these financial statements
ERHC ENERGY INC. NOTES TO THE CONSOLIDATED FINANCIAL STSTEMENTS - --------------------------------------------------------------------------------
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
General Business and Nature of Operations
ERHC Energy Inc. ("ERHC" or the "Company") is an independent oil and gas company. The Company 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. 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. The Company's current focus is to exploit its assets, which are rights to working interests in exploration acreage in the Joint Development Zone ("JDZ") between the Democratic Republic of Sao Tome & Principe ("DRSTP") and the Federal Republic of Nigeria ("FRN") and in the exclusive territorial 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 3. The Company currently has no other operations.
In May 1997, the Company entered into an exclusive joint venture with the DRSTP (the "1997 Agreement"). On May 21, 2001, the 1997 Agreement was replaced by a Memorandum of Agreement (the "2001 Agreement"), which was embodied in a Consent Award issued by the arbitrator as a result of the satisfaction of several conditions, including the ratification of a treaty between the FRN and the DRSTP. The 2001 Agreement gives the Company rights to participate in exploration and production activities in both the exclusive territorial waters of Sao Tome referred to as the EEZ and an area between Sao Tome and the FRN that the two nations have designated as a JDZ.
In April 2003, the Company and 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. In April 2003, 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 under the 2001 Agreement the following rights to participate in exploration and production activities in the EEZ subject to certain restrictions: (a) right to receive up to two blocks of ERHC's choice, and (b) the option to acquire up to a 15% paid working interest in up to two blocks of ERHC's choice in the EEZ. The Company will be required to pay its proportionate share of the signature bonus and all other costs related to the exploration and exploitation of the blocks in the EEZ.
Consolidated Financial Statements
The consolidated financial statements include the accounts of the Company and its wholly owned subsidiary after elimination of all significant inter-company accounts and transactions.
Use of estimates
The consolidated financial statements have been prepared in conformity with U. S. 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.
Cash equivalents
The Company considers all highly liquid short-term investments with an original maturity of three months or less, when purchased, to be cash equivalents.
Concentration of risks
The Company primarily transacts its business with two financial institutions. From time to time the amount on deposit in either one of theses institutions may exceed the $100,000 federally insured limit. The balances are maintained in demand accounts to minimize risk.
The Company's current 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. The Company has formed relationships with Pioneer Natural Resources ("Pioneer") and Addax Petroleum ("Addax") to assist the Company in leveraging its interests in the EEZ and the JDZ. Should circumstances impede the Company from perfecting its interests in the 2001 Agreement with DRSTP, or the 2003 Option Agreement the Company's business would be materially affected. Should the Company perfect its interests in the 2001 Agreement and the 2003 Option Agreement, there is no certainty that the Company will be able to obtain sufficient financial and other resources to develop its interests. The Company currently has no other operations.
Asset Retirement Obligation
The Company's asset retirement obligation ("ARO") relates to the plugging and abandonment of certain oil and gas properties in Wichita Falls, Texas. The provisions of SFAS No. 143 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 accredited 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 and the Company believes the current liability is fully accreted and represents management's best estimate of the fair value of the outstanding obligation.
Impairment of long-lived assets
The Company evaluates the recoverability of long-lived assets when events and circumstances indicate that such assets might be impaired. The Company 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. Management of the Company has evaluated its investment in its DRSTP concession fee in light of its 2003 Option Agreement (see Note 3) and believes that there have been no events or circumstances that would indicate that such asset might be impaired.
Income taxes
The Company accounts for income taxes under the provisions of Statement of Financial Accounting Standards ("SFAS") No. 109 - "Accounting for Income Taxes," which provides for an asset and liability approach in accounting for income taxes. Under this approach, deferred tax assets and liabilities are recognized based on anticipated future tax consequences, using currently enacted tax laws, attributable to differences between financial statement carrying amounts of assets and liabilities and their respective tax bases.
Common stock issued for goods received and services rendered
The Company has issued shares of common stock for goods received and services rendered. The costs of the goods or services are valued according to the terms of relative agreements or market value on the date of obligation. The cost of the goods or services has been charged to operations.
Net loss per share
Basic 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 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 year ended September 30, 2005 and 2004, the potentially dilutive common shares from stock options and warrants were 10,925,000 and 5,395,813, respectively. There were no potentially dilutive common stock options and warrants for the year ended September 30, 2003. If all convertible debt instruments, including accrued interest were to be considered, an additional 167,565, 65,492,921 and 76,162,918 common shares for the three years ended September 30, 2005, 2004 and 2003, respectively, may have been dilutive depending on the results of operations of the Company.
Stock-based compensation
In November 2004, the Board of Directors authorized a 2004 Compensatory Stock Option Plan, which was approved at a special meeting of the stockholders of the Company held on February 4, 2005.
The Company has adopted Statement of Financial Accounting Standards ("SFAS") No. 123 - "Accounting for Stock Based Compensation." Under SFAS No. 123, the Company is permitted to either record expenses for stock options and other employee compensation plans based on their fair value at the date of grant or to continue to apply the Company's current accounting policy under Accounting Principles Board, ("APB") Opinion No. 25 "Accounting for Stock Issued to Employees," and recognize compensation expense, if any, based on the intrinsic value of the equity instrument at the measurement date. In December of 2002, the FASB issued SFAS No. 148, "Accounting for Stock- Based Compensation - Transition and Disclosure - An Amendment to FASB Statement No. 123" to provide alternative methods of transition for a voluntary change to the fair value based method of accounting for stock-based employee compensation. The Company elected to not change to the fair value based method of accounting for stock based compensation. Additionally, the statement amended disclosure requirements of SFAS No. 123 to require more prominent disclosure in both annual and interim financial statements. We elected to continue following APB No. 25 and when required, provide the pro forma provisions of SFAS No. 123.
As referred to in Note 9, the Company changed the exercise price of 3,000,000 options effective January 1, 2005. Such options for which the exercise price has been changed are referred to as re-priced options and are accounted for as compensatory options using variable accounting treatments in accordance with FASB Interpretation No. 44, "Accounting for Certain Transactions involving Stock Based Compensation - an Interpretation of APB No. 25" ("FIN44"). Under variable plan accounting, compensation expense is adjusted for increases or decreases in the fair market value of the Company's common stock to the extent that the market value exceeds the exercise price of the option. Variable plan accounting is applied to the re-priced options until the options are exercised, forfeited, or expire unexercised.
Had compensation costs for the stock options granted to an employee been determined based on the fair value at the grant date for the years ending September 30, 2005, 2004, and 2003, consistent with the provisions of SFAS No. 123, the net loss and net loss per share would have been reflective of the pro forma amounts indicated below:
The weighted average fair value at date of grant for options re-priced during the fiscal year ended September 30, 2005 was $0.38. The weighted average fair value at date of grant for options granted during the fiscal year ended September 30, 2004 was $0.40. The Company did not grant options to employees for the fiscal year ended September 30, 2003. The fair value of options at date of grant was estimated using the Black-Sholes option-pricing model with the following weighted average assumptions:
The Black-Scholes option valuation model was developed for estimating the fair value of traded options that have no vesting restrictions and are fully transferable. Because option valuation models require the use of subjective assumptions, changes in these assumptions can materially affect the fair value of the options. The Company's options do not have the characteristics of traded options; therefore, the option valuation models do not necessarily provide a reliable measure of the fair value of its options.
New accounting pronouncements
On December 16, 2004, as amended on April 14, 2005, the Financial Accounting Standards Board (FASB) issued FASB "SFAS" No. 123 (revised 2004), "Share-Based Payment" ("SFAS No. 123(R)"), which is a revision of SFAS No. 123, "Accounting for Stock-Based Compensation." SFAS No. 123(R) supersedes APB Opinion No. 25, "Accounting for Stock Issued to Employees," and amends SFAS No. 95, "Statement of Cash Flows." Generally, the approach in SFAS No. 123(R) is similar to the approach described in SFAS No. 123. However, SFAS No. 123(R) requires all share-based payments to employees, including grants of employee stock options, to be recognized in the income statement based on their fair values. Pro forma disclosure is no longer an alternative. The new standard will be effective for public entities in the first interim or annual reporting period beginning after June 15, 2005. The Company has not yet assessed the impact of adopting this new standard.
In November 2004, the FASB issued SFAS No. 151, "Inventory Costs, an Amendment of ARB No. 43, Chapter 4. The standard requires that abnormal amounts of idle capacity and spoilage costs within inventory be excluded from the cost of inventory and expensed when incurred. The provisions of SFAS No. 151 are applicable to inventory costs incurred during fiscal years beginning after June 15, 2005. The adoption of SFAS No. 151 is expected to have no impact on the Company's consolidated financial statements.
In December, 2004, the FASB issued SFAS No. 153, "Exchanges of Nonmonetary Assets--an amendment of Accounting Principles Board ("APB") Opinion No. 29" is effective for fiscal years beginning after June 15, 2005. This Statement addresses the measurement of exchange of nonmonetary assets and eliminates the exception from fair value measurement for nonmonetary exchanges of similar productive assets in paragraph 21(b) of APB Opinion No. 29, "Accounting for Nonmonetary Transactions" and replaces it with an exception for exchanges that do not have commercial substance. The adoption of SFAS No. 153 is expected to have no impact on the Company's consolidated financial statements.
In May 2005, the FASB issued SFAS No. 154, "Accounting Changes and Error Corrections, a replacement of APB Opinion No. 20 and FASB Statement No. 3". This statement changes the requirements for the accounting for and reporting of a change in accounting principle. This statement applies to all voluntary changes in accounting principle. It also applies to changes required by an accounting pronouncement in the unusual instance that the pronouncement does not include specific transition provisions. SFAS 154 is effective for accounting changes and corrections of errors made in fiscal years beginning after December 15, 2005. Adoption of SFAS 154 is not expected to have an effect on the Company's consolidated financial statements.
Reclassifications
During the year ended September 30, 2005 the Company corrected a 1,222,153 understatement in the number of shares of common stock outstanding that has consistently existed for many years. The shares were issued at a time when the stock had no significant value and, accordingly, the correction of outstanding shares resulted in a $122 increase in common stock and a corresponding decrease in additional paid-in capital. All periods presented have been corrected to include these additional shares.
NOTE 2 - GOING CONCERN
The Company's current liabilities exceed its current assets by $1,758,428 at September 30, 2005. The Company has incurred net losses of $11,270,478, $3,593,388, and $3,153,882 in fiscal years 2005, 2004 and 2003, respectively. These conditions raise substantial doubt as to the ability of the Company to continue as a going concern. The Company is in ongoing negotiations to raise general operating funds and funds for specific projects. Management will be required to, and expects to, raise additional capital through the issuance of debt securities and offerings of equity securities to fund the Company's operations, and will attempt to continue raising capital resources until such time as the Company generates revenues sufficient to maintain itself as a viable entity. However, there is no assurance that such financing will be obtained.
The Company's current focus is to exploit its only assets, which are agreements with the DRSTP concerning oil and natural gas exploration in Sao Tome, an island nation located in the Gulf of Guinea off the coast of central West Africa, and in a JDZ between Sao Tome and the FRN. The Company is currently forming relationships with other oil and gas companies having technical and financial capabilities to assist the Company in leveraging its interests in Sao Tome and the JDZ. Should
circumstances impede the Company's progress in negotiating production-sharing contracts to develop its interests in the 2001 Agreement and the 2003 Option Agreement with DRSTP, the Company's business would be adversely affected. Should the Company complete successful negotiations of production-sharing contracts, there is no certainty that the Company and its joint venture partner(s) will be able to successfully develop the Company's interests. The Company currently has no other operations.
The Company expects to continue borrowing funds from Chrome in the future but there is no assurance that funds will be made available or under similar terms. If the Company is successful in its efforts to negotiate production-sharing contracts, it expects that those contracts will provide cash to the Company for continued operations. In prior years, the Company was able to raise funds in a timely manner, but there is no assurance that they will continue to do so in the future. The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. If the Company is unable to continue as a going concern, the values realized from the Company's assets may be less than the carrying amounts reported in its financial statements. The accompanying financial statements do not include any adjustments relating to the recoverability and classification of asset carrying amounts or the amount and classification of liabilities that might result should the Company be unable to continue as a going concern.
NOTE 3 - SAO TOME CONCESSION
Concession Fee Payment
The 1997 Agreement required the Company to pay a $5,000,000 concession fee to the DRSTP.
In October 1999, the DRSTP claimed that the Company had breached certain terms of the 1997 Agreement and announced a termination of the Agreement. The Company immediately exercised its rights to have the matter settled via international arbitration in accordance with the terms of the 1997 Agreement.
Concession Fee Agreement
In May 1997, the Company entered into an exclusive joint venture with the DRSTP (the "1997 Agreement"). On May 21, 2001, the 1997 Agreement was replaced by a Memorandum of Agreement (the "2001 Agreement"), which was embodied in a Consent Award issued by the arbitrator as a result of the satisfaction of several conditions, including the ratification of a treaty between the FRN and the DRSTP. The 2001 Agreement gives the Company rights to participate in exploration and production activities in both the exclusive territorial waters of Sao Tome referred to as the EEZ and an area between Sao Tome and the FRN that the two nations have designated as a JDZ.
After the acquisition by Chrome in February 2001, the Company initiated negotiations with the DRSTP concurrent with the arbitration process. On May 21, 2001, the Company and the DRSTP reached the 2001 Agreement, witnessed by the FRN, which replaced the 1997 Agreement and suspended the arbitration process. In July 2002, the 2001 Agreement was embodied in a Consent Award issued by the arbitrator as a result of the satisfaction of several conditions, including the ratification of a treaty between the FRN and the DRSTP relative to the JDZ between the countries, and will remain in effect through September 30, 2024.
In April 2003, the Company and 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. In April 2003, 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 under the 2001 Agreement the following rights to participate in exploration and production activities in the EEZ subject to certain restrictions: (a) right to receive up to two blocks of ERHC's choice, and (b) the option to acquire up to a 15% paid working interest in up to two blocks of ERHC's choice in the EEZ. The Company will be required to pay its proportionate share of the signature bonus and all other costs related to the exploration and exploitation of the blocks in the EEZ.
Under the 2003 Option Agreement, ERHC may exercise options to acquire fractional working interests in six (6) of the nine (9) blocks that have been announced by the JDA and will be available for bidding in the JDZ. A block is an area designated as an individual unit for exploration or production of crude oil and natural gas. Additionally, the amount of signature bonus that is payable by ERHC to acquire these working interests is zero in four (4) blocks. ERHC must pay its proportionate share of any signature bonuses in two (2) blocks.
On April 13, 2004, the Company submitted a letter to the JDA exercising its option rights in the JDZ. The options exercised by the Company were:
This exercise of the Company's rights was 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 will be entitled to receive its working interest in that block in a future license awarded for the block.
On April 26, 2004, the Company announced that, at meetings on April 23rd and 24th, 2004, the Joint Ministerial Council ("JMC") of the JDZ acknowledged the Company's option selections for award of interests pursuant to the exercise of rights under the April 7, 2003 Administration Agreement.
In August 2004, the Company entered into a Participation Agreement with Pioneer whereby the companies will jointly apply for rights in the production-sharing contract for Block 2 of the JDZ.
In September 2004, the Company entered into a Participation Agreement with Noble whereby the companies will jointly apply for rights in the production sharing contract for Block 4 of the JDZ.
In December 2004, the Company entered into a Participation Agreement with Pioneer under which the companies jointly applied for rights in the production-sharing contract for Block 3 of the JDZ.
In May 2005, the JDA announced the awards for the blocks in the 2004 JDZ Licensing Round. The awards included both the preferential rights interests in Blocks plus additional bid interests awarded to bid groups. The awards were:
o In Block 2, the Pioneer and ERHC group was awarded 35% interest as a result of the joint bid submitted by the companies. In addition the JDA confirmed the award to ERHC of its 30% Option Interest, free of any signature bonus.
o In Block 3, the Pioneer and ERHC group was awarded 5% interest as a result of the joint bid submitted by the companies. In addition the JDA confirmed the award to ERHC of its 20% Option Interest, free of any signature bonus.
o In Block 4 the Noble and ERHC group was awarded 35% interest as a result of the joint bid submitted by the companies. In addition the JDA confirmed the award to ERHC of its 25% Option Interest, free of any signature bonus. The Company originally formed a relationship Noble Energy Resources ("Noble") to negotiate a production sharing agreement for Block 4. However, Noble subsequently withdrew from negotiations and the company has entered into an agreement with Addax Petroleum under which Addax will replace Noble in the ERHC/Noble group. Approval for Addax to participate in Block 4 has been requested from the JDA.
o In Block 5, the JDA confirmed the award to ERHC of its 15% Option Interest, with signature bonus payable.
o In Block 6, the JDA confirmed the award to ERHC of its 15% Option Interest, free of any signature bonus payable.
In June 2005, ERHC accepted the awards by the JDA for Blocks 2, 3, 4, 5 and 6, subject to the execution of a mutually acceptable production-sharing contract and joint operating agreement for each block.
The above is only a brief summary of the terms of the 2001 Agreement and the 2003 Option Agreement and such summaries do not purport to be complete and are qualified in their entirety by reference to the 2001 Agreement and 2003 Option Agreement, respectively (any and all related documents).
NOTE 4 - RESTRICTED CASH
At September 30, 2004 the Company had restricted cash of $3,026 which was invested in an interest-bearing certificate of deposit, pledged as collateral for a letter of credit for a performance bond covering certain oil and gas properties. These oil and gas properties were abandoned and written off during the year ended September 30, 1999. The company was released from the performance bond in 2005.
NOTE 5 - NOTES PAYABLE
Convertible Debt - Non-Related Party
The company had several convertible debt notes with individual third parties and all but one of those notes had been repaid or converted to common stock at September 30, 2005. At September 30, 2005, the Company has $33,513 of nonaffiliated convertible debt and $3,189 accrued but unpaid interest outstanding. At September 30, 2005, the note was in default and if the outstanding convertible debt were converted using the conversion price of $0.20 per share, the Company would be required to issue 167,565 shares of common stock based on an outstanding principal amount of $33,513.
At September 30, 2004, the Company's nonaffiliated convertible debt and related accrued but unpaid interest totaled $1,626,033 and $65,917, respectively. During the year ended September 30, 2005, non-affiliated note holders agreed to convert $1,592,520 of convertible debt and $84,850 of accrued interest into 8,386,855 shares of common stock. The conversion price was $0.20 per share.
During the year ended September 30, 2004, the Company received notice of conversion of convertible debt of $1,556,199 and accrued interest of $88,867 into 8,225,330 shares of common stock.
Convertible Debt - Related Party
At September 30, 2004, the Company had convertible debt instruments with Chrome Energy, L.L.C ("Chrome"), a related party totaling $8,969,420, bearing interest at rates ranging from 5.5% to 20%. Certain of the maturity dates on these notes had been extended and all were converted during the year ended September 30, 2005. Interest accrued and unpaid on these notes at September 30, 2004 was $2,126,265.
During 2005, the Company reached an agreement with Chrome to restructure outstanding debt totaling $10,134,084 and enter into a new $2,500,000 working capital line of credit. To facilitate the debt restructuring, the Company agreed to issue Chrome 14,023,352 shares of common stock; 12,465,202 shares immediately, 623,260 shares on the advance of $1,000,000 and the remaining 934,890 shares upon receipt of the additional $1,500,000 available under the working capital line. In addition the Company issued 12,308,560 shares of common stock to satisfy current interest accrued but not paid of $2,461,712 on the notes that were consolidated into the new $10,134,084 note.
Pursuant to the debt restructure agreement, the Company issued a 12% note with a principal amount of $10,134,084, to be settled at the option of the Company at $0.175 per share, and expiring on January 31, 2007. The Company also issued a 10% working capital line of credit in the amount of $2,500,000 to be settled at the option of the Company at $0.175 per share. When the working capital line of credit was fully funded in January 2005, there was $12,634,084 of principal outstanding under these two notes.
On January 28, 2005, the Company exercised its right to convert the two new notes (the "Consolidated Note"), dated at December 15, 2004, in favor of Chrome, with a principal balance of $10,134,084 and accrued interest at January 28, 2005 of $146,597, and (the "Promissory Note"), dated at December 15, 2004, in favor of Chrome with an original principal amount of $2,500,000 and accrued interest at January 28, 2005 of $11,986.
The Company issued to Chrome 73,100,954 of unregistered shares of ERHC common stock in conversion of the entire outstanding principal and accrued interest of the Consolidated Note and the Promissory Note. The Consolidated Note and Promissory Note were converted at $0.175 per share pursuant to the terms of such notes and cancelled in their entirety. ERHC issued these shares pursuant Section 4(2) of the Securities Act of 1933, as amended.
At September 30, 2005, the Company has no convertible debt with any related party.
NOTE 6 - ACCRUED SALARIES
At September 30, 2004, the Company had accrued salaries of $723,035, owed to former officers of the Company. The amounts and rights claimed by these officers were subject to lawsuits in which the Company negotiated final settlements in 2005. During the year ended September 30, 2005, the Company paid cash of $76,275 and issued 595,000 shares of common stock, valued at $394,450, to fully settle these claims. The Company recognized a $252,310 gain in connection with the settlement.
NOTE 7 - ACCRUED INTEREST
Accrued interest consists of the following at September 30, 2005 and 2004:
2005 2004 ---------- ----------
Accrued interest - non convertible related party loan $ -- $ 129,924 Accrued interest - convertible related party loans -- 2,126,265 Accrued interest - convertible debt 3,189 65,917 ---------- ----------
Total $ 3,189 $2,322,106 ========== ==========
In December 2004, the Company called the conversion feature on the non-affiliated convertible debt of $1,592,520 and accrued interest of $84,850 and issued 7,962,605 and 424,250 shares of common stock respectively at a conversion price of $0.20 per share. In January 2004, the Company solicited the consent of non-affiliated convertible debt holders to pay interest due on January 31, 2004 with common stock of the Company having a per share conversion price to $0.20 per share. During the year ended September 30, 2004, the Company issued 951,450 shares of common stock to these non-affiliated convertible debt holders (444,330 shares were for conversions of notes during 2004) and 2,453,607 shares of common stock to Chrome for payment of accrued interest in the aggregate amounts of $190,290 and $490,723, respectively.
NOTE 8 - INCOME TAXES
At September 30, 2005 the Company has a consolidated net operating loss carry-forward ("NOL") of approximately $63.6 million expiring through 2025. The Company has a deferred tax asset of approximately $22.8 million resulting from this NOL. The loss carry forwards are subject to certain limitations under the Internal Revenue Code including Section 382 of the Tax Reform Act of 1986. ERHC believes that the utilization of this net operating loss carry forwards could be significantly limited due to the changes in ownership and control. The ultimate realization of the resulting net deferred tax asset is dependent upon generating sufficient taxable income prior to expiration of the NOLs. Due to the nature of these NOLs and since realization is not assured, management has established a valuation allowance relating to the deferred tax asset for both 2005 and 2004 in an amount equal to the deferred tax asset.
The composition of deferred tax assets and the related tax effects at September 30, 2005 and 2004 are as follows:
2005 2004 ------------ ------------
Net operating losses $ 21,629,493 $ 21,724,657 Accrual for asset retirement 164,900 164,900 Accrued litigation expenses -- 245,831 ------------ ------------
Total deferred tax assets 21,794,393 22,135,382 Valuation allowance (21,794,393) (22,135,382) ------------ ------------
Net deferred tax asset $ -- $ -- ============ ============
The difference between the income tax benefit 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 loss for the years ended September 30, 2005, 2004 and 2003 is as follows:
NOTE 9 - SHAREHOLDERS' EQUITY (DEFICIT)
Common Stock and Warrants Issued For Cash
From time to time, in order to fund operating activities of the Company, common stock is issued for cash. Generally, offerings of the Company's common stock include warrants to acquire common stock of the Company at fixed exercise prices. Occasionally, depending on the nature of the offering and restrictions imposed on the shares being acquired, the exercise price of the warrant may be below the fair market value of the underlying common stock on the date of issuance. There was no stock issued with warrants during the year ended September 30, 2005. During the year ended September 30, 2004 the Company issued 3,231,940 shares of common stock, with warrants to purchase an additional 3,231,940 shares at exercise prices ranging from $0.50 to $0.55, for net cash proceeds of $975,000. During the year ended September 30, 2003 the Company issued 9,440,000 shares of common stock, with warrants to purchase an additional 7,840,000 shares at exercise prices ranging from $0.20 to $0.50, for net cash proceeds of $1,072,500.
Common Stock Issued For Settlement of Accounts Payable
The Company has issued shares of common stock for settlement of outstanding accounts payable to various creditors. During the years ended September 30, 2005, 2004 and 2003, the Company issued 735,000, 1,458,514 and 1,527,986 shares of common stock with an aggregate value of $359,789, $533,248 and $177,816, respectively, for payment of accounts payable balances.
Common Stock Issued For Conversion of Debt and Payment of Accrued Interest
The Company has issued shares of common stock for the conversion of convertible debt notes and accrued interest on convertible debt notes. During the year ended September 30, 2005, non-affiliated note holders agreed to convert $1,677,371 of convertible debt and accrued interest into 8,386,855 shares of common stock. The conversion price was $0.20 per share. The Company also agreed to issue Chrome 14,023,352 shares of common stock, 12,465,202 issued immediately, 623,260 shares issued on the advance of $1,000,000 and the remaining 934,890 shares upon receipt of an additional $1,500,000 available under the working capital line. In addition, the Company agreed to issue 12,308,359 shares of common stock to satisfy current interest accrued but not paid of $2,461,712. The shares of common stock to Chrome for entering into the debt restructuring had a fair value of $5,749,575 and have been recorded as a loss on extinguishment of debt.
During the year ended September 30, 2005, the Company issued 73,100,954 shares of common stock to Chrome for conversion of all of its debt representing $12,634,084 of principal and $158,583 of accrued interest.
During the year ended September 30, 2004, the Company issued 7,780,995 shares of common stock for the conversion of $1,556,199 worth of convertible debt and issued 3,404,057 shares of common stock for the payment of $681,013 of accrued interest on convertible debt. During the year ended September 30, 2003 the Company issued 13,612,495 shares of common stock for the conversion of $2,722,499 worth of convertible debt and issued 3,502,245 shares of common stock for the payment of $700,439 accrued interest on convertible debt. All conversions and interest payments were based upon a conversion price of $0.20.
Stock Options Issued and Re-Priced
On January 1, 2005, the Company agreed to issue options to purchase a total of 1,250,000 shares of common stock, upon completion of a full year of service to two consultants as part of their initial compensation packages. These options have an exercise price of $0.20 per share and vest on December 31, 2005. On September 1, 2005, the Company agreed to issue options to purchase a total of 500,000 shares of common stock, upon completion of a full year of service to a consultant as part of his initial compensation package. These options have an exercise price of $0.20 per share and vest on September 1, 2006.
During the year ended September 30, 2005, the Company modified the exercise price of 3,000,000 options granted to one employee from $0.30 per share to $0.20 per share, which made those options subject to variable plan accounting. Under variable plan accounting, compensation expense is adjusted for increases or decreases in the fair market value of the Company's common stock to the extent that the market value exceeds the new exercise price of the option. Variable plan accounting is applied to the re-priced options until the options are exercised, forfeited, or expire unexercised. For the year ended September 30, 2005, the Company incurred additional expense of $194,737 as a result of an upward change in the fair market value on the underlying common stock.
Common Stock Issued For Proceeds Previously Received
During September 2003, the Company entered into a stock subscription agreement to issue 1,000,000 shares of common stock at $0.25 per share generating and receiving total proceeds of $250,000 as of September 30, 2003. However, the shares were not issued until November 2003. The total proceeds received of $250,000 was recorded in additional paid-in capital at September 30, 2003 and the Company has excluded these shares in its calculation of weighted average number of basic and diluted common stock shares outstanding for the year ended September 30, 2003. In connection with the sale of stock, 1,000,000 warrants were issued with a weighted average exercise price of $0.50 per warrant expiring in September 2007.
Warrants
Information regarding warrants and their respective changes as of and for the fiscal years ended September 30, 2005, 2004 and 2003 are as follows:
(a) During 2005, 1,000,000 warrants were exercised on a cashless basis for 587,364 shares of common stock.
(b) During July 2004, 375,000 warrants were exercised on a cashless basis for 247,882 shares of common stock.
(c) During the year ended September 30, 2004, the Company issued options to purchase 3,000,000 shares of common stock to an employee as part of his initial compensation package. These options have a revalued exercise price of $0.20 a share, with 1,000,000 options vesting in each of September 2004, August 2005 and August 2006.
The weighted average option and warrant exercise price information as of and for the fiscal years ended September 30, 2005, 2004 and 2003 is as follows:
Significant warrant groups outstanding at September 30, 2005, and related weighted average exercise price, exercise price range and weighted average remaining contractual life information are as follows:
(a) These warrants expire 14 months after the Company files an effective S-1 or S-3 registration statement.
NOTE 10 - COMMITMENTS AND CONTINGENCIES
Litigation
During August 1999 and February 2001, the Company underwent changes of control. Following the changes of control of the Company, new management and the new board of directors were required to expend significant Company resources to settle claims and expenses arising out of the conduct of prior management. In addition, the Company faced additional unresolved claims and disputes, including suits seeking recoveries in excess of $1.0 million brought by former employees and officers for back salary and other amounts. The Company negotiated full settlement of these claims in 2005 and cash of $76,275 was paid and 595,000 shares of common stock was issued at a value of $394,450 and a gain on settlement of $252,310 was recognized. As of September 30, 2004 officers' salaries of $723,035 were accrued in connection with these claims.
Additionally, from time to time, certain potential obligations are presented to the Company that may have originated during periods not under existing management's control. These alleged obligations are generally for goods and services for which the Company has no record. The Company actively investigates these claims as they arise. All known material obligations of the Company have been recorded and reflected in the financial statements, but there is no certainty that all material claims have been presented to the Company nor have the benefits of available statutes of limitations been considered, should they apply.
Operating Lease
The Company leases office space at 5444 Westheimer Road, Houston, Texas. The lease for office space expires February 2006. The monthly base rent payment is $3,567 based on approximately 1,900 square feet of office space. Upon expiration of its current lease, the Company expects to lease the same space or comparable space in the normal course of business. During the year ended September 30, 2005, the company incurred lease expense of $31,697. Prior to 2005, lease expense was included in the management services agreement with Chrome Oil Services, Ltd. ("COS"), a company controlled by the Company's board chairman/ primary stockholder. (See note 12)
Employment and Consulting Agreements
The Company's President and Chief Executive Officer, Mr. Ali Memon, has a three-year employment agreement that began on August 1, 2004 and originally included a base salary of $150,000 per year. On January 25, 2005, the Board of Directors approved an increase in Mr. Memon's salary from $150,000 to $200,000 per year for the remaining term of the contract, beginning January 1, 2005, and expiring July 31, 2007.
Effective January 1, 2005, the Company entered into consulting agreements with two individuals, which require payment of cash and issuance of options for a total of 1,250,000 shares of common stock upon completion of a full year of service. These options have an exercise price of $0.20 per share and will vest immediately upon issuance and will have no expiration date. Either party may terminate these consulting agreements with 30 days notice. The options issued under these consulting agreements include provisions for cashless exercise.
Effective January 1, 2005, the Company entered into a consulting agreement with an individual which requires payment of cash and the issuance of options for a total of 500,000 shares of common stock upon a full year of service (This agreement was signed September 1, 2005, but was effective at January 1, 2005). These options have an exercise price of $0.20 per share and will vest immediately upon issuance and will have no expiration date. Either party may terminate these consulting agreements with 30 days notice. The options issued under these consulting agreements include provisions for cashless exercise.
In August 2005, the Company entered into an agreement with a consulting group to identify and introduce to the Company oil and gas acquisition opportunities in Nigeria. The Company is required to pay a base fee of $1,000 per month. In addition the Company shall pay a success fee of $75,000 per successful acquisition, as defined. The agreement has a term of one year but expires immediately upon the 30 day written notice of termination by either party, without penalty to either party.
In August 2005, the Company entered into an agreement with a consulting group to identify and introduce to the Company oil and gas acquisition interests in oil/mining leases granted by the government of the Federal Republic of Nigeria. The Company is required to pay a base fee of $1,000 per month. In addition the Company shall pay a success fee of $80,000 per successful acquisition, as defined. The agreement also provides for the payment of legal fees per successful transaction, as defined. The agreement has a term of one year but expires immediately upon the 30 day written notice of termination by either party, without penalty to either party.
During May 2003, the Company entered into a consulting agreement for general consulting services, including transaction support and evaluation of geological and seismic data. The Agreement has been revised several times. The most recent revision became effective on April 1, 2005 and terminates on September 30, 2005. This revision reduced the consultant's compensation to $2,000 per month (from the former rate of $10,000 per month). In addition, the revised agreement provides for a one-time success fee of $50,000 and 500,000 shares of common stock if the Company closes a transaction for sale of its interest in the JDZ. During the years ended September 30, 2005 and 2004, total expense incurred under this consulting agreement was $84,970 and $166,370, respectively.
In May 2002, the Company entered into an agreement with a consulting group to advise the Company in securing financing of up to $1,500,000 and in structuring a joint venture arrangement with a partner. This agreement expired in March 2005. During the year ended September 30, 2005, no expenses were incurred under this agreement. During the year ended September 30, 2004, total expenses incurred under this consulting agreement were $27,462, of which $25,000 was charged against additional paid-in capital.
NOTE 11 - SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
Following is an analysis of non-cash operating and financing activities and non-cash investing and financing activities for the years ended September 30, 2005, 2004 and 2003.
The Company did not make cash payments for interest or income taxes in any of the three years ended September 30, 2005.
NOTE 12 - RELATED PARTY TRANSACTIONS
Since the Company began its current business operations, it has been dependent on its primary stockholder/ board chairman and companies he controls for debt and equity financing. Transactions with this stockholder are described in notes 5 and 9.
Management Services Agreement
The Company entered into a management services agreement with Chrome Oil Services, Ltd. ("COS") in February 2001. Pursuant to that agreement, COS provided the Company with management and business development services in addition to providing specified services in the areas of refinery maintenance, engineering design, and upstream oil industry services. COS provided these services to the Company for a management fee of $68,000 per month. Messrs Okpala and Ntephe were consultants of COS that provides services to the Company and these persons receive salaries and overhead expense reimbursement from COS, not from the Company. Expenses not covered under the management services agreement were borne by the Company. Total management fees incurred during each of the years ended September 30, 2005, 2004 and 2003 were $204,000, $816,000 and $816,000, respectively. On December 23, 2004, the Company and COS cancelled, effective December 31, 2004, the management services agreement. In 2005 the Company entered into consulting agreements with Messrs Okpala and Ntephe.
Related Party Liabilities
The Company's executive officers incurred significant direct expense for travel and related expenses of approximately $279,000, $418,000, and $434,000 during the three years ended September 30, 2005, 2004, and 2003 respectively. At September 30, 2004 accounts payable and other accrued liabilities included $3,231, of amounts owed to one officer for direct travel expenses.
NOTE 13 - QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
The sum of the individual quarterly basic and diluted loss per share amounts may not agree with year-to-date basic 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.
In the fourth quarter of 2005, the Company made a $347,517 adjustment to interest expense recognized in the first quarter. The adjustment relates to the improper recognition of interest arising from unamortized beneficial conversion costs upon conversion of debt to equity.