Draft #10 UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[ X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2008
___________________________________________________
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ___________________to_________________________
Commission file number 001-16653
____________________________________________________
EMPIRE PETROLEUM CORPORATION
____________________________
(Exact name of registrant as specified in its charter)
Delaware 73-1238709
__________________________________ _________________________________
State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
8801 S. Yale, Suite 120, Tulsa, OK 74317-3575
_____________________________________________________________________________
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (918) 488-8068
__________________________
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
Registered
NONE N/A
__________________________________ _________________________________
Securities registered pursuant to 12(g) of the Act:
Common Stock, $0.001 par value
_____________________________________________________________________________
(Title of class)
_____________________________________________________________________________
(Title of class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as
defined in Rule 405 of the Securities Act.
[] Yes [X] No
Indicate by check mark if the registrant is not required to file reports
pursuant to Section 13 or Section 15(d) of the Act.
[] Yes [X] No
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Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. [X] Yes [] No
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulations S-K (229.405 of this chapter) is not contained herein,
and will not be contained, to the best of registrant's knowledge,
indefinitive proxy or information statements incorporated by reference in
Part III of this Form 10-K or any amendment to this Form 10-K.
[X]
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company.
See the definitions of "large accelerated filer," "accelerated filer" and
"smaller reporting company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer [] Accelerated filer []
Non-accelerated filer [] Smaller reporting company [X]
(Do not check if a smaller reporting company)
Indicate by check mark whether the registrant is a shell company (as defined
in Rule 12b-2 of the Act). [] Yes [X] No
The aggregate market value of the voting and non-voting common equity held by
non-affiliates, based upon the average bid and asked prices of the
registrant's Common Stock on the last business day of the registrant's most
recently completed second fiscal quarter was $2,617,366.
The number of shares outstanding of the registrant's Common Stock, as of
March 31, 2009, was 57,193,128.
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EMPIRE PETROLEUM CORPORATION
FORM 10-K
TABLE OF CONTENTS
ITEM NUMBER AND CAPTION PAGE NUMBER
PART I
Item 1. Business 4-7
Item 2. Properties 7-8
Item 3. Legal Proceedings 8
Item 4. Submission of Matters to a Vote of Security Holders 8
PART II
Item 5. Market for Registrant's Common Equity, Related Stockholder
Matters and Issuer Purchases of Equity Securities 8-9
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations 9-17
Item 8. Financial Statements and Supplementary Data F-1 through F-14
Item 9. Changes In and Disagreements with Accountants on
Accounting and Financial Disclosure 17
Item 9A. Controls and Procedures 17-18
Item 9B. Other Information 18
PART III
Item 10. Directors, Executive Officers and Corporate
Governance 18-20
Item 11. Executive Compensation 20
Item 12. Security Ownership of Certain Beneficial Owners
and Management and Related Stockholder Matters 20-22
Item 13. Certain Relationships and Related Transactions,
and Director Independence 22-23
Item 14. Principal Accounting Fees and Services 23
PART IV
Item 15. Exhibits 23-25
Signatures 25
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PART I
ITEM 1. BUSINESS.
Background
Empire Petroleum Corporation, a Delaware corporation (the "Company"),
was incorporated in the State of Utah in August 1983 under the name
Chambers Energy Corporation and domesticated in Delaware in March
1985 under the name Americomm Corporation. The Company's name was
changed to Americomm Resources Corporation in July 1995. On May 29,
2001, Americomm Resources Corporation acquired Empire Petroleum
Corporation, which became a wholly owned subsidiary of Americomm
Resources Corporation. On August 15, 2001, Americomm Resources
Corporation and Empire Petroleum Corporation merged and the Company's
name was changed to Empire Petroleum Corporation. The Company operates
from leased office space at 8801 S. Yale, Suite 120, Tulsa, OK 74137-3575,
and its telephone number is (918) 488-8068.
During the past three fiscal years, the Company has focused on developing
the Cheyenne River and Gabbs Valley Prospects as further described below.
Cheyenne River Prospect
The Company now owns a working interest in approximately 20,764 acres of oil
and gas leases located in Niobrara County, Wyoming (the "Cheyenne River
Prospect"). On March 31, 2004, a third party paid approximately
$52,128 of the Company's lease rentals on 32,643 acres in the Cheyenne River
Prospect in exchange for an option to drill a test well in order to earn an
interest in the farmout block, which option was subject to the third party
first completing a seismic survey covering 16 square miles in the Cheyenne
River Prospect. This survey was completed in September of 2003. The
processing and interpreting of the data from such survey was completed
September 30, 2003, and earned the third party a 25% interest in
the prospect acreage and well that had previously been drilled on the
prospect, the Timber Draw #1-AH. This third party commenced a test well in
the NW/4NE/4 Section 15, Twp 39N, Rge 66W, Niobrara County, Wyoming, known
as the Empire Hooligan Draw Unit #1-AH, on August 6, 2004. The well was
drilled horizontally to a measured drilling depth of 9,332 feet. As a result,
the Company's working interest in the Hooligan Draw #1-AH well and prospect
acreage was reduced to 26.785% and its working interest in the Timber Draw
#1-AH well was reduced to 17.5%. As a result of the reduction in the
Company's working interest as described above, the Company recorded an
impairment charge of $188,507 in 2005.
In 2007, the Company entered into a Farmout and Partial Sale Agreement with a
third party. The third party purchased a one-half interest in the Timber Draw
#1-AH and the Hooligan Draw #1-AH and agreed to drill three test wells at
locations of its choice on the farmout lands. In return for drilling the
three test wells the third party will earn a 100% interest in the 480 acres
associated with the three wells subject to a small overriding royalty retained
by the Company together with a 50% interest in the balance of the farmout
block, or the remaining 20,284 acres in the Cheyenne River Prospect. After
the drilling of the three test wells, the Company's remaining interest will
be its overriding royalty on the drill site 480 acres and a 13.39% working
interest in the balance of the farmout lands. As of December 31, 2008, the
third party had drilled two (2) of the three (3) well commitments. One was a
dry hole and testing was underway on the other test well.
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The Cheyenne River Prospect is located near a mature producing area
with an established pipeline and service network.
Gabbs Valley Prospect
The Company owns a working interest in oil and gas leases in Nye and Mineral
Counties, Nevada (the "Gabbs Valley Prospect"). Initially, the Company's
working interest was 10% and the Gabbs Valley Prospect consisted of 44,604
acres.
As of December 31, 2005, there had been no wells drilled on the Gabbs
Valley Prospect. However, in November 2005, the Company received the
results of a 19-mile 2-D swath seismograph survey conducted on the
prospect and, based on the results of the survey, the Company and its
partners determined that a test well should be drilled on the prospect.
The Company also elected to increase its interest in the prospect by
taking a farm-in from Cortez Exploration LLC (formerly O. F. Duffield).
Empire agreed to pay Cortez $675,000 in lease costs plus 45% of the costs
associated with the drilling of a test well to earn an additional 30%
working interest which made its total working interest 40%. The lease block
of 44,604 acres was increased to 75,521 acres by the acquisition of an
additional 30,917 acres from the Department of the Interior (Bureau of
Land Management) in June 2006. The block was reduced to 75,201 acres due
to the expiration of one 320 acre lease during 2007.
A 28,783 acre federal drilling unit on the Gabbs Valley Prospect, the Cobble
Cuesta Unit, was approved by the Bureau of Land Management and expanded to
44,964 acres on April 28, 2006. In 2006, a test well, the Empire Cobble
Cuesta 1-12-12N-34E, Nye County, Nevada was drilled to a depth of 5,195 feet.
The well encountered a Volcanic formation at 1,760 feet and scattered
oil shows from 2,000 feet to total depth.
After reaching 5,195 feet, the Company and its partners elected to suspend
operations on the well, release the drilling rig, and associated equipment
and personnel to evaluate the drilling and logging data. After the study was
completed, Empire and its partners decided to conduct a thorough testing
program on the well. The Company re-entered the well on April 17, 2007 and
conducted a series of drill stem tests and recovered only drilling
mud. It was then determined after considerable study that the formation
is likely very sensitive to mud and water used in drilling which may have
caused clays in the formation to swell preventing any oil that might be
present to flow into the wellbore. During 2007, the Company increased its
interest in the prospect leases to 57% when one of the joint participants
elected to surrender its 30% share of the prospect. The Company and its joint
owners assumed liabilities of approximately $68,000 to acquire this interest.
Other than a 5,000 barrel-per-day refinery located approximately 200
miles from the Gabbs Valley Prospect, there are no pipelines or service
networks located near the prospect. A small refinery located about 115 miles
from the prospect has now shut down.
In March 2008, the Company entered into a Farmout with another company whereby
it agreed to re-enter the Empire Cobble Cuesta 1-12-12N-34E located in the
Gabbs Valley Prospect, Nye and Mineral Counties, Nevada and deepen the well to
200 feet into the Triassic Formation or 8,000 feet, whichever first occurs.
The farmee was unable to fulfill the drilling commitment and the agreement
terminated.
-5-
In 2008, the Company and its partners engaged W. L. Gore and Associates to
Carryout an Amplified Geochemical Imaging Survey which covered approximately
sixteen square miles. The survey was concentrated along the apex of the large
Cobble Cuesta structure which included the areas around the Empire Cobble
Cuesta 1-12 exploratory test and the other test well drilled in the immediate
area. Both of these tests encountered oil shows and the geochemical survey
will hopefully indicate potential hydrocarbons beyond the two well bores. We
expect to see the completed results of the survey in late February 2009.
Regardless of the results sufficient oil shows were encountered to justify
drilling another test well and the Company will pursue the financial means
with which to drill another test well in early summer, 2009.
Competition
The oil and gas business is extremely competitive. The Company must compete
with many long-established companies with greater financial resources and
technical capabilities. The Company is not a significant participant in the
oil and gas industry.
Markets; Price Volatility
The market price of oil and gas is volatile, subject to speculative movement
and depends upon numerous factors beyond the control of the Company,
including expectations regarding inflation, global and regional demand,
political and economic conditions and production costs. Future profitability,
if any, will depend substantially upon the prevailing prices for oil and gas.
If the market price for oil and gas is significantly depressed in the future,
it could have a material adverse effect on the Company's ability to raise
additional capital necessary to finance operations and to explore the
Cheyenne River and Gabbs Valley Prospects. Lower oil and gas prices may also
reduce the amount of oil and gas, if any, that can be produced economically
from the Company's properties. While the prices of oil and gas remain
volatile, the oil and gas industry has recently experienced historically high
prices for oil and gas. The Company anticipates that the prices of oil and
gas will fluctuate somewhat in the near future.
Regulation
The oil and gas industry is subject to extensive federal, state and local
laws and regulations governing the production, transportation and sale of
hydrocarbons as well as the taxation of income resulting therefrom.
Legislation affecting the oil and gas industry is constantly changing.
Numerous federal and state departments and agencies have issued rules and
regulations applicable to the oil and gas industry. In general, these
rules and regulations regulate, among other things, the extent to which
acreage may be acquired or relinquished; spacing of wells; measures required
for preventing waste of oil and gas resources; and, in some cases, rates of
production. The heavy and increasing regulatory burdens on the oil and gas
industry increase the Company's cost of doing business and, consequently,
affect profitability.
A substantial portion of the leases, which constitute the Cheyenne River
and Gabbs Valley Prospects are granted by the federal government and
administered by the Bureau of Land Management ("BLM") and the Minerals
Management Service ("MMS") of the U.S. Department of the Interior, both of
which are federal agencies. Such leases are issued through competitive
bidding, contain relatively standardized terms and require compliance with
detailed BLM and MMS regulations and orders (which are subject to change by
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the BLM and the MMS). Leases are also accompanied by stipulations imposing
restrictions on surface use and operations. Operations to be conducted by
the Company on federal oil and gas leases must comply with numerous regulatory
restrictions, including various nondiscrimination statutes. Federal leases
also generally require a complete archaeology and environmental impact
assessment prior to the authorization of an exploration or development plan.
The Company's oil and gas properties and operations are also subject to
numerous federal, state and local laws and regulations relating to
environmental protection. These laws govern, among other things, the amounts
and types of substances and materials that may be released into the
environment, the issuance of permits in connection with exploration, drilling
and production activities, the reclamation and abandonment of wells and
facility sites and the remediation of contaminated sites. These laws and
regulations may impose substantial liabilities if the Company fails to
comply or if any contamination results from the Company's operations.
Employees
As of December 31, 2008, the Company had one employee, a full-time secretary.
Mr. Albert E. Whitehead, Chairman and Chief Executive Officer, devotes a
considerable amount of time to the affairs of the Company and receives no
compensation. For financial statement purposes, Mr. Whitehead's services have
been recorded as contributed capital and expense in the amount of
$50,000 for the years ended December 31, 2008 and 2007.
ITEM 2. PROPERTIES.
Cheyenne River Prospect
As of December 31, 2008, the Cheyenne River Prospect consisted of
approximately 20,764 gross acres of federal leases located in
Niobrara County, Wyoming, of which the Company owns a 26.785% working
interest. However, the Company entered into a Farmout and Partial Sale
Agreement with a third party in 2007, pursuant to which the Company's
working interest could be reduced in the future. For more information
relating to this agreement see "Cheyenne River Prospect" under Note 1.
Description of Business. The land in the Cheyenne River Prospect consists
of gently rolling ranch land with a substantial network of ranch roads, which
permit easy access to most areas of the prospect. The prospect is located
near a mature producing area with an established pipeline and service network.
Numerous wells were drilled within the prospect area in the 1950's through
the 1970's, with initial potential flowing rates in the range of 200 to
1,500 barrels of oil per day. Management believes that these wells may
identify a fractured reservoir with the potential for significant oil and
gas production, which might be most effectively exploited utilizing
horizontal drilling technology.
The Company's leases in the Cheyenne River Prospect are predominately
federal leases with 10 year terms, most of which were set to expire
April 1, 2008, however a third party has taken a farmin of these leases
and it has formed a new Federal Drilling Unit referred to as the Lone Crow
Unit. This has allowed the third party to ask for a suspension of the lease
terms until such time as the BLM will allow a well to be drilled on these
leases. The third party has now drilled two test wells under the terms of
the agreement, one was dry and a completion attempt is being made on the
other. These wells will extend all the leases in the unit for the longer of
two years or so long as they produce.
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In connection with drilling the Timber Draw #1-AH well, the Company formed
the Timber Draw Unit. Since the Company did not commence drilling another
well within the unit by August 12, 2002, the BLM informed the Company that
the Timber Draw Unit had been terminated.
A new unit known as the Hooligan Draw Unit was formed in 2004 consisting of
leases covering 2,560 acres. The Hooligan Draw Unit #1-AH well was drilled
in this unit. Subsequent to the drilling of this well, it was determined the
unit was no longer needed and the unit was allowed to terminate. Unless
a new unit is formed, a well will need to be drilled on each federal and
fee lease in order to extend such lease for the life of its producing
capability.
For more information on the Cheyenne River Prospect, see "Cheyenne River
Prospect" under Item 1. Business.
Gabbs Valley Prospect
As of December 31, 2008, the Gabbs Valley Prospect consisted of approximately
85,145 acres of federal leases located in Nye and Mineral Counties, Nevada,
of which the Company owns a 57% working interest. The acreage total reflects
the purchase of an additional 9,943.91 acres acquired at a September 2008 BLM
lease sale.
As of December 31, 2008, one well, the Empire Cobble Cuesta 1-12, had been
drilled and tested on this prospect, but the well had not been completed. For
more information regarding the Gabbs Valley Prospect, see "Gabbs Valley
Prospect" under Item 1. Business.
COMPANY UNDEVELOPED ACREAGE (LEASES)
AS OF DECEMBER 31, 2008
Undeveloped Acreage Productive Acreage Completed Oil Wells
Gross Net Gross Net
Prospect Acres Acres Acres Acres 2005 2006 2007
________ ________ _______ ________ _________ _____________________
Cheyenne
River 20,764 5,562 400 55.5 2 2 2
Gabbs
Valley 85,145 48,533 - - -0- -0- -0-
ITEM 3. LEGAL PROCEEDINGS.
As of December 31, 2008, neither the Company nor its properties were
subject to any legal proceedings.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
There were not any matters submitted to a vote of the Company's Stockholders
during the fourth quarter of the fiscal year ended December 31, 2008.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER
MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES.
Market Information:
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The Company's Common Stock is traded on the National Association of
Securities Dealers Automatic Quotation (NASDAQ) over-the-counter bulletin
board system under the symbol "EMPR".
The following table sets forth the high and low bid information for the
Company's common stock during the time periods indicated, as reported
by NASDAQ.
Year ending December 31, 2007:
Quarter High Low
03/31/07 .30 .15
06/30/07 .255 .08
09/30/07 .12 .085
12/31/07 .10 .034
Year ending December 31, 2008:
Quarter High Low
03/31/08 .14 .065
06/30/08 .095 .035
09/30/08 .065 .021
12/31/08 .05 .01
Quotations reflect inter-dealer prices, without retail mark-up, markdown or
commission and may not represent actual transactions.
Number of Holders of Common Stock
At December 31, 2008, there were approximately 181 stockholders of record of
the Company's Common Stock.
Dividends
The Company has never paid cash dividends on its Common Stock. The Company
intends to retain future earnings for use in its business and, therefore,
does not anticipate paying cash dividends on its Common Stock in the
foreseeable future.
Recent Sales of Unregistered Securities
During the fiscal year ended December 31, 2008, the Company did not sell any
Securities of the Company that were not registered under the Securities Act,
except as disclosed in the Company's Form 10Q for the period ended March 31,
2008, which was filed on May 15, 2008.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
Cautionary Note Regarding Forward-Looking Statements
All statements, other than statements of historical fact, contained in this
report are forward-looking statements. Forward-looking statements generally
are accompanied by words such as "anticipate," "believe," "estimate,"
"expect," "may," "might," "potential," "project" or similar statements.
Although the Company believes that the expectations reflected in such
forward-looking statements are reasonable, no assurance can be given that
such expectations will prove to be correct. Factors that could cause results
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to differ materially from the results discussed in such forward-looking
statements include:
* the need for additional capital,
* the costs expected to be incurred in exploration and development,
* unforeseen engineering, mechanical or technological difficulties in
drilling wells,
* uncertainty of exploration results,
* operating hazards,
* competition from other natural resource companies,
* the fluctuations of prices for oil and gas,
* the effects of governmental and environmental regulation, and
* general economic conditions and other risks described in the Company's
filings with the Securities and Exchange Commission.
Information on these and other risk factors are discussed under "Factors That
May Affect Future Results" below. Accordingly, the actual results of
operations in the future may vary widely from the forward-looking statements
included herein, and all forward-looking statements in this Form 10-K are
expressly qualified in their entirety by the cautionary statements in this
paragraph.
Readers are cautioned not to place undue reliance on these forward-looking
statements, which reflect management's analysis, judgment, belief and
expectations only as of the date hereof. The Company undertakes no obligation
to publicly revise these forward-looking statements to reflect events or
circumstances that arise after the date hereof.
Factors That May Affect Future Results
The Company does not have any significant on-going income producing oil and
gas properties and has limited financial resources.
For the past three fiscal years, the Company has financed its operations
primarily from sales of its equity securities. In prior years advances were
made to the Company by Albert E. Whitehead, the Company's Chief Executive
Officer. There is no assurance that the Company will be able to continue to
finance its operations through the sale of its equity securities, or through
loans or advances by third parties. In addition, Mr. Whitehead has no
obligation to advance the Company any additional money, and there is no
assurance that he will do so.
The report of the Company's independent auditor regarding the Company's
financial statements has been modified because of a going concern uncertainty.
The Company reported losses of $436,656 and $1,381,676 for the years
ended December 31, 2008 and 2007, respectively. The Company also had an
accumulated deficit of $10,915,310 as of December 31, 2008. The Company can
provide no assurance that it will be profitable in the future and, if the
Company does not become profitable, it may have to suspend its operations. As
a result of the foregoing, the audit report of the Company's independent
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auditors relating to the Company's financial statements has been modified
because of a going concern uncertainty. If the Company is able to raise the
funds necessary to continue its operations, its future performance will be
dependent on the successful drilling results of its inventory of unproved
locations in Wyoming and Nevada. The failure of drilling activities to
achieve sufficient quantities of economically attractive reserves and
production would have a material adverse effect on the Company's liquidity,
operations and financial results.
The Company could be adversely affected by fluctuations in oil and gas prices.
Even if the Company's drilling activities achieve commercial quantities of
economically attractive reserves and production revenue, the Company will
remain subject to prevailing prices for oil, natural gas and natural gas
liquids, which are dependent upon numerous factors such as weather, economic,
political and regulatory developments and competition from other sources of
energy. The volatile nature of the energy markets makes it particularly
difficult to estimate future prices of oil, natural gas and natural gas
liquids. Prices of oil, natural gas and natural gas liquids are subject to
wide fluctuations in response to relatively minor changes in circumstances,
and there can be no assurance that future prolonged decreases in such prices
will not occur. All of these factors are beyond the control of the Company.
Any significant decline in oil and gas prices could have a material adverse
effect on the Company's liquidity, operations and financial condition.
The Company could be adversely affected by increased costs of service
providers utilized by the Company.
In accordance with customary industry practice, the Company relies on
independent third party service providers to provide most of the services
necessary to drill new wells, including drilling rigs and related equipment
and services, horizontal drilling equipment and services, trucking services,
tubulars, fracing and completion services and production equipment. The
industry has experienced significant price increases for these services
during the last year and this trend is expected to continue into the future.
These cost increases could, in the future, significantly increase the
Company's development costs and decrease the return possible from drilling
and development activities, and possibly render the development of certain
proved undeveloped reserves uneconomical.
The Company is subject to numerous drilling and operating risks.
Oil and gas drilling activities are subject to numerous risks, many of which
are beyond the Company's control. The Company's operations may be curtailed,
delayed or canceled as a result of title problems, weather conditions,
compliance with governmental requirements, mechanical difficulties and
shortages or delays in the delivery of equipment. In addition, the Company's
properties may be susceptible to hydrocarbon drainage from production by other
operators on adjacent properties. Industry operating risks include the
risk of fire, explosions, blow-outs, pipe failure, abnormally pressured
formations and environmental hazards such as oil spills, gas leaks, ruptures
or discharges of toxic gases, the occurrence of any of which could result in
substantial losses to the Company due to injury or loss of life, severe
damage to or destruction of property, natural resources and equipment,
pollution or other environmental damage, clean-up responsibilities,
regulatory investigation and penalties and suspension of operations.
The Company's insurance policies may not adequately protect the Company
against certain unforeseen risks.
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In accordance with customary industry practice, the Company maintains
insurance against some, but not all, of the risks described herein. There can
be no assurance that any insurance will be adequate to cover the Company's
losses or liabilities. The Company cannot predict the continued availability
of insurance, or its availability at premium levels that justify its purchase.
The Company's activities are subject to extensive governmental regulation.
Oil and gas operations are subject to various federal, state and local
governmental regulations that may be changed from time to time in response to
economic or political conditions. From time to time, regulatory agencies have
imposed price controls and limitations on production in order to conserve
supplies of oil and gas. In addition, the production, handling, storage,
transportation and disposal of oil and gas, by-products thereof and other
substances and materials produced or used in connection with oil and gas
operations are subject to regulation under federal, state and local laws and
regulations primarily relating to protection of human health and the
environment. To date, expenditures related to complying with these laws and
for remediation of existing environmental contamination have not been
significant in relation to the operations of the Company. There
can be no assurance that the trend of more expansive and stricter
environmental legislation and regulations will not continue.
The Company is subject to various environmental risks, and governmental
regulation relating to environmental matters.
The Company is subject to a variety of federal, state and local governmental
laws and regulations related to the storage, use, discharge and disposal of
toxic, volatile or otherwise hazardous materials. These regulations subject
the Company to increased operating costs and potential liability associated
with the use and disposal of hazardous materials. Although these laws and
regulations have not had a material adverse effect on the Company's financial
condition or results of operations, there can be no assurance that the
Company will not be required to make material expenditures in the future.
Moreover, the Company anticipates that such laws and regulations will become
increasingly stringent in the future, which could lead to material costs for
environmental compliance and remediation by the Company. Any failure by the
Company to obtain required permits for, control the use of, or adequately
restrict the discharge of hazardous substances under present or future
regulations could subject the Company to substantial liability or could cause
its operations to be suspended. Such liability or suspension of operations
could have a material adverse effect on the Company's business, financial
condition and results of operations.
The Company is subject to intense competition.
The Company operates in a highly competitive environment and competes with
major and independent oil and gas companies for the acquisition of desirable
oil and gas properties, as well as for the equipment and labor required to
develop and operate such properties. Many of these competitors have financial
and other resources substantially greater than those of the Company.
The Company currently depends on the Company's Chief Executive Officer.
The Company is dependent on the experience, abilities and continued services
of its current Chief Executive Officer and President, Albert E. Whitehead. Mr.
Whitehead has played a significant role in the development and management
of the Company. The loss or reduction of services of Mr. Whitehead could have
a material adverse effect on the Company.
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There has been a limited public trading market for the Company's Common Stock,
and there can be no assurance that an active trading market will be sustained.
There can be no assurance that the Common Stock will trade at or
above any particular price in the public market, if at all. The trading price
of the Common Stock could be subject to significant fluctuations in response
to variations in quarterly operating results or even mild expressions of
interest on a given day. Accordingly, the Common Stock should be expected to
experience substantial price changes in short periods of time. Even if the
Company is performing according to its plan and there is no legitimate
company-specific financial basis for this volatility, it must still be
expected that substantial percentage price swings will occur in the Company's
Common Stock for the foreseeable future.
All restricted shares of the Company are eligible for sale, which could
affect the prevailing market price of the Company's Common Stock.
Certain of the outstanding shares of the Company's Common Stock are
"restricted securities" under Rule 144 of the Securities Act, and (except for
shares purchased by "affiliates" of the Company as such term is defined in
Rule 144) would be eligible for sale as the applicable holding periods
expire. In the future, these shares may be sold only pursuant to a
registration statement under the Securities Act or an applicable exemption,
including pursuant to Rule 144. Under Rule 144, a person who has owned common
stock for at least one year may, under certain circumstances, sell within any
three-month period a number of shares of common stock that does not exceed the
greater of 1% of the then outstanding shares of common stock or the
average weekly trading volume during the four calendar weeks prior to such
sale. A person who is not deemed to have been an affiliate of the Company at
any time during the three months preceding a sale, and who has beneficially
owned the restricted securities for the last two years is entitled to sell
all such shares without regard to the volume limitations, current public
information requirements, manner of sale provisions and notice requirements.
Sale or the expectation of sales of a substantial number of shares of Common
Stock in the public market by selling stockholders could adversely affect the
prevailing market price of the Common Stock, possibly having a depressive
effect on any trading market for the Common Stock, and may impair the
Company's ability to raise capital at that time through additional sales of
its equity securities. The Company has registered all of the shares from the
most recent offerings.
The Company does not expect to declare or pay any dividends in the foreseeable
future.
The Company has not declared or paid any dividends on its Common Stock. The
Company currently intends to retain future earnings to fund the development
and growth of its business, to repay indebtedness and for general corporate
purposes, and therefore, does not anticipate paying any cash dividends on its
Common Stock in the foreseeable future.
The Company's Common Stock may be subject to secondary trading restrictions
related to penny stocks.
Certain transactions involving the purchase or sale of Common Stock of the
Company may be affected by a SEC rule for "penny stocks" that imposes
additional sales practice burdens and requirements upon broker-dealers that
purchase or sell such securities. For transactions covered by this penny
stock rule, broker-dealers must make certain disclosures to purchasers prior
to purchase or sale. Consequently, the penny stock rule may impede the
ability of broker-dealers to purchase or sell the Company's securities for
-13-
their customers and the ability of persons now owning or subsequently
acquiring the Company's securities to resell such securities.
RESULTS OF OPERATIONS
GENERAL TO ALL PERIODS
The Company's primary business is the exploration and development of oil and
gas interests. The Company has incurred significant losses from operations,
and there is no assurance that it will achieve profitability or obtain funds
necessary to finance its operations. Sales revenues for all periods presented
are attributable to the production of oil from the Company's Timber Draw #1-AH
and Hooligan Draw #1-AH wells located in the Eastern Powder River Basin in
the State of Wyoming, otherwise known as the Cheyenne River Prospect.
For all periods presented, the Company's effective tax rate is 0%. The Company
has generated net operating losses since inception, which would
normally reflect a tax benefit in the statement of operations and a deferred
asset on the balance sheet. However, because of the current uncertainty as to
the Company's ability to achieve profitability, a valuation reserve has been
established that offsets the amount of any tax benefit available for each
period presented in the statements of operations.
TWELVE MONTH PERIOD ENDED DECEMBER 31, 2008, COMPARED TO TWELVE MONTH PERIOD
ENDED DECEMBER 31, 2007
For the twelve months ended December 31, 2008, sales revenue increased
$10,798 to $21,154, compared to $10,356 for the same period during 2007.
The increase in sales revenue was the result of higher production from the
Timber Draw #1-AH and the Hooligan Draw #1-AH wells.
Production and operating expenses increased $98,520 to $188,041 for the
twelve months ended December 31, 2008, from $89,521 for the same period in
2007. This increase was primarily due to the costs related to the re-entry
of the North Boggy Dakota Creek Prospect and the geochemical imaging survey
on the Gabbs Valley Prospect.
Well abandonment expense was $0 for 2008 and $1,179,985 for 2007, respectively.
The 2007 amount was primarily attributable to the Cobble Cuesta well results.
General and administrative expenses increased by $33,802 to $274,178 for the
twelve months ended December 31, 2008, from $240,376 for the same period in
2007. The increase was primarily due to stock options issued in 2008 and
expenses related to administration costs of the Company's leases partially
offset by the decrease in legal costs in 2008.
There was no depreciation expense attributable to the twelve months ended
December 31, 2008 or December 31, 2007, because the depreciable assets were
fully depreciated.
For the twelve months ended December 31, 2008, interest expense was $0
which is $3,450 less than 2007. The decrease was due to the 2007 settlement
of the Weatherford note payable.
Miscellaneous income decreased $116,891 to $4,409 in 2008 due to the 2007
settlement of the Weatherford note payable and settlement of outstanding
claims with one of the Cheyenne River interest holders.
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For the reasons discussed above, net loss decreased $945,020 from
$(1,381,676) for the twelve months ended December 31, 2007, to $(436,656)
for the twelve months ended December 31, 2008.
LIQUIDITY AND CAPITAL RESOURCES
GENERAL
As of December 31, 2008, the Company had $124,122 of cash on hand. The
Company's cash on hand is sufficient to fund its operations during the
next 12 months. The Company expects to incur costs of approximately $10,000
per month relating to general administrative, office and other expenses.
In order to sustain the Company's operations on a long term basis, the Company
intends to continue to look for merger opportunities and consider public or
private financings. To the extent that it is necessary, the Company expects
that management will support the Company financially for several months to
allow the Company to consummate a merger opportunity, or public or private
financing.
PRIVATE EQUITY PLACEMENTS
In 2005, the Company raised $500,000 of net proceeds by selling 5,000,000
shares of newly issued common stock along with warrants to purchase 1,250,000
shares of common stock which, subject to certain restrictions, could have been
exercised for a period of one year at an exercise price of $0.25. These
warrants have been extended to December 15, 2009. Proceeds of the original
placement were allocated $67,875 to common stock warrants and $432,125 to
common stock and paid in capital. In 2006, the warrants were extended twice;
the extensions reduced the value of the warrants to $18,250. The value
assigned to the warrants was determined using the Black-Scholes option
valuation method with the following assumptions: no dividend yield, expected
volatility of 154%, risk free interest rate of 3.28% and expected life of one
year. Assumptions used for the extensions were: no dividend yield, expected
volatility of 153%, risk free interest rate of 4.86% and expected life of 6
months. Subsequent to December 31, 2008 the warrants were extended to
December 15, 2009.
In September 2006, the Company raised $1,450,000 in a private placement of
7,250,000 shares of its common stock along with warrants to purchase an
additional 1,812,500 shares of its common stock. Subject to certain
restrictions, the warrants may be exercised until December 15, 2009 at an
exercise price of $.50 per share. Proceeds of the private placement were
allocated $144,675 to common stock warrants and $1,305,325 to common stock and
paid in capital. These funds were used for general corporate purposes, to
purchase an additional 30% interest in the Gabbs Valley Oil Prospect in
Nevada, and to pay the Company's share of costs associated with drilling a
test well in the Gabbs Valley Oil Prospect.
In April 2007, the Company completed a private placement of 5,000,000 shares
of its common stock along with warrants to acquire up to 1,250,000 shares of
its common stock for an aggregate purchase price of $1,000,000. The warrants
have an exercise price of $.50 per share and, subject to certain restrictions,
may be exercised until December 15, 2009. Proceeds of the placement were
allocated $80,000 to common stock warrants, and $920,000 to common stock
and paid in capital. Approximately $337,000 of the funds were used to pay for
the Company's costs associated with the re-entry and testing of the Cobble
Cuesta 1-12 well in the Gabbs Valley Prospect in Nevada and the remaining
funds have been or will be used for general corporate purposes.
-15-
NOTE PAYABLE
In July 2007, the Company settled its note payable to Weatherford U.S., LP in
the amount of $106,121 plus accrued interest, for a payment of $10,000. The
Company recorded the difference between the settlement amount and its
previously recorded liability in the amount of $99,571 as a gain on
extinguishment of debt in the period ending September 30, 2007.
ADVANCES FROM RELATED PARTY
Prior to the completion of the private placements from June 2005 through
April 2007 as described above, the Company financed its operations primarily
through advances made to the Company by the Albert E. Whitehead Living Trust,
of which the Company's Chairman of the Board and Chief Executive Officer, Mr.
Whitehead, is the trustee. As of December 31, 2008, the Company owed Mr.
Whitehead $0 in connection with advances made to the Company.
In February 2008, the Company and its Board of Directors agreed to convert
its amount owed to the Albert E. Whitehead Living Trust to Common Stock at
$0.13 per share. The current market price at the time of conversion was
$0.10 per share.
Off-Balance Sheet Arrangements
None
Critical Accounting Policies and Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles in the United States requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosures of contingent assets and liabilities at the date
of the financial statements and the reported amounts of revenues and expenses
during the reporting period. Because estimates and assumptions require
significant judgment, future actual results could differ from those estimates
and could have a significant impact on the Company's results of operations,
financial position and cash flows. The Company re-evaluates its estimates and
assumptions at least on a quarterly basis. The following policies may involve
a higher degree of estimation and assumption:
Successful Efforts Accounting - Under the successful efforts method of
accounting, the Company capitalizes all costs related to property acquisitions
and successful exploratory wells, all development costs and the
costs of support equipment and facilities. Certain costs of exploratory wells
are capitalized pending determination that proved reserves have been found.
Such determination is dependent upon the results of planned additional wells
and the cost of required capital expenditures to produce the reserves found.
All costs related to unsuccessful exploratory wells are expensed when such
wells are determined to be non-productive and other exploration costs,
including geological and geophysical costs, are expensed as incurred. The
application of the successful efforts method of accounting requires
management's judgment to determine the proper designation of wells as either
developmental or exploratory, which will ultimately determine the proper
accounting treatment of the costs incurred. The results from a drilling
operation can take considerable time to analyze, and the determination that
commercial reserves have been discovered requires both judgment and
application of industry experience. Wells may be completed that are assumed
to be productive and actually deliver oil and gas in quantities insufficient
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to be economic, which may result in the abandonment of the wells at a later
date. The evaluation of oil and gas leasehold acquisition costs requires
management's judgment to estimate the fair value of exploratory costs related
to drilling activity in a given area.
Impairment of unproved oil and gas properties - Capitalized drilling costs
are reviewed periodically for impairment. Costs related to impaired prospects
or unsuccessful exploratory drilling are charged to expense. Management's
assessment of the results of exploration activities, commodity price outlooks,
planned future sales or expiration of all or a portion of such
leaseholds impact the amount and timing of impairment provisions. An
impairment expense could result if oil and gas prices decline in the future
as it may not be economic to develop some of these unproved properties.
Estimates of future dismantlement, restoration, and abandonment costs -
the Company accounts for future abandonment costs of wells and related
facilities in accordance with the provisions of Statement of Financial
Accounting Standards ("SFAS") SFAS No. 143 "Accounting for Asset Retirement
Obligations." Under this method of accounting, the accrual for future
dismantlement and abandonment costs is based on estimates of these costs for
each of the Company's properties based upon the type of production structure,
reservoir characteristics, depth of the reservoir, market demand for
equipment, currently available procedures and consultations with construction
and engineering consultants. Because these costs typically extend many years
into the future, estimating these future costs is difficult and requires
management to make estimates and judgments that are subject to future
revisions based upon numerous factors, including changing technology and the
political and regulatory environment and, estimates as to the proper discount
rate to use and timing of abandonment.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The financial statements of the Company are set forth on pages F-1 through
F-14 at the end of this Form 10-K.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE.
None except to the extent disclosed in the Company's Form 8-K filed January 13,
2009 and the amendment thereto filed on February 9, 2009.
ITEM 9A. CONTROLS AND PROCEDURES.
Evaluation of Disclosure Controls and Procedures
As of the end of the period covered by this report, the Company carried
out an evaluation under the supervision of the Company's Chief
Executive Officer (and principal financial officer) of the
effectiveness of the design and operation of the Company's disclosure
controls and procedures pursuant to Securities Exchange Act Rules 13a -
15(e) and 15d - 15(e). Based on this evaluation, the Company's Chief
Executive Officer (and principal financial officer) has concluded that
the disclosure controls and procedures as of the end of the period
covered by this report are effective.
Management's Annual Report On Internal Control Over Financial Reporting
The Company's Chief Executive Officer (and principal financial officer) is
-17-
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, as amended. The Company's internal controls
were designed to provide reasonable assurance as to the reliability of the
Company's financial reporting and the preparation of the financial statements
for external purposes in accordance with generally accepted accounting
principles in the United States.
Due to inherent limitations, internal control over financial reporting may not
prevent or detect misstatements. Also, projections of any evaluation of
control effectiveness to future periods are subject to the risk that the
controls may become inadequate because of changes in conditions or that the
degree of compliance with the policies or procedures may deteriorate.
The Company's Chief Executive Officer (and principal financial officer) made
an assessment of the effectiveness of the Company's internal control over
financial reporting as of December 31, 2008. In making this assessment, the
Company's Chief Executive Officer (and principal financial officer) used the
criteria established in Internal Control- Integrated Framework issued by the
Committee of Sponsoring Organizations of the Treadway Commission (COSO).
Based on this assessment, the Company's Chief Executive Officer (and principal
financial officer) believes that as of December 31, 2008, the Company's
internal control over financial reporting is effective based on those
criteria.
This annual report does not include an attestation report of the Company's
registered public accounting firm regarding internal control over financial
reporting. Management's report was not subject to attestation by the
Company's registered public accounting firm pursuant to temporary rules of
the SEC, which only require management's report in this annual report.
Changes on Internal Controls over Financial Reporting
During the period covered by this report, there was no change in the
Company's internal controls over financial reporting that has materially
affected or that is reasonably likely to materially affect the Company's
internal control over financial reporting.
ITEM 9B. OTHER INFORMATION.
None.
PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE.
The following lists the directors and executive officers of the Company:
Name Age Position
Albert E. Whitehead 78 Director; Chairman & C.E.O.
John C. Kinard 75 Director
Montague H. Hackett, Jr. 76 Director
____________________________
Directors hold office until their successors are elected by the
shareholders of the Company and qualified. Executive Officers serve at
the pleasure of the Board of Directors.
Albert E. Whitehead.
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Mr. Whitehead has been a member of the Company's Board of Directors since
1991 and served as Chairman of the Board and Chief Executive Officer
from March 1998 to May 2001, when John P. McGrain assumed such role. Mr.
Whitehead again assumed the role of Chairman and Chief Executive Officer on
April 16, 2002 upon the resignation of Mr. McGrain. Until February 5, 2008
Mr. Whitehead also served as the Non-Executive Chairman of Coastal Energy
Company (formerly PetroWorld Corp.), a company that is traded on the London
Stock Exchange's Alternative Investment Market and the TSE Venture Exchange
in Canada. Mr. Whitehead served as the Chairman and Chief Executive Officer
of Seven Seas Petroleum Inc., a publicly held company, engaged in international
oil and gas exploration from February 1995 to May 1997. From April 1987
through January 1995, Mr. Whitehead served as Chairman and Chief Executive
Officer of Garnet Resources Corporation, a publicly held oil and gas
exploration and development company.
John C. Kinard.
Mr. Kinard has served as a Director of the Company since June 1998 and is
currently a Partner in Silver Run Investments, LLC, an oil and gas investment
firm. Mr. Kinard serves as a Managing Partner of the Remuda Resources LLC, a
private oil and gas exploration company. From 1990 through December 1995, Mr.
Kinard served as President of Glen Petroleum, Inc., a private oil and gas
exploration company. From 1990 through 2002, Mr. Kinard also served as the
Chairman of Envirosolutions UK Ltd., a private industrial wastewater treatment
company.
Montague H. Hackett Jr.
Montague H. Hackett, Jr., a graduate of Princeton University and Harvard Law
School, joined the Empire Board as a director in June 2006. Over the years
Mr. Hackett has been associated with various natural resource companies both
as a director and as an officer. For the past five years he has been
Co-Chairman and a director of Victory Ventures LLC, a New York venture
capital company and International Energy Services, Inc., a Houston based
oilfield service company with operations in Russia and Kazakstan.
IDENTIFICATION OF THE AUDIT COMMITTEE; AUDIT COMMITTEE FINANCIAL EXPERT:
As of December 31, 2008, the Company had not established any committees
(including an audit committee) because of the small size of its Board of
Directors. As such, the Company does not have an audit committee or an audit
committee financial expert serving on such committee. As of December 31,
2008, the entire Board of Directors (Messrs. Whitehead, Kinard and Hackett)
essentially serve as the Company's audit committee.
CODE OF ETHICS:
The Company has adopted a Code of Ethics that applies to all of the
Company's directors and employees, including the Company's principal
executive officer, principal financial officer and principal accounting
officer or persons performing similar functions. The Company
undertakes to provide any person without charge, upon request, a copy
of the Code of Ethics. Requests may be directed to Empire Petroleum
Corporation, 8801 S. Yale, Suite 120, Tulsa, Oklahoma 74137, or by
calling (918) 488-8068.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE:
Section 16(a) of the Security Exchange Act of 1934 requires the Company's
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directors, executive officers, and persons who beneficially own more than 10
percent of a registered class of the Company's equity securities, to file with
the Securities and Exchange Commission (the "SEC") initial reports of
ownership and reports of changes in ownership of Common Stock and other
equity securities of the Company. Officers, directors and greater than ten
percent stockholders are required by SEC regulation to furnish the Company
with copies of all Section 16(a) forms they file.
Based solely on review of the copies of such reports furnished to the Company
and any written representations that in other reports were required during
the year ended December 31, 2008, to the Company's knowledge, all Section 16(a)
filing requirements applicable to its officers, directors and greater
than 10% beneficial owners during the year ended December 31, 2008 were
complied with on a timely basis except as follows:
Number of Transactions
Number of Not Reported on a Number of Reports
Name Late Reports Timely Basis Not Filed
Albert E. Whitehead 1 1 0
John C. Kinard 2 2 0
Montague H. Hackett, Jr. 2 2 0
ITEM 11. EXECUTIVE COMPENSATION.
EXECUTIVE COMPENSATION
During the last two completed fiscal years, no executive officer received a
salary or any other benefits as a part of executive compensation. The
Company's only named executive officer, Albert E. Whitehead, does not hold
any stock options and has not received any other award under an equity
incentive plan.
DIRECTORS COMPENSATION
No director received compensation from the registrant during its last
completed fiscal year.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
AND RELATED STOCKHOLDER MATTERS.
Securities Authorized for Issuance under Equity Compensation Plans
As of December 31, 2008, the Company had two equity incentive plans under
which equity securities were authorized for issuance to the Company's
directors, officers, employees and other persons who performed substantial
services for or on behalf of the Company. The "1995 Stock Option Plan",
which expired in May 2005, remains only to the extent necessary to govern
outstanding options issued under the Plan. At the Company's 2006 Annual
Meeting of Stockholders, the stockholders approved the "2006 Stock Incentive
Plan", which authorizes granting up to 5,000,000 options for up to
5,000,000 shares of the Company's common stock.
The following table provides certain information relating to the 1995 Stock
Option Plan and the 2006 Stock Incentive Plan as of December 31, 2008:
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(a) (b) (c)
Number of securities
remaining available
for future
Number of securities issuance under
to be issued upon Weighted-average equity compensation
exercise of exercise price of plans (excluding
outstanding options, outstanding options, securities reflected
Plan Category warrants and rights warrants and rights in column(a))
Equity 1,140,000 $0.18 4,225,000
compensation plans
approved by
security holders
Equity N/A
compensation plans
not approved by
security holders
_________ _________
TOTAL 1,140,000 4,225,000
_________ _________
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information regarding the beneficial ownership
of our Common Stock as of March 1, 2009 for:
* each person who is known to own beneficially more than 5% of our
outstanding Common Stock;
* each of our executive officers and directors; and
* all executive officers and directors as a group.
The percentage of beneficial ownership for the following table is based on
57,193,128 shares of Common Stock outstanding as of March 1, 2009.
Unless otherwise indicated below, to the Company's knowledge, all persons and
entities listed below have sole voting and investment power over their shares
of Common Stock.
Amount and
nature of
beneficial Percent of
Name and address of beneficial owner ownership class (1)
Albert E. Whitehead, 16,925,962 (2) 29.52%
Chairman of the Board and
Chief Executive Officer
3214 E. 73rd Street
Tulsa, OK 74136-5927
John C. Kinard, 931,331 (3) 1.61%
Director
52 S. Roslyn Street
Denver, CO 80230
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Montague H. Hackett, Jr. 4,611,210 (4) 7.91%
Director
550 Park Avenue
New York, NY 10021
All current directors and executive officers
as a group (3 persons) 22,468,503 (5) 38.05%
(1) The percentage ownership for each person is calculated in
accordance with the rules of the SEC, which provide that any shares a
person is deemed to beneficially own by virtue of having a right to acquire
shares upon the conversion of options or other rights are considered
outstanding solely for purposes of calculating such person's percentage
ownership.
(2) This number includes: (i) 13,955,679 shares directly owned by the Albert
E. Whitehead Living Trust, of which Mr. Whitehead is the trustee; (ii)
125,000 shares Mr. Whitehead has the right to acquire pursuant to a warrant;
(iii) 30,000 shares owned by Mr. Whitehead's grandchildren for which he
acts as custodian; (iv) 2,815,283 shares directly owned by the Lacy E.
Whitehead Living Trust, of which Ms. Whitehead, Mr. Whitehead's wife, is
trustee. Mr. Whitehead disclaims any interest in the shares owned by the Lacy
E. Whitehead Living Trust and the shares owned by his grandchildren.
(3) This number includes: (i) 161,331 shares directly owned by Mr. Kinard;
(ii) 220,000 shares Mr. Kinard has the right to acquire pursuant to options
granted to him under the 1995 Stock Option Plan; and (iii) 400,000 shares
Mr. Kinard has the right to acquire pursuant to options granted to him under
the Company's 2006 Stock Option Plan and (iv) 150,000 shares directly owned
by Mr. Kinard's wife, of which Mr. Kinard disclaims any interest.
(4) This number includes (i) 2,598,710 shares directly owned by Mr. Hackett
(ii) 550,000 shares Mr. Hackett has the right to acquire under the Company's
2006 Stock Option Plan; and (iii) 312,500 shares Mr. Hackett has the right
to acquire pursuant to a warrant; (iv) 500,000 shares directly owned by the
Trust F/B/O Melinda Hackett and 125,000 shares the same trust has the right
to acquire pursuant to a warrant, of which Mr. Hackett disclaims any interest;
(v) 400,000 shares directly owned by the Trust F/B/O Montague H. Hackett, III
and 125,000 shares the same trust has the right to acquire pursuant to a
warrant, of which Mr. Hackett disclaims any interest.
(5) This number includes 1,170,000 shares issuable upon the exercise of
options granted under the 1995 and 2006 Stock Option Plans and 687,500 shares
that can be acquired upon the exercise of warrants.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
From time to time in the past, Mr. Whitehead, the Company's C.E.O., has
advanced the Company monies to finance its operating activities. There
were no such amounts advanced during the fiscal year ended December 31, 2008.
All of the amounts previously advanced by Mr. Whitehead were converted to
common stock at the current market price at date of conversion of $0.13 per
share during the fiscal year ended December 31, 2008. No interest is being
accrued on the advanced amount. As of December 31, 2008, the Company owed Mr.
Whitehead $0 in connection with advances made to the Company.
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DIRECTOR INDEPENDENCE
The Company has determined that both Mr. Kinard and Mr. Hackett are
"independent" within the meaning of Rule 4200(a)(15) of the NASDAQ
listing standards. Because of the small size of the Company's Board of
Directors, the Company has not established any committees. Rather, the
entire Board acts as, and performs the same functions as, the audit
committee, compensation committee and nominating committee. Mr.
Whitehead is not considered "independent" within the meaning of Rule
4200(a)(15) of the NASDAQ listing standards.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES.
The following is a summary of the fees billed or to be billed to the Company
by Tullius Taylor Sartain & Sartain LLP, or its successor, HoganTaylor LLP
the Company's independent registered public accounting firm, for professional
services rendered for the fiscal years ended December 31, 2008 and December
31, 2007:
Fee Category Fiscal 2008 Fees Fiscal 2007 Fees
Audit Fees (1) $ 35,000 $ 32,650
Audit-Related Fees (2) -0- -0-
Tax Fees -0- -0-
All Other Fees (3) -0- -0-
Total Fees $ 35,000 $ 32,650
(1) Audit Fees consist of aggregate fees billed for professional services
rendered for the audit of the Company's annual financial statements and
review of the interim financial statements included in quarterly reports or
services that are normally provided by the independent registered
public accounting firm in connection with statutory and regulatory filings or
engagements for the fiscal years ended December 31, 2008 and December 31,
2007, respectively.
(2) Audit-Related fees consist of aggregate fees billed for assurance and
related services that are reasonably related to the performance of the audit
or review of our financial statements and are not reported under "Audit Fees."
(3) All Other Fees consist of aggregate fees billed for products and
services provided by Tullius Taylor Sartain & Sartain LLP, or its successor
HoganTaylor LLP, other than those disclosed above.
The entire Board of Directors of the Company is responsible for the
appointment, compensation and oversight of the work of the independent
registered public accounting firm and approves in advance any
services to be performed by the independent registered public
accounting firm, whether audit-related or not. The entire Board of Directors
reviews each proposed engagement to determine whether the provision of
services is compatible with maintaining the independence of the independent
registered public accounting firm. All of the fees shown above were
pre-approved by the entire Board of Directors.
PART IV.
ITEM 15. EXHIBITS
Exhibit Description
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No.
3.1 Articles of Incorporation of the Company, as amended
(incorporated herein by reference to Exhibit 3.1 of the Company's Form
10-QSB for the period ended September 30, 1995, which was filed
November 6, 1995).
3.2 Bylaws of the Company
(incorporated herein by reference to Exhibit 3.2 of the Company's Form
10-QSB for the period ended March 31, 1998, which was filed May 15
1998).
10.1 1995 Stock Option Plan
(incorporated herein by reference to Appendix A of the Company's
Form DEFS 14A dated June 13, 1995, which was filed June 14, 1995).
10.2 Form of Stock Option Agreement
(incorporated herein by reference to Exhibit 10(g) of the Company's
Form 10-KSB for the year ended December 31, 1995, which was filed
March 29, 1996).
10.3 Americomm Cheyenne River Development Prospect Agreement dated March
4, 1998 by and among the Company, Fred S. Jensen, Richard A. Bate,
A. R. Briggs and Thomas L. Thompson (incorporated herein by reference
to Exhibit 10(j) of the Company's Form 10-QSB for the period ended
June 30, 1998, which was filed August 12, 1998).
10.4 Farmout Agreement dated November 15, 2000 by and among the Company and
the other parties named therein (incorporated herein by reference to
Exhibit 10(e) of the Company's Form 10-KSB for the year ended
December 31, 2000, which was filed March 29, 2001).
10.5 Letter Agreement dated May 8, 2003 between the Company and O. F.
Duffield (incorporated herein by reference to Exhibit 10.6 of the
Company's Form 10-KSB for the year ended December 31, 2003, which was
filed March 30, 2004).
10.6 Farmout Agreement dated May 7, 2004 by and among the Company and
certain other parties named therein (incorporated herein by reference
to Exhibit 10 of the Company's Form 10-QSB for the period ended
June 30, 2004, which was filed on August 2, 2004).
10.7 Assignment and Novation dated September 1, 2004 relating to the
Farmout Agreement dated May 7, 2004 (incorporated herein by
reference in the Company's Form 10-KSB for the year ended
December 31, 2004, which was filed March 31, 2005).
10.8 2006 Stock Incentive Plan (incorporated herein by reference to Exhibit
A to the Company's 2006 Proxy Statement on Schedule 14A dated May 10,
2006).
10.9 Form of Non-qualified Stock Option Agreement (incorporated herein by
reference to Exhibit 10.2 to the Company's Form 8-K dated June 5, 2006,
which was filed on June 9, 2006).
10.10 Form of Non-qualified Stock Option Agreement for Non-employee Directors
(incorporated herein by reference to Exhibit 10.3 to the Company's Form
8-K dated June 5, 2006, which was filed on June 9, 2006).
-24-
10.11 Form of Restricted Stock Award Agreement (incorporated herein by
reference to Exhibit 10.4 to the Company's Form 8-K dated June 5, 2006,
which was filed on June 9, 2006).
10.12 Form of Securities Purchase Agreement entered into between Empire
Petroleum Corporation and certain accredited investors in connection
with 2006 private placement (incorporated herein by reference to Exhibit
10.1 to the Company's Form 10-QSB for the period ended June 30, 2006,
which was filed on August 23, 2006).
10.13 Form of Securities Purchase Agreement entered into between Empire
Petroleum Corporation and certain accredited investors in connection
with 2007 private placement (incorporated herein by reference to Exhibit
10.1 to the Company's Form 8-K dated April 4, 2007, which was filed or
April 10, 2007).
31 Certification of Chief Executive Officer (and principal financial
officer) pursuant to Rules 13a - 14 (a) and 15(d) - 14(a) promulgated
under the Securities Exchange Act of 1934, as amended, and Item 601(1)
(31) of Regulation S-K, as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002 (submitted herewith).
32 Certification of Chief Executive Officer (and principal financial
officer) pursuant to 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002 (submitted herewith).
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
Empire Petroleum Corporation
(Registrant)
Date: March 30, 2009 By: /s/Albert E. Whitehead
Albert E. Whitehead
Chief Executive Officer
(principal executive officer,
principal financial officer
and principal accounting
officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, 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/Albert E. Whitehead Chairman, Chief Executive Officer March 30, 2009
Albert E. Whitehead
/s/John C. Kinard Director March 30, 2009
John C. Kinard
/s/Montague H. Hackett, Jr. Director March 30, 2009
Montague H. Hackett, Jr.
-25-
EMPIRE PETROLEUM CORPORATION
FINANCIAL STATEMENTS
CONTENTS
Page No.
Balance Sheets as of December 31, 2008
and 2007 F-2
Statements of Operations for the years ended
December 31, 2008 and 2007 F-3
Statements of Changes in Stockholders' Equity
for the years ended December 31, 2008 and
2007 F-4
Statements of Cash Flows for the years ended
December 31, 2008 and 2007 F-5
Notes to Financial Statements F-6 through F-14
REPORT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of Empire Petroleum Corporation
We have audited the accompanying balance sheets of Empire Petroleum Corporation
as of December 31, 2008 and 2007, and the related statements of operations,
changes in stockholders' equity and cash flows for the years then ended.
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. Tullius Taylor Sartain & Sartain LLP audited
the financial statements of Empire Petroleum Corporation as of and for the
year ended December 31, 2007 and merged with Hogan & Slovack P.C. to form
HoganTaylor LLP effective January 7, 2009.
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 financial statements referred to above present fairly, in
all material respects, the financial position of Empire Petroleum Corporation
as of December 31, 2008 and 2007, and the results of its operations and its
cash flows for the years then ended in conformity with U.S. generally accepted
accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 1 to the
financial statements, the Company has been incurring significant losses since
inception. The ultimate recoverability of the Company's investment in its oil
and gas interests is dependent upon the existence and discovery and
development of economically recoverable oil and gas reserves and the ability
of the Company to obtain necessary financing to carry out its exploration and
development program. This condition raises substantial doubt about the
Company's ability to continue as a going concern. Management's plan concerning
this matter is also described in Note 1. The financial statements do not
include any adjustments that might result from the outcome of this
uncertainty.
We were not engaged to examine management's assertion about the effectiveness
of Empire Petroleum Corporation's internal control over financial reporting
as of December 31, 2008, included in the accompanying Management's Annual
Report on Internal Controls and, accordingly, we do not express an opinion
thereon.
/s/ HOGANTAYLOR LLP
Tulsa, Oklahoma
March 30, 2009
F-1
EMPIRE PETROLEUM CORPORATION
BALANCE SHEETS
December 31, 2008 and 2007
ASSETS 2008 2007
___________ ____________
Current assets:
Cash $ 124,122 $ 384,630
Accounts receivable (net of allowance
of $3,750) 12,158 91,769
Prepaid expenses 9,075 11,058
___________ ___________
Total current assets 145,355 487,457
___________ ___________
Property & equipment, net of accumulated
depreciation and depletion 969,842 973,317
___________ ___________
$ 1,115,197 $ 1,460,774
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued liabilities $ 19,392 25,290
Accounts payable to related party 0 274,682
___________ ___________
Total current liabilities 19,392 299,972
Long term liabilities:
Asset retirement obligation 52,200 52,200
___________ ___________
Total liabilities 71,592 352,172
___________ ___________
Stockholders' equity
Common stock-$.001 par value, authorized 57,193 55,080
100,000,000 shares, issued 57,193,128 and
55,080,190 shares, respectively
Additional paid in capital 11,901,722 11,532,176
Accumulated deficit (10,915,310) (10,478,654)
___________ ___________
Total stockholders' equity 1,043,605 1,108,602
___________ ___________
$ 1,115,197 $ 1,460,774
=========== ===========
See accompanying notes to financial statements.
F-2
EMPIRE PETROLEUM CORPORATION
STATEMENTS OF OPERATIONS
Years Ended December 31, 2008 and 2007
2008 2007
_____________ ____________
Revenue:
Petroleum sales $ 21,154 $ 10,356
_____________ ____________
21,154 10,356
_____________ ____________
Costs and expenses:
Production & operating 188,041 89,521
General & administrative 274,178 240,376
Well abandonment expense 0 1,179,985
_____________ ____________
462,219 1,509,882
_____________ ____________
Operating income (loss) ( 441,065) (1,499,526)
_____________ ____________
Other (income) and expense:
Miscellaneous income ( 4,409) ( 21,729)
Interest income 0 0
Interest expense 0 3,450
Gain on extinguishment of
Debt 0 ( 99,571)
_____________ ____________
Total other (income)
expense ( 4,409) (117,850)
_____________ ____________
Net loss applicable to common stock $ ( 436,656) $ (1,381,676)
_____________ ____________
Net loss
per common share basic & diluted $ .01 $ .03
_____________ ____________
Weighted average number of
common shares
outstanding, basic & diluted 56,909,473 53,706,564
_____________ ____________
See accompanying notes to financial statements.
F-3
EMPIRE PETROLEUM CORPORATION
STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
Years ended December 31, 2008 and 2007
Additional
Par Paid in Accumulated
Shares Value Capital Deficit Total
___________ _______ ___________ ____________ ___________
Balances January 1, 2007
50,080,190 $50,080 $10,487,176 $(9,096,978) $1,440,278
Net loss - - - (1,381,676) (1,381,676)
Value of services
Contributed by
Employee - - 50,000 - 50,000
Issuance of Common Stock
5,000,000 5,000 915,000 - 920,000
Stock Purchase Warrant
80,000 80,000
__________ _______ __________ ___________ ___________
Balances December 31, 2007
55,080,190 55,080 11,532,176 (10,478,654) 1,108,602
Net loss - - - ( 436,656) ( 436,656)
Value of services
contributed by
Employee - - 50,000 - 50,000
Issuance of Stock Options - 46,977 - 46,977
Issuance of Common Stock
2,112,938 2,113 272,569 - 274,682
__________ _______ _________ __________ ___________
Balances December 31, 2008
57,193,128 $57,193 $11,901,722 $(10,915,310) $ 1,043,605
See accompanying notes to financial statements.
F-4
EMPIRE PETROLEUM CORPORATION
STATEMENTS OF CASH FLOWS
Years ended December 31, 2008 and 2007
2008 2007
___________ ___________
Cash flows from operating activities:
Net loss $ (436,656) $(1,381,676)
Adjustments to reconcile net loss to
net cash used in operating activities:
Value of services contributed by
Employee 50,000 50,000
Well abandonment expenses 0 1,179,985
Stock Option Plan expense 46,977 0
Gain on extinguishment of debt 0 ( 99,571)
Change in operating assets and
liabilities:
Accounts receivable 79,611 (1,624)
Prepaid expenses 1,983 (11,058)
Accounts payable and accrued
liabilities (5,898) (82,782)
___________ ___________
Net cash used in operating activities (263,983) (346,726)
___________ ___________
Cash flows from investing activities:
Sale of leasehold interest 16,500 44,285
Well equipment & drilling costs 0 (318,410)
Purchase of lease interest (13,025) ( 45,305)
____________ ___________
Net cash provided by (used in) investing
activities 3,475 (319,430)
____________ ___________
Cash flows from financing activities:
Proceeds from private equity placement 0 1,000,000
Settlement of note 0 ( 10,000)
____________ ___________
Net cash provided by financing
activities 0 990,000
____________ ___________
Net increase (decrease) in cash (260,508) 323,844
Cash - Beginning of year 384,630 60,786
____________ ___________
Cash - End of year $ 124,122 $ 384,630
____________ ___________
Supplemental disclosure of cash flow information:
Accounts payable to related party converted to
common stock $ 274,682 $ 0
____________ __________
See accompanying notes to financial statements.
F-5
EMPIRE PETROLEUM CORPORATION
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2008 and 2007
General:
On July 20, 2001, Americomm Resources Corporation merged with its wholly-
owned subsidiary, Empire Petroleum Corporation, and simultaneously changed
the name of the corporation to Empire Petroleum Corporation (the "Company").
Both the merger and name change were effective as of August 15, 2001.
Americomm Resources Corporation was originally incorporated in the State of
Utah on the 22nd day of August 1983, as Chambers Energy Corporation. On the
7th day of March 1985, the state of incorporation was changed to Delaware by
means of a merger with Americomm Corporation, a Delaware corporation formed
for the purpose of effecting the said change. In July 1995, the Company
changed its name to Americomm Resources Corporation. On August 15, 2001,
Americomm Resources and the Company merged, and the Company's name was
changed to Empire Petroleum Corporation. The Company is involved in oil and
gas exploration.
1. Continuing operations:
The ultimate recoverability of the Company's investment in its oil and gas
interests is dependent upon the existence and discovery of economically
recoverable oil and gas reserves, the ability of the Company to obtain
necessary financing to further develop the interests, and upon the ability to
attain future profitable production. The Company has been incurring
significant losses in recent years.
Virtually all of the Company's assets are invested in the Gabbs Valley and
Cheyenne River Prospects, both of which are unproven, that is, they have not
been evaluated as being capable of producing economical quantities of
reserves. The Company acquired additional leasehold interests in and drilled
a test well on its Gabbs Valley Prospect in 2006. Completion of the test well
was suspended pending evaluation of the geologic information and the securing
of additional capital to continue the evaluation and possibly to complete the
well. These efforts are continuing. In 2007, the Company entered into a
farmout agreement with a third party who has agreed to drill at least three
test wells on the Cheyenne River Prospect.
The continuation of the Company is dependent upon the ability of the Company
to attain future profitable operations. These financial statements have been
prepared on the basis of United States generally accepted accounting
principles applicable to a company with continuing operations, which assume
that the Company will continue in operation for the foreseeable future and
will be able to realize its assets and discharge its obligations in the
normal course of operations. Management believes the going concern assumption
to be appropriate for these financial statements. If the going concern
assumption were not appropriate for these financial statements, then
adjustments might be necessary to the carrying value of assets and
liabilities, reported expenses and the balance sheet classifications used.
2. Significant accounting policies:
The preparation of financial statements in conformity with United States
generally accepted accounting principles requires management to make
estimates and assumptions that affect the amounts reported in the financial
F-6
statements and accompanying notes. Actual results could differ from those
estimates.
(a) Capital assets:
The Company uses the successful efforts method of accounting for its oil and
gas activities. Costs incurred are deferred until exploration and completion
results are evaluated. At such time, costs of activities with economically
recoverable reserves are capitalized as proven properties, and costs of
unsuccessful or uneconomical activities are expensed.
Capitalized drilling costs are reviewed periodically for impairment. Costs
related to impaired prospects or unsuccessful exploratory drilling are charged
to expense. Management's assessment of the results of exploration
activities, commodity price outlooks, planned future sales or expiration of
all or a portion of such leaseholds impact the amount and timing of
impairment provisions. An impairment expense could result if oil and gas
prices decline in the future as it may not be economic to develop some of
these unproved properties.
(b) Per share amounts:
Statement of Financial Accounting Standards ("SFAS") No. 128, "Earnings Per
Share" requires presentation of basic earnings per share ("Basic EPS") and
diluted earnings per share ("Diluted EPS"). The computation of basic earnings
per share is computed by dividing earnings available to common stockholders
by the weighted average number of outstanding common shares during the period.
Diluted EPS gives effect to all dilutive potential common shares outstanding
during the period. The computation of diluted EPS does not assume conversion,
exercise or contingent exercise of securities that would have an anti-dilutive
effect on losses. As a result, if there is a loss from continuing operations,
Diluted EPS is computed in the same manner as Basic EPS is computed. At
December 31, 2008 the Company had 1,140,000 and 4,312,500 options and warrants
outstanding, respectively, that were not included in the calculation of
earnings per share. Such financial instruments may become dilutive and would
then need to be included in future calculations of Diluted EPS.
(c) Income taxes:
The Company accounts for income taxes in accordance with the asset and
liability method of accounting for income taxes set forth in SFAS No. 109,
"Accounting for Income Taxes." Under the asset and liability method of SFAS
109, deferred tax assets and liabilities are recognized for the future tax
consequences attributable to differences between the financial statement
carrying amounts of existing assets and liabilities and their respective tax
bases and operating loss and tax credit carry forwards. Deferred tax assets
and liabilities are measured using enacted tax rates expected to apply to the
taxable income in the years in which those temporary differences are expected
to be recovered or settled. A valuation allowance is established if
management determines it is more likely than not that some portion of a
deferred tax asset will not be realized.
(d) Financial instruments:
The carrying value of current assets and current liabilities approximate their
fair value due to the relatively short period to maturity of the
instruments.
F-7
(e) Stock option plan:
The Company accounts for stock based compensation under the provisions of SFAS
No. 123 (R) "Share Based Payment" and expenses options granted over the
vesting period based on the grant date fair value of the award.
(f) Obligations associated with the retirement of assets
The Company has adopted the provisions of SFAS No. 143, "Accounting for Asset
Retirement Obligations" ("SFAS No. 143"). SFAS No. 143 amended SFAS No. 19,
"Financial Accounting and Reporting by Oil and Gas Producing Companies", and,
among other matters, addresses financial accounting and reporting for legal
obligations associated with the retirement of tangible long-lived assets and
the associated asset retirement costs. SFAS No. 143 requires that the fair
value of a liability for an asset retirement obligation be recognized in the
period in which it is incurred, with the associated asset retirement cost
capitalized as part of the related asset and allocated to expense over the
asset's useful life. The Company applies its analysis to producing wells.
The Company has accrued $52,200 at December 31, 2008 and 2007 as an asset
retirement obligation for wells in Wyoming and Nevada, which was recorded as
an expense since the well costs have been fully impaired.
(g) Recent Accounting Pronouncements
The Financial Accounting Standards Board ("FASB") periodically issues new
accounting standards in a continuing effort to improve standards of financial
accounting and reporting. The Company has reviewed the recently issued
pronouncements and concluded that the following new accounting standards are
applicable:
In May 2008, the FASB issued SFAS No. 162, "The Hierarchy of Generally
Accepted Accounting Principles". The purpose of this standard is to provide
a consistent framework for determining what accounting principles should be
used when preparing United States generally accepted accounting principles
financial statements. SFAS No. 162 categorizes accounting pronouncements in
a descending order of authority. In the instance of potentially conflicting
accounting principles, the standard in the highest category must be used.
SFAS No. 162 was effective 60 days after the SEC approved the Public Company
Accounting Oversight Board's related amendments on September 16, 2008.
The adoption of this standard did not have a material effect on our financial
statements.
In March 2008, the FASB issued SFAS No. 161, "Disclosures about Derivative
Instruments and Hedging Activities", an amendment of FASB Statement No.
133,which requires additional disclosures about the objectives of the
derivative instruments and hedging activities, the method of accounting for
such instruments under SFAS No. 133 and its related interpretations, and a
tabular disclosure of the effects of such instruments and related hedged items
on our financial position, financial performance, and cash flows. SFAS No. 161
became effective for us beginning January 1, 2009 and does not have a material
effect on our financial statements.
In September 2006, the FASB issued SFAS No. 157, "Fair Value Measurements",
which defines fair value, establishes a framework for measuring fair value
in generally accepted accounting principles, and expands disclosures about
fair value measurements. SFAS No. 157 does not require any new fair value
measurements, but provides guidance on how to measure fair value by providing
a fair value hierarchy used to classify the source of the information. This
statement became effective for the Company beginning October 1, 2008. The
F-8
adoption of this standard did not have a material effect on our financial
statements.
3. Property and equipment:
In 2002, the Company's management determined that an impairment allowance of
$6,496,614 was necessary to properly value the Company's oil and gas
properties bringing the net book value of the oil and gas properties to
$594,915. The basis for the impairment was the BLM's determination that it
does not consider the Timber Draw #1-AH well to be economic. In other words,
under the BLM's criteria for economic determination, the well will not pay
out the cost incurred to drill and complete the well. However, by authority
of the BLM, for the period from April to November 2003, the well was tested
for production using production periods of ten days per month. The BLM also
advised the Company that since it did not commence another test well
prior to August 12, 2002, the Timber Draw Unit had been terminated.
Furthermore, a bottom hole pressure survey conducted in April 2002 indicated
a limited reservoir for the well. The basis of the impairment described above
was calculated using an estimated $10 per acre market price for the leases
multiplied by the Company's working interest. During 2003, the Company
recorded impairment charges of $266,778 based on working interest percentages
granted to a third party for performance of certain activities and
management's assessment of certain undeveloped lease values. During 2004,
pursuant to the Farmout Agreement, a third party conducted a seismic survey
and drilled a test well in the Cheyenne River Prospect. As a result of the
reduction in the Company's working interest, a further impairment charge of
$188,507 was recorded in 2005. The net book value of the Company's interest
in the Cheyenne River Prospect at December 31, 2008 is $77,817.
In 2003, the Company acquired a 10% interest in the Gabbs Valley Prospect of
Western Nevada by issuing 2,000,000 shares of Company stock. The Company has
recorded its investment at $200,000. In 2005, the Company conducted a seismic
survey of the Gabbs Valley Prospect based on the results of the seismic
survey, during 2006, the Company entered into an agreement to increase its
working interest in the prospect to 40% by paying $675,000 plus 55% of the
drilling costs through completion. The Company contracted a drilling rig,
which commenced drilling the Empire Cobble Cuesta 1-12-12N-34E, Nye County,
Nevada in September 2006. After reaching a depth of 5,195 feet the Company
ceased drilling operations, ran electronic logs, installed a wellhead, and
conditioned the hole so that it might be re-entered or deepened at a later
date. In April 2007, the Company re-entered the well and based on the
results of drill stem tests, determined that the formation was very sensitive
to the mud and water used in drilling the test well, causing clogs in the
formation to swell which prevented any oil which might be present to flow
into the well bore. The total gross acres of this prospect was increased to
75,721 acres by the acquisition of 30,917 acres from the U. S. Department of
Interior in June, 2006 at a cost of $36,689. The Company increased its
interest to 57% in the prospect leases in 2007 when one of the joint
participants elected to surrender its 30% interest. The Company and the
remaining joint owners assumed liabilities of approximately $68,000 to
acquire the interest. As of December 31, 2008, the Gabbs Valley Prospect
consisted of approximately 85,145 acres of federal leases located in Nye and
Mineral Counties, Nevada, of which the Company owns a 57% working interest.
The acreage total reflects the purchase of an additional 9,943.91 acres
acquired at a September 2008 BLM lease sale for $13,025.
The Company's other property and equipment, totaling $2,561 at December 31,
2008, consists entirely of office furniture, fixtures and equipment, which
are fully depreciated.
F-9
4. Notes Payable:
In July 2007, the Company settled its note payable to Weatherford U.S., LP
in the amount of $106,121 plus accrued interest, for a payment of $10,000.
The Company recorded the difference between the settlement amount and its
previously recorded liability in the amount of $99,571 as a gain on
extinguishment of debt in the year ending December 31, 2007.
5. Capital Stock:
In 2005, the Company raised $500,000 of net proceeds by selling 5,000,000
shares of newly issued common stock along with warrants to purchase 1,250,000
shares of common stock which, subject to certain restrictions, could have been
exercised for a period of one year at an exercise price of $0.25. Proceeds of
the original placement were allocated $67,875 to common stock warrants and
$432,125 to common stock and paid in capital. In 2006, the warrants were
extended twice; the extensions reduced the value of the warrants to $18,250.
The value assigned to the warrants was determined using the Black-Scholes
option valuation method with the following assumptions: no dividend yield,
expected volatility of 154%, risk free interest rate of 3.28% and expected
life of one year. Assumptions used for the extensions were: no dividend
yield, expected volatility of 153%, risk free interest rate of 4.86% and
expected life of 6 months. Subsequent to December 31, 2008 the warrants were
extended to December 15, 2009.
In 2006, the Company raised $1,450,000 of net proceeds by selling 7,250,000
shares of newly issued stock along with warrants to purchase 1,812,500 shares
of common stock, which, subject to certain restrictions, could have been
exercised on or before March 15, 2009 (subsequently extended to December 15,
2009-See Note 11) at an exercise price of $0.50. Proceeds of the placement
were allocated $144,675 to common stock warrants and $1,305,325 to common stock
and paid in capital. The value assigned to the warrants was determined using
the Black-Scholes option valuation method with the following assumptions: no
dividend yield, expected volatility of 148% risk-free interest rate of 5.09%
and an expected life of one year.
In 2007, the Company raised $1,000,000 of net proceeds by selling 5,000,000
shares of newly issued stock, along with warrants to purchase 1,250,000 shares
of common stock, which subject to certain restrictions, could have been
exercised until March 15, 2009 (subsequently extended to December 15, 2009-See
Note 11) at an exercise price of $0.50 per share. Proceeds of the placement
were allocated $80,000 to common stock warrants and $920,000 to common stock
and paid in capital. The value assigned to the warrants was determined by
using the Black-Scholes option valuation methods with the following
assumptions: no dividend yield, expected volatility of 136%, risk free
interest rate of 4.94%, and an expected useful life of one year.
6. Stock options:
Under a stock option plan adopted in 1995, the Company had the discretion
to grant options for up to 1,600,000 shares of common stock until May 15,
2005 at which time the plan terminated except to the extent necessary to
govern outstanding options. Stock options granted under the plan vest on
grant date and expire ten years from the date of grant plus 30 days. The
exercise price of the options is the fair market value on the date of grant.
At the Company's 2006 Annual Meeting of Stockholders, the stockholders
approved the 2006 Stock Incentive Plan (the "Plan"). The Plan permits the
issuance of stock options, restricted stock awards, and performance shares
F-10
to employees, officers, directors, and consultants of the Company. Initially,
and until such time as the Board creates a Compensation Committee, the Board
of Directors will administer the Plan. The total number of shares of common
stock that may be issued pursuant to awards under the Plan is 5,000,000.
Under the Plan, no participant may receive awards of stock options that cover
in the aggregate more than 500,000 shares of common stock in any fiscal year.
Unless terminated by the Board, or upon the granting of awards covering all
of the shares subject to the Plan, the Plan shall terminate on June 5, 2016.
The Company adopted SFAS No. 123(R) "Share-Based Payment" in the first
quarter of 2006 and expenses the cost of options granted over the vesting
period of the option based on the grant-date fair value of the award. No
options were granted in 2007. For the year ended December 31, 2008, the
Company recognized an expense of $46,977 related to options granted under
the Plan.
Fair values were estimated at the date of grant of the options, using the
Black-Scholes option valuation model with the following weighted average
assumptions: risk-free interest rate of 3.82%, volatility factor of the
expected market price of the Company's common stock of 181%, no dividend
yield on the Company's common stock, and a weighted average expected life
of the options of 5 years. The Black-Scholes option valuation model
was developed for use in estimating the fair value of traded options, which
have no vesting restrictions and are fully transferable. For purposes of
determining the expected life of the options, the Company utilizes the
Simplified Method as defined in Staff Accounting Bulletin No. 107 issued by
the Securities and Exchange Commission.
In addition options valuation models require the input of highly subjective
assumptions including stock price volatility.
As of December 31, 2008, there was no unrecognized compensation expense
related to nonvested share-based compensation arrangements under the Plan.
A summary of the Company's Incentive Plan as of December 31, 2008 and changes
during the year is presented below:
Weighted Average
Shares Exercise Price
_________ _________________
Oustanding at Beginning of Year 2007 755,000 .54
Granted 0 .00
Cancelled or Exercised 0 .00
Outstanding at ending of Year 2007 755,000 .54
Granted 585,000 .12
Cancelled or Exercised 200,000 1.38
__________
Outstanding at End of Year 2008 1,140,000 .18
========== =======
The following table summarizes information about stock options outstanding at
December 31, 2008:
F-12
Options Outstanding Options Exercisable
_________________________________________________________________
Weighted
Average Weighted Weighted
Range of Number Remaining Average Number Average
Exercise Outstanding Contractual Exercise Exercisable Exercise
Prices at 12/31/08 Life Price at 12/31/08 Price
____________________________________________________________________________
$0.10-$0.44 1,140,000 7.05 Years $0.18 1,140,000 $0.18
585,000 options were granted in 2008.
7. Income taxes:
The provision for income taxes differs from the amount obtained by applying
the Federal income tax rate of 34% to income before income taxes. The
difference relates to the following items:
2008 2007
Statutory tax rate 34% 34%
___________ __________
Expected tax benefit $(150,000) $ (470,000)
Benefit of losses not recognized 150,000 470,000
___________ ___________
Tax provision (benefit) as reported $ - $ -
___________ ___________
The components of deferred income taxes at December 31, 2008 are as follows:
2008 2007
____________ ____________
Deferred tax assets:
Loss carry-forwards $ 1,700,000 $ 1,500,000
Valuation allowance (1,200,000) ( 700,000)
___________ ____________
500,000 800,000
Deferred tax liabilities:
Property and equipment 500,000 800,000
___________ ____________
Net deferred taxes $ - $ -
___________ ____________
At December 31, 2008, the Company had net operating loss carryforwards of
approximately $4,964,000 which expire beginning in 2011.
Utilization of the Company's loss carryforwards is dependent on realizing
taxable income. Deferred tax assets for these carryforwards have been reduced
by a valuation allowance.
8. Oil Sale Revenue
The Company currently records revenue from petroleum sales when received from
the operator of the well. Oil Sale Revenue is reported net of working
interest and overriding royalty amounts due. Prior to 2006, the Company was
responsible for distributing allocable portions of oil sale revenue to
working interest and royalty owners for production in the Cheyenne River
F-13
Prospect. Accordingly, a liability for estimated royalty payments was
recorded when oil sale proceeds were received since a division order had not
been completed, certain amounts were credited to royalties payable until the
division order issue was resolved.
9. Related party transactions:
Coastal Energy Company Nevada (formerly PetroWorld Nevada Corp.) was a
participant in the Gabbs Valley Prospect with a seismic option under which it
has elected to drill a well and earn a 30% interest from Cortez Exploration,
LLC. Until February 5, 2008 the Company's Chief Executive Officer was a
member of the Board of Directors of its parent company Coastal Energy Company
(formerly PetroWorld Corporation) and owns approximately 1.63(%) percent of
the parent Company which is traded on the AIM Exchange in London and the
Toronto Venture Exchange in Toronto. During 2007, Coastal elected to forfeit
its interest in the Gabbs Valley Prospect.
In October, 2007, the Company entered into a Participation Agreement whereby
it received a 6.25% working interest in the Gaskill well located in the
North Boggy Creek Dakota Prospect, Niobrara County, Wyoming for $41,305.
The Participation Agreement was entered into with the Company's Chief
Executive Officer. The Gaskill well was re-entered and no oil and gas
reserves were determined to be present. The investment was written off as
of December 31, 2007.
10. Operating lease:
The Company leases office space under a month to month operating lease
agreement with an unrelated party. Monthly lease payments are $994.
Rent expense for each of the years ended December 31, 2008 and 2007,
respectively, was $14,491 and $14,160.
11. Subsequent Events
On January 30, 2009, the Company's Board of Directors extended the expiration
date of its outstanding warrants from March 15, 2009 to December 15, 2009.
F-14
EXHIBIT 31
CERTIFICATION
I, Albert E. Whitehead, certify that:
1. I have reviewed this annual report on Form 10-K of Empire Petroleum
Corporation;
2. Based on my knowledge, this report does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material respects
the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over
financial reporting (as defined in Exchange Act Rules 13a - 15(f) and 15d -
15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our supervision,
to ensure that material information relating to the registrant, including
its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being
prepared;
(b) Designed such internal control over financial reporting, or caused
such internal control over financial reporting to be designed under
our supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of
the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter (the registrant's fourth fiscal quarter in
the case of an annual report) that has materially affected, or is
reasonably likely to materially affect, the registrant's internal control
over financial reporting; and
5. The registrant's other certifying officer(s) and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of registrant's
board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design
or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record,
process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's internal
control over financial reporting.
March 30, 2009 /s/ Albert E. Whitehead
Albert E. Whitehead, Chief Executive
Officer (and principal financial officer)
EXHIBIT 32
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the annual report of Empire Petroleum Corporation (the
"Company") on Form 10-K for the period ending December 31, 2008, as filed
with the Securities and Exchange Commission on the date hereof (the
"Report"), I, Albert E. Whitehead, Chief Executive Officer (and principal
financial officer)of the Company, certify, pursuant to 18 U.S.C. Section
1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002,
that:
(1) The Report fully complies with the requirements of section 13(a) or 15(d)
of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the Company.
March __, 2009 /s/ Albert E. Whitehead
Albert E. Whitehead, Chief Executive Officer
(and principal financial officer)
A signed original of this written statement required by Section 906 has been
provided to the Company and will be retained by the Company and furnished to
the Securities and Exchange Commission or its staff upon request.
The foregoing certification is being furnished to the Securities and Exchange
Commission as an exhibit to the Report and shall not be considered filed as
part of the Report.