UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended September 30, 2009
¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _____ to _____.
Commission File No. 000-22905
GOLDEN PHOENIX MINERALS, INC.
(Exact Name of Registrant as Specified in Its Charter)
| Nevada | 41-1878178 | |
(State or Other Jurisdiction Of Incorporation or Organization) | (I.R.S. Employer Identification Number) | |
| 1675 East Prater Way, Suite 102, Sparks, Nevada | 89434 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s telephone number, including area code (775) 853-4919
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.
Yes x No ¨
Indicate by checkmark 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-3 of the Exchange Act. (Check one):
| 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 Exchange Act.
Yes ¨ No x
As of November 16, 2009 there were 222,080,210 outstanding shares of the registrant’s common stock.
1
GOLDEN PHOENIX MINERALS, INC.
FORM 10-Q INDEX
Page Number | |
| PART I – FINANCIAL INFORMATION | |
| Item 1. Financial Statements | |
| Condensed Consolidated Balance Sheets as of September 30, 2009 (Unaudited) and December 31, 2008 | 3 |
| Condensed Consolidated Statements of Operations for the Three Months and Nine Months Ended September 30, 2009 and 2008 (Unaudited) | 4 |
| Condensed Consolidated Statements of Cash Flows for the Nine Months Ended September 30, 2009 and 2008 (Unaudited) | 5 |
| Notes to Condensed Consolidated Financial Statements (Unaudited) | 6 |
| Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations | 26 |
| Item 3. Quantitative and Qualitative Disclosures About Market Risk | 39 |
| Item 4T. Controls and Procedures | 39 |
| PART II – OTHER INFORMATION | |
| Item 1. Legal Proceedings | 40 |
| Item 1A. Risk Factors | 40 |
| Item 2. Unregistered Sales of Equity Securities and Use of Proceeds | 40 |
| Item 3. Defaults Upon Senior Securities | 41 |
| Item 4. Submission of Matters to a Vote of Security Holders | 41 |
| Item 5. Other Information | 41 |
| Item 6. Exhibits | 42 |
| Signature Page | 43 |
2
PART I – FINANCIAL INFORMATION
Item 1. Financial Statements
GOLDEN PHOENIX MINERALS, INC.
Condensed Consolidated Balance Sheets
| September 30, 2009 | ||||||||
| (Unaudited) | December 31, 2008 | |||||||
| ASSETS | ||||||||
| Current assets: | ||||||||
Cash and cash equivalents | $ | 6,153 | $ | 231 | ||||
Receivables, net | 36,131 | — | ||||||
Prepaid expenses and other current assets | 11,587 | 11,544 | ||||||
Inventories | 28,986 | 30,637 | ||||||
Total current assets | 82,857 | 42,412 | ||||||
Property and equipment, net | 299,099 | 371,557 | ||||||
| Other assets: | ||||||||
Deposits | 107,046 | 107,046 | ||||||
Note receivable | — | — | ||||||
Assets of discontinued operations | 2,113,979 | 5,969,283 | ||||||
Total other assets | 2,221,025 | 6,076,329 | ||||||
| $ | 2,602,981 | $ | 6,490,298 | |||||
| LIABILITIES AND STOCKHOLDERS’ DEFICIT | ||||||||
| Current liabilities: | ||||||||
Accounts payable | $ | 1,001,119 | $ | 916,451 | ||||
Accrued liabilities | 848,637 | 465,156 | ||||||
Current portion of severance obligations | 151,093 | 100,170 | ||||||
Current portion of long-term debt | 2,484,264 | 176,549 | ||||||
Production payment obligation | — | 1,974,456 | ||||||
Amounts due to related parties | 541,745 | 458,531 | ||||||
Total current liabilities | 5,026,858 | 4,091,313 | ||||||
| Long-term liabilities: | ||||||||
Severance obligations | 26,358 | 86,460 | ||||||
Long-term debt | 71,041 | 142,506 | ||||||
Liabilities of discontinued operations | 3,353,444 | 6,884,955 | ||||||
Total long-term liabilities | 3,450,843 | 7,113,921 | ||||||
Total liabilities | 8,477,701 | 11,205,234 | ||||||
Commitments and contingencies | ||||||||
Minority interest | — | (304,319 | ) | |||||
| Stockholders’ deficit: | ||||||||
| Preferred stock, no par value, 50,000,000 shares authorized, none issued | — | — | ||||||
| Common stock; $0.001 par value, 400,000,000 shares authorized, 216,580,210 and 205,510,457 shares issued and outstanding, respectively | 216,580 | 205,510 | ||||||
Additional paid-in capital | 40,795,574 | 40,127,362 | ||||||
Common stock subscriptions receivable | (120,000 | ) | (121,187 | ) | ||||
Accumulated deficit | (46,766,874 | ) | (44,622,302 | ) | ||||
Total stockholders’ deficit | (5,874,720 | ) | (4,410,617 | ) | ||||
| $ | 2,602,981 | $ | 6,490,298 | |||||
See accompanying notes to condensed consolidated financial statements
3
GOLDEN PHOENIX MINERALS, INC.
(Unaudited)
| Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||||||
| 2009 | 2008 | 2009 | 2008 | |||||||||||||
Rental Income | $ | 63,056 | $ | — | $ | 63,056 | $ | — | ||||||||
| Operating costs and expenses: | ||||||||||||||||
Costs of mining operations | — | (75,637 | ) | (14,175 | ) | (250,498 | ) | |||||||||
| Exploration, development and mineral property lease expenses | (17,610 | ) | (383,912 | ) | (46,910 | ) | (9,869 | ) | ||||||||
General and administrative expenses | 397,374 | 804,969 | 1,369,174 | 2,634,072 | ||||||||||||
Depreciation and amortization expense | 20,560 | 35,355 | 60,520 | 76,262 | ||||||||||||
Royalties | — | — | 70,090 | 1,158,337 | ||||||||||||
Total operating costs and expenses | 400,324 | 380,775 | 1,438,699 | 3,608,304 | ||||||||||||
Loss from operations | (337,268 | ) | (380,775 | ) | (1,375,643 | ) | (3,608,304 | ) | ||||||||
| Other income (expense): | ||||||||||||||||
Interest and other income | 4,289 | 4,107 | 4,541 | 14,946 | ||||||||||||
Interest expense | (66,912 | ) | (22,362 | ) | (637,881 | ) | (51,031 | ) | ||||||||
Gain (loss) on extinguishment of debt | 8,123 | 1,500 | 982,579 | — | ||||||||||||
Gain on disposal of property and equipment | — | — | 127 | — | ||||||||||||
Total other income (expense) | (54,500 | ) | (16,755 | ) | 349,366 | (36,085 | ) | |||||||||
Loss before income taxes | (391,768 | ) | (397,530 | ) | (1,026,277 | ) | (3,644,389 | ) | ||||||||
Provision for income taxes | — | — | — | — | ||||||||||||
Loss from continuing operations | (391,768 | ) | (397,530 | ) | (1,026,277 | ) | (3,644,389 | ) | ||||||||
| Income (Loss) from discontinued operations: | ||||||||||||||||
| Loss on sale of interest in joint venture | — | — | (235,303 | ) | — | |||||||||||
| Loss from discontinued operations before minority interest | (94,479 | ) | (2,885,772 | ) | (1,150,266 | ) | (1,207,484 | ) | ||||||||
| Minority interest in (income) loss of discontinued operations | — | 703,268 | 267,274 | (201,292 | ) | |||||||||||
Loss from discontinued operations | (94,479 | ) | (2,182,504 | ) | (1,118,295 | ) | (1,408,776 | ) | ||||||||
Net loss | (486,247 | ) | (2,580,034 | ) | (2,144,572 | ) | (5,053,165 | ) | ||||||||
| Other comprehensive loss: | ||||||||||||||||
Unrealized loss on marketable securities | — | (47,695 | ) | — | (115,390 | ) | ||||||||||
Net comprehensive loss | $ | (486,247 | ) | $ | (2,627,729 | ) | $ | (2,144,572 | ) | $ | (5,168,555 | ) | ||||
| Loss per common share, basic and diluted: | ||||||||||||||||
Continuing operations | $ | (0.00 | ) | $ | (0.00 | ) | $ | (0.00 | ) | $ | (0.02 | ) | ||||
Discontinued operations | (0.00 | ) | (0.01 | ) | (0.01 | ) | (0.01 | ) | ||||||||
| Total | $ | (0.00 | ) | $ | (0.01 | ) | $ | (0.01 | ) | $ | (0.03 | ) | ||||
Weighted average number of shares outstanding | 211,948,713 | 189,168,359 | 210,328,353 | 185,937,966 | ||||||||||||
See accompanying notes to condensed consolidated financial statements
4
GOLDEN PHOENIX MINERALS, INC.
(Unaudited)
| Nine Months Ended September 30, | ||||||||
| 2009 | 2008 | |||||||
| Cash flows from operating activities: | ||||||||
Net loss | $ | (2,144,572 | ) | $ | (5,053,165 | ) | ||
| Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||
Loss from discontinued operations | 1,118,295 | 1,408,776 | ||||||
Depreciation and amortization | 60,520 | 76,262 | ||||||
Stock-based compensation | 51,672 | 235,888 | ||||||
Debt issued for royalty expense | 70,090 | — | ||||||
(Gain) loss on disposal of property and equipment | (127 | ) | — | |||||
Issuance of warrants for interest expense | 448,804 | — | ||||||
Gain on extinguishment of debt | (982,579 | ) | — | |||||
Issuance of common stock for services | — | 76,700 | ||||||
Issuance of common stock for royalties | — | 840,000 | ||||||
Issuance of warrants for royalties | — | 60,000 | ||||||
| Changes in operating assets and liabilities: | ||||||||
Increase in receivables | (88,662 | ) | (81,528 | ) | ||||
| (Increase) decrease in prepaid expenses and other current assets | (43 | ) | 97,866 | |||||
Decrease in inventories | — | 526 | ||||||
Increase (decrease) in accounts payable | 235,489 | (235,933 | ) | |||||
Increase in bank overdraft | — | 5,545 | ||||||
Increase in accrued and other liabilities | 523,009 | 151,132 | ||||||
Net cash used in operating activities | (708,104 | ) | (2,417,931 | ) | ||||
| Cash flows from investing activities: | ||||||||
Purchase of property and equipment | (1,500 | ) | (243,057 | ) | ||||
Proceeds from the sale of property and equipment | 353 | — | ||||||
Net cash used in investing activities | (1,147 | ) | (243,057 | ) | ||||
| Cash flows from financing activities: | ||||||||
Proceeds from the issuance of debt | 1,000,000 | — | ||||||
Proceeds from amounts due related parties | 6,000 | 43,000 | ||||||
Proceeds from the exercise of options and warrants | — | 25,658 | ||||||
Proceeds from the issuance of common stock | 139,674 | 689,613 | ||||||
Payments of severance obligations | (9,179 | ) | (113,247 | ) | ||||
Payments of notes payable and long-term debt | (30,710 | ) | (76,467 | ) | ||||
Payments of amounts due to related parties | (40,070 | ) | (114,898 | ) | ||||
| Payments of production payment obligation – related party | — | (100,026 | ) | |||||
Net cash provided by financing activities | 1,065,715 | 353,633 | ||||||
| �� | ||||||||
| Cash flows from discontinued operations: | ||||||||
Net cash provided by (used in) operating activities | (948,725 | ) | 1,034,471 | |||||
Net cash provided by (used in) investing activities | 490,000 | (921,244 | ) | |||||
Net cash provided by financing activities | 108,183 | 66,274 | ||||||
| Net cash provided by (used in) discontinued operations | (350,542 | ) | 179,501 | |||||
Net increase (decrease) in cash | 5,922 | (2,127,854 | ) | |||||
Cash and cash equivalents, beginning of period | 231 | 2,128,030 | ||||||
Cash and cash equivalents, end of period | $ | 6,153 | $ | 176 | ||||
See accompanying notes to condensed consolidated financial statements
5
GOLDEN PHOENIX MINERALS, INC.
| Notes to Condensed Consolidated Financial Statements |
| September 30, 2009 |
| (Unaudited) |
NOTE 1 - DESCRIPTION OF BUSINESS AND BASIS OF FINANCIAL STATEMENT PRESENTATION
Golden Phoenix Minerals, Inc. (the “Company” or “Golden Phoenix”) is a mineral exploration, development and production company specializing in acquiring and consolidating mineral properties with potential production and future growth through exploration discoveries. Acquisition emphasis is focused on properties containing gold, silver, molybdenum and other strategic minerals that present low political and financial risk and exceptional upside potential. Currently, the Company’s main focus is in Nevada.
The Company was formed in Minnesota on June 2, 1997. On May 30, 2008, the Company reincorporated in Nevada.
As discussed in Note 3, on May 13, 2009, the Company completed the sale of 100% of its ownership interest in the Ashdown Project LLC (“Ashdown LLC”) and entered into a preliminary letter agreement dated May 19, 2009 for the purpose of contributing its Mineral Ridge mining property (“Mineral Ridge Mine”) into a possible joint venture to place this property into production. As a result, the Ashdown LLC and the Mineral Ridge Mine are classified as discontinued operations for all periods presented in the condensed consolidated financial statements.
In February 2007, the Company completed a purchase agreement with four individuals for the Northern Champion molybdenum property located in Ontario, Canada, and plans to take bulk samples for metallurgical and market testing, and to actively explore and delineate molybdenum mineralization on the property as funding is available.
The interim financial information of the Company as of September 30, 2009 and for the three month and nine month periods ended September 30, 2009 and 2008 is unaudited, and the balance sheet as of December 31, 2008 is derived from audited financial statements. The accompanying condensed consolidated financial statements have been prepared in accordance with U. S. generally accepted accounting principles for interim financial statements. Accordingly, they omit or condense footnotes and certain other information normally included in financial statements prepared in accordance with U.S. generally accepted accounting principles. The accounting policies followed for quarterly financial reporting conform with the accounting policies disclosed in Note 1 to the Notes to Consolidated Financial Statements included in the Company's Annual Report on Form 10-K for the year ended December 31, 2008. In the opinion of management, all adjustments that are necessary for a fair presentation of the financial information for the interim periods reported have been made. All such adjustments are of a normal recurring nature. The results of operations for the three months and nine months ended September 30, 2009 are not necessarily indicative of the results that can be expected for the fiscal year ending December 31, 2009. The unaudited condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and the notes thereto included in the Company's Annual Report on Form 10-K for the year ended December 31, 2008.
NOTE 2 - GOING CONCERN
The Company’s condensed consolidated financial statements are prepared using accounting principles generally accepted in the United States of America applicable to a going concern, which contemplates the realization of assets and liquidation of liabilities in the normal course of business. However, the Company has a history of operating losses since its inception in 1997, and has an accumulated deficit of $46,766,874 and a total stockholders’ deficit of $5,874,720 at September 30, 2009, which together raises doubt about the Company’s ability to continue as a going concern. The accompanying condensed consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
6
Historically, the Company has obtained working capital from debt and equity financing, the exercise of options and warrants, and from a production payment purchase agreement to fund the Company’s activities. The deterioration of capital markets has made it increasingly difficult for the Company to obtain debt and equity financing. On January 30, 2009, the Company entered into a Bridge Loan and Debt Restructuring Agreement with Crestview Capital Master, LLC (“Crestview), whereby the Company borrowed $1 million (see Note 11). Subsequent to September 30, 2009, the maturity date of this loan was extended from November 6, 2009 to February 6, 2010 (see Note 19).
The operations of the Ashdown LLC have also funded a significant portion of the Company’s operating costs and expenses. The Company suspended the mining operations of the Ashdown LLC in November 2008 in response to a substantial decline of molybdenum oxide market prices, with only incidental revenues during the period from January 1, 2009 through May 13, 2009. On May 13, 2009, the Company completed an agreement to sell 100% of its ownership interest in the Ashdown LLC to Win-Eldrich Gold, Inc. (“WEG”) (Note 3). The $5.3 million purchase price due the Company will be payable over a 72 month term, and WEG will assume substantially all of the liabilities of the Ashdown LLC. There can be no guarantee or assurance that WEG will be successful in its ability to raise sufficient capital to commence again the operations of the Ashdown LLC, attain a sustained profitable level of operations from the Ashdown LLC, or pay the Company the $5.3 million promissory note.
The Company entered into a letter agreement dated May 19, 2009, as subsequently amended on July 17, 2009, with Scorpio Gold Corporation (“Scorpio Gold”) for the purpose of completing due diligence prior to entering into a possible joint venture to place the Company’s Mineral Ridge Mine into production (Note 3). On June 18, 2009, Scorpio Gold notified the Company that it had completed preliminary due diligence and intended to proceed with the acquisition of an interest in the Mineral Ridge Mine and the formation of a joint venture. The Company has received total non-refundable cash payments of $450,000 plus certain expenses from Scorpio Gold. There can be no assurance that Scorpio Gold will complete its acquisition of an interest in the Mineral Ridge Mine and form a joint venture to successfully operate the mine.
With the shutdown of Ashdown operations and the ongoing difficulty raising capital, certain vendors and lenders of the Company have initiated actions to collect balances that are past due. The Company is negotiating mutually beneficial settlements and payment plans with these parties. However, the ability to bring the obligations current is dependent on the Company’s ability to raise additional capital. Further, there can be no assurance that the Company will attain a successful level of operations from its other properties, or to continue to raise capital at favorable rates or at all. If the Company is unable to obtain profitable operations and positive operating cash flows and raise sufficient capital to meet scheduled and past due debt obligations, it may be forced to scale back its development plans or to significantly reduce or terminate operations and file for reorganization or liquidation under the bankruptcy laws. The condensed consolidated financial statements do not include any adjustments that might result from the outcome of these uncertainties.
NOTE 3 - DISCONTINUED OPERATIONS AND NOTE RECEIVABLE
Ashdown Project LLC
On February 25, 2009, the Company entered into a Binding Memorandum of Understanding as well as two related binding side letter agreements (collectively, the “MOU”) with Win-Eldrich Gold, Inc. (“WEG”) , whereby the Company agreed to sell 100% of its ownership interest in the Ashdown LLC to WEG (the “Ashdown Sale”). WEG was a co-owner of the Ashdown LLC with the Company since the inception of the Ashdown LLC in September 2006, with the Company owning a 60% membership interest and WEG owning a 40% membership interest. The Ashdown LLC placed the Ashdown property into commercial operation in December 2006, and had sales of molybdenite concentrates of $10,398,361 for the year ended December 31, 2007 and sales of $10,537,370 during 2008 prior to suspension of operations in November 2008 due to significant declines in the market price of molybdenum.
7
On May 13, 2009, pursuant to the material terms of the MOU, as further revised, negotiated and mutually agreed to by the Parties, the Company entered into definitive agreements that superseded the MOU, including a Purchase and Sale of LLC Membership Interest Agreement with WEG, to effectuate the Ashdown Sale (the “Purchase Agreement”). As consideration for the Ashdown Sale and the Parties’ mutual release of certain claims against the other pursuant to the terms of a Settlement and Release Agreement (the “Release”), WEG will pay $5.3 million (the “Purchase Price”) to the Company, which will be satisfied by the issuance of a Limited Recourse Secured Promissory Note (the “Note”), for the full amount of the Purchase Price.
In particular, WEG will pay the Company $5.3 million and assume the majority of all obligations and liabilities held by the LLC, all as detailed and more fully set forth in the Purchase Agreement. Pursuant to the terms and conditions of the Purchase Agreement and the Note, the Company, WEG and the LLC have also entered into a Security Agreement, a Short Form Deed of Trust and Assignment of Rents Agreement (the “Deed of Trust”), and certain other releases and side letter agreements (together with the Purchase Agreement and the Note, collectively, the “Transaction Documents”).
The terms and conditions of the Note, including term, interest rate and description of security interest are as follows: the terms of the Note include the payment of the Purchase Price together with simple interest on the unpaid principal amount of the Note at rate equal to the Wall Street Journal Prime rate plus two percent (2.00%), computed on a quarterly basis beginning April 1, 2009, for a term of 72 months, with the first payment due one (1) year from the date of Closing. As security for the Note, the Purchase Price shall be secured by the assets and property of the LLC as well as one hundred percent (100%) of WEG’s ownership interest in the LLC (the “Collateral”). The sole recourse of the Company under the Note for the collection of amounts owed and in the event of default shall be foreclosure as to the Collateral, as further detailed in the Security Agreement and Deed of Trust by and between the Parties.
Because of the current uncertainty of collecting the Note or realizing any value from the assets and property of the LLC upon foreclosure, the Note has been reduced 100% by an allowance account and recorded at no value in the accompanying condensed consolidated balance sheet as of September 30, 2009, and no gain on disposition of the Company’s interest in the Ashdown LLC attributed to the $5.3 million Note has been recorded in the accompanying condensed consolidated statements of operations for the three months and nine months ended September 30, 2009. The Company did, however, record a loss on sale of interest in joint venture of $235,303 for nine months ended September 30, 2009 resulting from the assumption by the Company of certain liabilities in the transaction and the elimination of all investment and loan accounts related to the Ashdown LLC. Further gain, if any, on disposition of the interest in the Ashdown LLC will be recorded as cash payments are received on the Note or, if required, upon disposition of any assets or property of the Ashdown LLC due to foreclosure on the Note.
Pursuant to the Release, the Parties agreed to terminate any and all litigation and ongoing disputes existing between the Parties effective at Closing.
Finally, pursuant to the Purchase Agreement, Perry Muller, President of WEG, or his assignee, agreed to pay up to $100,000 of all payments made in settlement of the amounts owed by the Ashdown LLC to Retrievers LLC, and the Company secured a release from Retrievers LLC of any claim or title in or to the Ashdown Mill property, with Mr. Muller becoming the sole owner of the Ashdown Mill property (the “Retriever’s Settlement”). Upon completion of the Retriever’s Settlement, Mr. Muller agreed to lease the Ashdown Mill property to the Ashdown LLC and convey the Ashdown Mill to the Ashdown LLC upon repayment to Mr. Muller by the Ashdown LLC of $100,000, plus a loan fee amount of $10,000, all as pursuant to that certain Ashdown Mill Binding Side Letter Agreement, dated May 13, 2009.
8
Mineral Ridge Mine
The Company entered into a letter agreement dated May 19, 2009, as subsequently amended on July 17, 2009, with Scorpio Gold Corporation (“Scorpio Gold”) for the purpose of completing due diligence prior to entering into a possible joint venture to place the Company’s Mineral Ridge mining property (the “Property”) into production. Upon execution of the letter agreement, Scorpio Gold paid the Company $50,000 and commenced a 15 day due diligence period. Through September 30, 2009, Scorpio Gold paid the Company an additional $400,000 plus certain expenses, as part of ongoing monthly payments to be credited toward the ultimate purchase price while the parties finalize negotiations and definitive agreements. The payments to the Company are non-refundable, and the payments through September 30, 2009 of $450,000 have been recorded as a reduction of the carrying amount of the Mineral Ridge property and equipment of $430,153, inventory of $19,431 and prepaid expenses and other current assets of $416.
On June 18, 2009, Scorpio Gold notified the Company that it had completed preliminary due diligence and intended to proceed with the acquisition of the Property and the formation of a joint venture.
In accordance with the non-binding provisions of the letter agreement, Scorpio Gold and the Company are currently in negotiations to complete definitive agreements, which are intended to take the form of an option and joint venture agreement between the Parties. It is intended that Scorpio Gold will acquire an initial 70% joint venture interest and the Company will hold a 30% joint venture interest. Scorpio Gold will be the operator of the joint venture.
As contemplated by the letter agreement, it is expected that in consideration of the grant by the Company to Scorpio Gold of a 70% undivided interest in the Property, with both parties contributing their respective interest in the Property to the joint venture, Scorpio Gold shall at closing: (a) make a cash payment to the Company of US $3,750,000, less those amounts previously paid by Scorpio Gold to the Company; and issue to the Company that number of common shares of Scorpio Gold at a deemed price of Canadian $0.50 per share having an aggregate deemed value of US$3,750,000 using a defined exchange rate.
It is further anticipated, subject to the definitive agreements, that Scorpio Gold will have the right, but not the obligation, to increase its joint venture interest by 10% to an aggregate 80% interest by arranging all project financing required to place the Property into commercial production. The parties are also negotiating a period of time during which, subject to definitive agreements, that Scorpio Gold would have the right to acquire the Company’s remaining joint venture interest at a defined purchase price.
There can be no assurance that the Company and Scorpio Gold will successfully complete the definitive agreements necessary to form a joint venture, that the parties will be able to successfully operate the Property or that the Company will receive further payments from Scorpio Gold for the sale of the Property.
The Company has reported the operations of the Ashdown LLC and the Mineral Ridge Mine as discontinued operations in the accompanying condensed consolidated financial statements for all periods presented.
The accompanying condensed consolidated statements of operations for the three months and nine months ended September 30, 2009 include the following:
9
Three Months Ended September 30, | 2009 | 2008 | ||||||||||||||||||||||
Ashdown LLC | Mineral Ridge | Total | Ashdown LLC | Mineral Ridge | Total | |||||||||||||||||||
| Revenues | $ | - | $ | - | $ | - | $ | 1,670,012 | $ | - | $ | 1,670,012 | ||||||||||||
Loss before minority interest and income taxes | - | (94,479 | ) | (94,479 | ) | (1,749,760 | ) | (1,136,012 | ) | (2,885,772 | ) | |||||||||||||
| Provision for income taxes | - | - | - | - | - | - | ||||||||||||||||||
Loss before minority interest | - | (94,479 | ) | (94,479 | ) | (1,749,760 | ) | (1,136,012 | ) | (2,885,772 | ) | |||||||||||||
Minority interest in net loss of joint venture | - | - | - | 703,268 | - | 703,268 | ||||||||||||||||||
Loss from discontinued operations | $ | - | $ | (94,479 | ) | $ | (94,479 | ) | $ | (1,046,492 | ) | $ | (1,136,012 | ) | $ | (2,182,504 | ) | |||||||
Nine Months Ended September 30, | 2009 | 2008 | ||||||||||||||||||||||
Ashdown LLC | Mineral Ridge | Total | Ashdown LLC | Mineral Ridge | Total | |||||||||||||||||||
| Revenues | $ | 321,115 | $ | - | $ | 321,115 | $ | 10,288,315 | $ | - | $ | 10,288,315 | ||||||||||||
Income (loss) before minority interest and income taxes | (668,186 | ) | (482,080 | ) | (1,150,266 | ) | 523,726 | (1,731,210 | ) | (1,207,484 | ) | |||||||||||||
| Provision for income taxes | - | - | - | - | - | - | ||||||||||||||||||
Income (loss) before minority interest | (668,186 | ) | (482,080 | ) | (1,150,266 | ) | 523,726 | (1,731,210 | ) | (1,207,484 | ) | |||||||||||||
Minority interest in net (income) loss of joint venture | 267,274 | - | 267,274 | (201,292 | ) | - | (201,292 | ) | ||||||||||||||||
Loss on sale of interest in joint venture | (235,303 | ) | - | (235,303 | ) | - | - | - | ||||||||||||||||
Income (loss) from discontinued operations | $ | (636,215 | ) | $ | (482,080 | ) | $ | (1,118,295 | ) | $ | 322,434 | $ | (1,731,210 | ) | $ | (1,408,776 | ) | |||||||
No accounts or amounts for the Ashdown LLC are included in the condensed consolidated financial statements of the Company subsequent to May 13, 2009, the date the Company’s sale of its interest in the Ashdown LLC was completed. The assets and liabilities of the Mineral Ridge mine are aggregated and disclosed as long-term assets and liabilities in the condensed consolidated balance sheet as of September 30, 2009 as follows:
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| Cash and cash equivalents | $ | 605 | ||
| Prepaid expenses and other current assets | 50,522 | |||
| Inventories | - | |||
| Property and equipment, net | - | |||
| Restricted funds – reclamation obligations | 1,861,146 | |||
| Prepaid bond insurance premiums | 201,656 | |||
| Deposits | 50 | |||
| Assets of discontinued operations | $ | 2,113,979 |
| Accounts payable | $ | 284,223 | ||
| Accrued liabilities | 80,000 | |||
| Reclamation obligation | 2,989,221 | |||
| Liabilities of discontinued operations | $ | 3,353,444 |
The assets and liabilities of the Ashdown LLC and the Mineral Ridge mine are aggregated and disclosed as long-term assets and liabilities in the condensed consolidated balance sheets as of December 31, 2008 as follows:
| Ashdown LLC | Mineral Ridge | Total | ||||||||||
| Cash and cash equivalents | $ | 193 | $ | 223 | $ | 416 | ||||||
| Prepaid expenses and other current assets | 14,938 | 47,075 | 62,013 | |||||||||
| Inventories | 224,846 | 19,102 | 243,948 | |||||||||
| Property and equipment, net | 2,498,502 | 446,021 | 2,944,523 | |||||||||
| Restricted funds – reclamation obligations | 493,218 | 1,839,592 | 2,332,810 | |||||||||
| Prepaid bond insurance premiums | - | 234,065 | 234,065 | |||||||||
| Deposits | 151,508 | - | 151,508 | |||||||||
| Assets of discontinued operations | $ | 3,383,205 | $ | 2,586,078 | $ | 5,969,283 | ||||||
| Accounts payable | $ | 1,247,199 | $ | 352,014 | $ | 1,599,213 | ||||||
| Accrued liabilities | 749,928 | 108,000 | 857,928 | |||||||||
| Long-term debt, including current portion | 631,885 | - | 631,885 | |||||||||
| Amounts due to related parties | 176,705 | - | 176,705 | |||||||||
| Reclamation obligation | 584,910 | 3,034,314 | 3,619,224 | |||||||||
| Liabilities of discontinued operations | $ | 3,390,627 | $ | 3,494,328 | $ | 6,884,955 |
NOTE 4 - STOCK-BASED COMPENSATION
The Company accounts for stock-based compensation in accordance with Statement of Financial Accounting Standards (“SFAS”) No. 123(R), Share Based Payments. Under the fair value recognition provisions of this statement, stock-based compensation cost is measured at the grant date based on the value of the award granted, using the Black-Scholes option pricing model, and recognized over the period in which the award vests. The stock-based compensation expense included in general and administrative expenses for the three-month periods ended September 30, 2009 and 2008 was $18,725 and $24,569, respectively, and for the nine-month periods ended September 30, 2009 and 2008 was $51,672 and $235,888, respectively. There was no stock compensation expense capitalized during the three-month and nine-month periods ended September 30, 2009 and 2008.
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During the nine months ended September 30, 2009, options to purchase 200,000 shares of the Company’s common stock were issued to directors with exercise prices ranging from $0.02 to $0.03 per share. The Company estimated the weighted average grant-date fair value of these options at $0.02 per share using the Black-Scholes option pricing model with the following assumptions:
| Expected dividend yield | 0.00% |
| Expected stock price volatility | 114.92% |
| Risk-free interest rate | 2.09% |
| Expected life of options | 5 years |
The following table summarizes the stock option activity during the nine months ended September 30, 2009:
Options | Weighted Average Exercise Price | Weighted Average Remaining Contract Term | Aggregate Intrinsic Value | |||||||||||||
| Outstanding at December 31, 2008 | 6,827,273 | $ | 0.21 | |||||||||||||
| Granted | 200,000 | $ | 0.03 | |||||||||||||
| Exercised | - | $ | - | |||||||||||||
| Expired or cancelled | (175,000 | ) | $ | 0.19 | ||||||||||||
| Outstanding at September 30, 2009 | 6,852,273 | $ | 0.21 | 2.21 | $ | 3,000 | ||||||||||
Options vested and exercisable at September 30, 2009 | 6,480,606 | $ | 0.21 | 2.13 | $ | 3,000 | ||||||||||
As of September 30, 2009, the total future compensation cost related to non-vested stock-based awards not yet recognized in the condensed consolidated statements of operations was $25,004.
NOTE 5 - STOCK WARRANTS AND PURCHASE RIGHTS
A summary of the status of the Company’s stock warrants and purchase rights as of September 30, 2009 and changes during the nine months then ended is presented below:
| Weighted | ||||||||
| Average | ||||||||
| Shares | Exercise Price | |||||||
| Outstanding, December 31, 2008 | 15,898,925 | $ | 0.34 | |||||
| Granted | 34,531,380 | $ | 0.03 | |||||
| Canceled / Expired | (24,181,380 | ) | $ | 0.21 | ||||
| Exercised | - | $ | - | |||||
| Outstanding, September 30, 2009 | 26,248,925 | $ | 0.04 | |||||
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The following summarizes the exercise price per share and expiration date of the Company's outstanding warrants and rights to purchase common stock at September 30, 2009:
| Expiration Date | Price | Number | ||||||
| 2010 | $ | 0.25 | 1,748,925 | |||||
| 2011 | $ | 0.03 | 23,000,000 | |||||
| 2011 | $ | 0.01 | 1,500,000 | |||||
| 26,248,925 | ||||||||
As additional consideration for the restructuring of debt (see Note 11), the Company issued warrants to purchase 23,000,000 shares of the Company’s common stock, at an exercise price of $0.03 per share, exercisable for a period of 24 months. The Company has estimated the value of the warrants at $437,611 using the Black-Scholes option pricing model, and has included this amount in interest expense.
The Company issued warrants to a Director in connection with a consulting agreement to purchase 1,500,000 common shares of the Company at an exercise price of $0.0079 per share. The warrants are exercisable through February 6, 2011.
NOTE 6 – EARNINGS (LOSS) PER SHARE
The computation of basic earnings per common share is based on the weighted average number of shares outstanding during the period. The computation of diluted earnings per common share is based on the weighted average number of shares outstanding during the period plus the weighted average common stock equivalents which would arise from the exercise of stock options, warrants and rights outstanding using the treasury stock method and the average market price per share during the period.
A reconciliation of the number of shares used in the computation of the Company’s basic and diluted earnings per common share is as follows:
Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||||||
| 2009 | 2008 | 2009 | 2008 | |||||||||||||
| Weighted average number of common shares | ||||||||||||||||
| outstanding | 211,948,713 | 189,168,359 | 210,328,353 | 185,937,966 | ||||||||||||
| Dilutive effect of: | ||||||||||||||||
| Stock options | - | - | - | - | ||||||||||||
| Warrants and stock purchase rights | - | - | - | - | ||||||||||||
| Weighted average number of common shares | ||||||||||||||||
| outstanding, assuming dilution | 211,948,713 | 189,168,359 | 210,328,353 | 185,937,966 | ||||||||||||
No stock options and warrants are included in the computation of weighted average number of shares because the effect would be anti-dilutive. At September 30, 2009, the Company had outstanding options, warrants and stock purchase rights to purchase a total of 33,101,198 common shares of the Company that could have a future dilutive effect on the calculation of earnings per share.
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NOTE 7 – PROPERTY AND EQUIPMENT
Property and equipment consist of the following at September 30, 2009:
| Mining and milling equipment | $ | 20,431 | ||
| Computer equipment | 82,370 | |||
| Drilling equipment | 379,220 | |||
| Support equipment | 39,932 | |||
| Office furniture and equipment | 19,659 | |||
| 541,612 | ||||
| Less accumulated depreciation and amortization | (242,513 | ) | ||
| $ | 299,099 | |||
NOTE 8 – SEVERANCE OBLIGATIONS
At a meeting of the Board on February 18, 2005, the directors unanimously approved a separation agreement for Michael Fitzsimonds, a former Chief Executive Officer of the Company. The terms of separation were that Mr. Fitzsimonds would be paid his full salary for one year including medical benefits, followed by 180 hours of vacation. The Company then would pay him $394,000 in 59 equal monthly payments. He would be allowed to use a company vehicle for one year at which time he exercised his option to purchase it. Mr. Fitzsimonds loaned $100,000 to the Company in 1998 on which the Company pays $1,350 a month for interest (see Note 12). The principal was to be repaid on or before February 18, 2008, but was still outstanding as of the date of this Report. The current portion of the severance obligation to Mr. Fitzsimonds of $151,093 is included in current liabilities and the long-term portion of the severance obligation of $26,358 is included in long-term liabilities in the accompanying condensed consolidated balance sheet as of September 30, 2009.
See also the discussion of an employment separation agreement in Note 18.
NOTE 9 – PRODUCTION PURCHASE AGREEMENT
On June 13, 2007, the Company entered into a Production Payment Purchase Agreement and Assignment (the “Purchase Agreement”) by and between the Company and Crestview Capital Master, LLC (“Crestview”). Pursuant to the terms of the Purchase Agreement, Crestview acquired from the Company a production payment equal to $1,974,456. The production payment was payable in an amount equal to a five percent (5%) Net Smelter (Refinery) Returns (“NSR”) paid solely from the Company’s share of production distributed to the Company pursuant to the Ashdown Project LLC Operating Agreement. On January 30, 2009, the Company entered into a Bridge Loan and Debt Restructuring Agreement with Crestview, whereby the production payment obligation was restructured as secured promissory note of $1,000,000 (see Note 11).
The production payment obligation to Crestview of $1,974,456 was recorded as a current liability in the accompanying condensed consolidated balance sheet at December 31, 2008. Prior to its restructure in January 2009, the production payment obligation was convertible in whole or in part into shares of the Company’s common stock at the option of Crestview using a defined formula, but in no case less than $0.36 per share nor more than $0.46 per share.
NOTE 10 – ASHDOWN MILLING PRODUCTION PAYMENT PURCHASE AGREEMENT
On September 26, 2005, the Company entered into a Production Payment Purchase Agreement with Ashdown Milling Co LLC (“Ashdown Milling”). Under the terms of the agreement, Ashdown Milling agreed to purchase a production payment to be paid from the Company’s share of production from the Ashdown mine for a minimum of $800,000. In addition, Ashdown Milling received one share of the Company’s common stock and one warrant to purchase one share of the Company’s common stock at $0.20 per share for each dollar paid to the Company. In addition, the Production Payment Purchase Agreement provided that, upon the request of the Company for additional funds, Ashdown Milling had the right, but not the obligation, to increase its investment in the production payment up to an additional $700,000 for a maximum purchase price of $1,500,000. The amount of the production payment to be paid to Ashdown Milling is equal to a 12% net smelter returns royalty on the minerals produced from the mine until an amount equal to 240% of the total purchase price has been paid. Robert P. Martin, President of the Company, and Kenneth S. Ripley, a former Chief Executive Officer of the Company, are co-managers and two of the five members of Ashdown Milling. The Company’s Board approved the transaction.
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Because production payments from the Ashdown mine were not assured at the time of the agreement with Ashdown Milling, the transaction was originally accounted for as the sale of an interest in mineral properties with the related gain to be deferred until the Company began making payments according the terms of the agreement. A total of $1,500,000 was advanced to the Company pursuant to this agreement, with the proceeds allocated as follows.
| Common stock | $ | 370,100 | ||
| Warrants | 225,333 | |||
| Deferred revenue | 904,567 | |||
| $ | 1,500,000 |
The allocation of the proceeds to common stock was based on the quoted market price of the Company’s common stock on the date the shares were issued to the Ashdown Milling members. The allocation of the proceeds to warrants, also recorded to common stock, was based on the estimated value of the warrants calculated using the Black-Scholes valuation model.
With the commencement of mining operations at the Ashdown mine, the Company reclassified the deferred revenue to a production payment obligation – related party, a current liability, to be repaid from the Company’s share of production distributions received from the Ashdown LLC. The Company has paid the $904,567 production payment obligation. Amounts paid to Ashdown Milling members in excess of the original obligation recorded of $904,567 will be reported as royalties expense.
On February 6, 2008 the Company bought out the membership interests of two members of Ashdown Milling, Charles D. Murphy and Acco Investment Inc., in exchange for 1,866,667 shares of the Company’s common stock and $139,092 cash paid to each of them. As a result, their membership interests in Ashdown Milling were extinguished, and the Company’s remaining production payment to be paid to Ashdown Milling was reduced from a 12% net smelter returns royalty on the minerals produced to 7.2%.
For the nine months ended September 30, 2008, the Company reported royalties expense of $1,158,337 comprised of the following:
| Common stock – 3,733,334 shares at $0.225 per share | $ | 840,000 | ||
| Exercise of warrants – 300,000 shares at $0.20 per share | 60,000 | |||
| Cash payments | 258,337 | |||
| $ | 1,158,337 |
For the nine months ended September 30, 2009, the Company reported royalties expense of $70,090 resulting from the issuance of a note payable to a related party (see Note 12).
As a consequence to the sale of its interest in the Ashdown LLC, the members of Ashdown Milling will no longer have a net smelter returns royalty on Ashdown LLC production. The Company intends to pay the remaining royalty obligation as sales proceeds are received from WEX.
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NOTE 11 – DEBT
The Company’s debt consists of the following at September 30, 2009:
| Note payable to Crestview Capital Master, LLC payable February 6, 2010, with interest to accrue on a quarterly basis at prime plus 2% (see Note 19) | $ | 1,000,000 | ||
| Note payable to Crestview Capital Master, LLC resulting from the restructure of a production payment obligation (Note 9) payable August 6, 2010, with interest to accrue on a quarterly basis at prime plus 2% (see Note 19) | 1,000,000 | |||
| Note payable to GE Capital, payable at $1,080 per month through January 2012, including interest at 5.40%, secured by equipment | 29,308 | |||
| Note payable to Daimler Chrysler, payable at $806 per month, through February 2012, including interest at 13.75%, secured by vehicle | 19,785 | |||
| Note payable to Komatsu Equipment Company, with principal payments of $58,486 on June 30, 2008, $58,486 on June 30, 2009, and $58,485 on June 30, 2010, with interest at 8%, unsecured | 175,457 | |||
| Capital lease payable to Heartland Wisconsin Corp., payable at $1,148 per month through May 2013, secured by equipment | 42,711 | |||
| Short-term note payable to Retrievers, LLC, with interest at 12%, secured by the assets of the Company | 165,000 | |||
| Other | 17,413 | |||
| Accrued interest payable | 105,631 | |||
| Total | 2,555,305 | |||
| Less current portion | 2,484,264 | |||
| Long-term portion | $ | 71,041 |
On January 30, 2009, the Company entered into a Bridge Loan and Debt Restructuring Agreement (the “Agreement”) with Crestview Capital Master, LLC (the “Lender”), whereby the Company and the Lender entered into a bridge loan and a restructuring of the original debt in the amount of $1,974,456 owed by the Company to the Lender pursuant to the Production Payment Purchase Agreement and Assignment, dated June 12, 2007 (the “Original Debt”).
Pursuant to the Agreement, the Company borrowed from the Lender the principal amount of $1,000,000 (the “Principal Amount”) in exchange for the Company issuing the Lender a Bridge Loan Secured Promissory Note (the “Bridge Note”) for the Principal Amount plus interest to accrue on a quarterly basis at a rate of the Wall Street Journal Prime Rate plus 2%. The Bridge Note shall be due and payable on February 6, 2010 (see Note 19). The Lender may, at its option, require repayment of $500,000 of the amount owed on the Bridge Note in consideration for the issuance of warrants to purchase 5,000,000 shares of the Company’s common stock, at an exercise price of $0.05 per share (the “Bridge Warrants”).
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Additionally, pursuant to the Agreement, the Company and Lender restructured the Original Debt, which was recorded as a production payment obligation, a current liability in the Company’s condensed consolidated balance sheets as of December 31, 2008. In consideration of the reduction of the Original Debt from $1,974,456 to $1,000,000, the Company executed a Secured Promissory Note in the principal amount of $1,000,000 (the “Debt Restructuring Note”) together with interest at a rate equal to the Wall Street Journal Prime Rate plus 2%, with a maturity date of August 6, 2010 (see Note 19), as well as issue certain warrants to purchase Company common stock as further described below. As a result, the Company recorded a gain on extinguishment of debt of $974,456 in the accompanying condensed consolidated statement of operations for the nine months ended September 30, 2009. In the event that the Company forms a joint venture in relation to the Mineral Ridge Property (or its mining rights) resulting in the Company retaining less than a 10% interest in the Mineral Ridge Property, the entire amount owed on the Debt Restructuring Note will be accelerated and become immediately due. Upon formation of a joint venture in relation to the Mineral Ridge Property, the Company will issue an irrevocable assignment to the Lender of 50% of all distributions to be made to it by the joint venture as prepayment for the amount outstanding on the Debt Restructuring Note. Upon payment in full of the Debt Restructuring Note and any additional note issued pursuant to Section 3 of the Bridge Note, the Lender will release the joint venture from the assignment.
As of the Closing, and as additional consideration for the restructuring of the Original Debt, the Company issued to the Lender warrants to purchase 23,000,000 shares of the Company’s common stock, at an exercise price of $0.03 per share, for a purchase period of 24 months (the “Debt Restructuring Warrants”). The Debt Restructuring Warrants and the Bridge Warrants (collectively referred to herein as the “Warrants”) are subject to certain registration rights, which the Lender, at present, has agreed to waive in lieu of utilizing Rule 144, as necessary, to remove any restrictive legends on its securities. The exercise price of the Warrants and the number of shares issuable upon exercise of the Warrants will be modified in the event there is an issuance of shares or common stock, convertible debt or equity, or warrants or options, at a price per share or convertible or exercisable at a price per share below the exercise price of the Warrants (see Note 19).
As security for the Bridge Note and the Debt Restructuring Note, the Parties agreed to amend and restate their Security Agreement, dated June 12, 2007, which secures the Company’s repayment obligations pursuant to the Agreement (the “Amended Security Agreement”). The secured interest in favor of the Lender has been perfected by the filing of a UCC-1 Financing Statement with the Nevada Secretary of State as well as the filing of a Deed of Trust and Mortgage with Esmeralda County.
Pursuant to the Agreement, in consideration of the Company’s issuance of the Bridge Note, the Debt Restructuring Note, the Debt Restructuring Warrants, and the Amended Security Agreement, the Lender will release the Company from all past, present, and future claims relating to the Original Debt provided that the Company pays the interest and principal of the current obligations on the day such interest and principal become payable.
NOTE 12 – AMOUNTS DUE TO RELATED PARTIES
Amounts due to related parties included in current liabilities consist of the following at September 30, 2009:
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Principal | Interest | Total | ||||||||||
| Note payable to Michael Fitzsimonds, a former Chief Executive Officer of the Company, with interest payments of $1,350 per month, due on or before February 18, 2008 (see Note 8) | $ | 100,000 | $ | 16,200 | $ | 116,200 | ||||||
| Note payable to the former manager of the Ashdown mine for the purchase of a mill, equipment rental and other, with interest at 12% | 166,407 | 10,113 | 176,520 | |||||||||
| Note payable to a former employee, payable on demand, with interest at 18% | 6,000 | 270 | 6,270 | |||||||||
| Notes payable to David A. Caldwell, Chief Executive Officer of the Company, and Julie K. Caldwell, payable on demand, with interest at 18% | 40,866 | 2,515 | 43,381 | |||||||||
| Notes payable to Robert P. Martin, President of the Company, and the Robert P. Martin Revocable Living Trust, payable on demand, with interest at 18%, including $70,090 issued for royalties expense | 160,525 | 38,849 | 199,374 | |||||||||
| $ | 473,798 | $ | 67,947 | $ | 541,745 | |||||||
NOTE 13 – STOCKHOLDERS’ EQUITY
During the nine months ended September 30, 2009, the Company issued 11,069,753 shares of its common stock, including 3,528,500 shares to officers and directors, for cash of $139,675, accounts payable of $40,319 and common stock subscription receivable of $1,187. The prices per share recorded in non-cash equity transactions approximated the quoted market price of the Company’s common stock on the date the shares were issued. In those instances where the market price of the Company’s common stock on the date the shares are issued to repay debt or other obligations differs from the market price originally used to determine the number of shares to be issued, a gain or loss on extinguishment of debt is recorded. Depending on the delay in issuing these shares, the gain or loss may be material. For the nine months ended September 30, 2009, no gain or loss on extinguishment of debt repaid through the issuance of the Company’s common stock was recorded.
On July 28, 2009, the Company entered into a Stock Purchase Agreement (the “Agreement”) with Alliance International (the “Investor”). Pursuant to the terms of the Agreement, the Company issued 2,500,000 shares of the Company’s common stock (the “Shares”), with a purchase price of $0.01995 per Share, to the Investor for a total purchase price of $49,875. Additionally, the Company granted the Investor the following options (the “Options”): (i) the option to purchase an additional 5,015,690 shares of the Company’s common stock, at $0.01995 per share, for a total purchase price of $100,063 (the “First Option Shares”), with such option expiring August 18, 2009; and (ii) the option to purchase an additional 5,015,690 shares of the Company’s common stock, at $0.01995 per share, for a total purchase price of $100,062 (the “Second Option Shares”), with such option expiring August 31, 2009. All options expired without being exercised.
The Shares, the Options, and the First Option Shares and Second Option Shares issuable upon exercise of the Options, are exempt from the registration requirements of the Securities Act of 1933, as amended, (the “Securities Act”) pursuant to Section 4(2) of the Securities Act and from various similar state exemptions.
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NOTE 14 – LEGAL MATTERS
With the shutdown of Ashdown operations and the ongoing difficulty raising capital, certain vendors and lenders of the Company have initiated actions to collect balances that are past due. The Company is negotiating mutually beneficial settlements and payment plans with these parties. However, the ability to bring the obligations current is dependent on the Company’s ability to raise additional capital. There can be no assurance that the Company will be successful in these efforts.
DMC-Dynatec Mining Services Corporation – No material changes have occurred during the quarter ended September 30, 2009. Further description of this legal dispute is provided in the Company’s Form 10-Q for the quarter ended March 31, 2009.
Earl Harrison – No material changes have occurred during the quarter ended September 30, 2009. Further description of this legal dispute is provided in the Company’s Form 10-Q for the quarter ended March 31, 2009.
Tetra Financial Group, LLC – No material changes have occurred during the quarter ended September 30, 2009. Further description of this legal dispute is provided in the Company’s Form 10-K for the fiscal year ended December 31, 2008.
Ed Staub & Sons Petroleum, Inc. – No material changes have occurred during the quarter ended September 30, 2009. Further description of this legal dispute is provided in the Company’s Form 10-Q for the quarter ended March 31, 2009.
Ahern Rentals, Inc. – On August 17, 2009 the Company received a summons and complaint filed by Ahern Rentals, Inc. in the Fifth Judicial District of the State of Nevada, County of Esmeralda. The complaint relates to monies owed on equipment rental invoices in the amount of $13,209, inclusive of interest and fees. Subsequent to the three month period ended September 30, 2009, the Company reached an agreement with Ahern and has paid its undisputed outstanding balance in full.
NOTE 15 – SUPPLEMENTAL STATEMENT OF CASH FLOWS INFORMATION
During the nine months ended September 30, 2009 and 2008, the Company made no cash payments for income taxes.
During the nine months ended September 30, 2009 and 2008, the Company made cash payments for interest of $21,249 and $61,915, respectively.
During the nine months ended September 30, 2009, the Company had the following non-cash financing and investing activities:
| · | Decreased production payment obligation and increased long-term debt by $1,000,000. |
| · | Decreased accounts payable and increased property and equipment by $147. |
| · | Decreased current portion of long-term debt and increased amounts due to related parties by $4,300. |
| · | Decreased accounts payable and increased debt by $22,050. |
| · | Decreased accounts payable by $40,319, increased common stock by $4,069, increased additional paid-in capital by $35,063 and decreased common stock subscribed by $1,187. |
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During the nine months ended September 30, 2008, the Company had the following non-cash financing and investing activities:
| · | Decreased marketable securities and increased other comprehensive loss for unrealized loss on marketable securities of $115,390. |
| · | Property and equipment was purchased through the issuance of debt of $142,392. |
| · | Property and equipment was purchased through the issuance of accounts payable of $41,872. |
| · | Increased common stock by $394, increased additional paid in capital by $129,193 and decreased accrued liabilities by $129,587. |
| · | Increased prepaid expenses and other current assets and debt by $89,109. |
| · | Decreased accounts payable by $90,971, increased common stock by $1,070, increased additional paid-in capital by $103,562 and decreased common stock subscribed by $13,661. |
| · | Increased common stock by $667, increased additional paid-in capital by $119,333 and increased common stock subscriptions receivable by $120,000. |
NOTE 16 – RECENT ACCOUNTING PRONOUNCEMENTS
In June 2009, the Financial Accounting Standards Board (FASB) issued Topic 105, Generally Accepted Accounting Principles. This standard establishes the FASB Accounting Standards Codification™ (“ASC”) as the source of authoritative U.S. generally accounting principles (GAAP) recognized by the FASB to be applied to nongovernmental entities. Rules and interpretive releases of the Securities and Exchange Commission (SEC) under authority of federal securities laws are also sources of authoritative GAAP for SEC registrants. On the effective date of this standard, the Codification will supersede all then-existing non-SEC accounting and reporting standards. All other nongrandfathered non-SEC accounting literature not included in the Codification will become nonauthoritative. This standard is effective for financial statements issued for interim and annual periods ending after September 15, 2009, or the Company’s quarter ended September 30, 2009. The Company implemented this standard with no material impact on its consolidated financial statements.
In June 2009, the FASB issued a new accounting standard that is included in ASC 810, Consolidation, that changes how a company determines when an entity that is insufficiently capitalized or is not controlled through voting (or similar rights) should be consolidated. The determination of whether a company is required to consolidate an entity is based on, among other things, an entity’s purpose and design and a company’s ability to direct the activities of the entity that most significantly impact the entity’s economic performance. The standard is effective at the start of a company’s first fiscal year beginning after November 15, 2009, or the Company’s fiscal year beginning January1, 2010. The Company is currently unable to determine what impact the future application of this standard may have on its consolidated financial statements.
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In June 2009, the FASB issued a new accounting standard that is included in ASC 860, Transfers and Servicing, that will require more information about transfers of financial assets, including securitization transactions, and where companies have continuing exposure to the risks related to transferred financial assets. It eliminates the concept of a “qualifying special-purpose entity,” changes the requirements for derecognizing financial assets, and requires additional disclosures. The standard is effective at the start of a company’s first fiscal year beginning after November 15, 2009 or the Company’s fiscal year beginning January1, 2010. The Company is currently unable to determine what impact the future application of this standard may have on its consolidated financial statements.
In May 2009, the FASB issued ASC 855, Subsequent Events. This standard is intended to establish general standards of accounting for and disclosures of events that occur after the balance sheet date but before financial statements are issued or are available to be issued. It requires the disclosure of the date through which an entity has evaluated subsequent events and the basis for that date—that is, whether that date represents the date the financial statements were issued or were available to be issued. This disclosure is intended to alert all users of financial statements that an entity has not evaluated subsequent events after that date in the set of financial statements being presented. The standard is effective for interim and annual periods ending after June 15, 2009, or the Company’s fiscal quarter ended June 30, 2009. The implementation of this standard did not have a material impact on the Company’s consolidated financial statements.
NOTE 17 – CONSULTING AGREEMENTS
In December 2008, the Company’s Board of Directors approved a compensation package to be offered to all executive officers and board members to provide the Company with consulting services related to its ongoing financing and debt conversion efforts. Certain of the Company’s officers and directors have entered into consulting or other compensation arrangements on substantially similar terms based on this board approved package, as further detailed below.
Thomas Klein
On January 16, 2009, the Company entered into a Consulting Agreement (the “Klein Agreement”) with Thomas Klein, whereby Mr. Klein is to provide consulting services to the Company in connection with the Company’s continued financing and debt conversion efforts. Mr. Klein currently serves on the Company’s Board of Directors and Governance Committee.
As compensation for his consulting services, Mr. Klein received 1,500,000 shares of Company common stock in May 2009 valued at a 50% discount to the trailing twenty day Company common stock average price from the date of Board approval of such compensation package, totaling $11,835 (“Initial Compensation”). Such Initial Compensation serves to offset the expenses incurred by Mr. Klein in his attempt to help secure the Company future financing. Pursuant to the Klein Agreement, Mr. Klein will be obligated to incur expenses or purchase Company debt up to the full value of the Initial Compensation.
In addition, in May 2009, Mr. Klein received 1,500,000 warrants to purchase Company common stock based upon the acquisition of $200,000 in financing for the Company, or the retirement of up to $500,000 of the Company’s existing debt, as a result of Mr. Klein’s efforts (“Subsequent Compensation”). Pursuant to the Klein Agreement, the warrants associated with the Subsequent Compensation are fully vested, have an exercise price of $0.0079 per share, and are exercisable through February 6, 2011.
Furthermore, for all financing obtained by Mr. Klein’s efforts above $200,000 or resulting in the retirement of the Company’s existing debt in excess of $500,000, Mr. Klein will be eligible for a 10% finder’s fee paid either in cash or, at the discretion of the finder, in restricted Company common stock at a 20% discount to the closing market price of the Company’s common stock at the time of contracting (“Finder’s Fee Compensation”).
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The Company has agreed that it will use its best efforts to register the stock issued in connection with the Initial Compensation, Subsequent Compensation and Finder’s Fee Compensation pursuant to an applicable registration statement filed with the SEC. Mr. Klein has agreed to a non-competition clause and a non-solicitation clause, both applicable during the course of Mr. Klein’s consulting services to the Company and for a period to end 12 months after termination of the Klein Agreement.
Robert Martin
On May 18, 2009, Golden Phoenix Minerals, Inc. (the “Company”) entered into a Supplemental Compensation Agreement (the “Martin Agreement”) with Robert P. Martin, President of the Company, whereby Mr. Martin is to provide specific services to the Company in his role as an executive officer of the Company, in connection with and in support of the Company’s continued financing and debt conversion efforts.
As compensation for his services, Mr. Martin received 1,500,000 shares of Company common stock valued at a 50% discount to the trailing twenty day Company common stock average price from the date of Board approval of such compensation package, totaling $11,835 (“Initial Compensation”). Such Initial Compensation shall serve to offset the expenses incurred by Mr. Martin in his attempt to help secure the Company future financing. Pursuant to the Martin Agreement, Mr. Martin will be obligated to incur expenses or purchase Company debt up to the full value of the Initial Compensation.
In addition, Mr. Martin will be eligible to receive 1,500,000 warrants to purchase Company common stock upon the acquisition of $200,000 in financing for the Company or in connection with a property transaction related to the Mineral Ridge mining property, or the retirement of up to $500,000 of the Company’s existing debt, that are a result of Mr. Martin’s efforts (“Subsequent Compensation”). Pursuant to the Martin Agreement, the warrants associated with the Subsequent Compensation will vest pro-rata as efforts are made to secure the $200,000 financing, the property transaction or $500,000 debt reduction, respectively, and will have an exercise price of $0.0079.
Furthermore, for all financing obtained by Mr. Martin’s efforts resulting in the Company receiving at least $200,000, the completion of a property transaction or resulting in the retirement of the Company’s existing debt in excess of $500,000, Mr. Martin will be eligible for certain additional compensation to be determined by the Company’s Board of Directors, payable in cash or in restricted Company common stock at a 20% discount to the closing market price of the Company’s common stock at the time of closing.
The Company has agreed that it will use its best efforts to register the stock issued in connection with the Initial Compensation pursuant to an applicable registration statement filed with the SEC.
David Caldwell
On May 7, 2009, Golden Phoenix Minerals, Inc. (the “Company”) entered into a Supplemental Compensation Agreement (the “Caldwell Agreement”) with David A. Caldwell, whereby Mr. Caldwell is to provide specific services to the Company in his role as an executive officer of the Company, in connection with and in support of the Company’s continued financing and debt conversion efforts. Mr. Caldwell is the Chief Executive Officer and Chief Financial Officer of the Company and also serves on the Company’s Board of Directors.
As compensation for his services, Mr. Caldwell received 1,500,000 shares of Company common stock valued at a 50% discount to the trailing twenty day Company common stock average price from the date of Board approval of such compensation package, totaling $11,835 (“Initial Compensation”). Such Initial Compensation shall serve to offset the expenses incurred by Mr. Caldwell in his attempt to help secure the Company future financing. Pursuant to the Caldwell Agreement, Mr. Caldwell will be obligated to incur expenses or purchase Company debt up to the full value of the Initial Compensation.
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In addition, Mr. Caldwell will be eligible to receive 1,500,000 warrants to purchase Company common stock upon the acquisition of $200,000 in financing for the Company or in connection with a property transaction related to the Mineral Ridge mining property, or the retirement of up to $500,000 of the Company’s existing debt, that are a result of Mr. Caldwell’s efforts (“Subsequent Compensation”). Pursuant to the Caldwell Agreement, the warrants associated with the Subsequent Compensation will vest pro-rata as efforts are made to secure the $200,000 financing, the property transaction or $500,000 debt reduction, respectively, and will have an exercise price of $0.0079.
Furthermore, for all financing obtained by Mr. Caldwell’s efforts resulting in the Company receiving at least $200,000, the completion of a property transaction or resulting in the retirement of the Company’s existing debt in excess of $500,000, Mr. Caldwell will be eligible for certain additional compensation to be determined by the Company’s Board of Directors, payable in cash or in restricted Company common stock at a 20% discount to the closing market price of the Company’s common stock at the time of closing.
The Company has agreed that it will use its best efforts to register the stock issued in connection with the Initial Compensation pursuant to an applicable registration statement filed with the SEC.
Corby Anderson
On April 16, 2009, Golden Phoenix Minerals, Inc. (the “Company”) entered into a Consulting Agreement (the “Allihies Agreement”) with Allihies Engineering, Incorporated, a Montana corporation, and its President, Dr. Corby Anderson, whereby Dr. Anderson is to provide consulting services to the Company in connection with the Company’s continued financing and debt conversion efforts. Dr. Anderson currently serves on the Company’s Board of Directors and Governance Committee.
As compensation for his consulting services, Dr. Anderson will receive 1,500,000 shares of Company common stock valued at a 50% discount to the trailing twenty day Company common stock average price from the date of Board approval of such compensation package, totaling $11,835 (“Initial Compensation”). In May 2009, 528,500 of the common shares were issued. Such Initial Compensation shall serve to offset the expenses incurred by Dr. Anderson in his attempt to help secure the Company future financing. Pursuant to the Allihies Agreement, Dr. Anderson will be obligated to incur expenses or purchase Company debt up to the full value of the Initial Compensation.
In addition, Dr. Anderson will be eligible to receive 1,500,000 warrants to purchase Company common stock upon the acquisition of $200,000 in financing for the Company or in connection with a property transaction related to the Mineral Ridge mining property, or the retirement of up to $500,000 of the Company’s existing debt, that are a result of Dr. Anderson’s efforts (“Subsequent Compensation”). Pursuant to the Allihies Agreement, the warrants associated with the Subsequent Compensation will vest pro-rata as efforts are made to secure the $200,000 financing, the property transaction or $500,000 debt reduction, respectively, and will have an exercise price of $0.0079.
Furthermore, for all financing obtained by Dr. Anderson’s efforts resulting in the Company receiving at least $200,000, the completion of a property transaction or resulting in the retirement of the Company’s existing debt in excess of $500,000, Dr. Anderson will be eligible for a 10% finder’s fee paid either in cash or, at the discretion of the finder, in restricted Company common stock at a 20% discount to the closing market price of the Company’s common stock at the time of closing.
The Company has agreed that it will use its best efforts to register the stock issued in connection with the Initial Compensation pursuant to an applicable registration statement filed with the SEC.
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NOTE 18 – EMPLOYMENT SEPARATION AGREEMENT
On July 28, 2009, the Company entered into an Employment Separation Agreement (the “Separation Agreement”) with Donald R. Prahl. Pursuant to the Separation Agreement, Mr. Prahl resigned as the Chief Operating Officer of the Company and from all other positions held with the Company or on behalf of the Company, effective July 28, 2009 (the “Effective Date”). The Separation Agreement terminates: (i) that certain Employment Agreement, dated August 14, 2006, between the Company and Mr. Prahl whereby Mr. Prahl assumed the roles of Vice President of Operations of the Company and of Interim General Manager at the Ashdown Mine (the “Employment Agreement”), and (ii) that certain Addendum to the Employment Agreement between the Company and Mr. Prahl dated January 31, 2007, pursuant to which Mr. Prahl became Chief Operating Officer of the Company (the “Addendum”).
Under the terms of the Separation Agreement, the Company agreed to: (i) pay Mr. Prahl one year of his base salary of $125,000 as severance, of which $85,000 will be converted into 4,341,164 restricted shares of the Company’s common stock, and the remaining $40,000 will be paid in cash upon the closing of a joint venture transaction involving the Company’s Mineral Ridge property; (ii) pay Mr. Prahl $655.40 for expenses incurred in connection with his employment as soon as reasonably practicable out of available funds, with any unpaid balance due upon the closing of a joint venture transaction involving the Company’s Mineral Ridge property; (iii) credit the $18,000 that was previously advanced to Mr. Prahl as payment in full of any and all outstanding consulting fees owed to Mr. Prahl for the period from November 2008 through July 2009; and (iv) immediately vest any unvested portion of Mr. Prahl’s currently outstanding stock options to purchase shares of the Company’s common stock. Further, Mr. Prahl agreed to a non-solicitation clause with a term of eighteen months from the Effective Date and provided the Company with a general release of liability and claims.
NOTE 19 – SUBSEQUENT EVENTS
Bridge Loan Debt Restructuring Agreement
On October 26, 2009, the Company and Crestview agreed to restructure the terms of the $1 million Bridge Note (see Note 11) to extend the maturity date from November 6, 2009 to February 6, 2010. The Company executed an Amended and Restated Bridge Loan Promissory Note dated October 29, 2009 reflecting such agreed to amendment.
On October 26, 2009, the Company and Crestview also agreed to restructure the terms of the $1 million Debt Restructuring Note (see Note 11) to change the maturity date from February 6, 2011 to August 6, 2010. The Company executed an Amended and Restated Debt Restructuring Promissory Note dated October 29, 2009 to reflect the same. The terms of the Amended and Restated Debt Restructuring Note were also modified to require the Company to prepay the Amended and Restated Debt Restructuring Note to the extent of 50% of any debt or equity financing received by the Company. The provisions of the Debt Restructuring Warrants were modified pursuant to an Amended and Restated Restructuring Warrant dated October 29, 2009 to provide that in the event there is an issuance of shares or common stock, convertible debt or equity, or warrants or options, at a price per share or convertible or exercisable at a price per share below the Warrant Price (as defined), then the Warrant Price shall be reduced to the price per share of the common stock so issued or issuable, and the number of Warrant Shares (as defined) shall be adjusted to the extent required to enable the Holder to acquire additional shares of common stock representing the same percentage of the shares issued and/or issuable as a result of the transaction as the number of Warrant Shares exercisable immediately prior to the transactions represents of the number of shares of common stock issued and outstanding immediately prior to the transaction. As a result of the change in the maturity date, of the Debt Restructuring Loan of $1 million has been recorded as a current liability in the accompanying condensed consolidated balance sheet at September 30, 2009.
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The Company will pay the holder of the Amended and Restated Bridge Loan Promissory Note $50,000 on the maturity date of the Bridge Loan as part of the consideration for amending each of the bridge loan and debt restructuring agreements set forth above.
Stock Purchase Agreements
In October 2009, the Company issued a total of 5,500,000 restricted shares of Company common stock for total cash proceeds of $109,725. The shares are exempt from the registration requirements of the Securities Act pursuant to Section 4(2) of the Securities Act and from various similar state exemptions.
Evaluation of Subsequent Events
In accordance with ASC 855, Subsequent Events, the Company has evaluated subsequent events from the September 30, 2009 balance sheet date through November 16, 2009.
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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
Forward Looking Statements
Except for historical information, the following Management’s Discussion and Analysis contains forward-looking statements based upon current expectations that involve certain risks and uncertainties. Such forward-looking statements include statements regarding, among other things, (a) our estimates of mineral reserves and mineralized material, (b) our projected sales and profitability, (c) our growth strategies, (d) anticipated trends in our industry, (e) our future financing plans, (f) our anticipated needs for working capital, (g) our lack of operational experience and (h) the benefits related to ownership of our common stock. Forward-looking statements, which involve assumptions and describe our future plans, strategies, and expectations, are generally identifiable by use of the words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,” “believe,” “intend,” or “project” or the negative of these words or other variations on these words or comparable terminology. This information may involve known and unknown risks, uncertainties, and other factors that may cause our actual results, performance, or achievements to be materially different from the future results, performance, or achievements expressed or implied by any forward-looking statements. These statements may be found under “Management’s Discussion and Analysis of Financial Condition” as well as in this Report generally. Actual events or results may differ materially from those discussed in forward-looking statements as a result of various factors, including, without limitation, the risks outlined under “Risk Factors” described in this Report and elsewhere in our Annual Report on Form 10-K for the year ended December 31, 2008 filed with the Securities and Exchange Commission and matters described in this Report generally. In light of these risks and uncertainties, there can be no assurance that the forward-looking statements contained in this Report will in fact occur as projected.
Overview
Golden Phoenix Minerals, Inc. (the “Company,” “Golden Phoenix,” “we,” “us” or “our”) is a mineral exploration, development and production company formed in Minnesota on June 2, 1997. On May 30, 2008, we reincorporated in Nevada. Our business includes acquiring and consolidating mineral properties with potential production and future growth through exploration discoveries. Acquisition emphasis is focused on properties containing gold, silver, molybdenum and other strategic minerals that present low political and financial risk and exceptional upside potential. Currently, our main focus is in Nevada.
As discussed further in the Notes to Condensed Consolidated Financial Statements, on May 13, 2009, we completed an agreement to sell 100% of our ownership interest in the Ashdown Project LLC (the “Ashdown LLC”) and entered into a letter agreement dated May 19, 2009 for the purpose of contributing our Mineral Ridge mining property (“Mineral Ridge Mine”) into a potential joint venture to place this property into production. As a result, the Ashdown LLC and the Mineral Ridge Mine are classified as discontinued operations for all periods presented in the condensed consolidated financial statements.
We are pleased to report the completion of the sale of our interest in the Ashdown, LLC and believe that we have received fair and valuable consideration in the form of the note receivable of $5.3 million. In addition, we believe that substantial value is represented in the assets of the Ashdown LLC that have been pledged as collateral for the note receivable. However, generally accepted accounting principles preclude us from presenting an asset in our condensed consolidated balance sheet as of September 30, 2009 and recognizing any gain on sale of our interest in the Ashdown LLC attributed to the note due to the uncertainty of collecting the note or realizing any value from the assets and property of the Ashdown LLC upon foreclosure. Therefore, we have recorded a 100% valuation allowance against the $5.3 million note receivable as of September 30, 2009. Payments received from WEG in the future, if any, will be recorded as either interest income or gain on sale of our interest in the Ashdown LLC.
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In February 2007, we completed a purchase agreement with four individuals for the Northern Champion molybdenum property located in Ontario, Canada, and we plan to take bulk samples for metallurgical and market testing, and to actively explore and delineate molybdenum mineralization on the property as funding is available.
Going Concern
Our condensed consolidated financial statements are prepared using accounting principles generally accepted in the United States of America applicable to a going concern, which contemplates the realization of assets and liquidation of liabilities in the normal course of business. However, we have a history of operating losses since our inception in 1997, and have an accumulated deficit of $46,766,874 and a total stockholders’ deficit of $5,874,720 at September 30, 2009, which together raises doubt about the Company’s ability to continue as a going concern. The accompanying condensed consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Historically, we have obtained working capital from debt and equity financing, the exercise of options and warrants, and from a production payment purchase agreement to fund our activities. The deterioration of capital markets has made it increasingly difficult to obtain debt and equity financing. On January 30, 2009, we entered into a Bridge Loan and Debt Restructuring Agreement with Crestview Capital Master, LLC (“Crestview), whereby we borrowed $1 million from Crestview. Subsequent to September 30, 2009, the maturity date of this loan was extended from November 6, 2009 to February 6, 2010.
The operations of the Ashdown LLC have also funded a significant portion of our operating costs and expenses. We suspended the mining operations of the Ashdown LLC in November 2008 in response to a substantial decline of molybdenum oxide market prices, with only incidental revenues during the three months and six months ended June 30, 2009. On May 13, 2009, we completed an agreement to sell 100% of our ownership interest in the Ashdown LLC to Win-Eldrich Gold, Inc. (“WEG”). The $5.3 million purchase price due the Company will be payable over a 72 month term, and WEG will assume substantially all of the liabilities of the Ashdown LLC. There can be no guarantee or assurance that WEG will be successful in its ability to raise sufficient capital to commence again the operations of the Ashdown LLC, attain a sustained profitable level of operations from the Ashdown LLC, or pay on the $5.3 million promissory note.
Further, we entered into a letter agreement dated May 19, 2009, as subsequently amended on July 17, 2009, with Scorpio Gold Corporation (“Scorpio Gold”) for the purpose of completing due diligence prior to entering into a possible joint venture to place our Mineral Ridge Mine into production. On June 18, 2009, Scorpio Gold notified us that it had completed preliminary due diligence and intended to proceed with the acquisition of an interest in the Mineral Ridge Mine and the formation of a joint venture. We have received total non-refundable cash payments of $450,000 as well as certain expenses from Scorpio Gold. There can be no assurance that Scorpio Gold will complete its acquisition of an interest in the Mineral Ridge Mine and form a joint venture to successfully operate the mine.
With the shutdown of Ashdown operations and the ongoing difficulty raising capital, certain of our vendors and lenders have initiated actions to collect balances that are past due. We are negotiating mutually beneficial settlements and payment plans with these parties. However, the ability to bring the obligations current is dependent on our ability to raise additional capital. Further, there can be no assurance that we will attain a successful level of operations from its other properties, or to continue to raise capital at favorable rates or at all. If we are unable to obtain profitable operations and positive operating cash flows and raise sufficient capital to meet scheduled and past due debt obligations, we may be forced to scale back our development plans or to significantly reduce or terminate operations and file for reorganization or liquidation under the bankruptcy laws. The condensed consolidated financial statements do not include any adjustments that might result from the outcome of these uncertainties.
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Critical Accounting Policies
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make a wide variety of estimates and assumptions that affect: (1) the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities as of the date of the financial statements, and (2) the reported amounts of revenues and expenses during the reporting periods covered by the financial statements. Our management routinely makes judgments and estimates about the effect of matters that are inherently uncertain. As the number of variables and assumptions affecting the future resolution of the uncertainties increases, these judgments become even more subjective and complex. We have identified certain accounting policies that are most important to the portrayal of our current financial condition and results of operations. Our significant accounting policies are disclosed in Note 1 of the Notes to the Consolidated Financial Statements in our Annual Report on Form 10-K for the year ended December 31, 2008 filed with the SEC, and several of those critical accounting policies are as follows:
Inventories. Inventories consist of materials and supplies and are stated at the lower of cost (using the average cost method) or market. Market is determined on the basis of estimated realizable values.
Property and Equipment. Property and equipment are stated at cost. Depreciation and amortization are calculated using the straight-line method over estimated useful lives of the assets, ranging from 5 to 40 years.
Mine development costs are capitalized after proven and probable reserves have been identified. Amortization of mine development costs will be calculated using the units-of-production method over the expected life of the operation based on the estimated proven and probable reserves. With the sale of the Ashdown LLC, as of September 30, 2009, we had no proven or probable reserves and have idled the Mineral Ridge mine pending full reviews of engineering and metallurgy, and optimization of a revised mine and operations plan. Accordingly, through September 30, 2009, mining equipment and buildings are currently being depreciated on a straight-line basis over their estimated economic useful life rather than on a units-of-production method.
Property Acquisition and Deferred Mineral Property Development Costs. Mineral property acquisition and deferred mineral property development costs are recorded at cost and will be capitalized once determination has been made that a mineral property has proven or probable reserves that can be produced profitably. On the commencement of profitable commercial production, depletion of each mineral property acquisition and associated deferred property development costs will be computed on the units of production basis using estimated proven and probable reserves.
Exploration Properties. Mineral exploration expenditures are expensed as incurred. Property acquisition costs relating to exploration properties are also expensed until the economic viability of the project is determined and proven and probable reserves quantified. Costs associated with economically viable projects are depreciated and amortized in accordance with the policies described above.
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Proven and Probable Ore Reserves. On a periodic basis, management reviews the reserves that reflect estimates of the quantities and grades of metals at our mineral properties which management believes can be recovered and sold at prices in excess of the total cost associated with mining and processing the mineralized material. Management’s calculations of proven and probable ore reserves are based on, along with independent consultant evaluations, in-house engineering and geological estimates using current operating costs, metals prices and demand for our products. Periodically, management obtains external determinations of reserves.
Reserve estimates will change as existing reserves are depleted through production, as well as changes in estimates caused by changing production costs and/or metals prices. Reserves may also be revised based on actual production experience once production commences. Declines in the market price of metals, as well as increased production or capital costs or reduced recovery rates, may render ore reserves uneconomic to exploit. Should that occur, restatements or reductions in reserves and asset write-downs in the applicable accounting periods may be required. Reserves should not be interpreted as assurances of mine life or of the profitability of current or future operations. No assurance can be given that the estimate of the amount of metal or the indicated level of recovery of these metals will be realized.
With the sale of our interest in the Ashdown LLC, we currently have no proven or probable ore reserves.
Closure, Reclamation and Remediation Costs. Current laws and regulations require certain closure, reclamation and remediation work to be done on mineral properties as a result of exploration, development and operating activities. We periodically review the activities performed on our mineral properties and makes estimates of closure, reclamation and remediation work that will need to be performed as required by those laws and regulations and makes estimates of amounts that are expected to be incurred when the closure, reclamation and remediation work is expected to be performed. Future closure, reclamation and environmental related expenditures are difficult to estimate in many circumstances due to the early stages of investigation, uncertainties associated with defining the nature and extent of environmental contamination, the uncertainties relating to specific reclamation and remediation methods and costs, application and changing of environmental laws, regulations and interpretation by regulatory authorities and the possible participation of other potentially responsible parties.
We have estimated costs associated with closure, reclamation and environmental reclamation of the Mineral Ridge property which are included in our consolidated financial statements in liabilities of discontinued operations in accordance with generally accepted accounting principles, including the adoption of SFAS 143, Accounting for Asset Retirement Obligations.
Property Evaluations and Impairment of Long-Lived Assets. We review and evaluate the carrying amounts of our mining properties and related buildings and equipment, and other long-lived assets when events or changes in circumstances indicate that the carrying amount may not be recoverable. Estimated future net cash flows, on an undiscounted basis, from a property or asset are calculated using estimated recoverable minerals (considering current proven and probable reserves and mineralization expected to be classified as reserves where applicable); estimated future mineral price realization (considering historical and current prices, price trends and related factors); and operating, capital and reclamation costs. Reduction in the carrying value of property, plant and equipment, or other long-lived assets, with a corresponding charge to earnings, are recorded to the extent that the estimated future net cash flows are less than the carrying value.
Estimates of future cash flows are subject to risks and uncertainties. It is reasonably possible that changes in circumstances could occur which may affect the recoverability of our properties and long-lived assets.
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Note Receivable. As of September 30, 2009, the note receivable of $5.3 million received from WEG in the sale of our interest in the Ashdown LLC has been reduced by a 100% valuation allowance due to the uncertainty of collecting the note or realizing any value from the assets and property of the Ashdown LLC upon foreclosure. Payments received from WEG in the future, if any, will be recorded as either interest income or gain on sale of our interest in the Ashdown LLC.
Income Taxes. We recognize a liability or asset for deferred tax consequences of all temporary differences between the tax bases of assets and liabilities and their reported amounts in the consolidated financial statements that will result in taxable or deductible amounts in future years when the reported amounts of the assets and liabilities are recovered or settled. Deferred tax items mainly relate to net operating loss carry forwards and accrued expenses. These deferred tax assets or liabilities are measured using the enacted tax rates that will be in effect when the differences are expected to reverse. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. Deferred tax assets are reviewed periodically for recoverability, and valuation allowances are provided when it is more likely than not that some or all of the deferred tax assets may not be realized. As of September 30, 2009 and December 31, 2008, we have fully reduced our deferred tax assets by recording a valuation allowance.
Stock-Based Compensation and Equity Transactions. We account for stock-based compensation pursuant to SFAS No. 123R, Share-Based Payment, an amendment of FASB Statements 123 and 95, which requires us to measure the compensation cost of stock options and other stock-based awards to employees and directors at fair value at the grant date and recognize compensation expense over the requisite service period for awards expected to vest.
Except for transactions with employees and directors that are within the scope of SFAS 123R, all transactions in which goods or services are the consideration received for the issuance of equity instruments are accounted for based on the fair value of the consideration received or the fair value of the equity instruments issued, whichever is more reliably measurable. Additionally, in accordance with EITF 96-18, the Company has determined that the dates used to value the transaction are either: (1) the date at which a commitment for performance by the counter party to earn the equity instruments is established; or (2) the date at which the counter party’s performance is complete.
Recent Accounting Pronouncements
In June 2009, the Financial Accounting Standards Board (FASB) issued Topic 105, Generally Accepted Accounting Principles. This standard establishes the FASB Accounting Standards Codification™ (“ASC”) as the source of authoritative U.S. generally accounting principles (GAAP) recognized by the FASB to be applied to nongovernmental entities. Rules and interpretive releases of the Securities and Exchange Commission (SEC) under authority of federal securities laws are also sources of authoritative GAAP for SEC registrants. On the effective date of this standard, the Codification will supersede all then-existing non-SEC accounting and reporting standards. All other nongrandfathered non-SEC accounting literature not included in the Codification will become nonauthoritative. This standard is effective for financial statements issued for interim and annual periods ending after September 15, 2009, or the Company’s quarter ended September 30, 2009. The Company implemented this standard with no material impact on its consolidated financial statements.
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In June 2009, the FASB issued a new accounting standard that is included in ASC 810, Consolidation, that changes how a company determines when an entity that is insufficiently capitalized or is not controlled through voting (or similar rights) should be consolidated. The determination of whether a company is required to consolidate an entity is based on, among other things, an entity’s purpose and design and a company’s ability to direct the activities of the entity that most significantly impact the entity’s economic performance. The standard is effective at the start of a company’s first fiscal year beginning after November 15, 2009, or the Company’s fiscal year beginning January1, 2010. The Company is currently unable to determine what impact the future application of this standard may have on its consolidated financial statements.
In June 2009, the FASB issued a new accounting standard that is included in ASC 860, Transfers and Servicing, that will require more information about transfers of financial assets, including securitization transactions, and where companies have continuing exposure to the risks related to transferred financial assets. It eliminates the concept of a “qualifying special-purpose entity,” changes the requirements for derecognizing financial assets, and requires additional disclosures. The standard is effective at the start of a company’s first fiscal year beginning after November 15, 2009 or the Company’s fiscal year beginning January1, 2010. The Company is currently unable to determine what impact the future application of this standard may have on its consolidated financial statements.
In May 2009, the FASB issued ASC 855, Subsequent Events. This standard is intended to establish general standards of accounting for and disclosures of events that occur after the balance sheet date but before financial statements are issued or are available to be issued. It requires the disclosure of the date through which an entity has evaluated subsequent events and the basis for that date—that is, whether that date represents the date the financial statements were issued or were available to be issued. This disclosure is intended to alert all users of financial statements that an entity has not evaluated subsequent events after that date in the set of financial statements being presented. The standard is effective for interim and annual periods ending after June 15, 2009, or the Company’s fiscal quarter ended June 30, 2009. The implementation of this standard did not have a material impact on the Company’s consolidated financial statements.
RESULTS OF OPERATIONS
Sales
With the sale of our interest in the Ashdown LLC and the presentation of its operations as discontinued operations in our condensed consolidated financial statements, we reported no sales of minerals for the three-month and nine month periods ended September 30, 2009 and 2008.
During the three months and nine months ended September 30, 2009, we had rental income from the use of our drilling equipment of $63,056. We had no rental income in the prior year.
Operating Costs and Expenses
Operating costs and expenses reported in the accompanying condensed consolidated statements of operations exclude the operating costs and expenses of the Ashdown LLC and the Mineral Ridge Mine due to the classification of these operations as discontinued operations.
Costs of mining operations were $0 and $(75,637) for three-month periods ended September 30, 2009 and 2008, respectively, and $(14,175) and $(250,498) for the nine-month periods ended September 30, 2009 and 2008, respectively. Costs of mining operations include expenditures to maintain the Company’s mineral properties on standby status, with credit balances reported for allocations of labor and other costs to the Ashdown LLC and the Mineral Ridge Mine, where the expenses are included in discontinued operations. The amounts in the current fiscal year represent a reduction in amounts allocated to the discontinued operations primarily due to the decrease in amounts allocated to the Ashdown LLC.
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Exploration, development and mineral property lease expenses were $(17,610) and $(383,912) for the three-month periods ended September 30, 2009 and 2008, respectively, and $(46,910) and $(9,869) for the nine-month periods ended September 30, 2009 and 2008, respectively. Credit balances in these expenses represent allocations of labor and other costs to the Ashdown LLC and the Mineral Ridge Mine, where the expenses are included in discontinued operations. These expenses decreased in the current year due to the suspension of the activities of our drilling department. In the first quarter of 2008 we organized a drilling department that was fully staffed and for which we acquired equipment and supplies. We conducted planning activities for drilling at Mineral Ridge and Ashdown. We also continued reserve calculations and feasibility work at Mineral Ridge in 2008.
General and administrative expenses were $397,374 and $804,969 for the three-month periods ended September 30, 2009 and 2008, respectively, and $1,369,174 and $2,634,072 for the nine-month periods ended September 30, 2009 and 2008, respectively. General and administrative expenses include investor relations, salaries and wages of officers and office and accounting personnel, legal and professional fees, and stock-based compensation expense. The decrease in the current year is due to the substantial reduction in the number of employees and related administrative expenses pursuant to the suspension of operations at Ashdown.
Depreciation and amortization expense for the three-month periods ended September 30, 2009 and 2008 was $20,560 and $35,355, respectively, and $60,520 and $76,262 for the nine-month periods ended September 30, 2009 and 2008, respectively. Depreciation and amortization expense in the current year is less than in the prior year due to the retirement of certain mining and milling equipment in the current year.
Royalties expense for the nine months ended September 30, 2009 was $70,090, representing an amount that was converted to a note payable to an officer of the Company. Royalties expense for the nine months ended September 30, 2008 was $1,158,337, comprised of cash royalty payments to members of Ashdown Milling and the issuance of our common stock to two of its members to buy out their membership interests in Ashdown Milling, thus reducing future royalty obligations on Ashdown LLC production.
Other Income (Expense)
Interest and other income for the three-month periods ended September 30, 2009 and 2008 was $4,289 and $4,107, respectively, and $4,541 and $14,946 for the nine-month periods ended September 30, 2009 and 2008, respectively. The decrease in interest and other income on a year-to-date basis in the current year is due to decreased levels of interest-bearing deposits.
Interest expense for the three-month periods ended September 30, 2009 and 2008 was $66,912 and $22,362, respectively, and $637,881 and $51,031 for the nine-month periods ended September 30, 2009 and 2008, respectively. The increase in interest expense during the current year is due primarily to the addition of $2,000,000 of interest-bearing debt in the first quarter of 2009 and interest expense recorded upon the issuance of warrants associated with fund raising activities.
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During the three-month periods ended September 30, 2009 and 2008, we reported a gain on extinguishment of debt of $8,123 and $1,500, respectively. During the nine-month period ended September 30, 2009, we reported a gain on extinguishment of debt of $982,579, resulting primarily from the restructuring of a production payment obligation of $1,974,456 to a long-term debt obligation of $1,000,000.
We also reported a gain on disposal of property and equipment of $127 in the nine months ended September 30, 2009.
Discontinued Operations
We have reported the results of operations of the Ashdown LLC and the Mineral Ridge Mine in our condensed consolidated financial statements as discontinued operations for the three-month and nine-month periods ended September 30, 2009 and 2008, including the following:
Three Months Ended September 30, | 2009 | 2008 | ||||||||||||||||||||||
Ashdown LLC | Mineral Ridge | Total | Ashdown LLC | Mineral Ridge | Total | |||||||||||||||||||
| Revenues | $ | - | $ | - | $ | - | $ | 1,670,012 | $ | - | $ | 1,670,012 | ||||||||||||
Loss before minority interest and income taxes | - | (94,479 | ) | (94,479 | ) | (1,749,760 | ) | (1,136,012 | ) | (2,885,772 | ) | |||||||||||||
| Provision for income taxes | - | - | - | - | - | - | ||||||||||||||||||
Loss before minority interest | - | (94,479 | ) | (94,479 | ) | (1,749,760 | ) | (1,136,012 | ) | (2,885,772 | ) | |||||||||||||
Minority interest in net loss of joint venture | - | - | - | 703,268 | - | 703,268 | ||||||||||||||||||
Loss from discontinued operations | $ | - | $ | (94,479 | ) | $ | (94,479 | ) | $ | (1,046,492 | ) | $ | (1,136,012 | ) | $ | (2,182,504 | ) | |||||||
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Nine Months Ended September 30, | 2009 | 2008 | ||||||||||||||||||||||
Ashdown LLC | Mineral Ridge | Total | Ashdown LLC | Mineral Ridge | Total | |||||||||||||||||||
| Revenues | $ | 321,115 | $ | - | $ | 321,115 | $ | 10,288,315 | $ | - | $ | 10,288,315 | ||||||||||||
Income (loss) before minority interest and income taxes | (668,186 | ) | (482,080 | ) | (1,150,266 | ) | 523,726 | (1,731,210 | ) | (1,207,484 | ) | |||||||||||||
| Provision for income taxes | - | - | - | - | - | - | ||||||||||||||||||
Income (loss) before minority interest | (668,186 | ) | (482,080 | ) | (1,150,266 | ) | 523,726 | (1,731,210 | ) | (1,207,484 | ) | |||||||||||||
Minority interest in net (income) loss of joint venture | 267,274 | - | 267,274 | (201,292 | ) | - | (201,292 | ) | ||||||||||||||||
Loss on sale of interest in joint venture | (235,303 | ) | - | (235,303 | ) | - | - | - | ||||||||||||||||
Income (loss) from discontinued operations | $ | (636,215 | ) | $ | (482,080 | ) | $ | (1,118,295 | ) | $ | 322,434 | $ | (1,731,210 | ) | $ | (1,408,776 | ) | |||||||
The Ashdown LLC commenced operations and had its first sale of molybdenite concentrates in December 2006, with operations and sales ramping up during most of 2007. We suspended the mining operations of the Ashdown LLC in November 2008 in response to a substantial decline of molybdenum oxide market prices, with only incidental revenues during the period from January 1, 2009 through May 13, 2009, the date we sold our interest in the Ashdown LLC.
The sale of our interest in the Ashdown LLC was completed on May 13, 2009, and no amounts for the Ashdown LLC are included in our condensed consolidated statements of operations for the three months ended September 30, 2009. The Ashdown LLC reported a loss before minority interest of $1,749,760 for the three months ended September 30, 2008, primarily because of lower sales levels during this quarter compared to the first two quarters of fiscal year 2008.
The Ashdown LLC reported a loss before minority interest of $668,186 for the nine months ended September 30, 2009 compared to income before minority interest of $523,726 for the nine months ended September 30, 2008. As discussed above, mining operations were suspended and we had only incidental revenues in fiscal 2009 up to the date of sale of our interest in the Ashdown LLC. We recognized a loss on sale of the interest in the Ashdown LLC of $235,303 in the nine months ended September 30, 2009.
Amounts included in income (loss) from discontinued operations for the Mineral Ridge Mine include costs and expenses to maintain the property on standby status and exploration and development activities. These expenses decreased in the current year due to lack of funding and the suspension of related activities of our drilling department.
Liquidity And Capital Resources
We have a history of operating losses since our inception in 1997, and had an accumulated deficit of $46,766,874 and a working capital deficit of $4,944,001 at September 30, 2009.
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During the nine months ended September 30, 2009, we used net cash of $708,104 in operating activities, compared to $2,417,931 net cash used in operating activities during the nine months ended September 30, 2008. The decrease in net cash used in operating activities in the current year is primarily due to the decreased net loss of the Company resulting from the idling of the drilling department and the reduction of personnel and related administrative expenses following the suspension of operations at Ashdown.
During the nine months ended September 30, 2009, net cash used in investing activities was $1,147 consisting of $1,500 for the purchase of property and equipment, partially offset by proceeds from the sale of property and equipment of $353. During the nine months ended September 30, 2008, net cash used in investing activities was $243,057 for the purchase of property and equipment.
During the nine months ended September 30, 2009, net cash provided by financing activities was $1,065,715, comprised of proceeds from the issuance of debt of $1,000,000, proceeds from the amounts due related parties of $6,000, and proceeds from the issuance of common stock of $139,674, partially offset by the payment of severance obligations of $9,179, debt of $30,710 and amounts due related parties of $40,070.
During the nine months ended September 30, 2008, net cash provided by financing activities was $353,633, comprised of proceeds from the issuance of debt of $43,000, proceeds from the exercise of options and warrants of $25,658, and proceeds from the issuance of common stock of $689,613, partially offset by payments of severance obligations of $113,247, debt of $76,467, amounts due related parties of $114,898 and the payments of production payment obligation – related party of $100,026.
Our liquidity has been negatively impacted by the deterioration of capital markets, making it increasingly difficult for us to obtain debt and equity financing. In addition, due to significant declines in the market price of molybdenum, during the first week of November 2008, we suspended the operations of the Ashdown LLC, where production costs per pound exceeded the market price per pound. On February 25, 2009, we entered into an agreement to sell 100% of our ownership interest in the Ashdown LLC to Win-Eldrich Gold, Inc. (“WEG”) for $5.3 million. The sale was completed on May 13, 2009. As a result, we currently have no operating revenues and we will require additional funding from debt and equity financing to meet our current obligations, including substantial obligations that are past due.
The $5.3 million purchase price due us from WEG will be payable over a 72 month term commencing one year from the closing of the sale, and WEG will assume substantially all of the liabilities of the Ashdown LLC. There can be no guarantee or assurance that WEG will be successful in its ability to raise sufficient capital to recommence the operations of the Ashdown LLC, attain a sustained profitable level of operations from the Ashdown LLC, or pay us the $5.3 million promissory note.
We entered into a letter agreement dated May 19, 2009, as subsequently amended on July 17, 2009, with Scorpio Gold Corporation (“Scorpio Gold”) for the purpose of completing due diligence prior to entering into a possible joint venture to place our Mineral Ridge mining property (the “Property”) into production. On June 18, 2009, Scorpio Gold notified us that it had completed preliminary due diligence and intended to proceed with the acquisition of an interest in the Property and the formation of a joint venture. We have received total non-refundable cash payments of $450,000 as well as certain expenses from Scorpio Gold.
In accordance with the non-binding provisions of the letter agreement, we are currently in negotiations with Scorpio Gold to complete definitive agreements, which are intended to take the form of an option and joint venture agreement between the Parties. It is intended that Scorpio Gold will acquire an initial 70% joint venture interest and the Company will hold a 30% joint venture interest. Scorpio Gold will be the operator of the joint venture.
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As contemplated by the letter agreement it is expected that, in consideration of the grant by the Company to Scorpio Gold of a 70% undivided interest in the Property, with both parties contributing their respective interests in the Property to the joint venture, Scorpio Gold shall at closing: (a) make a cash payment to us of US $3,750,000, less those amounts previously paid by Scorpio Gold to us; and issue to us that number of common shares of Scorpio Gold at a deemed price of Canadian $0.50 per share having an aggregate deemed value of US$3,750,000 using a defined exchange rate.
It is further anticipated, subject to definitive agreements, that Scorpio Gold will have the right, but not the obligation, to increase its joint venture interest by 10% to an aggregate 80% interest by arranging all project financing required to place the Property into commercial production. The parties are also negotiating a period of time during which, subject to certain conditions, Scorpio Gold would have the right to acquire our remaining joint venture interest in the Property at a defined purchase price.
There can be no assurance that Scorpio Gold and the Company will successfully complete the definitive agreements necessary to form a joint venture, that the parties will be able to successfully operate the Property or that we will receive further payments from Scorpio Gold for the sale of the Property.
At September 30, 2009, we had cash of $6,153, but total current liabilities of $5,026,858. With no operating revenues and difficulties experienced in raising debt and equity capital, our current cash and cash equivalents will not be sufficient for our current level of operations and planned exploration and development activities in the near term. We have significantly reduced our operating costs, including a reduction in force.
With the shutdown of Ashdown operations and the ongoing difficulty raising capital, certain of our vendors and lenders have initiated actions to collect balances that are past due. We are negotiating mutually beneficial settlements and payment plans with these parties. However, the ability to bring the obligations current is dependent on our ability to raise additional capital. Further, there can be no assurance that we will attain a successful level of operations from our other properties, or to continue to raise capital at favorable rates or at all. If we are unable to obtain profitable operations and positive operating cash flows and raise sufficient capital to meet scheduled and past due debt obligations, we may be forced to scale back our development plans or to significantly reduce or terminate operations and file for reorganization or liquidation under the bankruptcy laws.
On January 30, 2009, we entered into a Bridge Loan and Debt Restructuring Agreement (the “Agreement”) with Crestview Capital Master, LLC (the “Lender”), whereby we borrowed $1,000,000 (“Principal Amount”) from the Lender and restructured the original debt that we owed to the Lender of $1,974,456 pursuant to the Production Payment Purchase Agreement and Assignment, dated June 12, 2007 (the “Original Debt”). We issued the Lender a Secured Promissory Note (“Bridge Note”) for the Principal Amount plus interest to accrue on a quarterly basis at a rate of the Wall Street Journal Prime Rate plus 2%. The Bridge Note is due and payable on the earlier of the following: (a) completion of the formation of a joint venture with, or any sale or transfer to, a third party in relation to the Mineral Ridge Property; or (b) a date that is 9 months from the closing date of February 6, 2009, or November 6, 2009 (“Closing”). On October 26, 2009, the Lendor agreed to restructure the terms of the Bridge Note to extend the maturity date from November 6, 2009 to February 6, 2010. We executed an Amended and Restated Bridge Note dated October 29, 2009 to reflect the extension. The Lender may, at its option, require repayment of $500,000 of the amount owed on the Bridge Note in consideration for the issuance of warrants to purchase 5,000,000 shares of the Company’s common stock, at an exercise price of $0.05 per share (the “Bridge Warrants”).
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Additionally, pursuant to the Agreement, we restructured the Original Debt, which was recorded as a production payment obligation, a current liability in our condensed consolidated balance sheets as of December 31, 2008. In consideration of the reduction of the Original Debt from $1,974,456 to $1,000,000, we executed a Secured Promissory Note in the principal amount of $1,000,000 (the “Debt Restructuring Note”) together with interest at a rate equal to the Wall Street Journal Prime Rate plus 2%, with a maturity date of 24 months from the Closing (or February 6, 2011), as well as issued warrants to purchase 23,000,000 shares of the Company’s common stock at an exercise price of $0.03 per share, for a purchase period of 24 months (the “Debt Restructuring Warrants”). As a result, we recorded a gain on extinguishment of debt of $974,456 in the accompanying condensed consolidated statement of operations for the nine months ended September 30, 2009. In the event that we form a joint venture in relation to the Mineral Ridge Property (or its mining rights) resulting in our retaining less than a 10% interest in the Mineral Ridge Property, the entire amount owed on the Debt Restructuring Note will be accelerated and become immediately due. Upon formation of a joint venture in relation to the Mineral Ridge Property, we will issue an irrevocable assignment to the Lender of 50% of all distributions to be made to us by the joint venture as prepayment for the amount outstanding on the Debt Restructuring Note. Upon payment in full of the Debt Restructuring Note and any additional note issued pursuant to Section 3 of the Bridge Note, the Lender will release the joint venture from the assignment.
As security for the Bridge Note and the Debt Restructuring Note, the parties agreed to amend and restate their Security Agreement, dated June 12, 2007, which secures our repayment obligations pursuant to the Agreement (the “Amended Security Agreement”). The secured interest in favor of the Lender has been perfected by the filing of a UCC-1 Financing Statement with the Nevada Secretary of State as well as the filing of a Deed of Trust and Mortgage with Esmeralda County.
Pursuant to the Agreement, in consideration of our issuance of the Bridge Note, the Debt Restructuring Note, the Debt Restructuring Warrants, and the Amended Security Agreement, the Lender will release us from all past, present, and future claims relating to the Original Debt provided that we pay the interest and principal of the current obligations on the day such interest and principal become payable.
On October 26, 2009, the Lendor and ourselves also agreed to restructure the terms of the Debt Restructuring Note to change the maturity date from February 6, 2011 to August 6, 2010. We executed an Amended and Restated Debt Restructuring Note dated October 29, 2009 to reflect the same. The terms of the Amended and Restated Debt Restructuring Note were also modified to require us to prepay the Amended and Restated Debt Restructuring Note to the extent of 50% of any debt or equity financing received by us. Further, the provisions of the Amended and Restated Debt Restructuring Warrants were modified to provide that in the event there is an issuance of shares or common stock, convertible debt or equity, or warrants or options, at a price per share or convertible or exercisable at a price per share below the Warrant Price (as defined), then the Warrant Price shall be reduced to the price per share of the common stock so issued or issuable, and the number of Warrant Shares (as defined) shall be adjusted to the extent required to enable the Holder to acquire additional shares of common stock representing the same percentage of the shares issued and/or issuable as a result of the transaction as the number of Warrant Shares exercisable immediately prior to the transactions represents of the number of shares of common stock issued and outstanding immediately prior to the transaction. As a result of the change in the maturity date, of the Debt Restructuring Loan of $1 million has been recorded as a current liability in the accompanying condensed consolidated balance sheet at September 30, 2009.
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On September 26, 2005, we entered into a Production Payment Purchase Agreement with Ashdown Milling Co LLC (“Ashdown Milling”). Under the terms of the agreement, Ashdown Milling agreed to purchase a production payment to be paid from our share of production from the Ashdown mine for a minimum of $800,000. In addition, Ashdown Milling received one share of the Company’s common stock and one warrant to purchase one share of the Company’s common stock at $0.20 per share for each dollar paid to us. In addition, the Production Payment Purchase Agreement provided that, upon our request for additional funds, Ashdown Milling had the right, but not the obligation, to increase its investment in the production payment up to an additional $700,000 for a maximum purchase price of $1,500,000. The amount of the production payment to be paid to Ashdown Milling is equal to a 12% net smelter returns royalty on the minerals produced from the mine until an amount equal to 240% of the total purchase price has been paid. Robert P. Martin, President of the Company, and Kenneth S. Ripley, a former Chief Executive Officer of the Company, are co-managers and two of the five members of Ashdown Milling. Our Board approved the transaction.
Because production payments from the Ashdown mine were not assured at the time of the agreement with Ashdown Milling, the transaction was originally accounted for as the sale of an interest in mineral properties with the related gain to be deferred until we began making payments according the terms of the agreement. A total of $1,500,000 was advanced to us pursuant to this agreement, with the proceeds allocated as follows.
| Common stock | $ | 370,100 | ||
| Warrants | 225,333 | |||
| Deferred revenue | 904,567 | |||
| $ | 1,500,000 |
The allocation of the proceeds to common stock was based on the quoted market price of the Company’s common stock on the date the shares were issued to the Ashdown Milling members. The allocation of the proceeds to warrants, also recorded to common stock, was based on the estimated value of the warrants calculated using the Black-Scholes valuation model.
With the commencement of mining operations at the Ashdown mine, we reclassified the deferred revenue to a production payment obligation – related party, a current liability, to be repaid from our share of production distributions received from the Ashdown LLC. As of December 31, 2008, we had paid the $904,567 production payment obligation. Amounts paid to Ashdown Milling members in excess of the original obligation recorded of $904,567 will be reported as royalties expense.
On February 6, 2008 we bought out the membership interests of two members of Ashdown Milling, Charles D. Murphy and Acco Investment Inc., in exchange for 1,866,667 shares of the Company’s common stock and $139,092 cash paid to each of them. As a result, their membership interests in Ashdown Milling were extinguished, and our remaining production payment to be paid to Ashdown Milling was reduced from a 12% net smelter returns royalty on the minerals produced to 7.2%.
For the nine months ended September 30, 2008, we reported royalties expense of $1,158,337 comprised of the following:
| Common stock – 3,733,334 shares at $0.225 per share | $ | 840,000 | ||
| Exercise of warrants – 300,000 shares at $0.20 per share | 60,000 | |||
| Cash payments | 258,337 | |||
| $ | 1,158,337 |
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As a consequence of the sale of our interest in the Ashdown LLC, the members of Ashdown Milling will no longer have a net smelter returns royalty on Ashdown LLC production. We intend to pay the remaining royalty obligation as sales proceeds are received from WEG.
We continue to investigate other potential financing sources.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
Not Applicable.
Item 4T. Controls and Procedures
Disclosure Controls and Procedures
The Company’s management, under the supervision and with the participation of its chief executive officer, evaluated the effectiveness of the design and operation of the Company’s disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of September 30, 2009. Based on that evaluation, the Company’s chief executive officer concluded that the disclosure controls and procedures employed at the Company were effective to ensure that the information required to be disclosed by the Company in the reports that it files or submits under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms.
Change in Internal Control Over Financial Reporting
There was no change in the Company’s internal control over financial reporting during the third fiscal quarter, that materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
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PART II - OTHER INFORMATION
Item 1. Legal Proceedings
With the shutdown of Ashdown operations and the ongoing difficulty raising capital, certain vendors and lenders of the Company have initiated actions to collect balances that are past due. The Company is negotiating mutually beneficial settlements and payment plans with these parties. However, the ability to bring the obligations current is dependent on the Company’s ability to raise additional capital. There can be no assurance that the Company will be successful in these efforts.
DMC-Dynatec Mining Services Corporation – No material changes have occurred during the quarter ended September 30, 2009. Further description of this legal dispute is provided in the Company’s Form 10-Q for the quarter ended March 31, 2009.
Earl Harrison – No material changes have occurred during the quarter ended September 30, 2009. Further description of this legal dispute is provided in the Company’s Form 10-Q for the quarter ended March 31, 2009.
Tetra Financial Group, LLC – No material changes have occurred during the quarter ended September 30, 2009. Further description of this legal dispute is provided in the Company’s Form 10-K for the fiscal year ended December 31, 2008.
Ed Staub & Sons Petroleum, Inc. – No material changes have occurred during the quarter ended September 30, 2009. Further description of this legal dispute is provided in the Company’s Form 10-Q for the quarter ended March 31, 2009.
Ahern Rentals, Inc. – On August 17, 2009 the Company received a summons and complaint filed by Ahern Rentals, Inc. in the Fifth Judicial District of the State of Nevada, County of Esmeralda. The complaint relates to monies owed on equipment rental invoices in the amount of $13,209, inclusive of interest and fees. Subsequent to the three month period ended September 30, 2009, the Company reached an agreement with Ahern and has paid its undisputed outstanding balance in full.
Item 1A. Risk Factors
Not Applicable.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
During the three months ended September 30, 2009, the Company issued a total of 7,001,253 common shares for cash at $0.01995 per share as follows:
| Name | Shares | ||||
| Alliance International Investors | 2,500,000 | ||||
| American Continental Corp. | 501,253 | ||||
| Donald Gunn | 4,000,000 | ||||
| 7,001,253 | |||||
We believe these transactions did not involve any public offering within the meaning of Section 4(2) of the Securities Act of 1933, as amended (the “Act”), and accordingly are exempt from the registration requirements of the Act and from various similar state exemptions.
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Item 3. Defaults Upon Senior Securities
None.
Item 4. Submission Of Matters To A Vote Of Security Holders
There were no matters submitted to a vote of security holders during the three months ended September 30, 2009.
Item 5. Other Information
None.
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Item 6. Exhibits
| Exhibit No. | Description |
| 3.1 | Articles of Incorporation of Golden Phoenix Minerals, Inc.(1) |
| 3.2 | Bylaws of Golden Phoenix Minerals, Inc.(1) |
| 3.3 | Amended and Restated Articles of Incorporation of Golden Phoenix, Minerals, Inc.(2) |
| 3.4 | Amended and Restated Articles of Incorporation of Golden Phoenix Minerals, Inc.(3) |
| 3.5 | Amended and Restated Bylaws of Golden Phoenix Minerals, Inc.(3) |
| 4.1 | Specimen Common Stock Certificate of Golden Phoenix Minerals, Inc.(3) |
| 4.2 | Form of Warrant of Golden Phoenix Minerals, Inc.(4) |
| 10.1 | Employment Separation Agreement by and between the Company and Donald R. Prahl dated July 28, 2009.(5) |
| 31.1 | Certification of Chief Executive Officer Pursuant to Section 302.* |
| 31.2 | Certification of Chief Financial Officer Pursuant to Section 302.* |
| 32.1 | Certification of Chief Executive Officer and Chief Financial Officer Pursuant to 18 U.S.C. Section 1350.* |
*Filed herewith.
| (1) | Incorporated by reference from Form 10SB12G filed with the SEC on July 30, 1997. |
| (2) | Incorporated by reference from Form SB-2/A filed with the SEC on June 29, 2007. |
| (3) | Incorporated by reference from Form 8-K filed with the SEC on June 5, 2008. |
| (4) | Incorporated by reference from Exhibit A to Exhibit 10.1 of Form 8-K filed with the SEC on April 25, 2007. |
| (5) | Incorporated by reference from Form 8-K filed with the SEC on July 31, 2009. |
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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.
| GOLDEN PHOENIX MINERALS, INC. | ||
| Date: November 16, 2009 | By: | /s/ David A. Caldwell |
| Name: David A. Caldwell | ||
Title: Chief Executive Officer and Principal Accounting Officer | ||
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