SEC Company Response from AgEagle Aerial Systems Inc. (UAVS) (CIK 0000008504) (UAVS) — Jan 13, 2017
AgEagle Aerial Systems Inc. (UAVS) (CIK 0000008504)
Date: Jan. 13, 2017 · CIK: 0000008504 · Accession: 0001144204-17-002191
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File numbers found in text: 000-30234
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CORRESP
1
filename1.htm
January 13, 2017
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, NW
Washington, DC 20549
Attention: H Roger Schwall
Re: EnerJex Resources, Inc.
Form 10-K for the Fiscal Year Ended December
31, 2015
Filed April 11, 2016
File No. 1-36492
Dear Mr. Schwall:
Attached please find our first draft of Form
10-K/A for the Fiscal Year Ended December 31, 2015. I believe that this Form 10-K/A adequately addresses all issues raised by you
except for the following.
We did not refresh dates on exhibits 23.1
and 23.2 (Consents of Independent Petroleum Engineers) and 31.1, 32.1, 31.2 and 32.2 (Certifications of Robert G. Watson, Jr.,
Chief Executive Officer and Douglas M. Wright, Chief Financial Officer). Additionally, we did not provide you with a copy of our
Independent Registered Public Accounting Firm consent to the use of their opinion dated April 11, 2016. This will be included in
the filed 10-K/A for the Fiscal Year Ended December 31, 2015.
Sincerely,
/s/ Douglas M. Wright
NYSE MKT : ENRJ
Douglas M. Wright
Chief Financial Officer
4040 Broadway, Suite 508
San Antonio, Texas 78209
Direct (210) 451-5545
4040 Broadway, Suite 508 | San Antonio, TX 78209 | 210-451-5545 (P) | 210-463-9297 (F)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
x
ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
¨
TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year-ended December 31, 2015
Commission file number 000-30234
ENERJEX RESOURCES, INC.
(Exact name of registrant as specified in its charter)
Nevada
88-0422242
(State or other jurisdiction of incorporation or organization)
(I.R.S. Employer Identification No.)
4040 Broadway
Suite 508
San Antonio, Texas
78209
(Address of principal executive offices)
(Zip Code)
(210) 451-5545
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Exchange
Act:
Name of each exchange on which registered:
Securities registered pursuant to Section 12(g) of the Exchange
Act:
Common Stock, $0.001 par value
10% Series A Cumulative Redeemable Perpetual Preferred Stock, $0.001
par value
Indicate by check mark if the registrant is a well-known seasoned
issuer, as defined in Rule 405 of the Securities Act.
¨
Yes x
No
Indicate by check mark if the registrant is not required to file
reports pursuant to Section 13 or 15(d) of the Act.
¨
Yes x
No
Indicate by checkmark whether the registrant
(1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding
12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
x
Yes ¨
No
Indicate by check mark whether the registrant
has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted
and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such
shorter period that the registrant was required to submit and post such files).
x
Yes ¨
No
Indicate
by checkmark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained
herein, and will not be contained, to the best of registrant’s knowledge , in definitive proxy or information statements incorporated
by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions
of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of
the Exchange Act.
Large accelerated filer ¨
Accelerated filer ¨
Non-accelerated filer ¨ (Do not check if a smaller reporting company)
Smaller reporting company x
Indicate by check mark whether the registrant
is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes
¨ No
x
State the aggregate market value of the voting and non-voting common
equity held by non-affiliates computed by reference to the price at which the common equity was last sold, or the average bid and
asked price of such common equity, as of the last business day of the registrant’s most recently completed second fiscal quarter:
approximately $6.0 million based on a share value of $1.50.
Indicate the number of shares outstanding of each of the registrant’s
classes of common stock, as of the latest practicable date: 8,423,936 shares of common stock, $0.001 par value, outstanding on
April 11, 2016.
DOCUMENTS INCORPORATED BY REFERENCE
List hereunder the following documents if incorporated by reference
and the Part of the Form 10-K (e.g., Part I, Part II, etc.) into which the document is incorporated: (1) Any annual report to security
holders; (2) Any proxy or information statement; and (3) Any prospectus filed pursuant to Rule 424(b) or (c) under the Securities
Act of 1933. The listed documents should be clearly described for identification purposes (e.g., annual report to security holders
for fiscal year ended December 24, 1980).
NONE.
ENERJEX RESOURCES, INC.
FORM 10-K
TABLE OF CONTENTS
Page
PART I
4
ITEMS 1 AND 2.
BUSINESS AND PROPERTIES
4
ITEM 1A.
RISK FACTORS
19
ITEM 1B.
UNRESOLVED STAFF COMMENTS
32
ITEM 3.
LEGAL PROCEEDINGS
32
ITEM 4.
MINE SAFETY DISCLOSURE
32
PART II
32
ITEM 5.
MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
32
ITEM 6.
SELECTED FINANCIAL DATA
33
ITEM 7.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
34
ITEM 7A.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
39
ITEM 8.
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
40
ITEM 9.
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
40
ITEM 9A
CONTROLS AND PROCEDURES
41
ITEM 9B.
OTHER INFORMATION
41
PART III
41
ITEM 10.
DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
41
ITEM 11.
EXECUTIVE COMPENSATION
44
ITEM 12.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
48
ITEM 13.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
49
ITEM 14.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
52
PART IV
53
ITEM 15.
EXHIBITS, FINANCIAL STATEMENT SCHEDULES
53
2
FORWARD-LOOKING
STATEMENTS
This Annual Report on Form 10-K contains forward-looking
statements that involve risks and uncertainties. The statements contained in this document that are not purely historical are forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E
of the Securities Exchange Act of 1934, as amended, or the Exchange Act. Forward-looking statements are statements regarding future
events, our future financial performance, and include statements regarding projected operating results. These forward-looking statements
are based on current expectations, beliefs, intentions, strategies, forecasts and assumptions and involve a number of risks and
uncertainties that could cause actual results to differ materially from those anticipated by these forward-looking statements.
We have attempted to identify forward-looking statements by terminology including “anticipates,” “believes,”
“can,” “continue,” “could,” “estimates,” “expects,” “intends,” “may,”
“plans,” “potential,” “predicts” or “should” or the negative of these terms or other comparable terminology.
Although we do not make forward-looking statements unless we believe we have a reasonable basis for doing so, we cannot guarantee
their accuracy. Moreover, we operate in a very competitive and rapidly changing environment. New risks emerge from time to time
and it is not possible for us to predict all risk factors, nor can we address the impact of all factors on our business or
the extent to which any factor, or combination of factors, may cause our actual results to differ materially from those contained
in any forward-looking statements. All forward-looking statements included in this document are based on information available
to us on the date of this Annual Report on Form 10-K, and we assume no obligation to update any such forward-looking statements,
except as may otherwise be required by law.
Our actual results could differ materially
from those anticipated in these forward-looking statements as a result of certain factors, including those set forth in the “Risk
Factors” section in Part I, Item 1A of this Annual Report on Form 10-K and elsewhere in this document. The factors impacting
these risks and uncertainties include, but are not limited to:
·
inability to attract and obtain additional development capital;
·
inability to achieve sufficient future sales levels or other operating results;
·
inability to efficiently manage our operations;
·
effect of our hedging strategies on our results of operations;
·
potential default under our secured obligations or material debt agreements;
·
estimated quantities and quality of oil and gas reserves;
·
declining local, national and worldwide economic conditions;
·
fluctuations in the price of oil and natural gas;
·
continued weather conditions that impact our abilities to efficiently manage our drilling and development activities;
·
the inability of management to effectively implement our strategies and business plans;
·
approval of certain parts of our operations by state regulators;
·
inability to hire or retain sufficient qualified operating field personnel;
·
increases in interest rates or our cost of borrowing;
·
deterioration in general or regional (Colorado, Western Nebraska, Eastern Kansas and South Texas) economic conditions;
·
adverse state or federal legislation or regulation that increases the costs of compliance, or adverse findings by a regulator with respect to existing operations;
·
the occurrence of natural disasters, unforeseen weather conditions, or other events or circumstances that could impact our operations or could impact the operations of companies or contractors we depend upon in our operations;
·
inability to acquire mineral leases at a favorable economic value that will allow us to expand our development efforts; and
·
changes in U.S. GAAP or in the legal, regulatory and legislative environments in the markets in which we operate.
All references in this report to “we,”
“us,” “our,” “company” and “EnerJex” refer to EnerJex Resources, Inc. and our wholly-owned
operating subsidiaries, EnerJex Kansas, Inc., Black Sable Energy, LLC, Working Interest, LLC, and Black Raven Energy, Inc., unless
the context requires otherwise. We report our financial information on the basis of a December 31st fiscal year end.
We have provided definitions for the oil and gas industry terms used in this report in the “Glossary” beginning on page
15 of this report.
AVAILABLE INFORMATION
We file annual, quarterly and other reports
and other information with the SEC. You can read these SEC filings and reports over the Internet at the SEC’s website at www.sec.gov
or on our website at www.enerjex.com. You can also obtain copies of the documents at prescribed rates by writing to the
Public Reference Section of the SEC at 100 F Street, NE, Washington, DC 20549 on official business days between the hours of 10:00
am and 3:00 pm. Please call the SEC at (800) SEC-0330 for further information on the operations of the public reference facilities.
We will provide a copy of our annual report to security holders, including audited financial statements, at no charge upon receipt
to of a written request to us at EnerJex Resources, Inc., 4040 Broadway, Suite 508, San Antonio, Texas 78209.
INDUSTRY AND MARKET DATA
The market data and certain other statistical
information used throughout this report are based on independent industry publications, government publications, reports by market
research firms or other published independent sources. In addition, some data are based on our good faith estimates.
3
PART I
ITEMS 1 AND 2. BUSINESS AND PROPERTIES.
Company History
We were formerly known as Millennium Plastics
Corporation and were incorporated in the State of Nevada on March 31, 1999. We abandoned a prior business plan focusing on the
development of biodegradable plastic materials. In August 2006, we acquired Midwest Energy, Inc., a Nevada corporation pursuant
to a reverse merger. After the merger, Midwest Energy became a wholly-owned subsidiary, and as a result of the merger the former
Midwest Energy stockholders controlled approximately 98% of our outstanding shares of common stock. We changed our name to EnerJex
Resources, Inc. in connection with the merger, and in November 2007 we changed the name of Midwest Energy (now our wholly-owned
subsidiary) to EnerJex Kansas, Inc. All of our current operations are conducted through EnerJex Kansas, Inc., Black Sable Energy,
LLC, and Black Raven Energy, Inc., and our leasehold interests are held in our wholly-owned subsidiaries Black Sable Energy, LLC,
Working Interest, LLC, EnerJex Kansas, Inc., and Black Raven Energy, Inc.
Liquidity and Ability
to Continue as a Going Concern
As discussed under
“Item 9B — Other Information” the continued low oil and natural gas prices during 2015 and into 2016 have
had a significant adverse impact on our business, and, as a result of our financial condition, substantial doubt exists that we
will be able to continue as a going concern.
On April 1, 2016 we ceased making mandatory
monthly borrowing base reduction payments on our credit facility. After discussions with our bank, we made our mandatory quarterly
interest payment on April 6, 2016 and on April 7, 2016 entered into a Forbearance Agreement (dated as of April 4, 2016), whereby
the bank agreed to not exercise remedies and rights afforded it under credit facility for thirty days. We are using this 30-day
to pursue strategic alternatives
Please read “Item 9B
— Other Information” for further discussion. Also, for additional discussion of factors that may affect our ability
to continue as a going concern and the potential consequences of our failure to do so, please see “Item 1A—Risk
Factors.”
Significant Developments in 2015
The following briefly describes our most significant corporate
developments occurring in 2015:
On March 13, 2015, the Company issued in a registered
offering 763,547 registered shares of its common stock together with 1,242.17099 shares of its newly designated Series B Convertible
Preferred Stock (the “Preferred Stock”) convertible into 709,812 shares of common stock. We also issued in an unregistered
offering, 521.62076 shares of Preferred Stock convertible into 298,069 shares of common stock, and warrants to purchase 1,771,428
shares of its common stock. The shareholder’s ability to convert a portion of the Preferred Stock and to exercise the warrant
are restricted: (i) prior to the Company obtaining approval of the offering by its shareholders, which we expect to obtain before
May 31, 2015, and (ii) pursuant to customary “blocker” provisions restricting the investor