Item 1A. Risk Factors
ITEM 1A. RISK FACTORS.
Our operations are subject to various risks and uncertainties
in the ordinary course of business. The following summarizes significant risks and uncertainties that may adversely affect our operations
or financial position. Risks and uncertainties discussed below are not a comprehensive listing of those faced by us. Additional risks
not presently known or that are deemed immaterial may also affect us. Readers should carefully consider the risk factors included below
and other information included and incorporated by reference into this Annual Report on Form 10-K.
Reserves
The Standardized Measure and PV-10 of estimated
reserves may not be accurate estimates of the current fair value of estimated proved oil and natural gas reserves.
Standardized Measure is a reporting convention that
provides a common basis for comparing oil and natural gas companies subject to the rules and regulations of the SEC. PV-10, a non-GAAP
(Generally Accepted Accounting Principles) financial measure, is a similar reporting convention that we have disclosed in this report.
Both measures require the use of operating and development costs prevailing as of the date of computation. Consequently, they will not
reflect the prices ordinarily received or that will be received for oil and natural gas production because of varying market conditions,
nor may they reflect the actual costs that will be required to produce or develop the oil and natural gas properties. Accordingly, estimates
included in this report of future net cash flows may be materially different from the future net cash flows that are ultimately received.
In addition, the 10 percent discount factor, which is required by the rules and regulations of the SEC to be used in calculating discounted
future net cash flows for reporting purposes, may not be the most appropriate discount factor based on interest rates in effect from time
to time and risks associated with us or the oil and natural gas industry in general.
Therefore, Standardized Measure and PV-10 included
in this report should not be construed as accurate estimates of the current market value of our proved reserves.
Estimates of proved reserves and future net
cash flows are not precise. The actual quantities of our proved reserves and future net cash flows may prove to be lower than estimated.
Numerous uncertainties exist in estimating quantities
of proved reserves and future net cash flows therefrom. Estimates of proved reserves and related future net cash flows are based on various
assumptions, which may ultimately prove to be inaccurate. Petroleum engineering is a subjective process of estimating accumulations of
oil and natural gas that cannot be measured in an exact manner. Estimates of economically recoverable oil and natural gas reserves and
of future net cash flows depend upon a number of variable factors and assumptions, including the following:
· historical production from the area compared with production from other producing areas;
· the assumed effects of regulations by governmental agencies;
· the quality, quantity and interpretation of available relevant data;
· assumptions concerning future commodity prices; and
· assumptions concerning future operating costs, severance and ad valorem taxes, development costs and
workover and remedial costs.
Because all reserve estimates are to some degree subjective,
each of the following items, or other items not identified below, may differ materially from those assumed in estimating reserves:
· the quantities of oil and natural gas that are ultimately recovered;
· the production and operating costs incurred;
· the amount and timing of future development expenditures; and
· future commodity prices.
Furthermore, different reserve engineers may make
different estimates of reserves and cash flows based on the same data. Our actual production, revenues and expenditures with respect to
reserves will likely be different from estimates and the differences may be material.
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As required by the SEC, the estimated discounted future
net cash flows from proved reserves are based on the average previous twelve months first-of-month prices preceding the date of the estimate
and costs as of the date of the estimate, while actual future prices and costs may be materially higher or lower. Actual future net cash
flows also will be affected by factors such as:
· the amount and timing of actual production;
· levels of future capital spending;
· increases or decreases in the supply of or demand for oil, natural gas, and NGLs; and
· changes in governmental regulations or taxation.
Accordingly, estimates included in this report of
future net cash flows may be materially different from the future net cash flows that are ultimately received. Therefore, the estimates
of discounted future net cash flows in this report should not be construed as accurate estimates of the current market value of our proved
reserves.
Unless reserves are replaced, production and
estimated reserves will decline, which may adversely affect our financial condition, results of operations and/or cash flows.
Producing oil and natural gas reservoirs are generally
characterized by declining production rates that may vary depending upon reservoir characteristics and other factors. Estimates of the
decline rate of an oil or natural gas well are inherently imprecise and may be less precise with respect to new or emerging oil and natural
gas formations with limited production histories than for more developed formations with established production histories. Estimated future
oil and natural gas reserves and production and, therefore, cash flows and results of operations are highly dependent upon our success
in efficiently developing and exploiting current properties and economically finding or acquiring additional recoverable reserves. We
may not be able to develop, find or acquire additional reserves to replace our current and future production at acceptable costs. If we
are unable to replace our current and future production, cash flows and the value of reserves may decrease, adversely affecting our business,
financial condition and results of operations.
Financing
We have indebtedness and may incur substantially
more debt. Higher levels of indebtedness make us more vulnerable to economic downturns and adverse business developments.
Our total indebtedness at December 31, 2023 was $5.7
million. At December 31, 2023, commitments from a financial institution under a Revolving Credit Facility (the “Credit Facility”)
with Empire North Dakota and Empire NDA were approximately $10.0 million, of which approximately $5.5 million was unused and approximately
$4.5 million was outstanding. In addition, we had approximately $1.1 million outstanding under a joint development agreement with a related
party as of December 31, 2023 (See Note 4 of Notes to Consolidated Financial Statements). Management continues to review existing indebtedness,
and may seek to repay, refinance, repurchase, redeem, exchange or otherwise terminate existing indebtedness. If we do seek to refinance
existing indebtedness, there can be no guarantee that we would be able to execute the refinancing on favorable terms or at all.
As a result of indebtedness, we use a portion of our
cash flow to pay interest, which reduces the amount available to fund operations and other business activities and could limit flexibility
in planning for or reacting to changes in the business and the industry in which we operate. Indebtedness under the Credit Facility is
at a variable interest rate, and so a rise in interest rates will generate greater interest expense.
We may incur substantially more debt in the future.
The Credit Facility contains restrictions on the incurrence of additional indebtedness.
Increases in the level of indebtedness could have
adverse effects on our financial condition and results of operations, including:
· imposing additional cash requirements on us in order to support interest payments, which reduces the
amount we have available to fund our operations and other business activities;
· increasing the risk that we may default on our debt obligations;
· increasing our vulnerability to adverse changes in general economic and industry conditions, economic
downturns and adverse developments in our business;
· limiting our ability to sell assets, engage in strategic transactions or obtain additional financing
for working capital, capital expenditures, general corporate and other purposes;
· limiting our flexibility in planning for or reacting to changes in our business and the industry in
which we operate; and
· increasing our exposure to a rise in interest rates, which will generate greater interest expense.
Our ability to meet our debt obligations and reduce
our level of indebtedness depends on future performance, which is affected by general economic conditions and financial, business and
other factors, many of which are outside of the scope of management’s control.
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Our business requires substantial capital expenditures.
Management may be unable to obtain needed capital or financing on satisfactory terms or at all, which could lead to a decline in oil and
natural gas reserves.
The oil and natural gas industry is capital intensive.
Management makes and expects to continue to make substantial capital expenditures for the acquisition and development of reserves. We
intend to finance future capital expenditures through cash flow from operations, incurring additional indebtedness, or capital raises.
However, cash flow from operations and access to capital are subject to a number of variables, including:
· the volume of oil, natural gas, and NGLs we are able to produce from existing wells;
· ability to transport oil and natural gas to market;
· the prices at which commodities are sold;
· the costs of producing oil and natural gas;
· global and domestic demand for oil and natural gas;
· global credit and securities markets;
· the ability and willingness of lenders and investors to provide capital and the cost of the capital;
· ability to acquire, locate and produce new reserves;
· the impact of potential changes in our credit ratings; and
· proved reserves.
We may not generate expected cash flows and obtain
the capital necessary to sustain our operations at current or anticipated levels. A decline in cash flow from operations or our financing
needs may require management to revise our capital program or alter or increase capitalization substantially through the issuance of debt
or equity securities. The issuance of additional equity securities could have a dilutive effect on the value of our common stock. Additional
borrowings under the Credit Facility or the issuance of additional debt securities will require that a greater portion of cash flow from
operations be used for the payment of interest and principal on debt, thereby reducing our ability to use cash flow to fund working capital,
capital expenditures and acquisitions. Additional financing also may not be available on acceptable terms or at all. In the event additional
capital resources are unavailable, management may curtail activities or be forced to sell some assets on an untimely or unfavorable basis.
The loss or unavailability of capital provided
by our two largest stockholders could have a material adverse effect on our business.
Our two largest stockholders, Energy Evolution Master
Fund, Ltd. and Phil Mulacek, have been a significant source of capital for our acquisitions of oil and natural gas properties and the
development of our oil and natural gas reserves. We have been dependent on this capital to fund our growth plans, including our current
drilling programs. The loss of this capital could have a material adverse effect on our business, especially our growth plans.
If we are unable to comply with the covenants
in our agreements governing our indebtedness, including the Credit Facility, there could be a default under the terms of such agreements,
which could result in an acceleration of payment of funds that we have borrowed.
Our ability to meet our debt obligations and other
expenses will depend on our future performance, which will be affected by financial, business, economic, regulatory and other factors,
many of which management is unable to control. If our cash flow is not sufficient to service our debt, we may be required to refinance
debt, sell assets or sell additional equity on terms that we may not find attractive if it may be done at all. If we are unable to generate
sufficient cash flow and are otherwise unable to obtain funds necessary to meet required payments of principal, premium, if any, and interest,
if any, on our indebtedness, or if we otherwise fail to comply with the various covenants, including financial and operating covenants,
in the agreements governing our indebtedness, including the Credit Facility, we could be in default under the terms of the agreements
governing such indebtedness. In the event of such default:
· the holders of such indebtedness could elect to declare all the funds borrowed thereunder to be due
and payable, together with accrued and unpaid interest;
· the lenders could elect to terminate their commitments thereunder and cease making further loans; and
· we could be forced into bankruptcy or liquidation.
If our operating performance declines, we may need
to obtain waivers under the Credit Facility to avoid being in default. If we breach our covenants and cannot obtain a waiver from the
required lender, we would be in default and the lender could exercise its rights, as described above, and we could be forced into bankruptcy
or liquidation.
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A negative shift in stakeholder sentiment towards
the oil and natural gas industry and increased attention to ESG matters and conservation matters could adversely affect our ability to
raise equity and debt capital.
Much of the investor community has developed negative
sentiment towards investing in our industry over the past few years. Recent equity returns in the sector versus other industry sectors
have led to lower oil and gas representation in certain key equity market indices. Some investors, including certain public and private
fund management firms, pension funds, university endowments and family foundations, have stated policies to reduce or eliminate their
investments in the oil and natural gas sector based on environmental, social and governance considerations. Certain other stakeholders
have pressured private equity firms and commercial and investment banks to stop funding oil and gas projects. Such developments have resulted
and could continue to result in downward pressure on the stock prices of oil and natural gas companies, including ours. This may also
result in a reduction of available capital funding for potential development projects, further impacting our future financial results.
Increasing attention to climate change, societal expectations
on companies to address climate change, investor and societal expectations regarding voluntary ESG disclosures, and consumer demand for
alternative forms of energy may result in increased costs, reduced demand for our products, reduced profits, increased investigations
and litigation, and negative impacts on our stock price and access to capital markets. Increasing attention to climate change and environmental
conservation, for example, may result in demand shifts for oil and natural gas products and additional governmental investigations and
private litigation against us or our operators. To the extent that societal pressures or political or other factors are involved, it is
possible that such liability could be imposed without regard to our causation of or contribution to the asserted damage, or to other mitigating
factors.
Moreover, while we may create and publish voluntary
disclosures regarding ESG matters from time to time, many of the statements in those voluntary disclosures are based on hypothetical expectations
and assumptions that may or may not be representative of current or actual risks or events or forecasts of expected risks or events, including
the costs associated therewith. Such expectations and assumptions are necessarily uncertain and may be prone to error or subject to misinterpretation
given the long timelines involved and the lack of an established single approach to identifying, measuring and reporting on many ESG matters.
In addition, organizations that provide information
to investors on corporate governance and related matters have developed ratings processes for evaluating companies on their approach to
ESG matters. Currently, there are no universal standards for such scores or ratings, but the importance of sustainability evaluations
is becoming more broadly accepted by investors and stockholders. Such ratings are used by some investors to inform their investment and
voting decisions. Unfavorable ESG ratings and recent activism directed at shifting funding away from companies with energy-related assets
could lead to increased negative investor sentiment toward us and our industry and to the diversion of investment to other industries,
which could have a negative impact on our access to and costs of capital. Also, institutional lenders may decide not to provide funding
for fossil fuel energy companies based on climate change related concerns, which could affect our access to capital for potential growth
projects.
General Operations
The oil and natural gas industry is highly competitive,
and our size may put us at a disadvantage in competing for resources.
The oil and natural gas industry is highly competitive
where our properties and operations are concentrated. We compete with major integrated and larger independent oil and natural gas companies
in seeking to acquire desirable oil and natural gas properties and leases and for the equipment and services required to develop and operate
properties. Many of our competitors have financial and other resources that are substantially greater than ours, which makes acquisitions
of acreage or producing properties at economic prices difficult. Significant competition also exists in attracting and retaining technical
personnel, including geologists, geophysicists, engineers, landmen and other specialists, as well as financial and administrative personnel.
Hence, we may be at a competitive disadvantage to companies with larger financial resources than ours.
A substantial or extended decline in oil and
natural gas prices may adversely affect our business, financial condition or results of operations and our ability to meet our capital
expenditure obligations and financial commitments.
The price we receive for our oil and natural
gas production heavily influences our revenue, profitability, access to capital and future rate of growth. Oil and natural gas are commodities
and, therefore, their prices are subject to wide fluctuations in response to relatively minor changes in supply and demand. Historically,
the markets for oil and natural gas have been volatile. These markets will likely continue to be volatile in the future. The prices we
receive for our production, and the levels of our production, depend on numerous factors beyond our control. These factors include, but
are not limited to, the following:
· changes in global supply and demand for oil and natural gas, which could be negatively affected by concerns
about public health crises, pandemics and epidemics, such as the COVID-19 pandemic;
· the price and quantity of imports of foreign oil and natural gas;
· political conditions, including trade or other economic sanctions, armed
conflict in Ukraine and the Middle East, the price cap on Russian oil and embargoes, in or affecting other oil-producing activity;
· the level of global oil and natural gas exploration and production activity;
· the level of global oil and natural gas inventories;
· weather conditions, including extreme climatic events;
· technological advances affecting energy consumption; and
· the price and availability of alternative fuels.
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Lower oil and natural gas prices may not only decrease
our revenues on a per unit basis but also may reduce the amount of oil and natural gas that we can produce economically. Lower prices
also negatively impact the value of our proved reserves. Volatility in the price of oil could force us (as well as other operators) to
re-evaluate our current capital expenditure budget and make changes accordingly that we believe are in the best interest of us and our
stockholders. A substantial or extended decline in oil or natural gas prices may materially and adversely affect our future business,
financial condition, results of operations, liquidity or ability to finance planned capital expenditures.
Our producing properties and proved reserves
are concentrated in New Mexico, North Dakota, Montana, Texas, and Louisiana, making us vulnerable to risks associated with operating in
limited major geographic areas.
Our producing properties are geographically concentrated
in New Mexico, North Dakota, Montana, Texas, and Louisiana. At December 31, 2023, all of our total estimated proved reserves were attributable
to properties located in these areas. As a result of this concentration, we are exposed to the impact of regional supply and demand factors,
delays or interruptions of production from wells in these areas caused by governmental regulation, processing or transportation capacity
constraints, market limitations, severe weather events, water shortages or other drought related conditions or interruption of the processing
or transportation of oil or natural gas.
This concentration of assets exposes us to additional
risks, such as changes in field-wide rules and regulations that could cause us to permanently or temporarily shut-in all of our wells
within a field.
Our insurance policies may not adequately protect us against certain
unforeseen risks.
In accordance with customary industry practice, we
maintain insurance against some, but not all, of the risks described in this report. There can be no assurance that any insurance will
be adequate to cover our losses or liabilities. We cannot predict the continued availability of insurance, or its availability at premium
levels that justify its purchase.
We are subject to various environmental risks,
and governmental regulation relating to environmental matters.
We are subject to a variety of federal, state and
local governmental laws and regulations related to the storage, use, discharge and disposal of toxic, volatile or otherwise hazardous
materials. These regulations subject us to increased operating costs and potential liability associated with the use and disposal of hazardous
materials. Although these laws and regulations have not had a material adverse effect on our financial condition or results of operations,
there can be no assurance that we will not be required to make material expenditures in the future. Moreover, we anticipate that
such laws and regulations will become increasingly stringent in the future, which could lead to material costs for environmental compliance
and remediation by us. Any failure by us to obtain required permits for, control the use of, or adequately restrict the discharge of hazardous
substances under present or future regulations could subject us to substantial liability or could cause our operations to be suspended.
Such liability or suspension of operations could have a material adverse effect on our business, financial condition and results of operations.
Our activities are subject to extensive governmental
regulation. Oil and natural gas operations are subject to various federal, state and local governmental regulations that may be changed
from time to time in response to economic or political conditions. From time to time, regulatory agencies have imposed price controls
and limitations on production in order to conserve supplies of oil and natural gas. In addition, the production, handling, storage, transportation
and disposal of oil and natural gas, by-products thereof and other substances and materials produced or used in connection with oil and
natural gas operations are subject to regulation under federal, state and local laws and regulations primarily relating to protection
of human health and the environment. To date, expenditures related to complying with these laws and for remediation of existing environmental
contamination have not been significant in relation to our operations. There can be no assurance that the trend of more expansive and
stricter environmental legislation and regulations will not continue.
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If forecasted prices for oil, natural gas and
NGL decrease, we may be required to take significant future write-downs of the financial carrying values of our properties in the future.
Accounting rules require that we periodically review
the carrying value of our proved and unproved properties for possible impairment. Based on prevailing commodity prices and specific market
factors and circumstances at the time of prospective impairment reviews, and the continuing evaluation of development plans, production
data, economics and other factors, we may be required to significantly write-down the financial carrying value of our oil and natural
gas properties, which constitutes a non-cash charge to earnings. We may incur impairment charges in the future, which could have a material
adverse effect on our results of operations for the periods in which such charges are recorded.
A write-down could occur when oil and natural gas
prices are low or if we have substantial downward adjustments to our estimated proved oil and natural gas reserves, or if operating costs
or development costs increase over prior estimates.
The capitalized costs of our oil and natural gas properties,
on a field-by-field basis, may exceed the estimated future net cash flows of that field. If so, we would record impairment charges to
reduce the capitalized costs of such field to our estimate of the field’s fair market value. Unproved properties are evaluated at
the lower of cost or fair market value. These types of charges will reduce our earnings and stockholders’ equity and could adversely
affect our stock price.
We periodically assess our properties for impairment
based on future estimates of proved and non-proved reserves, oil and natural gas prices, production rates and operating, development and
reclamation costs based on operating budget forecasts. Once incurred, an impairment charge cannot be reversed at a later date even if
price increases of oil and/or natural gas occur and in the event of increases in the quantity of our estimated proved reserves.
If oil, natural gas and NGL prices fall below current
levels for an extended period of time and all other factors remain equal, we may incur impairment charges in the future. Such charges
could have a material adverse effect on our results of operations for the periods in which they are recorded.
Properties we acquire may not produce as projected
and we may be unable to determine reserve potential, identify liabilities associated with the properties that we acquire or obtain protection
from sellers against such liabilities.
Acquiring oil and natural gas properties requires
us to assess reservoir and infrastructure characteristics, including recoverable reserves, development and operating costs and potential
environmental and other liabilities. Such assessments are inexact and inherently uncertain and include properties with which we do not
have a long operational history. In connection with the assessments, we perform a review of the subject properties, but such a review
will not reveal all existing or potential problems. In the course of our due diligence, we may not inspect every well or pipeline. We
cannot necessarily observe structural and environmental problems, such as pipe corrosion, when an inspection is made. We may not be able
to obtain contractual indemnities from the seller for liabilities created prior to our purchase of a property. We may be required to assume
the risk of the physical condition of properties in addition to the risk that they may not perform in accordance with our expectations.
If properties we acquire do not produce as projected or have liabilities we were unable to identify, we could experience a decline in
our reserves and production, which could adversely affect our business, financial condition and results of operations.
Many of our properties are in areas that may
have been partially depleted or drained by offset wells and certain of our wells may be adversely affected by actions we or other operators
may take when drilling, completing, or operating wells that we or they own.
Many of our properties are in reservoirs that may
have already been partially depleted or drained by earlier offset drilling. The owners of leasehold interests adjoining any of our properties
could take actions, such as drilling and completing additional wells, which could adversely affect our operations. When a new well is
completed and produced, the pressure differential in the vicinity of the well causes the migration of reservoir fluids toward the new
wellbore (and potentially away from existing wellbores). As a result, the drilling and production of these potential locations by us or
other operators could cause depletion of our proved reserves and may inhibit our ability to further develop our proved reserves. In addition,
completion operations and other activities, including water disposal activities, conducted on adjacent or nearby wells could cause production
from our wells to be shut in for indefinite periods of time, could result in increased lease operating expenses and could adversely affect
the production and reserves from our wells after they re-commence production. We have no control over the operations or activities of
offsetting operators.
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Acquisitions involve a number of risks, including
the risk that we will discover unanticipated liabilities or other problems associated with the acquired business or property.
In assessing potential acquisitions, we consider
information available in the public domain and information provided by the seller. In the event publicly available data is limited,
then, by necessity, we may rely to a large extent on information that may only be available from the
seller, particularly with respect to drilling and completion costs and practices, geological, geophysical and petrophysical data,
detailed production data on existing wells, and other technical and cost data not available in the public domain. Accordingly, the
review and evaluation of businesses or properties to be acquired may not uncover all existing or relevant data, obligations or
actual or contingent liabilities that could adversely impact any business or property to be acquired and, hence, could adversely
affect us as a result of the acquisition. These issues may be material and could include, among other things, unexpected
environmental liabilities, title defects, unpaid royalties, taxes or other liabilities.
The success of any acquisition that we complete will
depend on a variety of factors, including our ability to accurately assess the reserves associated with the acquired properties, assumptions
related to future oil and natural gas prices and operating costs, potential environmental and other liabilities and other factors. These
assessments are often inexact and subjective. As a result, we may not recover the purchase price of a property from the sale of production
from the property or recognize an acceptable return from such sales or operations.
Our ability to achieve the benefits that we expect
from an acquisition will also depend on our ability to efficiently integrate the acquired operations. Management may be required to dedicate
significant time and effort to the integration process, which could divert its attention from other business opportunities and concerns.
The challenges involved in the integration process may include retaining key employees and maintaining employee morale, addressing differences
in business cultures, processes and systems and developing internal expertise regarding acquired properties.
Our operations are subject to a series of risks
arising out of the threat of climate change that could result in increased operating costs, limit the areas in which we may conduct oil,
natural gas and NGL exploration and production activities, and reduce demand for the oil, natural gas and NGL we produce.
In the United States, no comprehensive climate change
legislation has been implemented at the federal level. However, following the U.S. Supreme Court finding that GHG emissions constitute
a pollutant under the Clean Air Act, the EPA has adopted regulations that, among other things, establish construction and operating permit
reviews for GHG emissions from certain large stationary sources, require the monitoring and annual reporting of GHG emissions from certain
petroleum and natural gas system sources in the United States, impose new standards reducing methane emissions from oil and gas operations
through limitations on venting and flaring and the implementation of enhanced emission leak detection and repair requirements, and together
with the United States Department of Transportation, implement GHG emissions limits on vehicles manufactured for operation in the United
States. The federal regulation of methane emissions from oil and natural gas facilities has been subject to considerable attention in
recent years. In December 2023, the EPA finalized new and updated rules for both new and existing sources. The final rules make existing
regulations more stringent, expand the scope of source types covered by the rules and require states to develop plans to reduce methane
and volatile organic compound emissions from existing sources. These new rules will likely be subject to legal challenges. As a result,
we cannot predict the scope of any final methane regulatory requirements or the cost to comply with such requirements. However, given
the long-term trend toward increasing regulation, future federal GHG regulations of the oil and natural gas industry remain a significant
possibility.
Governmental, scientific, and public concern over
the threat of climate change arising from GHG emissions has resulted in increasing political risks in the United States, including climate
change related pledges made by certain candidates elected to public office. President Biden has issued several executive orders focused
on addressing climate change, including items that may impact costs to produce, or demand for, oil and gas. There are also increasing
financial risks for fossil fuel producers as shareholders currently invested in fossil-fuel energy companies may elect in the future to
shift some or all of their investments into other sectors. Institutional lenders who provide financing to fossil-fuel energy companies
also have become more attentive to sustainable lending practices and some of them may elect not to provide funding for fossil fuel energy
companies. For example, at COP26, the Glasgow Financial Alliance for Net Zero (“GFANZ”) announced that over 450 firms in the
financial sector across 45 countries committed to net zero goals. The various sub-alliances of GFANZ generally require participants to
set short-term, sector-specific targets to transition their financing, investing, and/or underwriting activities to net zero emissions
by 2050. There is also a risk that financial institutions will be pressured or required to adopt policies that have the effect of reducing
the funding provided to the fossil fuel sector. President Biden signed an executive order calling for the development of a “climate
finance plan” and, separately, the Federal Reserve has joined the Network for Greening the Financial System (“NGFS”),
a consortium of financial regulators focused on addressing climate-related risks in the financial sector. In November 2021, the Federal
Reserve issued a statement in support of the efforts of the NGFS to identify key issues and potential solutions for the climate-related
challenges most relevant to central banks and supervisory authorities. Limitation of investments in and financings for fossil fuel energy
companies could result in the restriction, delay or cancellation of drilling programs or development or production activities.
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Additionally, in March
2024, the SEC issued a final rule that requires a public company to disclose, among other things, material climate-related risks, activities
to mitigate or adapt to such risks, information about the company’s board of directors' oversight of climate-related risks and
management’s role in managing material climate-related risks, and information on any climate-related targets or goals that are
material to the company’s business, results of operations, or financial condition. The final rule also requires, on a phased-in
basis, disclosure of Scope 1 and/or Scope 2 GHG emissions by certain larger public companies, which currently would not apply to Empire
given its size, when those emissions are material and the filing of an attestation report covering the required disclosure of such company’s
Scope 1 and/or Scope 2 emissions. The new rule is already subject to legal challenges. Although the ultimate impact of the new rule on
our business is uncertain given such legal challenges, compliance with the new rule, if upheld, may result in additional legal, accounting
and financial compliance costs.
The adoption and implementation of new or more stringent
international, federal or state legislation, regulations or other regulatory initiatives that impose more stringent standards for GHG
emissions from the oil and natural gas sector or otherwise restrict the areas in which this sector may produce oil and natural gas or
generate GHG emissions could result in increased costs of compliance or costs of consuming, and thereby reduce demand for, oil and natural
gas. Additionally, political, litigation and financial risks may result in us restricting or cancelling production activities, incurring
liability for infrastructure damages as a result of climatic changes, or having an impaired ability to continue to operate in an economic
manner. One or more of these developments could have a material adverse effect on our business, financial condition and results of operations.
As a final note, climate change could have an effect
on the severity of weather (including hurricanes, droughts and floods), sea levels, water availability and quality, and meteorological
patterns. If such effects were to occur, our development and production operations have the potential to be adversely affected.
Potential adverse effects could include damages to
our facilities from powerful winds, extreme temperatures, or rising waters in low-lying areas, disruption of our production activities
either because of climate related damages to our facilities or in our costs of operation potentially arising from such climatic effects,
less efficient or non- routine operating practices necessitated by climate effects or increased costs for insurance coverage in the aftermath
of such effects. Significant physical effects of climate change could also have an indirect effect on our financing and operations by
disrupting the transportation or process-related services provided by midstream companies, service companies or suppliers with whom we
have a business relationship. Additionally, changing meteorological conditions, particularly temperature, may result in changes to the
amount, timing, or location of demand for energy or the products we produce. We may not be able to recover through insurance some or any
of the damages, losses or costs that may result from potential physical effects of climate change. At this time, we have not developed
a comprehensive plan to address the legal, economic, social or physical impacts of climate change on our operations.
The marketability of our production is dependent
upon gathering systems, transportation facilities and processing facilities that we do not own or control. If these facilities or systems
are unavailable, our oil and natural gas production can be interrupted and our revenues reduced.
The marketability of our oil and natural gas production
is dependent upon the availability, proximity and capacity of pipelines, natural gas gathering systems, transportation and processing
facilities owned by third parties. In general, we will not control these facilities, and our access to them may be limited or denied due
to circumstances beyond our control. A significant disruption in the availability of these facilities could adversely impact our ability
to deliver to market the hydrocarbons we produce and thereby cause a significant interruption in our operations. In some cases, our ability
to deliver to market our hydrocarbons is dependent upon coordination among third parties that own transportation and processing facilities
we use, and any inability or unwillingness of those parties to coordinate efficiently could also interrupt our operations. The lack of
availability or the lack of capacity on these systems and facilities could result in the curtailment of production or the delay or discontinuance
of drilling plans. These are risks for which we generally will not maintain insurance.
We operate or participate in oil and natural
gas leases with third parties who may not be able to fulfill their commitments to our projects.
In some cases, we operate but own less than 100% of
the working interest in the oil and natural gas leases on which we conduct operations, and other parties own the remaining portion of
the working interest. Financial risks are inherent in any operation where the cost of drilling, equipping, completing and operating wells
is shared by more than one person. We could be held liable for joint activity obligations of other working interest owners, such as nonpayment
of costs and liabilities arising from the actions of other working interest owners. In addition, declines in oil, natural gas and NGL
prices may increase the likelihood that some of these working interest owners, particularly those that are smaller and less established,
are not able to fulfill their joint activity obligations. A partner may be unable or unwilling to pay its share of project costs, and,
in some cases, a partner may declare bankruptcy. In the event any of our project partners do not pay their share of such costs, we would
likely have to pay those costs, and we may be unsuccessful in any efforts to recover these costs from our partners, which could materially
adversely affect our financial position.
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Because we cannot control activities on properties
we do not operate, we cannot directly control the timing of exploitation. If we are unable to fund required capital expenditures with
respect to non-operated properties, our interests in those properties may be reduced or forfeited.
Our ability to exercise influence over operations
and costs for the properties we do not operate is limited. Our dependence on the operators and other working interest owners for these
projects and our limited ability to influence operations and associated costs could prevent the realization of our targeted returns on
capital with respect to acquisition, exploration and development activities. The success and timing of development, exploitation and exploration
activities on properties operated by others depend upon a number of factors that may be outside our control, including but not limited
to the timing and amount of capital expenditures; the operator’s expertise and financial resources; the approval of other participants
in drilling wells; and the selection of technology.
Where we are not the majority owner or operator of
a particular oil and natural gas project, we may have no control over the timing or amount of capital expenditures associated with the
project. If we are not willing or able to fund required capital expenditures relating to a project when required by the majority owner(s)
or operator, our interests in the project may be reduced or forfeited. Also, we could be responsible for plugging and abandonment costs,
as well as other liabilities in excess of our proportionate interest in the property.
We could be adversely affected by increased
costs of service providers utilized by us.
In accordance with customary industry practice, we
have relied and will rely on independent third-party service providers to provide most of the services necessary to operate. The industry
has experienced significant price fluctuations for these services during the last year and this trend is expected to continue into the
future. These cost uncertainties could, in the future, significantly increase our production costs.
Our ability to use our existing net operating
loss carryforwards or other tax attributes could be further limited.
In the event that an entity has an “ownership
change” (as defined in Section 382 of the Internal Revenue Code of 1986, as amended (the “Code”)), an entity’s
federal net operating loss carryforwards (“NOLs”) generated prior to an ownership change would be subject to annual limitations,
which could defer or eliminate our ability to utilize these tax losses against future taxable income. Generally, an “ownership change”
occurs if one or more stockholders, each of whom owns 5% or more in value of a corporation’s stock, increase their aggregate percentage
ownership by more than 50% over the lowest percentage of stock owned by those stockholders at any time during the preceding three-year
period. A full Section 382 analysis was prepared in 2023 and it was determined that our NOLs were subject to limitations under Section
382.
At December 31, 2023, we had approximately $24.3 million
of federal NOLs generated in prior years that could offset against future taxable income, however, $4.7 million of the NOLs were limited
as of December 31, 2023 due to ownership changes. NOLs created prior to 2018 have a 20-year expiration period and NOLs arising after 2017
have an indefinite life. Additionally, utilization of any NOL depends on many factors, including our ability to generate future taxable
income, which cannot be assured. At December 31, 2023, we had a tax valuation allowance recorded on the NOLs.
In the event that we were to undergo any further “ownership
change”, our NOLs generated prior to an ownership change would be subject to further annual limitations, which could defer or eliminate
our ability to utilize these tax losses against future taxable income. Depending on participation in our Rights Offering announced in
March 2024, it is likely that an ownership change will occur which could further limit the utilization of the NOLs.
Legislation
Climate change legislation, regulations restricting
emissions of “greenhouse gases” (GHG’s) or legal or other action taken by public or private entities related to climate
change could result in increased operating costs and reduced demand for the oil and natural gas that we produce.
The threat of climate change continues to
attract considerable attention in the United States and around the world. Numerous proposals have been made and could continue to be
made at the international, national, regional and state levels of government to monitor and limit existing emissions of GHGs as well
as to restrict or eliminate such future emissions. These efforts have included consideration of cap-and-trade programs, carbon
taxes, GHG disclosure obligations and regulations that directly limit GHG emissions from certain sources. Moreover, President Biden
highlighted addressing climate change as a priority of his administration, issued several executive orders related to climate change
and recommitted the United States to long-term international goals to reduce emissions, and continues to require the incorporation
of climate change considerations into executive agency decision-making. In recent years, Congress has considered legislation to
reduce emissions of GHGs, including methane, a primary component of natural gas, and carbon dioxide, a byproduct of the burning of
natural gas. For example, the Inflation Reduction Act of 2022, which appropriates significant federal funding for renewable energy
initiatives and, for the first time, imposes a fee on GHG emissions from certain facilities, was signed into law in August 2022. The
emissions fee and funding provisions of the law could increase operating costs within the oil and natural gas industry and
accelerate the transition away from fossil fuels, which could in turn adversely affect our business and results of operations.
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At the international level, the United Nations ("UN")
-sponsored "Paris Agreement" requires member states to submit non-binding, individually-determined reduction goals known as
Nationally Determined Contributions every five years after 2020. President Biden has recommitted the United States to the Paris Agreement
and, in April 2021, announced a goal of reducing the United States' emissions by 50 to 52% below 2005 levels by 2030. Various U.S. states
and local governments have also publicly committed to furthering the goals of the Paris Agreement. Additionally, at the UN Climate Change
Conference of Parties ("COP26"), held in November 2021, the United States and the European Union jointly announced the launch
of a Global Methane Pledge, an initiative committing to a collective goal of reducing global methane emissions by at least 30% from 2020
levels by 2030, including "all feasible reductions" in the energy sector. COP26 concluded with the finalization of the Glasgow
Climate Pact, which stated long-term global goals (including those in the Paris Agreement) to limit the increase in the global average
temperature and emphasized reductions in GHG emissions. These goals were reaffirmed at the November 2022 Conference of Parties ("COP27").
At COP27, the United States also announced, in conjunction with the European Union and other partner countries, that it would develop
standards for monitoring and reporting methane emissions to help create a market for low methane-intensity natural gas. Moreover, various
state and local governments have also publicly committed to furthering the goals of the Paris Agreement. In December 2023, the 28 th
session of Conference Parties was held where parties signed on to an agreement to transition away from fossil fuels and increase renewable
energy capacity so as to achieve net zero by 2050, although no timeline for doing so is set. The full impact of these actions, and any
legislation or regulation promulgated to fulfill the United States' commitments thereunder, is uncertain at this time, and it is unclear
what additional initiatives may be adopted or implemented that may have adverse effects upon our operations.
The adoption of legislation or regulatory programs
to reduce emissions of GHGs could require us to incur increased operating costs, such as costs to purchase and operate emissions control
systems, to acquire emissions allowances or to comply with new regulatory or reporting requirements. Any such legislation or regulatory
programs could also increase the cost of consuming, and thereby reduce demand for, the oil and natural gas we produce. Consequently, legislation
and regulatory programs to reduce emissions of GHGs could have an adverse effect on our business, financial condition and results of operations.
Reduced demand for the oil and natural gas that we produce could also have the effect of lowering the value of our reserves. It should
also be noted that some scientists have concluded that increasing concentrations of GHGs in the earth’s atmosphere may produce climate
changes that have significant physical effects, such as increased frequency and severity of storms, droughts, and floods and other climatic
events. If any such effects were to occur, they could have an adverse effect on our financial condition and results of operations. In
addition, there have also been efforts in recent years to influence the investment community, including investment advisors and certain
sovereign wealth, pension and endowment funds promoting divestment of fossil fuel equities and pressuring lenders to limit funding to
companies engaged in the extraction of fossil fuel reserves. Such environmental activism and initiatives aimed at limiting climate change
and reducing air pollution could interfere with our business activities, operations and ability to access capital. Finally, increasing
attention to the risks of climate change has resulted in an increased possibility of lawsuits or investigations brought by public and
private entities against oil and natural gas companies in connection with their GHG emissions. Should we be targeted by any such litigation
or investigations, we may incur liability, which, to the extent that societal pressures or political or other factors are involved, could
be imposed without regard to the causation of or contribution to the asserted damage, or to other mitigating factors. The ultimate impact
of GHG emissions-related agreements, legislation and measures on our company’s financial performance is highly uncertain because
we are unable to predict with certainty, for a multitude of individual jurisdictions, the outcome of political decision-making processes
and the variables and tradeoffs that inevitably occur in connection with such processes.
Any change to government regulation or administrative
practices may have a negative impact on our ability to operate and our profitability.
Oil and natural gas operations are subject to substantial
regulation under federal, state and local laws relating to the exploration for, and the development, upgrading, marketing, pricing, taxation,
and transportation of, oil and natural gas and related products and other associated matters. Amendments to current laws and regulations
governing operations and activities of oil and natural gas exploration and development operations could have a material adverse impact
on our business. In addition, there can be no assurance that income tax laws, royalty regulations and government programs related to our
oil and natural gas properties and the oil and natural gas industry generally will not be changed in a manner which may adversely affect
our progress or cause delays.
Permits, leases, licenses, and approvals are required
from a variety of regulatory authorities at various stages of exploration and development. There can be no assurance that the various
government permits, leases, licenses and approvals sought will be granted in respect of our activities or, if granted, will not be cancelled
or will be renewed upon expiration. There is no assurance that such permits, leases, licenses, and approvals will not contain terms and
provisions which may adversely affect our exploration and development activities.
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Other
A cyber incident could result in information
theft, data corruption, operational disruption and/or financial loss.
The oil and natural gas industry has become increasingly
dependent on digital technologies to conduct day-to-day operations including certain exploration, development and production activities.
We are dependent on digital technologies including information systems and related infrastructure, to process and record financial and
operating data, communicate with our employees, business partners, and stockholders, analyze 3-D seismic and drilling information, estimate
quantities of oil and natural gas reserves as well as other activities related to our business.
As dependence on digital technologies has increased,
cyber incidents, including deliberate attacks or unintentional events, have also increased. A cyber-attack could include gaining unauthorized
access to digital systems for the purposes of misappropriating assets or sensitive information, corrupting data, causing operational disruption,
or result in denial-of-service on websites.
Our technologies, systems, networks, and those of
our business partners may become the target of cyber-attacks or information security breaches that could result in the unauthorized release,
gathering, monitoring, misuse, loss or destruction of proprietary and other information, or other disruption of our business operations.
In addition, certain cyber incidents, such as surveillance, may remain undetected for an extended period of time. In particular, our implementation
of various procedures and controls to monitor and mitigate security threats and to increase security for our information, data, facilities
and infrastructure may result in increased capital and operating costs. Costs for insurance may also increase as a result of security
threats, and some insurance coverage may become more difficult to obtain, if available at all. Moreover, there can be no assurance that
such procedures and controls will be sufficient to prevent security breaches from occurring. As cyber threats continue to evolve, we may
be required to expend significant additional resources to continue to modify or enhance our protective measures or to investigate and
remediate any information security vulnerabilities. A cyber incident involving our information systems and related infrastructure, or
that of our business partners, could disrupt our business plans and negatively impact our operations.
The loss or unavailability of any of our executive
officers or other key employees could have a material adverse effect on our business.
W e depend greatly
on the efforts of our executive officers and other key employees to manage our operations. The loss or unavailability of any of our executive
officers or other key employees could have a material adverse effect on our business.
We have had
material weaknesses in our internal control over financial reporting in prior fiscal years. Failure to maintain effective internal control
over financial reporting could adversely affect our ability to report our financial condition and results of operations accurately and
on a timely basis. As a result, our business, operating results and liquidity could be harmed.
As
disclosed in our prior annual reports on Form 10-K, we identified a material weakness in internal controls over financial reporting as
of December 31, 2022 and 2021. We believe that this material weakness has been successfully remediated.
Our failure to maintain effective internal
control over financial reporting could adversely affect our ability to report our financial results on a timely and accurate basis, which
could result in a loss of investor confidence in our financial reports or have a material adverse effect on our ability to operate our
business or access sources of liquidity. Furthermore, because of the inherent limitations of any system of internal control over financial
reporting, including the possibility of human error, the circumvention or overriding of controls and fraud, even effective internal controls
may not prevent or detect all misstatements.
We do not expect to declare or pay any dividends
in the foreseeable future.
We have not declared or paid any dividends on our
common stock. We currently intend to retain future earnings to fund the development and growth of our business, to repay indebtedness
and for general corporate purposes, and therefore, do not anticipate paying any cash dividends on our common stock in the foreseeable
future.
The price of our common stock may fluctuate
significantly, which could negatively affect us and holders of our common stock.
Our common stock trades on the NYSE American. The
trading price of our common stock may fluctuate significantly in response to a number of factors, many of which are beyond our control.
Adverse events including changes in production volumes, worldwide demand and prices for crude oil and natural gas, regulatory developments,
and changes in any securities analysts’ estimates of our financial performance could negatively impact the market price of our common
stock. General market conditions, including the level of, and fluctuations in, the trading prices of stocks generally could also have
a similar negative impact. The stock markets regularly experience price and volume volatility that affects many companies’ stock
prices without regard to the operating performance of those companies. Volatility of this type may affect the trading price of our common
stock.
21
Provisions of our certificate of incorporation
and bylaws and Delaware law may inhibit a takeover, which could limit the price investors might be willing to pay in the future for our
common stock.
Provisions in our certificate of incorporation and
bylaws may have the effect of delaying or preventing an acquisition of us or a merger in which we are not the surviving company and may
otherwise prevent or slow changes in our board of directors and management. In addition, because we are incorporated in Delaware, we are
governed by the provisions of Section 203 of the General Corporation Law of the State of Delaware, which provides certain restrictions
on business combinations involving interested parties. These provisions could discourage an acquisition of us or other change in control
transactions and thereby negatively affect the price that investors might be willing to pay in the future for our common stock.
Holders of our outstanding
Series A Voting Preferred Stock have effective control of our board of directors.
We have six shares of Series
A Voting Preferred Stock currently issued and outstanding. The Series A Voting Preferred Stock was issued in connection with the strategic
investment in us by Energy Evolution Master Fund, Ltd. For so long as the Series A Voting Preferred Stock is outstanding, our board of
directors will consist of six directors. Three of the directors are designated as the Series A Directors and the three other directors
(each, a “common director”) are elected by the holders of common stock and/or any preferred stock (other than the Series A
Voting Preferred Stock) granted the right to vote on the common directors. Any Series A Director may be removed with or without cause
but only by the affirmative vote of the holders of a majority of the Series A Voting Preferred Stock voting separately and as a single
class. The holders of the Series A Voting Preferred Stock have the exclusive right, voting separately and as a single class, to vote on
the election, removal and/or replacement of the Series A Directors. Holders of common stock or other preferred stock have no right to
vote on the Series A Directors. In addition, in the case of any tie vote or deadlock of the board of directors, our current Chairman of
the Board, a Series A Director, has the deciding, tiebreaking vote. Accordingly, the holder(s) of our Series A Voting Preferred Stock
have effective control of our board of directors for so long as the voting rights of the Series A Voting Preferred Stock remain in effect.
Our bylaws provide that
the Court of Chancery of the State of Delaware (or if the Court of Chancery does not have jurisdiction, the federal district court for
the District of Delaware) will be the exclusive forum for certain legal actions between us and our stockholders. These provisions could
increase costs to bring a claim, discourage claims or limit the ability of our stockholders to bring a claim in a judicial forum viewed
by the stockholders as more favorable for disputes with us or our directors, officers or employees.
Our bylaws provide that, unless
we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or if the Court of Chancery
does not have jurisdiction, the federal district court for the District of Delaware) will be the sole and exclusive forum for (a) any
derivative action or proceeding brought on our behalf, (b) any action asserting a claim of breach of a fiduciary duty owed by any director,
officer, stockholder, employee or agent to us or our stockholders, (c) any action asserting a claim arising pursuant to any provision
of the General Corporation Law of the State of Delaware, our certificate of incorporation or our bylaws, or (d) any action asserting a
claim governed by the internal affairs doctrine, in each case subject to the court having personal jurisdiction over the defendants. This
exclusive forum provision is intended to apply to claims arising under Delaware state law and is not intended to apply to claims arising
under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended. The choice of forum provisions may increase
costs to bring a claim, discourage claims or limit a stockholder's ability to bring a claim in a judicial forum that it finds favorable
for disputes with us or our directors, officers or employees, which may discourage such lawsuits against us or our directors, officers
and employees. Alternatively, if a court were to find the choice of forum provision contained in our bylaws to be inapplicable or unenforceable
in an action, we may incur additional costs associated with resolving such action in other jurisdictions.