NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AS OF AND FOR THE YEARS ENDED DECEMBER 31, 2019, 2018 AND 2017
1. Nature of Business
Comstock Mining Inc. is a Nevada-based gold and silver exploration, development and production-focused mining company with extensive, contiguous property in the historic Comstock and Silver City mining districts (collectively, the “Comstock District”). The Comstock District is located within the western portion of the Basin and Range Province of Nevada, between Reno and Carson City, Nevada. Our Dayton resource area and the Spring Valley exploration targets are located in Lyon County, Nevada, approximately six miles south of Virginia City, Nevada. Our Lucerne resource area is located in Storey County, Nevada, approximately three miles south of Virginia City, Nevada and 30 miles southeast of Reno, Nevada. The Company also owns extensive real estate holdings, including but not limited to the Gold Hill Hotel located in Gold Hill, Nevada, just south of Virginia City, the Daney Ranch, located just south of Silver City, and the Comstock Industrial parcel, representing 98 acres of land and 203 acre-feet of senior-priority water rights in Silver Springs, Nevada. As used in the notes to the consolidated financial statements, we refer to Comstock Mining Inc., and its wholly owned subsidiaries as “we,” “us,” “our,” “our Company,” or “the Company.”
We continue expanding our platform and creating opportunities for exploration, development and mining. The Company now owns or controls approximately 9,358 acres of mining claims and parcels in the Comstock and Silver City Districts. The acreage is comprised of approximately 2,396 acres of patented claims (private lands) and surface parcels (private lands) and approximately 6,962 acres of unpatented mining claims, administered by the Bureau of Land Management, (“BLM”).
The Company is a Nevada-based gold and silver exploration, development and mining company, that commenced Lucerne Mine operations in 2012, and ramped up to approximately 20,000 gold-equivalent-ounces of annual production. The Company completed processing Lucerne mined mineralized material in December 2016, and is currently planning the exploration and development of an expanded resource for the Dayton resource area and the Spring Valley target area, both owned by Comstock Exploration and Development LLC. Tonogold Resources Inc. (“Tonogold”), is planning the exploration of the remaining northern mineral claims owned by Comstock Northern Exploration LLC and leased by that company to Tonogold. Tonogold is also the holder of the other fifty percent membership interest in Comstock Mining LLC, the entity that owns the Lucerne properties, and is expected to further explore and develop the Lucerne Mine.
2. Summary of Significant Accounting Policies
Basis of Presentation and Principles of Consolidation - The consolidated financial statements include the accounts of Comstock Mining Inc., and its wholly owned subsidiaries prepared in accordance with accounting principles generally accepted in the United States ("GAAP"): Comstock Processing LLC, Comstock Northern Exploration LLC, Comstock Exploration & Development LLC, Comstock Real Estate Inc., Comstock Industrial LLC, and Downtown Silver Springs LLC, and its fifty percent membership interest in Comstock Mining LLC. Inter-company transactions and balances have been eliminated.
Liquidity and Going Concern - The financial statements are prepared on the going concern basis of accounting which assumes the realization of assets and the satisfaction of liabilities in the ordinary course of business. The Company’s current capital resources include cash and cash equivalents and other net working capital resources, planned investment sales of Tonogold securities, and proceeds from the planned sale of Lucerne mineral properties and non-mining assets.
The Company has recurring net losses from operations and an accumulated deficit of $235.9 million as of December 31, 2019. For the year ended December 31, 2019, the Company incurred a net loss of $3.8 million and used $2.3 million of cash in operations. As of December 31, 2019, the Company had cash and cash equivalents of $1.0 million. The Company also has long-term debt of $4.9 million that matures in January 2021, for which it does not currently have the ability to repay. Such condition raises substantial doubt regarding the Company’s ability to continue as a going concern.
The Company intends to finance its operations over the next twelve months through its existing cash, the sale of common stock through its existing equity agreements to issue securities, and proceeds from the planned sale of its Lucerne mineral properties and non-mining assets, and Tonogold securities. These plans are outside of the control of management, and therefore, substantial doubt exists about the Company’s ability to continue as a going concern through 12 months from the issuance date of the financial statements.
On October 1, 2019, and as amended and restated on October 9, 2019, the Company entered into a new equity purchase agreement (the “Leviston Equity Agreement”) with Leviston Resources LLC (“Leviston”) and filed a prospectus supplement to
offer and sell shares of common stock at an aggregate offering price of up to $1.25 million, from time to time, to Leviston with aggregate unused capacity of $0.45 million as of December 31, 2019.
In February 2019, the Company also entered into an equity purchase agreement (the “2019 Equity Agreement”) with the Murray Family Office (“Murray FO”) for the sale of up to $5.0 million in shares of the Company’s common stock from time to time, at the Company’s option, subject to certain restrictions and at a 10% discount to a volume weighted average price. On September 20, 2019, the Company filed a prospectus that terminated any remaining sales pursuant to the 2019 Equity Agreement after using $1.9 million of its capacity.
Fair Value Measurements - The fair value of a financial instrument is the amount that could be received upon the sale of an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. The fair value should be calculated based on assumptions that market participants would use in pricing the asset or liability, not on assumptions specific to the entity. In addition, the fair value of liabilities should include consideration of non-performance risk, including the party’s own credit risk.
Fair value measurements do not include transaction costs. A fair value hierarchy is used to prioritize the quality and reliability of the information used to determine fair values. Categorization within the fair value hierarchy is based on the lowest level of input that is significant to the fair value measurement. The fair value hierarchy is defined into the following three categories:
Level 1: Quoted market prices in active markets for identical assets or liabilities.
Level 2: Observable market-based inputs or unobservable inputs that are corroborated by market data.
Level 3: Unobservable inputs that are not corroborated by market data.
Long-Lived Assets - We review the carrying amount of our long-lived assets for impairment whenever there are negative indicators of impairment. An asset is considered impaired when estimated future undiscounted cash flows are less than the carrying amount of the asset. In the event the carrying amount of such asset is not considered recoverable, the asset is adjusted to its fair value. Fair value is generally determined based on discounted future cash flows.
Mineral Rights and Properties - We defer acquisition costs until we determine the viability of the property. Since we do not have proven and probable reserves as defined by Securities and Exchange Commission (“SEC”) Industry Guide 7, exploration expenditures are expensed as incurred. We expense repair and maintenance costs as incurred.
We review the carrying value of our properties for impairment, including mineral rights, whenever there are negative indicators of impairment. Our estimate of the gold price, mineralized materials, operating capital, and reclamation costs are subject to risks and uncertainties affecting the recoverability of our investment in all of these properties. Although we have made our best, most current estimate of these factors, it is possible that near term changes could adversely affect estimated net cash flows from our properties and mineral claims, and possibly require future asset impairment write-downs.
Where estimates of future net operating cash flows are not available and where other conditions suggest impairment, we assess recoverability of carrying value from other means, including net cash flows generated by the sale of the asset. We use the units-of-production method to deplete the mineral rights and mining properties.
Properties, Plant and Equipment - We record properties, plant and equipment at historical cost. We provide depreciation and amortization in amounts sufficient to match the cost of depreciable assets to operations over their estimated service lives or productive value. We capitalize expenditures for improvements that significantly extend the useful life of an asset. We charge expenditures for maintenance and repairs to operations when incurred. Depreciation is computed using the straight-line method over estimated useful lives as follows:
|
|
|
Building
|
7 to 15 years
|
Vehicles and equipment
|
3 to 7 years
|
Processing and laboratory
|
5 to 15 years
|
Furniture and fixtures
|
2 to 3 years
|
Reclamation Liabilities and Asset Retirement Obligations - Minimum standards for site reclamation and closure have been established for us by various government agencies. Asset retirement obligations are recognized when incurred and recorded as liabilities at fair value. The liability is accreted over time through periodic charges to earnings. In addition, the asset retirement cost is capitalized and amortized over the life of the related asset. Reclamation costs are periodically adjusted to reflect changes in the estimated present value resulting from the passage of time and revisions to the estimates of either the timing or amount of
the reclamation and abandonment costs. The Company reviews, on an annual basis, unless otherwise deemed necessary, the asset retirement obligation at each mine site.
Revenue Recognition - The Company adopted ASC 606, Revenue from Contracts with Customers (Topic 606), on January 1, 2018 using a modified retrospective method. Currently, the Company has no contracts with customers as it does not have active mining operations. When the Company resumes active mining operations and has revenue within the scope of ASC 606, it will account for revenue from contracts with customers by evaluating the five steps of Topic 606, which are as follows: (1) identify the contract with the customer; (2) identify the performance obligations in the contract; (3) determine the transaction price; (4) allocate the transaction price to the performance obligations; and (5) recognize revenue when (or as) performance obligations are satisfied.
Real estate revenue is recognized when rental income is earned.
Stock Issued for Goods and Services - Common shares issued for goods and services are valued based upon the fair market value of our common stock or the goods and services received, whichever is the most reliably measurable on the date of issue.
Stock-Based Compensation - For stock-based transactions, compensation expense is recognized over the requisite service period, which is generally the vesting period, based on the estimated fair value on the grant date of the award.
Variable-Interest Entity - During 2018 and 2019, Comstock’s board approved the Company to enter into an investment in certain opportunity zone funds in northern Nevada. During 2019, Comstock invested $0.3 million into a qualified opportunity zone fund named Sierra Springs Opportunity Fund Inc. (“SSOF”) and a qualified opportunity zone business named Sierra Springs Enterprises Inc. (“SSE” solely owned by SSOF.) It is anticipated that the Company could own approximately 9% of SSOF upon issuance of all 75 million authorized shares to investors.
On September 26, 2019, as amended on November 30, 2019 and December 26, 2019, the Company entered into agreements with SSE to sell two properties in Silver Springs, NV. The agreements include the sale of 98 acres of industrial land and senior water rights for $6.5 million and 160 acres of commercial land along with its rights in the membership interests in Downtown Silver Springs, LLC for $3.6 million.
The Company’s chief executive officer is the president and a director of SSOF and an executive of SSE.
In conjunction with its investment in SSOF, the Company evaluated whether consolidation is required according to ASC 810, Consolidation. As SSOF is a legal entity, does not meet any scope exceptions, the Company has both operational and equity risk related to SSOF, and SSOF currently has insufficient equity at risk, the Company concluded SSOF is a variable interest entity (“VIE”.) However, the Company has concluded it does not meet the power threshold even though the Company’s chief executive officer is an executive of SSOF as no one individual has unilateral control over significant decisions of SSOF and consent is required from other current investors.
Comstock’s $0.3 million investment in SSOF is recorded in the consolidated balance sheets at December 31, 2019, in Investments. Comstock’s maximum exposure to loss as a result of its involvement with SSE at December 31, 2019, is limited to its current investment. The investment is held at cost and fair value was not estimated as there were no identified events or changes in circumstances that might have had a significant adverse effect on the fair value of the investment. Management concluded it was impractical to estimate fair value due to the fund being in the early stages.
Loss per Common Share - Basic net loss per common share is computed by dividing net loss, by the weighted average number of common shares outstanding. Dilutive loss per share includes any additional dilution from common stock equivalents, such as stock options, warrants, and convertible instruments, if the impact is not antidilutive. Since the Company incurred net losses for all the periods presented, all equity-linked instruments are considered anti-dilutive.
Comprehensive Loss - There were no components of comprehensive loss other than net loss for all the periods presented.
Income Taxes - The Company’s income tax expense and deferred tax assets and liabilities reflect management’s best assessment of estimated future taxes to be paid. Significant judgments and estimates are required in determining the consolidated income tax expense.
Deferred income taxes arise from temporary differences between the tax and financial statement recognition of revenue and expense. In evaluating the Company’s ability to recover its deferred tax assets, management considers all available positive and negative evidence, including scheduled reversals of deferred tax liabilities, projected future taxable income, tax planning
strategies and recent financial operations. In projecting future taxable income, the Company develops assumptions including the amount of future state and federal pretax operating income, the reversal of temporary differences, and the implementation of feasible and prudent tax planning strategies. These assumptions require significant judgment about the forecasts of future taxable income and the assumptions are consistent with the plans and estimates that the Company is using to manage the underlying businesses. The Company provides a valuation allowance for deferred tax assets that the Company does not consider more likely (than not) to be realized.
Changes in tax laws and rates could also affect recorded deferred tax assets and liabilities in the future. Other than the impacts of the new federal tax reform legislation disclosed in Note 17, management is not aware of any such changes that would have a material effect on the Company’s results of operations, cash flows or financial position.
Use of Estimates - In preparing financial statements in conformity with generally accepted accounting principles, we are required to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements and revenues and expenditures during the reported periods. Actual results could differ materially from those estimates. Estimates may include those pertaining to the estimated useful lives and valuation of properties, plant and equipment, mineral rights and properties, deferred tax assets, reclamation liabilities, and contingent liabilities.
Reverse Stock Split - Effective November 9, 2017, the Company completed a 5-for-1 reverse stock split of its authorized and outstanding common stock, as approved by its Board of Directors. Effective November 28, 2019, the Company completed a second 5-for-1 reverse stock split of its authorized and outstanding common stock, as approved by its Board of Directors. All common shares and per share amounts set forth herein give effect to these reverse stock splits.
Recently Issued Accounting Pronouncements – In October 2018, the FASB issued ASU No. 2018-17, Targeted Improvements to Related Party Guidance for Variable Interest Entities (“ASU 2018-17”), which expands the application of a specific private company alternative related to VIEs and changes the guidance for determining whether a decision-making fee is a variable interest. Under the new guidance, to determine whether decision-making fees represent a variable interest, an entity considers indirect interests held through related parties under common control on a proportionate basis, rather than in their entirety. ASU 2018-17 is effective for annual periods beginning after December 15, 2019, including interim periods within those fiscal years, and early adoption is permitted in any interim period. ASU 2018-17 is required to be applied retrospectively from the date the guidance is first applied. The Company does not expect the adoption of this standard to have a material impact on its consolidated financial statements.
In August 2018, the FASB issued ASU 2018-13, Fair Value Measurement (Topic 820): Disclosure Framework - Changes to the Disclosure Requirements for Fair Value Measurement, which removes, modifies and adds various disclosure requirements related to fair value disclosures. Disclosures related to transfers between fair value hierarchy levels will be removed and further detail around changes in unrealized gains and losses for the period and unobservable inputs used in determining level 3 fair value measurements will be added, among other changes. ASU 2018-13 is effective for interim and annual reporting periods beginning after December 15, 2019, and early adoption is permitted. The Company will modify the disclosures beginning in the first quarter of 2020 to conform to this guidance. The Company does not expect the adoption of this standard and the associated changes to the disclosures to have a material impact to the consolidated financial statements.
In February 2016, the FASB issued ASU 2016-02, Leases (Topic 842), to increase transparency and comparability among organizations by recognizing lease assets and lease liabilities on the balance sheet and disclosing key information about leasing arrangements. Topic 842 affects any entity that enters into a lease, with some specified scope exceptions. For public business entities, the amendments in this update are effective for financial statements issued for annual periods beginning after December 15, 2018, and interim periods within those annual periods. Early application is permitted for all entities. The Company has evaluated the impact of adopting this standard on its consolidated financial statements. The majority of the Company’s leases pertain to mineral leases, which are not in the scope of Topic 842, and accordingly, have no material impact on the Company's consolidated financial statements.
In May 2014, the FASB issued ASU 2014-09 (Topic 606) that introduces a new five-step revenue recognition model that an entity should use to recognize revenue when depicting the transfer of promised goods or services to customers in an amount that reflects the consideration that the entity expects to be entitled in exchange for those goods or services. This ASU also requires disclosures sufficient to enable users to understand the nature, amount, timing, and uncertainty of revenue and cash flows arising from contracts with customers, including qualitative and quantitative disclosures about contracts with customers, significant judgments and changes in judgments, and assets recognized from the costs to obtain or fulfill a contract. We used the modified retrospective method to adopt the provisions of this standard effective January 1, 2018, requiring us to apply the new revenue standard to (i) all new revenue contracts entered into after January 1, 2018 and (ii) assess all existing revenue
contracts as of January 1, 2018, to determine if a cumulative adjustment to accumulated deficit was required. The Company does not have any revenue contracts within the scope of Topic 606 as of January 1, 2018, and accordingly, was not required to record any adjustments.
3. Assets and Liabilities Held for Sale
The Company committed to a plan to sell certain land, buildings, and water rights. As of December 31, 2019, and 2018, the Company has assets with a net book value of $10.5 million and $5.4 million, respectively, that met the criteria to be classified as Assets held for sale. Those criteria specify that the asset must be available for immediate sale in its present condition (subject only to terms that are usual and customary for sales of such assets), the sale of the asset must be probable, and its transfer expected to qualify for recognition as a completed sale generally within one year. Proceeds from the sale of these assets are required to be used to satisfy obligations due under the terms of the debenture with GF Comstock 2 LP as described in Note 10.
Assets held for sale at December 31, 2019, and 2018 include:
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
Industrial Park (Land and water rights)
|
$
|
2,738,462
|
|
|
$
|
2,738,462
|
|
Daney Ranch (Land and buildings)
|
2,146,575
|
|
|
2,146,575
|
|
Lucerne Properties (mineral claims)
|
1,539,197
|
|
|
—
|
|
Lucerne Properties (reclamation asset, net)
|
19,590
|
|
|
—
|
|
DTSS Commercial (land)
|
3,589,876
|
|
|
—
|
|
Gold Hill Hotel (Land and buildings)
|
478,366
|
|
|
478,366
|
|
Total assets held for sale
|
$
|
10,512,066
|
|
|
$
|
5,363,403
|
|
Liabilities held for sale at December 31, 2019, and 2018 include:
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
Lucerne Properties (reclamation liabilities)
|
$
|
1,019,705
|
|
|
$
|
—
|
|
Total liabilities held for sale
|
$
|
1,019,705
|
|
|
$
|
—
|
|
Non-mining Assets Held for Sale- Silver Springs, NV
On September 26, 2019, as amended on November 30, 2019, and December 26, 2019, the Company entered into agreements with SSE to sell two properties in Silver Springs, NV. The agreements include the sale of 98 acres of industrial land and senior water rights for $6.5 million and 160 acres of commercial land along with its rights in the membership interests in Downtown Silver Springs, LLC (“DTSS”) for $3.6 million. The carrying value of the 160 acres of commercial land and DTSS membership rights was adjusted to the contract value of $3.6 million less estimated costs to sell, resulting in an impairment of $0.5 million, charged to other expense in the consolidated statements of operations as of December 31, 2019. As of December 31, 2019, the Company received $0.3 million in escrowed deposits for the purchase of these assets and expects the sales to close during the second quarter of 2020.
Non-mining Assets Held for Sale - Dayton and Gold Hill, NV
The Company owns a 225 acre residential property (the “Daney Ranch) along Highway 50 in Dayton, NV, listed for sale, in two components, for a total of $3.7 million and a historic, operating hotel (the “Gold Hill Hotel”) including 19 leasable rooms, 4 cottages, a bar and a restaurant listed for sale for $1.5 million.
4. Prepaid Expenses and Other Current Assets
Prepaid expenses and other current assets at December 31, 2019, and 2018 consisted of the following:
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
Land and property deposits
|
$
|
10,100
|
|
|
$
|
1,800,000
|
|
Surety bond and insurance
|
110,558
|
|
|
475,861
|
|
Reimbursements from Tonogold
|
—
|
|
|
82,951
|
|
Deposit for Mercury Clean Up (Note 19)
|
1,501,050
|
|
|
—
|
|
Other
|
199,919
|
|
|
353,390
|
|
Total prepaid expenses and other current assets
|
$
|
1,821,627
|
|
|
$
|
2,712,202
|
|
5. Mineral Rights and Properties, Net
Mineral rights and properties at December 31, 2019, and 2018 consisted of the following:
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
Dayton resource area
|
$
|
2,932,226
|
|
|
$
|
2,932,226
|
|
Lucerne resource area
|
—
|
|
|
1,998,896
|
|
Occidental area
|
1,002,172
|
|
|
1,002,172
|
|
Spring Valley area
|
810,000
|
|
|
810,000
|
|
Oest area
|
260,707
|
|
|
260,707
|
|
Northern extension
|
157,205
|
|
|
157,205
|
|
Northern targets
|
121,170
|
|
|
121,170
|
|
Other mineral properties
|
317,405
|
|
|
317,404
|
|
Water rights
|
90,000
|
|
|
90,000
|
|
Accumulated depletion - Lucerne Resource area
|
—
|
|
|
(484,699
|
)
|
Total mineral rights and properties
|
$
|
5,690,885
|
|
|
$
|
7,205,081
|
|
These mineral rights and properties are segmented based on the Company’s identified mineral resource areas and exploration targets. During the years ended December 31, 2019, 2018, and 2017, the Company did not recognize any depletion expense.
6. Properties, Plant and Equipment, Net
Properties, plant and equipment at December 31, 2019, and 2018, consisted of the following:
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
Land and building
|
$
|
9,140,805
|
|
|
$
|
9,169,605
|
|
Vehicle and equipment
|
2,267,916
|
|
|
2,319,290
|
|
Processing and laboratory
|
21,113,177
|
|
|
21,129,248
|
|
Furniture and fixtures
|
549,860
|
|
|
648,309
|
|
Construction in progress
|
—
|
|
|
35,190
|
|
|
33,071,758
|
|
|
33,301,642
|
|
Less accumulated depreciation
|
(25,136,737
|
)
|
|
(23,559,522
|
)
|
Total properties, plant and equipment
|
$
|
7,935,021
|
|
|
$
|
9,742,120
|
|
For the years ended December 31, 2019, 2018, and 2017, the Company recognized depreciation expense of $1.8 million, $3.1 million, and $4.2 million, respectively.
For the years ended December 31, 2019, and 2018, the Company did not sell any land and equipment. For the year ended December 31, 2017, the Company sold land and equipment for proceeds of $1.1 million and recorded a gain on the sale of $0.3 million.
7. Reclamation Bond Deposit
The Nevada Revised Statutes and Regulations require a surety bond to be posted for mining projects so that after the completion of such mining projects the sites are left safe, stable and capable of productive post-mining uses. The bond is intended to cover the estimated costs required to safely reclaim the natural environment to the regulatory standards established by the State of Nevada’s Division of Environmental Protection. Accordingly, the Company has a $6.8 million reclamation surety bond through the Lexon Surety Group (“Lexon”) with the State of Nevada’s Bureau of Mining Regulation and Reclamation as of December 31, 2019. In addition, the Company has a $0.5 million surety bond with Storey County related to mine reclamation as of December 31, 2019. As part of the surety agreement, the Company agreed to pay a 2.0% annual bonding fee. The total cash collateral, per the surety agreement, was $2.6 million at December 31, 2019, and $2.5 million at December 31, 2018. The total cash collateral is a component of the reclamation bond deposit in the consolidated balance sheets.
The reclamation bond deposit at December 31, 2019 and 2018 consisted of the following:
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
Lexon surety bond cash collateral
|
$
|
2,582,026
|
|
|
$
|
2,500,000
|
|
Other cash reclamation bond deposits
|
106,936
|
|
|
122,544
|
|
Total reclamation bond deposit
|
$
|
2,688,962
|
|
|
$
|
2,622,544
|
|
The Lexon collateral at December 31, 2019, includes earned income of $82,026, which has been left on deposit at BNY Mellon.
8. Long-term Reclamation Liability and Retirement Obligation Asset
The Company is required to mitigate long-term environmental impacts by stabilizing, contouring, re-sloping, and re-vegetating various portions of our site after mining and mineral processing operations are completed. These reclamation efforts are conducted in accordance with plans reviewed and approved by the appropriate regulatory agencies.
We have accrued a long-term liability of 7.1 million, inclusive of 1.0 million reclassified to liabilities held for sale, and $7.4 million as of December 31, 2019, and 2018, respectively, for our obligation to reclaim our mine facility based on our most recent reclamation plan, as revised, submitted and approved by the Nevada State Environmental Commission and Division of Environmental Protection. As of December 31, 2019, $1.0 million of the accrued long-term liability was reclassified to liabilities held for sale. In conjunction with recording the reclamation liability, we recorded a retirement obligation asset that is being amortized over the period of the anticipated land disturbance. Such costs are based on management’s current estimate of then expected amounts for the remediation work, assuming the work is performed in accordance with current laws and regulations. It is reasonably possible that, due to uncertainties associated with the application of laws and regulations by regulatory authorities and changes in reclamation or remediation technology, the ultimate cost of reclamation and remediation could change in the future. We periodically review the accrued reclamation liability for information indicating that our
assumptions should change. The accretion of the reclamation liability and the amortization of the retirement obligation asset for the years ended December 31, 2019, 2018, and 2017, totaled $0.1 million, $0.1 million, $0.4 million, respectively, and were a component of environmental and reclamation expenses in the consolidated statements of operations.
On April 30, 2019, the Company was notified by the Nevada Division of Environmental Protection (“NDEP”) that the Company’s successful reclamation of parts of the Lucerne mine area had reduced the Lucerne project reclamation cost estimate with an updated reclamation bond requirement of $6.8 million, resulting in a $0.4 million reduction of obligation. Our total reclamation liability includes cost estimates for our Dayton project and enhanced reclamation obligations in Storey County.
Following is a reconciliation of the mining retirement liability associated with our reclamation plan for the mining projects for the years ended December 31, 2019, and 2018:
|
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
|
Long-term reclamation liability — beginning of year
|
$
|
7,441,091
|
|
|
$
|
7,417,680
|
|
|
Reduction of obligation
|
(410,018
|
)
|
|
—
|
|
|
Amount reclassified to liabilities held for sale
|
(1,019,705
|
)
|
|
—
|
|
|
Accretion of reclamation liability
|
22,840
|
|
|
23,411
|
|
|
Long-term reclamation liability — end of year
|
$
|
6,034,208
|
|
|
$
|
7,441,091
|
|
|
Following is a reconciliation of the mining retirement obligation asset for the years ended December 31, 2019, 2018, and 2017:
|
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
|
Retirement obligation asset — beginning of year
|
$
|
203,274
|
|
|
$
|
282,745
|
|
|
Additional obligations incurred
|
—
|
|
|
—
|
|
|
Amounts reclassified to assets held for sale
|
(19,590
|
)
|
|
—
|
|
|
Amortization of retirement obligation asset
|
(67,758
|
)
|
|
(79,471
|
)
|
|
Retirement obligation asset — end of year
|
$
|
115,926
|
|
|
$
|
203,274
|
|
|
9. Accrued Expenses
Accrued expenses at December 31, 2019, and 2018, consisted of the following:
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
Accrued make-whole for Mercury Clean Up (Note 19)
|
$
|
452,740
|
|
|
$
|
—
|
|
Accrued interest expense
|
264,268
|
|
|
481,946
|
|
Accrued insurance liabilities
|
—
|
|
|
341,680
|
|
Accrued liability for purchase of DTSS (Note 19)
|
—
|
|
|
185,000
|
|
Accrued Northern Comstock Joint Venture
|
180,833
|
|
|
180,833
|
|
Accrued payroll costs
|
165,543
|
|
|
140,915
|
|
Accrued make-whole for Pelen LLC (Note 19)
|
222,602
|
|
|
135,162
|
|
Accrued personal property tax
|
—
|
|
|
74,434
|
|
Accrued board of directors' fees
|
120,000
|
|
|
20,000
|
|
Accrued vendor liabilities
|
309,515
|
|
|
—
|
|
Other accrued expenses
|
139,930
|
|
|
114,763
|
|
Total accrued expenses
|
$
|
1,855,431
|
|
|
$
|
1,674,733
|
|
10. Long-Term Debt
Long-term debt at December 31, 2019, and 2018, consisted of the following:
|
|
|
|
|
|
|
|
|
Note Description
|
2019
|
|
2018
|
Senior Secured Debenture (GF Comstock 2) - 11% interest, due 2021.
|
$
|
4,929,277
|
|
|
$
|
8,872,663
|
|
Note Payable (Caterpillar Financial Services) - 5.7% interest.
|
645,891
|
|
|
955,845
|
|
Total debt
|
5,575,168
|
|
|
9,828,508
|
|
Less: long-term debt discounts and issuance costs
|
(163,094
|
)
|
|
(660,795
|
)
|
Total debt, net of discounts and issuance costs
|
5,412,074
|
|
|
9,167,713
|
|
Less: current portion of long-term debt
|
(328,068
|
)
|
|
(309,843
|
)
|
Long-term debt, net of discounts and issuance costs
|
$
|
5,084,006
|
|
|
$
|
8,857,870
|
|
Debt Obligations
GF Comstock 2 LP
On January 13, 2017, the Company issued an 11% Senior Secured Debenture (the “Debenture”) to GF Comstock 2 LP in an aggregate principal amount of $10,723,000. The Debenture is collateralized by (1) substantially all of the assets of the Company, and (2) a pledge to 100% of the equity of the subsidiaries of Comstock Mining Inc. The use of proceeds included refinancing substantially all of the Company’s current debt obligations except the amounts due to Caterpillar Finance. The Debenture was issued at a discount of approximately $568,000 and the Company incurred issuance costs of approximately $528,000. The Debenture required an additional Make-Whole payment of approximately $688,000 if paid any time prior to or at maturity. At December 31, 2019, the remaining balance on the Make-Whole obligation was $242,466. Total principal is due at maturity on January 13, 2021. The Debenture requires acceleration of the payment of accrued interest, principal and the Make-Whole amount from all net proceeds received upon sale of any assets of the Company.
Interest is payable semi-annually. For the first two years, interest will be payable, at the option of the Company, either in cash or in the form of additional Debentures (or a combination thereof). For the third and fourth years, interest will be payable only in cash. In 2018, the Company elected to make the interest payments in the form of additional Debentures (Payment-in-Kind). In 2019, the Company elected to make the interest payments in cash.
Hard Rock Nevada Inc., an employee owned entity, and another related party who is a significant shareholder of the Company participated in this financing.
Caterpillar Equipment Facility
On June 27, 2016, the Company completed an agreement with Caterpillar Financial Services Corporation relating to certain finance and lease agreements (the “CAT Agreement”). The Company entered into the CAT Agreement that required the Company to complete the sale of certain financed and leased equipment and modified the payment schedule under the related finance and lease arrangements. Under the terms of the CAT Agreement, the Company paid down its obligations with the net proceeds from the financed and leased equipment sold during the second and third quarters of 2016, with the remaining balance to be paid off from a monthly payment schedule of primarily $29,570 per month until the amounts have been paid in full. The note bears an interest rate of 5.7%
Loan Commitment Agreement
In 2017 (and amended in February 2019), the Company entered into a loan commitment agreement that provides up to $10 million in borrowing capacity and expires in 2021 with an 11% interest rate. Principal amounts borrowed under this agreement are not due until 2021. No amounts have been borrowed under this agreement and the Company has $9.5 million (after consideration of fees due at the time of borrowing) of available borrowing capacity.
Future maturities of long-term debt are as follows:
|
|
|
|
|
Years Ending December 31:
|
|
2020
|
$
|
328,068
|
|
2021
|
5,247,100
|
|
Total debt (excludes discounts and debt issuance costs)
|
$
|
5,575,168
|
|
There are no other maturities due after November 1, 2021.
11. Leases
The Company has an operating lease for a property located adjacent to the Gold Hill Hotel, which is primarily used as a room rental. The lease runs from 2018 until 2028. The monthly rent is $750 with automatic annual increases of $25 per month every November, beginning in 2020. The operating lease is sub-leased to Crown Point Management LLC, the operators of the Gold Hill Hotel, and not separately valued within the Gold Hill Hotel lease.
For the year ended December 31, 2019, the fixed operating lease expense was $9,000 with a remaining term of 8.8 years.
Supplemental cash flow information related to the Company's operating lease for the year ended December 31, 2019, are as follows:
|
|
|
|
|
|
Cash paid for amounts included in the measurement of lease liabilities
|
$
|
9,000
|
|
Right-of-use assets obtained in exchange for operating lease obligations
|
$
|
3,932
|
|
The Company has the following lease balances recorded in the consolidated balance sheet as follows:
|
|
|
|
|
|
|
Lease Assets and Liabilities
|
Classification
|
|
December 31, 2019
|
Operating lease right-of-use asset
|
Other assets
|
|
$
|
45,485
|
|
|
|
|
|
Operating lease liability - current
|
Accrued expenses and other liabilities
|
|
$
|
9,000
|
|
Operating lease liability - long-term
|
Other liabilities
|
|
36,668
|
|
Total operating lease liabilities
|
|
|
$
|
45,668
|
|
Maturities of lease liabilities by fiscal year for the Company's operating leases are as follows:
|
|
|
|
|
|
2020
|
|
$
|
9,050
|
|
2021
|
|
9,350
|
|
2022
|
|
9,650
|
|
2023
|
|
9,950
|
|
2024
|
|
10,250
|
|
Thereafter
|
|
42,050
|
|
Total operating lease payments
|
|
90,300
|
|
Less: Imputed interest
|
|
44,632
|
|
Present value of lease liabilities
|
|
$
|
45,668
|
|
12. Equity
Common Stock
Reverse Stock Split
In November 2019, the board of directors of the Company approved a five-for-one (5:1) reverse stock split (the “Reverse Split”) for all issued and outstanding shares of the Company’s common stock, par value $0.000666, and a contemporaneous five-for-one (5:1) reduction in the number of shares of the Company’s authorized common stock from 790,000,000 to
158,000,000 shares. The Reverse Split resulted in each outstanding five pre-split shares of common stock automatically combining into one new share of common stock without any action on the part of the stockholders. No fractional shares were issued as a result of the Reverse Split. Fractional shares were rounded up to the nearest whole share requiring the issuance of 9,114 additional shares of common stock, included in issuance of common stock in the consolidated statements of changes in equity. The Reverse Split was effective for trading purposes on November 29, 2019. The total number of outstanding common shares was reduced from 126,970,215 to 25,394,043 on the effective date. All common shares and per share amounts set forth herein give effect to this Reverse Split. The Reverse Split also applies to awards available for issuance under the 2011 Equity Incentive Plan.
Equity Offering Program
In October 2019, the Company entered into a new equity purchase agreement, (the “2019 Sales Agreement”), with Leviston Resources LLC (“Leviston”), to sell up to $1.25 million in shares of the Company’s common stock from time to time at the Company’s option. Pursuant to the 2019 Sales Agreement, the Company agreed to deliver additional shares of common stock with a value of 5% of the aggregate offering price to Leviston as a commitment fee. As of December 31, 2019, the Company has issued shares with an aggregate sales price of $0.8 million under the 2019 Sales Agreement. The Company issued 284,852 shares in commitment fees to Leviston.
In February 2019, the Company entered into an equity purchase agreement (the "2019 Equity Agreement") with Murray FO ("Murray") for the sale of up to $5.0 million in shares of the Company's common stock from time to time, at the Company’s option, subject to certain restrictions and at a 10% discount to the volume weighted average sales price. As of December 31, 2019, the Company has issued shares with an aggregate sales price of $1.9 million under the 2019 Equity Agreement. The Company issued 131,556 shares in commitment fees and 81,600 for due diligence fees to Murray FO.
Effective August 2018, the Company entered into the 2018 Sales Agreement with Leviston Resources for the sale of up to $2.25 million of shares of the Company's common stock from time to time, at the Company's option. Final proceeds from the 2018 Sales Agreement were received in February 2019 and the Sales Agreement was terminated. At the time of termination, the Company had issued shares with an aggregate sales price of $1.7 million under the 2018 Sales Agreement.
Effective April 2017, the Company also entered into the 2017 Sales Agreement with Leviston for the purchase of up to $7.25 million of shares of the Company's common stock from time to time, at the Company's option. Effective August 2018, the Company and Leviston terminated the 2017 Sales Agreement and no further sales pursuant to that program were made. At the time of the termination, the Company had issued shares with an aggregate purchase price of $5.3 million.
Convertible Preferred Stock
In June 2019, the Company entered into the Securities Purchase Agreement with Temple Tower Group LLC ("Temple") providing for the issuance and sale to Temple of 1,274 Preferred Shares with a stated value of $1,000 per share, for net proceeds to the Company of $1.1 million with 191 of the Preferred Shares representing due diligence fees. The total of 1,274 Preferred Shares had a stated value of $1.3 million and a fair value of $1.5 million based on a third-party valuation study. The Company recorded the difference between the proceeds of $1.1 million and the fair value of $1.5 million as a cost of issuing the Preferred Shares.
The Preferred Shares were issued pursuant to the Company’s S-3 Shelf, and shares were convertible into the Company’s common stock. The number of shares issuable was determined by dividing the stated value of the Preferred Shares by the conversion price. The conversion price was calculated as 90% of the lowest reported volume-weighted average price for the Company’s common stock as reported at the close of trading on the NYSE American LLC during the seven trading days ending on, and including, the date of the notice. Temple converted all of the Preferred Shares for 2,240,441 common shares at an average price per share of $0.57 cents.
Following is a reconciliation of the common stock transactions under the Securities Purchase Agreement, 2019 Equity Agreement, 2019 Sales Agreement, 2018 Sales Agreement, and private placement agreements as of December 31, 2019 and 2018:
|
|
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
Number of shares sold
|
|
10,015,443
|
|
|
4,243,371
|
|
|
|
|
|
|
Gross proceeds
|
|
$
|
5,186,463
|
|
|
$
|
4,478,441
|
|
Fees
|
|
270,751
|
|
|
264,275
|
|
Net proceeds
|
|
$
|
4,915,712
|
|
|
$
|
4,214,166
|
|
|
|
|
|
|
Average price per share
|
|
$
|
0.52
|
|
|
$
|
1.06
|
|
Stock-based Incentive Plans
During the years ended December 31, 2019, and 2018, no shares were issued under the 2011 Equity Incentive Plan. The awards available for issuance under the plan were adjusted in connection with the Reverse Split.
Other Stock-based Transactions
Following is a reconciliation of the stock-based transactions as of December 31, 2019:
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
Shares outstanding as of beginning of year
|
|
15,067,655
|
|
|
9,447,221
|
|
Shares issued for:
|
|
|
|
|
Equity issue agreements
|
|
5,941,670
|
|
|
3,152,462
|
|
Issuance of common stock for convertible preferred
|
|
2,240,441
|
|
|
—
|
|
Private placement agreements
|
|
1,833,332
|
|
|
1,090,909
|
|
Reverse split fractional shares
|
|
9,114
|
|
|
—
|
|
Common stock issuance costs
|
|
498,008
|
|
|
175,447
|
|
Purchase of mineral rights
|
|
746,269
|
|
|
554,898
|
|
Purchase of Pelen LLC membership interest (Note 19)
|
|
—
|
|
|
646,718
|
|
Investment in Mercury Clean Up LLC (Note 19)
|
|
900,000
|
|
|
—
|
|
Total shares issued
|
|
12,168,834
|
|
|
5,620,434
|
|
Shares outstanding as of end of year
|
|
27,236,489
|
|
|
15,067,655
|
|
The following are other stock-based transactions for the years ended December 31, 2019 and 2018:
|
|
a.
|
During 2019 and 2018, the Company issued 1,833,332 and 1,090,909 common shares valued at $0.6 million and $0.9 million, respectively, pursuant to private placement agreements. These common shares were exempt from the Securities Act pursuant to Section 4(a)(2) of the Securities Act. The 2018 share issuance had a transaction fee of $10,000.
|
|
|
b.
|
During 2019 and 2018, the Company issued 746,269 and 554,898 common shares, respectively, value at approximately $0.5 million each year in satisfaction of an annual capital contribution pursuant to the Northern Comstock agreement, a related party.
|
Noncontrolling Interest
On January 24, 2019, the Company entered into an agreement, as amended on April 30, 2019, May 22, 2019, June 21, 2019, August 15, 2019, September 20, 2019, October 14, 2019, and November 17, 2019, to sell its interests in Comstock Mining, LLC, a wholly-owned subsidiary of Comstock (“CML”), whose sole asset is the Lucerne properties and related permits to Tonogold (the “Tonogold Agreement”). At closing on November 18, 2019, a 50% membership interest in CML was delivered to Tonogold with the Company retaining all management control and authority over CML until 100% of consideration is paid.
Accordingly, Tonogold’s membership interest in CML is accounted for as a noncontrolling interest shown in the consolidated balance sheets and consolidated statements of changes in equity.
13. Fair Value Measurements
Assets and Liabilities Measured at Fair Value on a Recurring Basis
During the years ended December 31, 2019, and 2018, there were no transfers of assets and liabilities between Level 1, Level 2, or Level 3.
The following table presents our assets and liabilities at December 31, 2019, which are measured at fair value on a recurring basis:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value Measurements at
|
|
|
|
December 31, 2019
|
|
Total
|
|
Quoted
Prices
in Active
Markets
(Level 1)
|
|
Significant
Other
Observable
Inputs
(Level 2)
|
|
Significant
Unobservable
Inputs
(Level 3)
|
Assets:
|
|
|
|
|
|
|
|
Convertible preferred shares of Tonogold (Note 19)
|
$
|
9,080,000
|
|
|
—
|
|
|
—
|
|
|
$
|
9,080,000
|
|
Total Assets
|
$
|
9,080,000
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
9,080,000
|
|
|
|
|
|
|
|
|
|
Liabilities:
|
|
|
|
|
|
|
|
Accrued make-whole for Pelen LLC (Note 19)
|
$
|
222,602
|
|
|
$
|
—
|
|
|
$
|
222,602
|
|
|
$
|
—
|
|
Accrued make-whole for Mercury Clean Up LLC (Note 19)
|
452,740
|
|
|
—
|
|
|
452,740
|
|
|
—
|
|
Total Liabilities
|
$
|
675,342
|
|
|
$
|
—
|
|
|
$
|
675,342
|
|
|
$
|
—
|
|
The following table presents our liabilities at December 31, 2018, which are measured at fair value on a recurring basis:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value Measurements at
|
|
|
|
December 31, 2018
|
|
Total
|
|
Quoted
Prices
in Active
Markets
(Level 1)
|
|
Significant
Other
Observable
Inputs
(Level 2)
|
|
Significant
Unobservable
Inputs
(Level 3)
|
Liabilities:
|
|
|
|
|
|
|
|
Accrued make-whole for Pelen LLC (Note 19)
|
$
|
135,162
|
|
|
$
|
—
|
|
|
$
|
135,162
|
|
|
$
|
—
|
|
Total Liabilities
|
$
|
135,162
|
|
|
$
|
—
|
|
|
$
|
135,162
|
|
|
$
|
—
|
|
Following is a description of the valuation methodologies used for the Company's financial instruments measured at fair value on a recurring basis as well as the general classification of such instruments pursuant to the valuation hierarchy.
Convertible preferred shares of Tonogold - The value of the convertible preferred shares (CPS) of Tonogold is based on a Monte Carlo model with various inputs. These inputs include the Tonogold common share price of $0.40, volatility of 82%, risk-free rate of 1.58%, cost of debt of 11.81%, private placement conversion price ceiling of $0.18, redemption probability of 50%, and illiquidity discount of 10% - 15%. The convertible preferred shares are classified within Level 3 of the valuation hierarchy.
The CPS is convertible into Tonogold common stock in May 2020, at the lowest of (1) $0.18 per share, or (2) Tonogold’s 20-day volume-weighted closing price prior to conversion. Under U.S. GAAP, the Company has the irrevocable option to elect to report certain financial assets and liabilities at fair value on an instrument by instrument basis, with changes in fair value reported in net earnings. This option was elected for the treatment of the $6.10 million of CPS received on May 31, 2019 ($3.92 million), August 30, 2019 ($0.83 million), October 14, 2019 ($0.75 million), December 19, 2019 ($0.50 million), and
December 30, 2019 ($0.10 million). For the twelve months ended December 31, 2019, the Company recorded the receipt of the CPS at a fair value of $7.6 million when received and recorded an additional $1.5 million in income for the changes in fair market value.
Accrued make-whole for Pelen LLC - The accrued make-whole is valued based on the difference between the valuation of the outstanding shares held by the seller of the membership interests at the volume-weighted price per share for five consecutive trading days preceding the date of determination of $0.47 at December 31, 2019, and $0.67 at December 31, 2018, as compared to the remaining aggregate proceeds due. The Company agreed to add $17,500 to the purchase price which is included in the remaining aggregate proceeds due. Because the inputs are all observable market-based inputs, this instrument is classified within Level 2 of the valuation hierarchy.
Accrued make-whole for Mercury Clean Up LLC - The accrued make-whole is valued based on the difference between the value of the outstanding shares delivered to MCU at the Company’s closing stock price of $0.44 on December 31, 2019 and the required investment value of $850,000. Because the inputs are all observable market-based inputs, the instrument is classified within Level 2 of the valuation hierarchy.
The carrying amount of cash and cash equivalents and trade payables approximates fair value because of the short-term maturity of these financial instruments. At December 31, 2019, and December 31, 2018, the fair value of long-term debt approximated $5.1 million and $8.9 million, respectively, as determined by borrowing rates estimated to be available to the Company for debt with similar terms and conditions. The fair value of assets and liabilities whose carrying value approximates fair value is determined using Level 2 inputs, with the exception of cash and cash equivalents (Level 1).
14. Segment Reporting
Our management organizes the Company into two operating segments, mining and real estate. Our mining segment consists of all activities and expenditures associated with mining, exploration and mine development. Our real estate segment consists of land, real estate rental properties and the Gold Hill Hotel. We evaluate the performance of our operating segments based on operating income (loss). All intercompany transactions have been eliminated, and intersegment revenues are not significant. Financial information relating to our reportable operating segments and consolidated totals are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended
December 31,
|
|
2019
|
|
2018
|
|
2017
|
Revenues
|
|
|
|
|
|
|
|
|
Mining
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Real estate
|
179,632
|
|
|
150,289
|
|
|
104,329
|
|
Total revenues
|
179,632
|
|
|
150,289
|
|
|
104,329
|
|
|
|
|
|
|
|
Cost and Expenses
|
|
|
|
|
|
|
|
|
Mining
|
$
|
(5,486,523
|
)
|
|
$
|
(7,509,786
|
)
|
|
$
|
(8,908,556
|
)
|
Real estate
|
(37,562
|
)
|
|
(40,935
|
)
|
|
(73,739
|
)
|
Total cost and expenses
|
(5,524,085
|
)
|
|
(7,550,721
|
)
|
|
(8,982,295
|
)
|
|
|
|
|
|
|
Operating Income (Loss)
|
|
|
|
|
|
|
|
|
Mining
|
$
|
(5,486,523
|
)
|
|
$
|
(7,509,786
|
)
|
|
$
|
(8,908,556
|
)
|
Real estate
|
142,070
|
|
|
109,354
|
|
|
30,590
|
|
Total loss from operations
|
(5,344,453
|
)
|
|
(7,400,432
|
)
|
|
(8,877,966
|
)
|
Other income (expense), net
|
1,538,586
|
|
|
(2,080,321
|
)
|
|
(1,698,212
|
)
|
Net loss
|
$
|
(3,805,867
|
)
|
|
$
|
(9,480,753
|
)
|
|
$
|
(10,576,178
|
)
|
|
|
|
|
|
|
Capital Expenditures
|
|
|
|
|
|
|
|
|
Mining
|
$
|
—
|
|
|
$
|
5,630
|
|
|
$
|
1,810,845
|
|
Real estate
|
2,436,354
|
|
|
1,650,190
|
|
|
—
|
|
Total capital expenditures
|
$
|
2,436,354
|
|
|
$
|
1,655,820
|
|
|
$
|
1,810,845
|
|
|
|
|
|
|
|
Depreciation, Amortization and Depletion
|
|
|
|
|
|
|
|
|
Mining
|
$
|
1,804,808
|
|
|
$
|
3,138,032
|
|
|
$
|
4,176,115
|
|
Real estate
|
12,406
|
|
|
9,860
|
|
|
11,568
|
|
Total depreciation, amortization and depletion
|
$
|
1,817,214
|
|
|
$
|
3,147,892
|
|
|
$
|
4,187,683
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31,
|
|
2019
|
|
2018
|
Assets
|
|
|
|
|
|
Mining
|
$
|
30,106,865
|
|
|
$
|
21,166,231
|
|
Real estate
|
9,463,027
|
|
|
7,445,494
|
|
|
$
|
39,569,892
|
|
|
$
|
28,611,725
|
|
15. Net Loss Per Common Share
Basic earnings per share is computed by dividing net loss available to common shareholders by the weighted average number of shares of common stock outstanding during the period. Diluted loss per share reflects the potential dilution that could occur if stock options or warrants were exercised into common stock. The following is a reconciliation of the numerator and denominator used in the basic and diluted computation of net loss per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended
December 31,
|
|
2019
|
|
2018
|
|
2017
|
Numerator:
|
|
|
|
|
|
|
|
|
Net loss attributable to Comstock Mining Inc.
|
$
|
(3,805,102
|
)
|
|
$
|
(9,480,753
|
)
|
|
$
|
(10,576,178
|
)
|
|
|
|
|
|
|
Denominator:
|
|
|
|
|
|
|
|
|
Basic and diluted weighted average shares outstanding
|
19,455,505
|
|
|
11,925,961
|
|
|
8,225,449
|
|
|
|
|
|
|
|
Net loss per common share:
|
|
|
|
|
|
|
|
|
Basic and diluted
|
$
|
(0.20
|
)
|
|
$
|
(0.79
|
)
|
|
$
|
(1.29
|
)
|
The following table includes the number of common stock equivalent shares that are not included in the computation of diluted loss per share, because the Company has a net loss and the inclusion of such shares would be antidilutive.
|
|
|
|
|
|
|
|
|
|
|
Shares
|
|
2019
|
|
2018
|
|
2017
|
Stock options
|
—
|
|
|
—
|
|
|
10,000
|
|
Restricted stock
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
10,000
|
|
16. Stock-Based Compensation
2011 Equity Incentive Plan
In 2011, the Company adopted the Comstock Mining Inc. 2011 Equity Incentive Plan (the “2011 Plan”). The maximum number of shares of the Company’s common stock that may be delivered pursuant to awards granted under the 2011 Plan is 1,200,000 shares of common stock. Availability under the 2011 Plan is 425,858 shares. The plan provides for the grant of various types of awards, including but not limited to restricted stock (including performance awards), restricted stock units, stock options, and other types of stock-based awards.
Performance-based Restricted Stock
On February 23, 2015, the Board of Directors granted 12,000 shares of restricted stock (performance awards) to an employee under the 2011 Equity Incentive Plan. These awards and prior awards expired unvested in May 2017.
At December 31, 2019, there was no unrecognized compensation expense related to non-vested restricted stock award shares.
Options
Prior to the 2011 Plan, the Company had previously issued options under prior programs. During 2019, there were no options granted, exercised, or forfeited.
There was no compensation expense recognized during the years ended December 31, 2019, 2018, and 2017.
At December 31, 2019, and 2018, there was no unrecognized compensation expense related to non-vested options.
17. Income Taxes
The provision (benefit) for income taxes from continuing operations for the years ended December 31, 2019, 2018, and 2017 consist of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
|
2017
|
Current:
|
|
|
|
|
|
|
|
|
Federal
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
|
|
|
|
|
Deferred:
|
|
|
|
|
|
|
|
|
Federal
|
—
|
|
|
—
|
|
|
—
|
|
|
|
|
|
|
|
Income taxes provision
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
|
|
|
|
|
Federal statutory rate
|
(21.0
|
)%
|
|
(21.0
|
)%
|
|
(34.0
|
)%
|
Change in valuation allowance
|
20.9
|
%
|
|
20.5
|
%
|
|
(224.0
|
)%
|
Change in rate
|
—
|
%
|
|
—
|
%
|
|
258.0
|
%
|
Other
|
0.1
|
%
|
|
0.5
|
%
|
|
—
|
%
|
Total
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
Deferred income taxes at December 31, 2019 and 2018 consisted of the following:
|
|
|
|
|
|
|
|
|
|
2019
|
|
2018
|
Asset retirement obligation
|
$
|
1,452,863
|
|
|
$
|
1,519,942
|
|
Mineral rights and properties, plant, and equipment
|
1,179,604
|
|
|
1,120,591
|
|
Mining exploration, development, claims, and permit costs
|
5,179,844
|
|
|
5,709,281
|
|
Deferred gain on membership sales proceeds
|
2,525,250
|
|
|
—
|
|
Net operating loss carryforward
|
36,315,519
|
|
|
37,401,823
|
|
Other
|
128,381
|
|
|
234,214
|
|
Valuation allowance
|
(46,781,461
|
)
|
|
(45,985,851
|
)
|
Total net deferred tax assets
|
$
|
—
|
|
|
$
|
—
|
|
At December 31, 2019, the Company had federal net operating losses of approximately $172.9 million that will begin to expire in 2024, through 2038, and could be subject to certain limitations under section 382 of the Internal Revenue Code.
ASC 740, Income Taxes, requires the reduction of deferred tax assets by a valuation allowance if, based on the weight of all available evidence, it is more likely than not that some or all of the deferred tax assets will not be realized. As of December 31, 2019, and 2018, the Company has determined that a full valuation allowance is necessary against its net deferred tax assets based on the weight of all available evidence. The resulting valuation allowance recorded against the net deferred tax assets of the Company is $46.8 million and $46.0 million as of December 31, 2019, and 2018, respectively.
On December 22, 2017, the President signed into law Public Law No. 115-97, commonly referred to as the Tax Cuts and Jobs Act (TCJA), following its passage by the United States Congress. The TCJA makes significant changes to the U.S. federal income tax laws including among other changes a federal corporate tax rate reduction from 35% to 21% for tax years beginning after December 31, 2017, repeal of the corporate AMT tax system, immediate expensing of certain types of business assets and changing rules related to uses and limitations of NOL carryforwards created in tax years beginning after December 31, 2017. Due to the impact of the Company’s full valuation allowance on net deferred tax assets, the TCJA had no impact on the Company's provision for income taxes. The Company calculated the impact of the TCJA and recorded $27.3 million as additional income tax expense in the fourth quarter of 2017, which was offset with the corresponding impact for the change in valuation allowance. The $27.3 million was related to the remeasurement of certain deferred tax assets and liabilities based on the rate at which they are expected to reverse in the future.
As of December 31, 2019, and 2018, the Company did not have any unrecognized tax benefits. The Company’s policy is to recognize interest and penalties related to income tax matters in income tax expense. The Company currently has no federal or state tax examinations in progress nor has it had any federal or state tax examinations since its inception. The Company is subject to U.S. federal and state income tax examination for tax years 2016 and forward.
18. Related Party Transactions
Northern Comstock LLC
The Company has an operating agreement with Northern Comstock LLC, an entity controlled by a related party. As part of the operating agreement, the Company obtained the exclusive rights of production and exploration on certain parcels in Storey County, Nevada. The terms of this agreement were amended on August 27, 2015, and September 28, 2015 (the “Amendments”), with the other members of its Northern Comstock LLC joint venture. The Amendments resulted in reduced capital contribution obligations of the Company from $31.05 million down to $9.75 million. The terms of the Amendments provide that the Company will make monthly cash capital contributions of $30,000 and annual capital contributions in the amount of $482,500 payable in stock or cash, at the Company's option, unless the Company has cash or cash equivalents in excess of $10,500,000 on the date of such payments, wherein the Company would then be required to pay in cash or in certain circumstances, the Company’s common stock. The number of shares to be delivered is calculated by dividing the amount of the capital contribution by the volume-weighted average closing price of the Company’s common stock on its primary trading market for the previous 20 consecutive trading days prior to such capital contribution. The Operating Agreement also provides for a one-time acceleration of $812,500 of the capital contributions payable when the Company receives net cash proceeds from sources other than operations that exceed $6,250,000. The agreement also includes an ongoing acceleration of the Company’s capital contribution obligations equal to 3% of the net smelter returns generated by the properties subject to the Northern Comstock LLC joint venture. The Operating Agreement also provides that if the Company defaults in its obligation to make the scheduled capital contributions, then the remaining capital contribution obligations may be converted into the principal amount of a 6% per annum promissory note payable by the Company on the same schedule as the capital contributions, secured by a mortgage on the properties subject to the Northern Comstock LLC joint venture. The operating agreement requires that these capital contributions commenced in October 2015, and will end in September 2027, unless prepaid by the Company.
The Company made payments in stock in the amounts of $482,500, $482,500 and $482,500 with the number of shares being, 746,269, 554,898, and 100,521 under the Northern Comstock Joint Venture agreement during the years ended December 31, 2019, 2018 and 2017, respectively. During the years ended December 31, 2019, 2018, and 2017, the Company recognized expense of $0.8 million in each of the years ended December 31, 2019, 2018, and 2017, respectively. During the years ended December 31, 2019, and 2018, the Company recognized $0.8 million in reimbursements, each year, from Tonogold for the Northern Comstock payments. The Company received no similar reimbursements in 2017.
Sierra Springs Enterprises, Inc. and Sierra Springs Opportunity Fund, Inc.
During 2018, the Company’s board of directors approved the Company to enter an investment in certain opportunity zone funds in northern Nevada. During 2019, the Company invested $0.3 million into Sierra Springs Opportunity Fund, Inc (“SSOF”). The Company’s chief executive officer is president and a director of Sierra Springs Opportunity Fund Inc. (“SSOF”) and an executive of Sierra Springs Enterprises Inc. (“SSE”), which is the sole owner of SSOF.
It is anticipated that the Company could own approximately 9% of SSOF upon issuance of all 75 million authorized shares to investors. For the year ended December 31, 2019, SSOF received over $11 million in equity from investors, including $0.3 million from the Company and $0.6 million from officers and directors of the Company.
On September 26, 2019, as amended on November 30, 2019 and December 26, 2019, the Company entered into agreements with SSE to sell two properties in Silver Springs, NV. The agreements include the sale of 98 acres of industrial land and senior water rights for $6.5 million and 160 acres of commercial land along with its rights in the membership interests in Downtown Silver Springs, LLC for $3.6 million. As of December 31, 2019, the Company received $0.3 million in escrowed deposits for the purchase of these assets and expects the sales to close during the second quarter of 2020.
19. Acquisition Agreements
Mercury Clean Up LLC
On June 21, 2019, as amended July 3, 2019, the Company entered into a Mercury Remediation Pilot, Investment and Joint Venture Agreement (the “MCU Agreement”) with Mercury Clean Up LLC (“MCU”). Pursuant to the MCU Agreement, the Company committed $2.0 million of capital contributions payable in cash of $1,150,000 and stock of $850,000, in exchange for 15% of the fully-diluted equity ownership of MCU and 50% of the equity of any future joint ventures formed with MCU (the “Joint Ventures”).
On July 18, 2019, the Company issued 900,000 shares of restricted common stock to fund $751,050 of the MCU acquisition and paid MCU a total of $750,000 in cash as of December 31, 2019. The agreement requires additional cash payments of $400,000 planned during the first quarter of 2020. If there is insufficient working capital from the stock proceeds to fund the plans of MCU, the Company will fund MCU up to $100,000 per month, starting in the seventh month after the MCU Agreement, in lieu of the stock, as required based upon the mutually agreed upon capital plan. This additional funding applies directly, dollar for dollar, towards the Company’s investments commitments. The Company recorded a make-whole liability of $0.5 million based on the difference between the value of the outstanding shares delivered to MCU at the Company’s closing stock price of $0.4414 on December 31, 2019 and the required investment value of $850,000. This amount is recorded within accrued expenses on the consolidated balance sheets. The Company expects to close on the MCU transactions during the second and third quarters of 2020.
The Company and MCU are evaluating numerous locations containing historical, mercury-contaminated tailings, and developing a detailed schedule for the pilot testing. MCU will receive the mercury remediation and recovery system at the Company’s American Flat facility during the first quarter of 2020. The goal of the pilot is to process approximately five to twenty-five tons of tailings and sediment per hour, and thoroughly test and confirm the technical and commercial viability of the system and its processes.
Based on successful proof of economic viability, the Company has the rights to coordinate an additional $3 million in financing for the Joint Ventures, and MCU would then contribute the 25-ton-per-hour system, based on an agreed upon capital plan (equipment and working capital uses) and a time-specific project schedule, including the timing of the capital needs. Such financing entitles the Company to acquire an additional 10% of the fully-diluted equity interests of MCU.
Pelen, LLC
In January 2018, the Company issued 295,082 shares of restricted common stock as initial payment to acquire 25% of the total membership interests of Pelen, LLC. The purchase of the membership interests will close once the seller of the membership interests has received total cash proceeds of at least $0.6 million either through sale of the restricted common stock received or through additional cash payments made by the Company. If all of the shares of restricted common stock have been sold by the seller of the membership interests and the aggregate proceeds received are less than $0.6 million, then the Company is required to pay the shortfall in either additional shares of the Company’s common stock or cash, at the Company’s election.
In November 2018, the Company issued 351,637 shares of restricted common stock as additional shares based on the shortfall on the aggregate proceeds for the initial shares. In December 2018, the agreement was amended to have a "Cut-Off" date of December 31, 2019, for closing the transaction and any unsold shares will be returned to the Company, with the Company required to make up any shortfall in cash.
In December 2019, the agreement was amended to revise the “Cut-Off” date to March 31, 2020, for closing the transaction. The Company paid $11,700 of interest payable as of December 31, 2019, and agreed to prepay $5,850 of interest payable with respect to the period between December 31, 2019 and March 31, 2020.
The Company has recorded a make-whole liability of $0.2 million and $0.1 million at December 31, 2019 and 2018, respectively, representing the value of the shortfall based on the actual sale of shares and the volume weighted price per share for five consecutive trading days preceding the date of determination. These amounts are recorded within accrued expenses in the consolidated balance sheets.
Downtown Silver Springs, LLC
The Company entered into an agreement for the purchase of 100% of the membership interests of DTSS on May 30, 2018, as amended. DTSS held a contract for the purchase of approximately 160 acres of centrally located land in Silver Springs, Nevada. DTSS has no other assets, operations or employees.
The agreement to purchase the land allowed the holder of the option to purchase the land for approximately $3.2 million, plus 4% interest less deposits made through July 29, 2019, totaling $2.4 million. The land purchase closed on December 9, 2019.
The DTSS acquisition was accounted for as an asset acquisition as it was determined that the operations of DTSS did not meet the definition of a business. The Company paid total consideration of $4.1 million, as of December 31, 2019, consisting of (1) $3.1 million cash payments toward the purchase price of the land parcel, (2) $0.5 million in interest and closing costs and, (3) $0.5 million cash payments to the former membership interest holders of DTSS.
On September 26, 2019, DTSS entered into an agreement to sell the land parcel to Sierra Springs Enterprises, Inc. (“SSE”), as amended on November 30, 2020, and December 26, 2019, and January 29, 2020, for $3.6 million. Accordingly, the land is classified as an asset held for sale on the consolidated balance sheets at December 31, 2019, and the carrying value of the land was adjusted to the contract value of $3.6 million less estimated costs to sell, resulting in an impairment of $0.5 million, charged to other expense in the consolidated statements of operations as of December 31, 2019. DTSS received deposits in cash and escrow from SSE totaling $0.4 million and recorded a deferred purchase price liability in the consolidated balance sheets associated with DTSS. The transaction is expected to close during the second quarter of 2020.
As of December 31, 2018, the Company recorded non-refundable deposits of $1.3 million in prepaid expenses and other current assets in the consolidated balance sheets associated with DTSS.
20. Sale, Lease and Option Agreements with Tonogold Resources Inc.
There are three current agreements between the Company and Tonogold Resources Inc. ("Tonogold"): the Membership Interest Purchase Agreement, the Mineral Exploration and Mining Lease, and a Lease Option Agreement for the Company's American Flat processing facility. Tonogold and the Company previously entered into an Option Agreement in 2017 that was terminated during 2019.
Membership Interest Purchase Agreement
On January 24, 2019, the Company entered into an agreement, as amended, to sell its interests in Comstock Mining LLC (“CML”), a wholly-owned subsidiary of Comstock whose sole assets are the Lucerne properties and related permits, to Tonogold (the “Purchase Agreement”), with a closing date of November 18, 2019. For the twelve months ended December 31, 2019, the Company received $5.9 million in cash payments and $6.1 million in Tonogold Convertible Preferred Stock ("CPS") payments related to the Purchase Agreement. At closing, Tonogold received 50% of the membership interests of CML, in exchange for the cash and CPS consideration paid to date. The Company will retain all management control and authority over CML until Tonogold has made all payments in full. Accordingly, Tonogold’s membership interest in CML is accounted for as a noncontrolling interest shown in the consolidated balance sheets. The Company has recorded the fair value of the consideration received from Tonogold in excess of the non-controlling interest as additional paid in capital in accordance with applicable accounting guidance.
The CPS can be converted to Tonogold common stock any time on or after May 22, 2020. The conversion price for the CPS is the lower of (1) the 20-day volume weighted closing price or (2) $0.18. Tonogold can redeem the CPS at any time prior to conversion, at a redemption price 120% of the face value of the CPS.
Tonogold will receive the remaining 50% of the membership interests after it has delivered the remaining cash consideration. Membership interest will be delivered proportionately to additional cash payments received.
Tonogold guaranteed the Company’s remaining financial responsibility for its membership interest in Northern Comstock LLC, which owns and leases certain mineral properties in the Lucerne area, and assumed certain reclamation liabilities, both totaling approximately $7.0 million. The Company also retains a 1.5% Net Smelter Returns ("NSR") royalty on the Lucerne properties.
On March 20, 2020 the Company and Tonogold restated the Purchase Agreement to secure the remaining cash consideration with a 12% secured convertible note with a principal amount of $5.475 million (the "Note"). The Note is initially secured by the membership interests held by Tonogold, and will be secured by all of CML's assets after the Company's debenture has been paid in full and the related liens released. Interest on the Note is payable on the first business day of each month, with a $1.0 million payment of principal due on or before October 15, 2020, and the remaining principal due at maturity on September 20, 2021. The Note is convertible into common shares of Tonogold, at the Company's sole option, at a conversion price equal to the lower of (1) 85% of the twenty (20) consecutive trading day volume weighted average price of Tonogold common stock or (2) an applicable price stepping from an initial $0.18 to $0.40 at the maturity date.
Mineral Exploration and Mining Lease for Storey County Properties
Effective September 16, 2019, the Company entered into a ten-year, renewable mineral lease with Tonogold for certain mineral properties owned or controlled by the Company in Storey County, Nevada (the "Exploration Lease"). The Exploration Lease grants Tonogold the right to use these properties for mineral exploration and development, and ultimately the production, removal and sale of minerals and certain other materials.
Tonogold will pay a quarterly lease fee of $10 thousand. The lease fee will escalate 10% each year on the anniversary date of the Exploration Lease. Tonogold will also reimburse the Company for all costs associated with owning the properties. The Exploration Lease also provides for royalty payments after mining operations commence. For the first year following the commencement of mining, royalties will be paid at the rate of 3% of NSR for the properties. The rate will be reduced to 1.5% of NSR thereafter. The Company accounts for the Exploration Lease as an operating lease.
On December 23, 2019, the Company and Tonogold restated the Exploration Lease. The restated Exploration Lease provides that Tonogold’s exploration spending, permitting, and engineering commitments are a minimum of $1 million per year, for a cumulative total of $20 million over 20 years. Tonogold also committed to specific milestones for issuing technical reports on their results, culminating in a published Feasibility report by the 20th anniversary of the Exploration Lease.
The initial term of the Exploration Lease (the "Exploration Term") is 5 years, with Tonogold committing to spending at least $5 million for exploration, at the rate of $1 million per year, and to producing an NI 43-101 compliant technical report by the end of the 5th year. The Exploration Lease will automatically renew for a second, 10-year term (the "Development Term") as long as the commitments have been met. During the Development Term, Tonogold is committed to $10 million of additional expenditures for exploration, development, and technical reporting, at the rate of $1 million per year, and to producing an economically viable mine plan and an NI 43-101 compliant Pre-Feasibility report by the end of the 15th anniversary of the agreement.
The Exploration Lease will automatically renew for a third, 5-year term (“the Planning Term”) provided that the prior spending and reporting commitments have been met. During the Planning Term, Tonogold is committed to $5 million in additional expenditures for exploration, development, permitting, and technical reporting, at the rate of $1 million per year. By the 20th anniversary of the agreement, Tonogold also commits to producing an economically viable mine plan, and an NI 43-101 compliant Feasibility report, and will produce a mutually agreed-upon schedule for placing the properties into production.
If the spending, reporting, and scheduling commitments have been met during the Planning Term, the Exploration Lease will automatically continue in effect for so long following the Planning Term as development and permitting activities continue in compliance with a mutually agreed-upon schedule, or for so long as minerals are produced from the properties or from adjacent properties (the “Extended Term”).
Lease Option Agreement for the American Flat Processing Facility
On November 18, 2019, the Company entered into a lease-option agreement to lease its permitted American Flat mining property, plant and equipment to Tonogold for crushing, leaching and processing material from the Lucerne mine (the "Lease Option Agreement"). Under the Lease Option Agreement, Tonogold will be required to reimburse the Company approximately $1.1 million in expenses per year to maintain the option. If such option is exercised, Tonogold will then pay the Company a rental fee of $1.0 million per year plus $1 per processed ton, in addition to all the costs of operating and maintaining the facility, up to and until the first $15.0 million in rental fees are paid, and then stepping down to $1.0 million per year and $0.50 per processed ton for the next $10.0 million paid to the Company. The Lease Option Agreement remains in effect, but has not yet been exercised.
Option Agreement
During 2017 and 2018, the Company received $2.2 million in cash payments relating to an option agreement (the “Option Agreement”) with Tonogold. This agreement, signed in October 2017, was terminated effective September 20, 2019, and the associated option payments of $2.2 million were recorded as other income in the year ended December 31, 2019.
Other
For the twelve months ended December 31, 2019, the Company has received reimbursements from Tonogold totaling $2.2 million under these various agreements, including $0.4 million in reimbursed interest expense.
21. Commitments and Contingencies
The Company leases certain mineral rights and properties under operating leases expiring at various dates through 2023. These mineral leases are not in the scope of ASU 2016-02, Leases (Topic 842). Future minimum annual lease payments under these existing lease agreements are as follows as of December 31, 2019:
|
|
|
|
|
Year Ended December 31,
|
Leases
|
2020
|
$
|
83,320
|
|
2021
|
81,000
|
|
2022
|
81,000
|
|
2023
|
81,000
|
|
2024
|
75,000
|
|
Thereafter
|
169,750
|
|
|
$
|
571,070
|
|
Expense under operating leases for the years ended December 31, 2019, 2018, and 2017 was $0.1 million, $0.1 million and $0.1 million, respectively.
Royalty Agreements
The Company has minimum royalty obligations with certain of its mineral properties and leases. Minimum royalty payments were $61,800 in 2019. For most of the mineral properties and leases, the Company is subject to a range of royalty obligations once production commences. These royalties range from 0.5% to 5% of net smelter revenues (NSR) from minerals produced on the properties with the majority being under 3%. Some of the factors that will influence the amount of the royalties include ounces extracted and prices of gold. Royalty expense, including both NSR and minimum royalty obligations, was $0.1 million, $0.1 million, and $0.1 million for the years ended 2019, 2018, and 2017, respectively.
The Company’s mining and exploration activities are subject to various laws and regulations governing the protection of the environment. These laws and regulations are continually changing and are generally becoming more restrictive. The Company believes its operations are in compliance with applicable laws and regulations in all material respects. The Company has made, and expects to make in the future, expenditures to comply with such laws and regulations, but cannot predict the full amount of such future expenditures.
Precious Royalties LLC
On July 12, 2018, Precious Royalties LLC (“Precious”) filed a complaint against the Company in the First Judicial District Court of the State of Nevada, in Storey County, alleging that the Company failed to properly pay Precious a net smelter return royalty in accordance with a settlement agreement dated September 24, 2012, and seeking $510,000 in damages, plus interest at 18% per annum. On November 16, 2018, the Company filed a Motion for a More Definite Statement on the basis that the complaint is too vague to allow a responsive pleading. On May 16, 2019, the Court granted the Company’s Motion, which required Precious to revise and re-file its complaint in order to proceed with the action. Precious re-filed the complaint on June 5, 2019. On July 3, 2019, the Company answered the amended claim by Precious and filed a counterclaim that, among other things, requests reimbursement of legal fees and related interest. On July 26, 2019, Precious filed an answer to the counterclaim and a four-day trial was set for July 20, 2020.
On January 13, 2020, the Company and Precious negotiated a definitive and final settlement of all claims and counterclaims between the parties, in return for a one-time payment of $60,000.
Comstock Residents Association
On January 31, 2014, the Comstock Residents Association (the “CRA”) and two of its members filed a civil action in the Third Judicial District Court in Lyon County, Nevada (the “District Court”) against the Lyon County Board of Commissioners (the “Commissioners”) and the Company, asking the District Court to reverse the Commissioners’ decision to grant an application for master plan amendment and zone change submitted and approved by the Commissioners in 2014 (the “Application”).
Prior to the approval of the Application, the master plan designation and zoning precluded mining on certain property of the Company in the area of Silver City, Nevada. In April 2015, the District Court ruled in favor of the Company and the Commissioners. The written Order Denying Petition for Judicial Review was filed and mailed to all parties on June 15, 2015. On July 14, 2015, the CRA and one individual (together “Appellants”) filed a Notice of Appeal of the Court Order, appealing the decision to the Nevada Supreme Court. On December 9, 2015, Appellants filed their Opening Brief in the Nevada Supreme Court, generally repeating the arguments that were made at the District Court. On January 15, 2016, the Company and the Commissioners jointly filed an Answering Brief. Briefing in the Nevada Supreme Court was completed with the Appellants’ filing of a Reply Brief on March 3, 2016. Oral arguments before a three-judge panel took place on September 14, 2016.
On December 2, 2016, the Nevada Supreme Court entered an order affirming all three of the District Court’s decisions associated with 1) the Commissioners’ discretion and authority for changing master plans and zoning, 2) their compliance with Nevada’s Open Meeting Law and 3) their compliance with Nevada statutory provisions. Specifically, the Supreme Court affirmed the District Court’s conclusions that Lyon County did not abuse its discretion and that it acted with substantial evidence in support of their decision, that the County did not violate Nevada’s Open Meeting Law or any other statutes.
The Supreme Court reversed the District Court’s dismissal of CRA’s claim of a due process violation, concluding that this claim should not have been dismissed and that further proceedings are necessary in the District Court on this single claim. The District Court concluded that the Supreme Court's reversal of CRA's due process claim required that CRA be afforded the opportunity to conduct discovery and allowed CRA the time to conduct discovery on its due process claim. The Company responded to the CRA discovery request on February 20, 2018, and the District Court held a hearing on April 23, 2018. Additional discovery was also allowed by the District Court. On May 14, 2019, the Court held a hearing on CRA’s due process claim and issued its ruling from the bench. The Court concluded that CRA, having been afforded the opportunity to conduct discovery, was unable to meet its burden to establish by a preponderance of the evidence that Lyon County had denied CRA of its due process rights. The Court, therefore, denied CRA's due process claim. On July 11, 2019, the Court issued and filed a formal judgment in favor of Lyon County and Comstock Mining. The Company and Lyon County have filed a motion to recover attorney's fees and costs from the CRA.
On August 14, 2019, the CRA filed a Notice of Appeal, appealing the judgment to the Nevada Supreme Court. CRA filed their Opening Brief on January 24, 2020. The Company’s Answering Brief was filed on March 25, 2020.
OSHA Complaint
On or about February 27, 2020, the Company received notice that three former employees had filed a complaint with OSHA regarding alleged wrongful termination of employment in 2019, seeking backpay, frontpay and other compensatory damages (for mental anguish and reputational harm) as well as interest and legal fees and costs. We believe that those terminations were lawful and intend to vigorously defend the complaint.
From time to time, we are involved in lawsuits, claims, investigations and proceedings that arise in the ordinary course of business. There are no matters pending that we expect to have a material adverse impact on our business, results of operations, financial condition or cash flows.
22. Subsequent Events
COVID-19
Since December 31, 2019, the outbreak of the novel strain of coronavirus, specifically identified as “COVID-19,” has resulted in governments worldwide enacting emergency measures to combat the spread of the virus. These measures, including the implementation of travel bans, quarantine periods and social distancing, have caused material disruptions to global business and an economic downturn. Global equity markets have experienced significant volatility and weakness. Governments and their central banks have reacted with significant fiscal and monetary interventions designed to mitigate the impacts and stabilize economic conditions. The impact and ultimate duration of the COVID-19 outbreak is currently unknown, as is the efficacy of these governmental and central bank interventions. On March 12, 2020, Nevada Governor Stephen Sisolak issued a Declaration of Emergency to facilitate the State’s response to the COVID-19 pandemic. The Governor's guidance for the mining industry includes limiting gatherings to no more than 10 people, maintaining social distancing protocols where 10 or less are gathered, limiting travel, and working remotely when possible.
The Company is currently operating in alignment with these guidelines for protecting the health of our employees, partners, and suppliers, and limiting the spread of COVID-19, that could potentially result in delays to the Company's plans for developing our Dayton Resource, MCU’s plans for commencing mercury recovery testing, and Tonogold's plans for
exploration drilling during the second quarter of 2020. It is not currently possible to reliably estimate the length and severity of these developments and the impact on the financial results and conditions of the Company, and its operating subsidiaries and partners, or in future periods.
Como Project
On February 27, 2020, the Company sold the patented claim and five of the unpatented claims from the Como Project, for $0.1 million in cash, and a 2% NSR, with the buyer’s option to purchase the full NSR for $0.15 million.
Tonogold Agreement
On March 20, 2020, the Company amended and restated its Membership Interest Purchase Agreement (the “Purchase Agreement”), with Tonogold, originally dated January 24, 2019, as previously amended, supplemented or otherwise modified. In accordance with the Purchase Agreement, the Company agreed to sell its ownership interests (the “Membership Interests”) in Comstock Mining LLC (“CML”).
In consideration of the sale of the Membership Interests and other related agreements Tonogold agreed to pay the Company a total purchase price of $11.5 million in cash consideration (excluding interest) plus other non-cash consideration described below (collectively, the “Purchase Price”) of which: (i) Tonogold made non-refundable cash payments of $6.025 million toward the Purchase Price prior to March 20, 2020; (ii) Tonogold made non-refundable payments of $3.8 million in the form of Series D Convertible Junior Participating Non-Cumulative Perpetual Preferred Stock (“CP Shares”) issued by Tonogold; (iii) Tonogold made an additional $2.3 million of non-refundable payments in the form of CP Shares; and (iv) Tonogold issued a 12% secured convertible note with principal amount of $5.475 million (the “Note”) on March 20, 2020. Tonogold received 50% of the Membership Interests of CML from the Company in exchange for the consideration other than the Note. Additional Membership Interests will be delivered to Tonogold proportionately to the cash principal payments received by the Company from Tonogold pursuant to the Note.
The CP shares can be converted to Tonogold common stock any time on or after May 22, 2020. The restated Purchase Agreement adjusted the conversion price for the CP shares to the lower of (1) $0.18 or (2) 85% of the 20-day volume weighted closing price. Tonogold can redeem the CP shares at any time prior to conversion, at a redemption price of 120% of the face value of the CP shares.
The Note matures on September 20, 2021. Accrued interest on the Note is payable on the first business day of each month. A $1.0 million principal payment is required no later than October 15, 2020. The remaining principal is due and payable on the maturity date of the Note. The Note is initially secured by the Membership Interests owned by Tonogold and will be secured by all of CML’s assets after the Company’s 11% Debenture has been paid in full and the liens relating thereto have been released. The Note can be prepaid at any time without penalty or premium. The Note is convertible into common shares of Tonogold, under certain circumstances, at a conversion price equal to the lower of (1) 85% of the twenty (20) consecutive trading day volume weighted average price of Tonogold common stock or (2) an applicable price stepping from an initial $0.18 to $0.40 at the maturity date.
Pursuant to the Purchase Agreement, the Company retains all management authority and control of CML until the Note has been paid in full. In addition, Tonogold is responsible for reimbursing the Company for certain invoiced expenses. Tonogold paid the Company approximately $1.35 million in expense reimbursements during the quarter ended March 31, 2020. Tonogold also guaranteed the Company’s remaining financial responsibility for its membership interest in Northern Comstock LLC, which owns and leases certain mineral properties in the Lucerne area, and assumed certain reclamation liabilities, both totaling approximately $7.0 million. The Company also retains a 1.5% Net Smelter Returns royalty on the Lucerne properties.