Silver Bull Resources, Inc 10-K for FY2023
Silver Bull Resources, Inc. (SVBL)
About this 10-K
Silver Bull Resources, Inc filed this 10-K on January 29, 2024, covering the fiscal year ended October 31, 2023 (FY2023).
Headline figures
Fiscal year ended October 31, 2023, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Net loss
- $1.25M
- compared with a net loss of $3.17M a year earlier
- Diluted EPS
- -$0.04
- compared with -$0.09 a year earlier
United States
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
(Mark One)
| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED |
| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD OF _________ TO _________. |
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Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ☐ | Accelerated filer ☐ | |
| Smaller reporting company | ||
| Emerging growth company |
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
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filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting
under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its
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If securities are registered pursuant to Section 12(b)
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes ☐
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As of January 26, 2024, there were
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant’s definitive proxy statement to be filed with the Securities and Exchange Commission pursuant to Regulation 14A in connection with the 2024 annual meeting of shareholders are incorporated by reference in Part III of this Annual Report on Form 10-K.
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SILVER BULL RESOURCES, INC.
ANNUAL REPORT ON FORM 10-K
TABLE OF CONTENTS
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The terms “Silver Bull,” and the “Company,” are used to refer to Silver Bull Resources, Inc. and its subsidiaries, unless the context otherwise requires. Technical terms have been included that are important to an understanding of the business under “Glossary of Common Terms” at the end of this section. Throughout this document statements are made that are classified as “forward-looking.” Please refer to the “Cautionary Statement Regarding Forward-Looking Statements” section of this document for an explanation of these types of assertions.
Cautionary Statement Regarding Forward-Looking Statements
This Annual Report on Form 10-K includes certain statements that may be deemed to be “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the United States Private Securities Litigation Reform Act of 1995, and “forward-looking information” within the meaning of applicable Canadian securities legislation. Words used such as “anticipate,” “continue,” “likely,” “estimate,” “expect,” “may,” “will,” “projection,” “should,” “believe,” “potential,” “could,” or similar words suggesting future outcomes (including negative and grammatical variations) to identify forward-looking statements. These statements include statements regarding the following, among other things:
- The sufficiency of existing cash resources to enable the Company to continue operations for the next 12 months as a going concern;
- The prospects of the claim process, or award, under the North American Free Trade Agreement (“NAFTA”);
- The Funding Agreement (as defined in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section), and continued payment of legal, tribunal and external expert costs, and reimbursement of corporate operating expenses, under its terms;
- Prospects of entering the development or production stage with respect to any of the Company’s projects;
- The planned activities at the Sierra Mojada Project in 2024 and beyond;
- Whether any part of the Sierra Mojada Project will ever be confirmed or converted into SEC S-K 1300-compliant mineral reserves;
- The requirement of additional power supplies for the Sierra Mojada Project if a mining operation is determined to be feasible;
- The ability to obtain and hold additional concessions in the Sierra Mojada Project area;
- Whether the Company will be required to obtain additional surface rights if a mining operation is determined to be feasible;
- The possible impact on the Company’s operations of the blockade by a cooperative of miners on the Sierra Mojada property;
- The potential acquisition of additional mineral properties or property concessions;
- Testing of the impact of the fine bubble flotation test work on the recovery of minerals and initial rough concentrate grade;
- The impact of recent accounting pronouncements on the Company’s financial position, results of operations or cash flows and disclosures;
- The impact of changes to current state or federal laws and regulations on estimated capital expenditures, the economics of a particular project and/or the Company’s activities;
- The Company’s ability to raise additional capital and/or pursue additional strategic options, and the potential impact on its business, financial condition and results of operations of doing so or not;
- The impact of changing foreign currency exchange rates on the Company’s financial condition;
- The impairment of concession and likelihood of further impairment of other long-lived assets;
- Whether using major financial institutions with high credit ratings mitigates credit risk;
- The impact of changing economic conditions on interest rates;
- Expectations regarding future recovery of value-added taxes (“VAT”) paid in Mexico; and
- The merits of any claims in connection with, and the expected timing of any, ongoing legal proceedings.
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These statements are based on certain assumptions and analyses made by the Company in light of its experience and perception of historical trends, current conditions, expected future developments and other factors it believes are appropriate in the circumstances. Such statements are subject to a number of assumptions, risks and uncertainties and actual results could differ from those expressed or implied in these forward-looking statements as a result of the factors described under “Risk Factors” in this Annual Report on Form 10-K, including:
- The Company’s ability to acquire additional mineral properties or property concessions;
- The ability of the Company to maintain its assets in Mexico given the performance of the Mexican government at various levels;
- Worldwide economic and political events affecting (i) the market prices for silver, zinc, lead, copper and other minerals that may be found on the Company’s exploration properties (ii) interest rates and (iii) foreign currency exchange rates;
- Outbreaks of disease, including the COVID-19 pandemic, and related stay-at-home orders, quarantine policies and restrictions on travel, trade and business operations;
- The amount and nature of future capital and exploration expenditures;
- Volatility in the Company’s stock price;
- The Company’s inability to obtain required permits;
- Competitive factors, including exploration-related competition;
- Timing of receipt and maintenance of government approvals;
- Unanticipated title issues;
- Changes in tax laws;
- Changes in regulatory frameworks or regulations affecting the Company’s activities;
- The ability to obtain additional financial resources on acceptable terms to (i) maintain its property concessions in Mexico and (ii) maintain general and administrative expenditures at acceptable levels;
- The Company’s ability to retain key management, consultants and experts necessary to successfully operate and grow its business; and
- Political and economic instability in Mexico and other countries in which the Company conducts its business, and future potential actions of the governments in such countries with respect to nationalization of natural resources or other changes in mining or taxation policies.
These factors are not intended to represent a complete list of the general or specific factors that could affect the Company.
All forward-looking statements speak only as of the date made. All subsequent written and oral forward-looking statements attributable to the Company, or persons acting on its behalf, are expressly qualified in their entirety by the cautionary statements. Except as required by law, the Company undertakes no obligation to update any forward-looking statement to reflect events or circumstances after the date on which it is made or to reflect the occurrence of anticipated or unanticipated events or circumstances. Undue reliance should not be placed on these forward-looking statements.
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Cautionary Note Regarding Exploration Stage Companies
Silver Bull is an exploration stage company and does not currently have any known mineral reserves and cannot be expected to have known mineral reserves unless and until a feasibility study is completed for the Sierra Mojada concessions that shows proven and probable mineral reserves. There can be no assurance that the Company’s concessions contain proven and probable mineral reserves and investors may lose their entire investment. See the “Risk Factors” section below.
Cautionary Note to U.S. Residents Concerning Disclosure of Mineral Resources
Silver Bull is a U.S. domestic issuer for United States Securities and Exchange Commission (“SEC”) purposes, most of its shareholders are U.S. residents, it is required to report its financial results under accounting principles generally accepted in the United States of America, and its shares of common stock are listed on the Toronto Stock Exchange (the “TSX”) and trade on the OTCQB marketplace. However, because Silver Bull is a reporting issuer in Canada, certain prior regulatory filings required in Canada contain or incorporate by reference therein certain disclosure that satisfies the additional requirements of Canadian securities laws, which differ from the requirements of United States’ securities laws. Unless otherwise indicated, all resource estimates included in those Canadian filings, and in the documents incorporated by reference therein, had been prepared in accordance with Canadian National Instrument 43-101 - Standards of Disclosure for Mineral Projects (“NI 43-101”) and the Canadian Institute of Mining, Metallurgy and Petroleum (“CIM”) classification system. NI 43-101 is a rule developed by the Canadian Securities Administrators which establishes standards for all public disclosure an issuer makes of scientific and technical information concerning mineral projects.
Canadian standards, including NI 43-101, may differ from the requirements of subpart 1300 of Regulation S-K, as defined in the Glossary of Technical Terms (“S-K 1300”). Thus, resource information contained, or incorporated by reference, in the Company’s Canadian filings, and in the documents incorporated by reference therein, may not be comparable to similar information disclosed by companies reporting mineral reserve and mineral resource information under S-K 1300.
The terms “mineral reserve”, “proven mineral reserve” and “probable mineral reserve” are Canadian mining terms as defined in accordance with NI 43-101 and CIM standards. Pursuant to S-K 1300, the SEC recognizes estimates of “measured mineral resources,” “indicated mineral resources” and “inferred mineral resources.” In addition, the SEC has amended its definitions of “proven mineral reserves” and “probably mineral reserves” to be substantially similar to the corresponding standards of the CIM.
Investors are cautioned that while terms are substantially similar to CIM standards, there are differences in the definitions and standards under S-K 1300 and the CIM standards. Accordingly, there is no assurance any mineral reserves or mineral resources that the Company may report as “proven reserves”, “probable reserves”, “measured mineral resources”, “indicated mineral resources” and “inferred mineral resources” under NI 43-101 will be the same as the reserve or resource estimates prepared under the standards adopted under S-K 1300.
Investors are also cautioned that while the SEC now recognizes “measured mineral resources,” “indicated mineral resources” and “inferred mineral resources”, investors should not assume that any part or all of mineral deposits in these categories will ever be converted into reserves. Mineralization described using these terms has a great amount of uncertainty as to their existence, and great uncertainty as to their economic and legal feasibility. It cannot be assumed that all or any part of an “measured mineral resource,” “indicated mineral resource” or “inferred mineral resource” will ever be upgraded to a higher category. Under Canadian rules, estimates of inferred mineral resources may not form the basis of feasibility or pre-feasibility studies, except in rare cases. Investors are cautioned not to assume that all or any part of an inferred mineral resource exists or is economically or legally mineable. Disclosure of “contained ounces” in a resource is permitted disclosure under Canadian regulations; however, the SEC normally only permits issuers to report mineralization that does not constitute “reserves” by SEC standards as in place tonnage and grade without reference to unit measures.
Technical Report Summaries and Qualified Persons
The scientific and technical information concerning the Company’s mineral projects in this Annual Report on Form 10-K have been reviewed and approved by “qualified persons” under S-K 1300, including the Company’s Chief Executive Officer and Director, Timothy Barry and the Company’s Director, David Underwood. For a description of the key assumptions, parameters and methods used to estimate mineral reserves and mineral resources included in this Annual Report on Form 10-K, as well as data verification procedures and a general discussion of the extent to which the estimates may be affected by any known environmental, permitting, legal, title, taxation, sociopolitical, marketing or other relevant factors, please review the Technical Report Summaries for each of the Company’s material properties which are included as exhibits to, and incorporated by reference into, this Annual Report on Form 10-K.
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Glossary of Common Terms
The following terms are used throughout this Annual Report on Form 10-K.
| Concession | A grant of a tract of land made by a government or other controlling authority in return for stipulated services or a promise that the land will be used for a specific purpose. | |
| Exploration Stage |
A prospect that is not yet in either the development or production stage.
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| Feasibility Study | An engineering study designed to define the technical, economic, and legal viability of a mining project with a high degree of reliability. | |
| Formation |
A distinct layer of sedimentary rock of similar composition.
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| Mining | The process of extraction and beneficiation of mineral reserves to produce a marketable metal or mineral product. Exploration continues during the mining process and, in many cases, mineral reserves are expanded during the life of the mine operations as the exploration potential of the deposit is realized. | |
| Ore, Ore Reserve, or Mineable Ore Body | The part of a mineral deposit which could be economically and legally extracted or produced at the time of the reserve determination. | |
| Mineral Reserves |
An estimate of tonnage and grade or quality of indicated and measured mineral resources that, in the opinion of the qualified person, can be the basis of an economically viable project. More specifically, it is the economically mineable part of a measured or indicated mineral resource, which includes diluting materials and allowances for losses that may occur when the material is mined or extracted.
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| Mineral Resource |
A concentration or occurrence of material of economic interest in or on the Earth’s crust in such form, grade or quality, and quantity that there are reasonable prospects for economic extraction. A mineral resource is a reasonable estimate of mineralization, taking into account relevant factors such as cut-off grade, likely mining dimensions, location or continuity, that, with the assumed and justifiable technical and economic conditions, is likely to, in whole or in part, become economically extractable. It is not merely an inventory of all mineralization drilled or sampled.
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| Tonne | A metric ton which is equivalent to 2,204.6 pounds. |
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PART I
Items 1 and 2. BUSINESS AND PROPERTIES
Overview and Corporate Structure
Silver Bull Resources, Inc. was incorporated in the State of Nevada on November 8, 1993 as the Cadgie Company for the purpose of acquiring and developing mineral properties. The Cadgie Company was a spin-off from its predecessor, Precious Metal Mines, Inc. On June 28, 1996, the Company’s name was changed to Metalline Mining Company (“Metalline”). On April 21, 2011, the Company’s name was changed to Silver Bull Resources, Inc. The Company has not realized any revenues from its planned operations, and is considered an exploration stage company. The Company has not established any reserves with respect to its exploration projects and may never enter into the development stage with respect to any of its projects.
The Company has been engaged in the business of mineral exploration. It owns a number of property concessions in Mexico within a mining district known as the Sierra Mojada District, located in the west–central part of the state of Coahuila, Mexico. Operations are conducted in Mexico through the Company’s wholly-owned subsidiary corporations, Minera Metalin S.A. de C.V. (“Minera Metalin”), and Minas de Coahuila SBR S.A. de C.V (“Minas”).
In April 2010, Metalline Mining Delaware, Inc., a wholly-owned subsidiary incorporated in the State of Delaware, was merged with and into Dome Ventures Corporation (“Dome”), a Delaware corporation. As a result, Dome became a wholly-owned subsidiary of Silver Bull. Dome has a wholly-owned subsidiary, Dome Asia Inc., which is incorporated in the British Virgin Islands.
On June 5, 2015, the Company announced its decision to voluntarily delist its shares of common stock from the NYSE MKT due to costs associated with the continued listing and NYSE MKT exchange rules regarding maintenance of a minimum share price. On June 29, 2015, the Company’s shares began trading on the OTCQB marketplace operated by OTC Markets Group. The Company’s shares of common stock continue to trade on the TSX.
On August 12, 2020, the Company entered into an option agreement (the “Beskauga Option Agreement”) with Copperbelt AG, a corporation existing under the laws of Switzerland (“CB Parent”), and Dostyk LLP, an entity existing under the laws of Kazakhstan and a wholly-owned subsidiary of CB Parent (the “CB Sub,” and together with CB Parent, “CB”), pursuant to which the Company had the exclusive right and option to acquire CB’s right, title and 100% interest in the Beskauga property located in Kazakhstan, which consists of the Beskauga Main project (the “Beskauga Main Project”) and the Beskauga South project (the “Beskauga South Project,” and together the Beskauga Main Project, the “Beskauga Project”). The transaction contemplated by the Beskauga Option Agreement closed on January 26, 2021.
On February 5, 2021, Arras Minerals Corp. (“Arras”) was incorporated in British Columbia, Canada, as a wholly-owned subsidiary of Silver Bull. On March 19, 2021, pursuant to an asset purchase agreement with Arras, Silver Bull transferred its right, title and interest in and to the Beskauga Option Agreement, among other things, to Arras. On September 24, 2021, Silver Bull distributed to its shareholders one Arras common share for each Silver Bull share held by such shareholders, or 34,547,838 Arras common shares in total (the “Distribution”). Upon completion of the Distribution, the Company retained 1,452,162 Arras common shares, or approximately 4% of the outstanding Arras common shares, as a strategic investment, and Arras became a stand-alone company.
In December 2021 and June 2022, the Company sold 600,000 and 852,262 common shares of Arras at a price of $CDN 1.00 and $CDN 1.50 per share, respectively. Since then, the Company has not held any interest in Arras.
On April 23, 2023, Nomad Minerals Ltd. (“Nomad Minerals”), a wholly-owned subsidiary of the Company, was incorporated in British Columbia, Canada. On April 28, 2023, Nomad Metals Limited was incorporated at Astana International Financial Centre in Astana, Republic of Kazakhstan, as a wholly-owned subsidiary of Nomad Minerals.
On June 28, 2023, the Company filed a request for arbitration (the “Arbitration”) before the World Bank’s International Centre for Settlement of Investment Disputes (“ICSID”) against the United Mexican States (“Mexico”) under the United States-Mexico-Canada Agreement (the “USMCA”) and NAFTA, (together with the USMCA, the “Treaties”). Since the arbitration request, the ICSID arbitration has become the Company’s core focus. The ICSID arbitration seeks compensation for the losses resulting from the Mexican State’s wrongful conduct and its breaches of the Treaties’ protections, including expropriation, breach of the fair and equitable treatment standard, discrimination, and other unlawful treatment in respect of the Sierra Mojada Property. If successful in the ICSID arbitration, the Company will take appropriate steps to enforce and recover such an arbitral award (“Award”). The execution and enforcement of an Award may present material challenges and take a number of years.
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The Company’s efforts and expenditures have been concentrated in the exploration of properties, principally the Sierra Mojada property located in Coahuila, Mexico (the “Sierra Mojada Property”). Silver Bull has not determined whether its exploration properties contain ore reserves that are economically recoverable. The ultimate realization of investment in exploration properties is dependent upon the success of future property sales, the existence of economically recoverable reserves, and the Company’s ability to obtain financing or make other arrangements for exploration, development and future profitable production activities. The ultimate realization of the Company’s investment in exploration properties cannot be determined at this time.
Illegal Blockade of Sierra Mojada Property
On June 1, 2018, the Company’s subsidiaries Minera Metalin and Contratistas entered into an earn-in option agreement (the “South32 Option Agreement”) with South32 International Investment Holdings Pty Ltd (“South32”), a wholly owned subsidiary of South32 Limited (ASX/JSE/LSE: S32), whereby South32 was able to obtain an option to purchase 70% of the shares of Minera Metalin and Contratistas (the “South32 Option”).
On October 11, 2019, the Company and subsidiary Minera Metalin issued a notice of force majeure to South32 pursuant to the South32 Option Agreement. Due to a blockade by Sociedad Cooperativa de Exploración Minera Mineros Norteños, S.C.L. (“Mineros Norteños”), all work was halted on the Sierra Mojada Property. The notice of force majeure was issued because of the blockade’s impact the Company and subsidiary Minera Metalin’s ability to perform their obligations under the South32 Option Agreement. Pursuant to the South32 Option Agreement, any time period provided for in the South32 Option Agreement was to be generally extended by a period equal to the period of delay caused by the event of force majeure.
On August 31, 2022, the South32 Option Agreement was mutually terminated by South32 and the Company. South32 paid $518,000 to the Company as a final payment for the exploration costs incurred by the Company during the blockade and released South32 from all claims as the date of termination.
As of January 26, 2024, the blockade by Mineros Norteños at, on and around the Sierra Mojada Property is ongoing.
ICSID Arbitration
On March 2, 2023, the Company filed the NAFTA Notice of Intent to seek compensation for losses arising out of the illegal blockade of the Sierra Mojada Property by Mineros Norteños and Mexico’s unlawful conduct in relation to the blockade (“NAFTA Notice of Intent”). The Company has been unable to access the project since the illegal blockade commenced in September 2019. Despite numerous demands and requests for action by the Company, Mexican governmental agencies have allowed this unlawful conduct to continue and, as such, failed to protect the Company’s investment, thereby expropriating the Company’s property.
On June 28, 2023, as a result of the Mexican government’s actions with respect to the Company’s investments in Mexico, the Company filed the request for arbitration in the legacy NAFTA claim at the ICSID and commenced international arbitration proceedings against Mexico under the USMCA and NAFTA.
The Company has engaged Boies Schiller Flexner (UK) LLP as its legal advisers on the legacy NAFTA claim.
2024 Outlook
The focus of the Company for the 2024 calendar year will be to continue with the Arbitration process. If the blockade and the Arbitration proceedings are resolved, any continued exploration of the Sierra Mojada Property ultimately may require the Company to raise additional capital, identify other sources of funding or identify a strategic partner, or other strategic alternatives. The Company is also continuing to seek out other exploration projects for potential development and investment.
Sierra Mojada Project
Location, Access and Infrastructure
The Sierra Mojada Project is located within a mining district known as the Sierra Mojada District. The Sierra Mojada District is located in the west–central part of the state of Coahuila, Mexico, near the Coahuila-Chihuahua state border approximately 200 kilometers south of the Big Bend of the Rio Grande River. The principal mining area extends for approximately five kilometers in an east-west direction along the base of the precipitous, 1,000-meter high Sierra Mojada Range.
The Sierra Mojada Project site is situated to the south of the village of Esmeralda, on the northern side of a major escarpment that forms the northern margin of the Sierra Mojada range. In general, the site is approximately 1,500 meters above sea level. The project is accessible by paved road from the city of Torreon, Coahuila, which lies approximately 250 kilometers to the south. Esmerelda is served by a rail spur of the Coahuila Durango railroad. There is an airstrip east of Esmeralda, although its availability is limited, and another airstrip at the nearby Peñoles plant, which the Company can use occasionally. The Sierra Mojada District has high voltage electric power supplied by the national power company, Comisión Federal de Electricidad, C.F.E., and is supplied water by the municipality of Sierra Mojada. Although power levels are sufficient for current operations and exploration, future development of the project, if any, may require additional power supplies to be sourced.
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Sierra Mojada Project facilities in Mexico include offices, accommodation for employees, workshops, warehouse buildings and exploration equipment located at Calle Mina #1, La Esmeralda, Coahuila, Mexico.
The map below shows the location of the Sierra Mojada Project:
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The map below shows the concessions of the Sierra Mojada Project:
Property History
Silver and lead were first discovered by a foraging party in 1879, and mining through 1886 consisted of native silver, silver chloride, and lead carbonate ores. After 1886, silver-lead-zinc-copper sulphide ores within limestone and sandstone units were produced. No accurate production history has been found for historical mining during this period.
Approximately 95 years ago, zinc silicate and zinc carbonate minerals (“Zinc Manto Zone”) were discovered underlying the silver-lead mineralized horizon. The Zinc Manto Zone is predominantly zinc dominated, but with subordinate lead-rich manto and is principally situated in the footwall rocks of the Sierra Mojada Fault System. Since discovery and until 1990, zinc, silver, and lead ores were mined from various mines along the strike of the deposit, including from the Sierra Mojada Property. Ores mined from within these areas were hand-sorted, and the concentrate shipped mostly to smelters in the United States.
Activity during the period of 1956 to 1990 consisted of operations by the Mineros Norteños and operations by individual owners and operators of pre-existing mines. The Mineros Norteños operated the San Salvador, Encantada, Fronteriza, Esmeralda, and Parrena mines, and shipped oxide zinc ore to Zinc National’s smelter in Monterrey, while copper and silver ore were shipped to smelters in Mexico and the United States.
It is estimated that over 45 mines have produced ore from underground workings throughout the approximately five kilometers by two-kilometer area that comprises the Sierra Mojada District. It is estimated that since its discovery in 1879, the Sierra Mojada District has produced approximately 10 million tons of silver, zinc, lead and copper ore. The Sierra Mojada District does not have a mill to concentrate ore, and all mining conducted thus far has been limited to selectively mined ore of sufficient grade to direct ship to smelters. The Company believes that mill-grade mineralization that was not mined remains available for extraction. No mining operations are currently active within the area of the Sierra Mojada District, except for a dolomite quarry by Peñoles near Esmeralda.
In the 1990s, Kennecott Copper Corporation (“Kennecott”) had a joint venture agreement with USMX, Inc. (“USMX”) involving its Sierra Mojada concessions. Kennecott terminated the joint venture in approximately 1995. Metalline entered into a Joint Exploration and Development Agreement with USMX in July 1996 involving USMX’s Sierra Mojada concessions. In 1998, Metalline purchased the Sierra Mojada and the USMX concessions, and the joint exploration and development agreement was terminated. Metalline also purchased certain other concessions during this time and conducted exploration for copper and silver mineralization from 1997 through 1999.
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Title and Ownership Rights
The Sierra Mojada Project is comprised of 20 concessions consisting of 6,496 hectares (about 16,052 acres). The Company periodically obtains additional concessions in the Sierra Mojada Project area, and whether it will continue to hold these additional concessions will depend on future exploration work and exploration results and its ability to obtain financing. As in prior years, the Company continually assesses its concession ownership, and may terminate its rights to certain concessions holdings.
Each mining concession enables Silver Bull to explore the underlying concession in consideration for the payment of a semi-annual fee to the Mexican government and completion of certain annual assessment work. Annual assessment work in excess of statutory annual requirements can be carried forward and applied to future periods.
Ownership of a concession provides the owner with exclusive exploration and exploitation rights to all minerals located on the concessions, but does not include the surface rights to the real property. Therefore, the Company will need to negotiate any necessary agreements with the appropriate surface landowners if it is determined that a mining operation is feasible for the concessions. The Company owns surface rights to five lots in the Sierra Mojada Property (Sierra Mojada lot #1, #3, #4, #6 and #7) but anticipates that it will be required to obtain additional surface rights if it is determined that a mining operation is feasible.
Geology and Mineralization
The Sierra Mojada concessions contain a mineral system which can be separated into two distinct zones: a silver-rich zone (the “Silver Zone”) and a zinc-rich zone (the “Zinc Zone”). These two zones lie along the Sierra Mojada Fault which trends east–west along the base of the Sierra Mojada range. The majority of the mineralization identified to date is seen as oxide, which has been derived from primary “sulphide” bodies that have been oxidized and remained in situ or remobilized into porous and fractured rock along the Sierra Mojada Fault. The formation of the Silver Zone and the Zinc Zone is a reflection of the mobility of the metals in the ground water conditions at Sierra Mojada.
The geology of the Sierra Mojada District is composed of a Cretaceous limestone and dolomite sequence sitting on top of the Jurassic “San Marcos” red sediments. This sedimentary sequence was subsequently intruded by Tertiary volcanics, which are considered to be responsible for the mineralization seen at Sierra Mojada. Historical mines are dry, and the rocks are competent for the most part. The Company believes that the thickness and attitude of the mineral resources could potentially be amenable to high volume mechanized mining methods and low-cost production.
Sierra Mojada Technical Report Summary (2023)
On January 24, 2023, Archer, Cathro & Associates (1981) Limited and Timothy Barry delivered a technical report summary (the “Sierra Mojada 2023 TRS”) on the silver and zinc mineralization at the Sierra Mojada Project in accordance with subpart 1300 of Regulation S-K. The Sierra Mojada 2023 TRS supersedes the prior mineral resources estimate released by the Company on October 30, 2018. The Sierra Mojada 2023 TRS includes an update on the silver and zinc mineralization which was estimated from 1,336 diamond drill holes, 24 reverse circulation drill holes, 9,027 channel samples and 2,346 underground long holes. Using a net smelter return (“NSR”) economic cut-off, the Sierra Mojada 2023 TRS indicates mineral resources in the optimized pit of 70.4 million tonnes at an average silver grade of 38.6 grams/tonne silver, an average zinc percentage of 3.4%, an average copper percentage of 0.04% and an average lead percentage of 0.3%. The Sierra Mojada Report used a $13.50/tonne NSR cut-off grade and assumed a silver price of $18.00/ounce and a zinc price of $1.20/pound based on a five year average.
Sampling, Analysis, Quality Control and Security
The Company’s activities conform to mining industry standard practices and follow the Best Practices Guidelines of the Canadian Institute of Mining, Metallurgy, and Petroleum (CIM). Sampling is directed and supervised by trained and experienced geologists. Drill core and other samples are processed and logged using industry standard methods. Standard samples, duplicates and blanks are periodically entered into the stream of samples submitted for assays, and campaigns of re-sampling and duplicate analyses and round-robin inter-laboratory validations are conducted periodically. ALS Chemex – Vancouver (“ALS Chemex”) laboratory is the Company’s independent primary laboratory. ALS Chemex is ISO 9001:2000 certified. All analytical results that are used in resource models are exclusively from the independent primary laboratory.
Silver Bull’s consultants perform technical audits of its operations, including a formal quality assurance/quality control (“QA/QC”) program, and recommend improvements as needed. A systematic program of duplicate sampling and assaying of representative samples from previous exploration activities was completed in 2010 under the direction and control of the Company’s consultants. Results of this study acceptably confirm the values in the project database used for resource modeling.
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The Company formerly operated a sample preparation and an analytical laboratory at the project that prepared samples for shipment, performed QA/QC analyses to ensure against cross-contamination of samples during preparation and removed most low-value samples from the flow to the primary laboratory. For cost and other reasons, the internal laboratory has been shut down.
Prior Exploration Activities
Exploration efforts have been focused on two primary locations: the Silver Zone and the Zinc Zone. As further described below, various exploration activities have been conducted at the Sierra Mojada Project; however, to date, the Company has not established any reserves, and the project remains in the exploration stage and may never enter the development stage.
Prior to 2008, exploration efforts largely focused on the Zinc Zone with surface and underground drilling. In fiscal year 2009, exploration activities were scaled back and administrative costs were reduced to conserve capital while the Company tried to secure additional sources of capital resources.
After closing the transaction with Dome in April 2010, exploration activities at Sierra Mojada primarily focused on the Silver Zone, which lies largely at surface. By the end of calendar 2018, approximately 101,000 meters of diamond drilling from surface and 10,000 meters of underground drilling had been completed.
The silver contained within the Silver Zone is seen primarily as silver halide minerals. The zinc contained within the Zinc Zone is contained mostly in the mineral hemimorphite and, to a lesser amount, in the mineral smithsonite.
2023 Exploration Activities
Due to the continuing blockade by Mineros Norteños previously mentioned under the “Illegal Blockade” and the “Arbitration” sections of this Annual Report on Form 10-K, during the year ended October 31, 2023, no drilling was conducted as the drilling program remained halted.
Airborne Geophysics
Between September 2018 and November 2018, a 5,297 line kilometer helicopter-borne Versatile Time Domain Electro Magnetic (VTEM) and Magnetic Geophysical Survey was completed over the Sierra Mojada Property. The results of this survey aided in refining the design of the drilling program.
Metallurgical Studies
In May 2015, a selection of high-grade zinc material samples were shipped to a lab in Denver, Colorado for “fine bubble” flotation test work and to a group in Australia to assess their proprietary hydrometallurgy process. Previous test work completed by Silver Bull using mechanical flotation has shown an 87% recovery of zinc from the white zinc zone to produce a rough concentrate of 43% zinc, and a 72.5% recovery of zinc from the red zinc zone to produce a rough concentrate of 30% zinc. The “fine bubble” flotation test work that was performed did not improve recovery, but based on analysis of the results, it was determined that the “fine bubble” flotation test process may be able to be adjusted to improve recovery. Further testing is not planned at this time.
In addition, a metallurgical program was previously conducted to test the recovery of (i) the silver mineralization using the agitation cyanide leach method and (ii) the zinc mineralization using the SART process (sulfidization, acidification, recycling, and thickening). The test work on the Silver Zone focused on cyanide leach recovery of the silver using “Bottle Roll” tests to simulate an agitation leach system and to determine the recovery of (A) low-grade zinc that occurs in the Silver Zone and (B) high-grade zinc from the Zinc Zone that had been blended with mineralization from the Silver-rich Zone to the leach solution. The silver was recovered from the cyanide leach solution using the Merrill Crowe technique, and the zinc was recovered from the leach solution using the SART process. The SART process is a metallurgical process that regenerates and recycles the cyanide used in the leaching process of the silver and zinc and allows for the recovery of zinc that has been leached by the cyanide solution. The results showed an overall average silver recovery of 73.2%, with peak values of 89.0% and an overall average zinc recovery of 44% in the Silver Zone.
Mineral Resources
Under S-K 1300, a mineral resource is defined as “a concentration or occurrence of material of economic interest in or on the Earth’s crust in such form, grade or quality, and quantity that there are reasonable prospects for economic extraction.” A mineral resource is a “reasonable estimate of mineralization, taking into account relevant factors such as cut-off grade, likely mining dimensions, location or continuity, that, with the assumed and justifiable technical and economic conditions, is likely to, in whole or in part, become economically extractable. It is not merely an inventory of all mineralization drilled or sampled.” More information supporting assumptions, methodologies, and procedures can be found in the Technical Report Summary incorporated by reference in Exhibit 96.1 to this Annual Report on Form 10-K.
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Sierra Mojada - Summary of Silver and Zinc
Mineral Resources at October 31, 2023
Based on $18.00/oz Silver and $1.20/lb Zinc
| Grade | Contained Metal | Cut-off | Metallurgical Recovery | ||||||
| Tonnes (Mt) | Ag (g/t) | Zn (%) | NSR (%/t) | Ag (Moz) | Zn (Mlbs) | NSR ($/t) | Ag | Zn | |
Measured Mineral Resources |
52.0 | 39.2 | 4.0% | $44.3 | 65.5 | 4,589.3 | $13.50 | 73.2% | 44% |
Indicated Mineral Resources |
18.4 | 37.0 | 1. 9% | $27.3 | 21.9 | 764.6 | $13.50 | 73.2% | 44% |
Measured + Indicated Mineral Resources
|
70.4 | 38.6 | 3.4% | $39.8 | 87.4 | 5,353.9 | $13.50 | 73.2% | 44% |
| Inferred Mineral Resources | 0.1 | 8.8 | 6.4% | $52.3 | 0.02 | 10.7 | $13.50 | 73.2% | 44% |
| 1) | S-K 1300 definitions were followed for the Mineral Resource. |
| 2) | The Mineral Resource is reported within a conceptual pit-shell using an NSR cut-off value of US$13.50/tonne. |
| 3) | Mineral Resources are not reserves and do not demonstrate economic viability. |
| 4) | Tonnages are reported to the nearest 100,000 tonne. Grades are rounded to the nearest decimal place. |
| 5) | Rounding as required by reporting guidelines may result in apparent summation differences between tonnes, grade, and contained metal. |
| 6) | Tonnages and grades are as reported directly from block model; with mined out areas removed. |
Competition and Mineral Prices
Mineral Prices
Silver and zinc are commodities, and their prices are volatile. From January 1, 2023 to December 31, 2023 the price of silver ranged from a low of $20.09 per troy ounce to a high of $26.03 per troy ounce, and from January 1, 2023 to December 31, 2023 the price of zinc ranged from a low of $2,404 per tonne to a high of $3,309 per tonne. Silver and zinc prices are affected by many factors beyond the Company’s control, including prevailing interest rates and returns on other asset classes, expectations regarding inflation, speculation, currency values, governmental decisions regarding the disposal of precious metals stockpiles, global and regional demand and production, political and economic conditions and other factors. The competitive nature of the business and the risks faced are discussed further in the “Risk Factors – Risks Related to the Company’s Business” section below.
The following tables set forth, for the periods indicated, high and low silver and zinc prices on the London Metal Exchange in U.S. dollars per troy ounce and per tonne, respectively. On October 31, 2023, the closing price of silver was $23.20 per troy ounce. On October 31, 2023, the closing price of zinc was $2,448 per tonne.
Silver (per troy ounce) | ||||
| Year | High | Low | ||
| 2016 | $20.71 | $13.58 | ||
| 2017 | $18.56 | $15.22 | ||
| 2018 | $17.52 | $13.97 | ||
| 2019 | $19.31 | $14.38 | ||
| 2020 | $28.89 | $12.00 | ||
| 2021 | $29.58 | $21.52 | ||
| 2022 | $26.17 | $17.77 | ||
| 2023 | $26.03 | $20.09 | ||
Zinc (per tonne) | ||||
| Year | High | Low | ||
| 2016 | $2,566 | $1,520 | ||
| 2017 | $3,264 | $2,573 | ||
| 2018 | $3,533 | $2,434 | ||
| 2019 | $2,932 | $2,272 | ||
| 2020 | $2,780 | $1,903 | ||
| 2021 | $3,399 | $2,705 | ||
| 2022 | $4,360 | $2,967 | ||
| 2023 | $3,309 | $2,404 | ||
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Competition
The mining industry is highly competitive. Silver Bull competes with other mining and exploration companies in the acquisition and exploration of mineral properties. There is competition for a limited number of mineral property acquisition opportunities, some of which is with other companies having substantially greater financial resources, staff and facilities than the Company does. As a result, there may be difficulty acquiring attractive exploration properties, staking claims related to the Company’s properties and exploring properties. The Company’s competitive position depends upon its ability to successfully and economically acquire and explore new and existing mineral properties.
Government Regulation
Mineral exploration activities are subject to various national, state/provincial, and local laws and regulations, which govern prospecting, development, mining, production, exports, taxes, labor standards, occupational health, waste disposal, protection of the environment, mine safety, hazardous substances and other matters. Similarly, if any of the Company’s properties are developed and/or mined, those activities are also subject to significant governmental regulation and oversight. Silver Bull plans to obtain the licenses, permits and other authorizations currently required to conduct its exploration programs. The Company believes that it is in compliance in all material respects with applicable mining, health, safety and environmental statutes and the regulations applicable to the mineral interests held in Mexico.
Environment Regulations
The Company’s activities are subject to various national and local laws and regulations governing protection of the environment. These laws are continually changing and, in general, are becoming more restrictive. Silver Bull intends to conduct business in a way that safeguards public health and the environment and is in compliance with applicable laws and regulations.
Changes to current state or federal laws and regulations in Mexico could, in the future, require additional capital expenditures and increased operating and/or reclamation costs. Although the Company is unable to predict what additional legislation, if any, might be proposed or enacted, additional regulatory requirements could impact the economics of its projects.
During fiscal year 2023, Silver Bull had no material environmental incidents or non-compliance with any applicable environmental regulations.
Employees
Silver Bull has two employees. Minera Metalin, its wholly-owned operating subsidiary in Mexico, currently has one full-time employee.
Corporate Offices
Silver Bull’s corporate office is located at 777 Dunsmuir Street, Suite 1605, Vancouver, British Columbia, Canada V7Y 1K4, telephone number is (604) 687-5800.
Available Information
The Company maintains a website at http://www.silverbullresources.com. The information on the website is not incorporated by reference in this Annual Report on Form 10-K. The Company makes available on or through its website certain reports and amendments to those reports that are filed with or furnished to the SEC in accordance with the Exchange Act. Readers may also obtain this information from the SEC’s website, http://www.sec.gov.
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| Item 1A. | RISK FACTORS |
A purchase of the Company’s securities involves a high degree of risk. The Company’s business or operating or financial condition could be harmed due to any of the following risks. Accordingly, investors should carefully consider these risks in making a decision as to whether to purchase, sell or hold securities of the Company. In addition, investors should note that the risks described below are not the only risks facing the Company. Additional risks not presently known to the Company, or risks that do not seem significant today, may impair business operations in the future. Readers should carefully consider the risks described below, as well as the other information contained in this Annual Report on Form 10-K and the documents incorporated by reference herein, before making a decision to invest in securities of the Company.
Risk factors are grouped into the following categories:
- Risks Relating to the Company’s Business;
- Risks Relating to the Mineral Exploration Industry; and
- Risks Relating to the Company’s Common Stock;
RISKS RELATING TO THE COMPANY’S BUSINESS:
There is substantial doubt about whether the Company can continue as a going concern.
To date, the Company has earned no revenues and has incurred accumulated net losses of $138,645,000. In addition, the Company has limited financial resources. As of October 31, 2023, the Company had cash and cash equivalents of $1,009,000 and working capital of $434,000. Continuation as a going concern is dependent upon the continued payment of Arbitration-related costs by Bench Walk 23P, L.P., a Delaware limited partnership (“Bench Walk”), under the Funding Agreement and achieving future financing or strategic transactions. However, there is no assurance that the Funding Agreement will not be terminated or that the Company will have the ability to be successful pursuing a financing or strategic transaction. Accordingly, there is substantial doubt as to whether existing cash resources and working capital are sufficient to enable the Company to continue its operations for the next 12 months as a going concern. Ultimately, in the event that the Funding Agreement is terminated, and the Company cannot obtain additional financial resources, or achieve profitable operations, it may have to liquidate its business interests and investors may lose their investment. The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. The consolidated financial statements do not include any adjustments that may result from the outcome of this uncertainty. Such adjustments could be material.
The Company may have difficulty meeting its current and future capital requirements.
The Company’s management and the board of directors monitor overall costs and expenses and, if necessary, adjust programs and planned expenditures in an attempt to ensure that the Company has sufficient operating capital. The Company continues to evaluate its costs and planned expenditures for its ongoing Arbitration and exploration efforts at the Sierra Mojada Project. Even with the Funding Agreement in place to cover the costs of the Arbitration process, and additional financial resources from the recently closed private placement, the continued exploration and possible development of the Sierra Mojada Project and the Arbitration claim may require significant amounts of additional capital. If the Company is unable to fund future operations by way of financings, including public or private offerings of equity or debt securities, it will need to reorganize or significantly reduce its operations, which may result in an adverse impact on the Company’s business, financial condition and exploration activities. The Company does not have a credit, off-take or other commercial financing arrangement in place that would finance continued evaluation or development of the Sierra Mojada Project, and the Company believes that securing credit for this project may be difficult. Moreover, equity financing may not be available on attractive terms and, if available, will likely result in significant dilution to existing stockholders.
The Company is a mineral exploration stage company with no history of operations.
While exploration efforts to date have demonstrated positive results, the Company remains an exploration stage enterprise engaged in mineral exploration in Mexico. The Company has a very limited operating history and is subject to all the risks inherent in a new business enterprise. To date, the Company has had no revenues and has relied upon equity financing, South32 funding and sales of investments to fund its operations. The likelihood of success must be considered in light of the problems, expenses, difficulties, complications, and delays frequently encountered in connection with an exploration stage business, and the competitive and regulatory environment in which the Company operates and will operate, such as under-capitalization, personnel limitations, and limited financing sources.
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Mineral resource estimates may not be reliable.
There are numerous uncertainties inherent in estimating quantities of mineral resources such as silver, zinc, lead, and copper, including many factors beyond the Company’s control, and no absolute assurance can be given that the recovery of mineral resources will be realized as projected. In general, estimates of mineral resources are based upon a number of factors and assumptions made as of the date on which the estimates were determined, including:
- geological and engineering estimates that have inherent uncertainties;
- the assumed effects of regulation by governmental agencies;
- the judgment of the engineers preparing the estimate;
- estimates of future metals prices and operating costs;
- the quality and quantity of available data;
- the interpretation of that data; and
- the accuracy of various mandated economic assumptions, all of which may vary considerably from actual results.
All estimates are, to some degree, uncertain. For these reasons, estimates of the recoverable mineral resources prepared by different engineers or by the same engineers at different times may vary. As such, there is uncertainty in any mineral resource estimate, and actual deposits encountered and the economic viability of a deposit may differ from the Company’s estimates.
The Company’s business plan is highly speculative, and its success largely depends on the successful exploration of the Sierra Mojada concessions.
The Company’s business plan has been focused on exploring the Sierra Mojada concessions to identify reserves and, if appropriate, to ultimately develop each property. Although the Company has reported mineral resources on the Sierra Mojada Project, it has not established any reserves and remains in the exploration stage. The Company may never enter the development or production stage. Exploration of mineralization and determination of whether the mineralization might be extracted profitably is highly speculative, and it may take a number of years until production is possible, during which time the economic viability of the project may change. Substantial expenditures are required to establish reserves, extract metals from ore and construct mining and processing facilities.
The Sierra Mojada Project is subject to all of the risks inherent in mineral exploration and development. The economic feasibility of any mineral exploration and/or development project is based upon, among other things, estimates of the size and grade of mineral reserves, proximity to infrastructures and other resources (such as water and power), anticipated production rates, capital and operating costs, and metals prices. To advance from an exploration project to a development project, the Company will need to overcome various hurdles, including completing favorable feasibility studies, securing necessary permits, and raising significant additional capital to fund activities. There can be no assurance that the Company will be successful in overcoming these hurdles. Because of the Company’s focus on the Sierra Mojada Project and its proximity to Torreon, Mexico, the success of its operations and profitability may be disproportionately exposed to the impact of adverse conditions unique to the region.
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Due to the Company’s history of operating losses, it is uncertain that it will be able to maintain sufficient cash to accomplish its business objectives.
During the fiscal years ended October 31, 2023 and 2022, the Company incurred net losses of $1,251,000 and $3,168,000 respectively. At October 31, 2023, the Company had stockholders’ equity of $5,592,000 and cash and cash equivalents of $1,009,000. If the Blockade is resolved, significant amounts of capital would be required to continue to explore and potentially develop the Sierra Mojada concessions. The Company is not engaged in any revenue producing activities and does not expect to be in the near future. Currently, potential sources of funding consist of the sale of additional equity securities, entering into joint venture agreements or selling a portion of the Company’s interests in its assets. There is no assurance that any additional capital that the Company will require will be obtainable on terms acceptable to it, if at all. Failure to obtain such additional financing could result in delays or indefinite postponement of further exploration of the projects. Additional financing, if available, will likely result in substantial dilution to existing stockholders.
Exploration activities require significant amounts of capital that may not be recovered.
Mineral exploration activities are subject to many risks, including the risk that no commercially productive or extractable resources will be encountered. There can be no assurance that the Company’s activities will ultimately lead to an economically feasible project or that it will recover all or any portion of its investment. Mineral exploration often involves unprofitable efforts, including drilling operations that ultimately do not further exploration efforts. The cost of minerals exploration is often uncertain, and cost overruns are common. Drilling and exploration operations may be curtailed, delayed or canceled as a result of numerous factors, many of which are beyond the Company’s control, including title problems, weather conditions, protests, compliance with governmental requirements, including permitting issues, and shortages or delays in the delivery of equipment and services.
The Company’s financial condition could be adversely affected by changes in currency exchange rates, especially between the U.S. dollar and each of the Mexican peso (“$MXN”) and the Canadian dollar (“$CDN”) given its focus on the Sierra Mojada Project in Mexico and the corporate office in Vancouver, Canada.
The Company’s financial condition is affected in part by currency exchange rates, as portions of its exploration costs in Mexico and general and administration costs in Canada are denominated in the local currency. A weakening U.S. dollar relative to the $MXN and $CDN will have the effect of increasing exploration costs and general and administration costs while a strengthening U.S. dollar will have the effect of reducing exploration costs and general and administration costs. The exchange rates between the $CDN and the U.S. dollar and between the $MXN and U.S. dollar have fluctuated widely in response to international political conditions, general economic conditions and other factors beyond the Company’s control.
The Company shares certain key officers and directors with Arras, which means that those officers do not devote their full time and attention to its affairs, and the overlap may give rise to conflicts of interest.
The Company’s Chief Executive Officer and President, Timothy Barry and Chief Financial Officer, Christopher Richards also serve as President and Chief Executive Officer, and Chief Financial Officer of Arras, respectively. As a result, the Company’s executive officers do not devote their full time and attention to the Company’s affairs. There may be circumstances in which the Company’s executive officers are compelled to spend a significant portion of their time and attention to Arras’ affairs, which may mean that they are unable to devote sufficient time to the Company’s affairs. Furthermore, the Company’s Chairman, Brian Edgar, also serves as Chairman of Arras, and Timothy Barry is also a director of Arras. The overlapping officers and directors may have actual or apparent conflicts of interest with respect to matters involving or affecting each company. For example, conflicts may arise if there are issues or disputes under commercial arrangements that may exist between Arras and the Company. Any failure of the directors or officers of the Company to address these conflicts in an appropriate manner or to allocate opportunities that they become aware of to the Company could have a material adverse effect on the Company’s business, financial condition, results of operations, cash flows or prospects.
The Company needs and relies upon key personnel.
Presently, the Company employs a limited number of full-time employees, utilizes outside consultants, and in large part relies on the efforts of its officers and directors. Success will depend, in part, upon the ability to attract and retain qualified employees. In particular, the Company has only two executive officers: Timothy Barry and Christopher Richards, and the loss of the services of either of these would adversely affect the Company’s business.
The Company is exposed to information systems and cybersecurity risks.
The Company’s information systems (including those of any of its counterparties) may be vulnerable to the increasing threat of continually evolving cybersecurity risks. Unauthorized parties may attempt to gain access to these systems or information through fraud or other means of deception. The Company’s operations depend, in part, on how well it and its counterparties protect networks, equipment, information technology systems and software against damage from threats. The failure of information systems or a component of information systems could, depending on the nature of any such failure, adversely impact the Company’s reputation and results of operations. There can be no assurance that the Company or its counterparties will not incur such losses in the future. The Company’s risk and exposure to these matters cannot be fully mitigated because of, among other things, the evolving nature of these threats. As a result, cybersecurity and the continued development and enhancement of controls, processes and practices designed to protect systems, computers, software, data and networks from attack, damage or unauthorized access remain an area of attention.
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RISKS RELATING TO THE MINERAL EXPLORATION INDUSTRY:
There are inherent risks in the mineral exploration industry.
The Company is subject to all of the risks inherent in the minerals exploration industry, including, without limitation, the following:
- competition from a large number of companies, most of which are significantly larger than the Company, in the acquisition, exploration, and development of mining properties;
- the possible inability to raise enough money to pay the fees and taxes and perform the labor necessary to maintain the Company’s concessions in good status;
- exploration for minerals is highly speculative, involves substantial risks and is frequently unproductive, even when conducted on properties known to contain significant quantities of mineralization, and the Company’s exploration projects may not result in the discovery of commercially mineable deposits of ore;
- the probability of an individual prospect ever having reserves that meet the requirements for reporting under S-K 1300 is remote, and any funds spent on exploration may be lost;
- the Company’s operations are subject to a variety of existing laws and regulations relating to exploration and development, permitting procedures, safety precautions, property reclamation, employee health and safety, air quality standards, pollution and other environmental protection controls, and it may not be able to comply with these regulations and controls; and
- a large number of factors beyond the Company’s control, including fluctuations in metal prices, inflation, and other economic conditions, will affect the economic feasibility of mining.
Metals prices are subject to extreme fluctuation.
The Company’s activities are influenced by the prices of commodities, including silver, zinc, lead, copper and other metals. These prices fluctuate widely and are affected by numerous factors beyond the Company’s control, including interest rates, expectations for inflation, speculation, currency values (in particular, the strength of the U.S. dollar), global and regional demand, political and economic conditions and production costs in major metal-producing regions of the world.
The Company’s ability to establish reserves through its exploration activities, its future profitability and long-term viability depend, in large part, on the market prices of silver, zinc, lead, copper and other metals. The market prices for these metals are volatile and are affected by numerous factors beyond the Company’s control, including:
- global or regional consumption patterns;
- supply of, and demand for, silver, zinc, lead, copper and other metals;
- speculative activities and producer hedging activities;
- expectations for inflation;
- political and economic conditions; and
- supply of, and demand for, consumables required for production.
Future weakness in the global economy could increase volatility in metals prices or depress metals prices, which could in turn reduce the value of the Company’s properties, make it more difficult to raise additional capital, and make it uneconomical for it to continue its exploration activities.
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There are inherent risks with foreign operations.
The Company’s business activities are primarily conducted in Mexico, and as such, its activities are exposed to various levels of foreign political, economic and other risks and uncertainties. These risks and uncertainties include, but are not limited to, terrorism, hostage taking, military repression, extreme fluctuations in currency exchange rates, high rates of inflation, labor unrest, war or civil unrest, expropriation and nationalization, renegotiation or nullification of existing concessions, licenses, permits, approvals and contracts, illegal mining, changes in taxation policies, restrictions on foreign exchange and repatriation, changing political conditions (including, potential instability if the United States or Mexico withdraws from the United States-Mexico-Canada Agreement), currency controls and governmental regulations that favor or require the rewarding of contracts to local contractors or require foreign contractors to employ citizens of, or purchase supplies from, a particular jurisdiction.
Changes, if any, in mining or investment policies or shifts in political attitude in Mexico may adversely affect the Company’s exploration and possible future development activities. The Company may also be affected to varying degrees by government regulations with respect to, but not limited to, foreign investment, maintenance of claims, environmental legislation, land use, land claims of local people, water use and mine safety. Failure to comply strictly with applicable laws, regulations and local practices relating to mineral right applications and tenure could result in loss, reduction or expropriation of entitlements, or the imposition of additional local or foreign parties as joint venture partners with carried or other interests.
The occurrence of these various factors and uncertainties cannot be accurately predicted and could have an adverse effect on the Company’s operations. In addition, legislation in the United States, Canada or Mexico regulating foreign trade, investment and taxation could have a material adverse effect on the Company’s financial condition.
The Sierra Mojada Project is located in Mexico and is subject to varying levels of political, economic, legal and other risks.
The Sierra Mojada Project is in Mexico. Mexico has been subject to political instability, changes and uncertainties that have resulted in changes to existing governmental regulations affecting mineral exploration and mining activities. Mexico’s status as a developing country may make it more difficult for the Company to obtain any required financing for the Sierra Mojada Project or other projects in Mexico in the future. The Sierra Mojada Project is also subject to a variety of governmental regulations governing health and worker safety, employment standards, waste disposal, protection of historic and archaeological sites, mine development, protection of endangered and protected species and other matters. Mexican regulators have broad authority to shut down and/or levy fines against facilities that do not comply with regulations or standards.
The Company’s exploration activities in Mexico have been adversely affected by changing government regulations relating to the mining industry and shifts in political conditions that have impacted the Company’s ability to continue to advance the Sierra Mojada Project. Additional changes, if any, in mining or investment policies or shifts in political attitude may adversely affect the Company’s financial condition. Expansion of the Company’s activities will be subject to the need to obtain sufficient access to adequate supplies of water and assure the availability of sufficient power and surface rights that could be affected by government policy and competing operations in the area.
The Company also has litigation risk with respect to its operations. See Part I, Item 3 – Legal Proceedings of this Annual Report on Form 10-K for an explanation of material legal proceedings to which Silver Bull or its subsidiaries have been a party.
The occurrence of these various factors and uncertainties cannot be accurately predicted and could have an adverse effect on the Company’s financial condition. Future changes in applicable laws and regulations or changes in their enforcement or regulatory interpretation could negatively impact current or planned exploration activities with the Sierra Mojada Project or in respect to any other projects in which the Company becomes involved in Mexico. Any failure to comply with applicable laws and regulations, even if inadvertent, could result in the interruption of exploration operations or material fines, penalties or other liabilities.
Title to the Company’s properties may be challenged or defective.
The Company’s future operations, including any activities at the Sierra Mojada Project and other exploration activities, will require additional permits from various governmental authorities. The Company’s operations are and will continue to be governed by laws and regulations governing prospecting, mineral exploration, exports, taxes, labor standards, occupational health, waste disposal, toxic substances, land use, environmental protection, mine safety, mining royalties and other matters. There can be no assurance that the Company will be able to acquire all required licenses, permits or property rights on reasonable terms or in a timely manner, or at all, that such terms will not be adversely changed, that required extensions will be granted, or that the issuance of such licenses, permits or property rights will not be challenged by third parties.
The Company attempts to confirm the validity of its rights of title to, or contract rights with respect to, each mineral property in which it has a material interest. However, the Company cannot guarantee that title to its properties will not be challenged. The Sierra Mojada Property may be subject to prior unregistered agreements, interests or native land claims, and title may be affected by undetected defects. There may be valid challenges to the title of any of the claims comprising the Sierra Mojada Property that, if successful, could impair possible development and/or operations with respect to such properties in the future. Challenges to permits or property rights (whether successful or unsuccessful), changes to the terms of permits or property rights, or a failure to comply with the terms of any permits or property rights that have been obtained could have a material adverse effect on business by delaying or preventing or making continued operations economically unfeasible.
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A title defect could result in Silver Bull losing all or a portion of its right, title, and interest to and in the properties to which the title defect relates. Title insurance generally is not available, and the Company’s ability to ensure that it has obtained secure title to individual mineral properties or mining concessions may be severely constrained. In addition, the Company may be unable to operate its properties as permitted or to enforce its rights with respect to its properties. The Company annually monitors the official mining records in Mexico City to determine if there are annotations indicating the existence of a legal challenge against the validity of any of its concessions. As of January 2024, and to the best of the Company’s knowledge, there are no such annotations, nor is the Company aware of any challenges from the government or from third parties, except for the matters described in Part I, Item 3 – Legal Proceedings.
In addition, in connection with the purchase of certain mining concessions, Silver Bull agreed to pay a net royalty interest on revenue from future mineral sales on certain concessions at the Sierra Mojada Project, including concessions on which a significant portion of its mineral resources are located. The aggregate amount payable under this royalty is capped at $6.875 million (the “Royalty”), an amount that will only be reached if there is significant future production from the concessions. As noted in Part I, Item 3 (Legal Proceedings), this Royalty is currently the subject of a dispute with a local cooperative. In addition, records from prior management indicate that additional royalty interests may have been created, although the continued applicability and scope of these interests are uncertain. The existence of these royalty interests may have a material effect on the economic feasibility of potential future development of the Sierra Mojada Project.
The Company is subject to complex environmental and other regulatory risks, which could expose it to significant liability and delay and potentially the suspension or termination of exploration efforts.
The Company’s mineral exploration activities are subject to federal, state and local environmental regulations in the jurisdictions where its mineral properties are located. These regulations mandate, among other things, the maintenance of air and water quality standards and land reclamation. They also set forth limitations on the generation, transportation, storage and disposal of solid and hazardous waste. No assurance can be given that environmental standards imposed by these governments will not be changed, thereby possibly materially adversely affecting the Company’s proposed activities. Compliance with these environmental requirements may also necessitate significant capital outlays or may materially affect the Company’s earning power.
Environmental legislation is evolving in a manner that will require stricter standards and enforcement, increased fines and penalties for non-compliance, more stringent environmental assessments of proposed projects, and a heightened degree of responsibility for companies and their officers, directors and employees. As a result of recent changes in environmental laws in Mexico, for example, more legal actions supported or sponsored by non-governmental groups interested in halting projects may be filed against companies operating in all industrial sectors, including the mining sector. Mexican projects are also subject to the environmental agreements entered into by Mexico, the United States and Canada in connection with the United States-Mexico-Canada Agreement.
Future changes in environmental regulations in the jurisdictions where the Company’s projects are located may adversely affect its exploration activities, make them prohibitively expensive, or prohibit them altogether. Environmental hazards may exist on the properties in which the Company currently holds interests, such as the Sierra Mojada Project, or may hold interests in the future, that are unknown to it at present and that have been caused by it or previous owners or operators, or that may have occurred naturally. The Company may be liable for remediating any damage that it may have caused. The liability could include costs for removing or remediating the release and damage to natural resources, including ground water, as well as the payment of fines and penalties.
The Company’s industry is highly competitive, attractive mineral properties and property concessions are scarce, and it may not be able to obtain quality properties or concessions.
The Company competes with other mining and exploration companies in the acquisition of mineral properties and property concessions. There is competition for a limited number of attractive mineral property acquisition opportunities, some of which is with other companies having substantially greater financial resources, staff and facilities than the Company. As a result, the Company may have difficulty acquiring quality mineral properties or property concessions.
The Company may face a shortage of water.
Water is essential in all phases of the exploration and development of mineral properties. It is used in such processes as exploration, drilling, leaching, placer mining, dredging, testing, and hydraulic mining. Both the lack of available water and the cost of acquisition may make an otherwise viable project economically impossible to complete. In November 2013, Silver Bull was granted the right to exploit up to 3.5 million cubic meters of water per year from six different well sites by the water regulatory body in Mexico, La Comisión Nacional del Agua, but it has yet to be determined if the six well sites can produce this much water over a sustained period of time.
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The Company’s non-operating properties are subject to various hazards.
The Company is subject to risks and hazards, including environmental hazards, possible encounters with unusual or unexpected geological formations, cave-ins, flooding and earthquakes, and periodic interruptions due to inclement or hazardous weather conditions. These occurrences could result in damage to, or the destruction of, mineral properties or future production facilities, personal injury or death, environmental damage, delays in exploration activities, asset write-downs, monetary losses and possible legal liability. The Company may not be insured against all losses or liabilities, either because such insurance is unavailable or because it has elected not to purchase such insurance due to high premium costs or other reasons. Although the Company maintains insurance in an amount that it considers to be adequate, liabilities might exceed policy limits, in which event the Company could incur significant costs that could adversely affect its activities. The realization of any significant liabilities in connection with the Company’s activities as described above could negatively affect its activities and the price of its common stock.
RISKS RELATING TO THE COMPANY’S COMMON STOCK:
Further equity financings may lead to the dilution of the Company’s common stock.
In order to finance future operations, the Company may raise funds through the issuance of common stock or the issuance of debt instruments or other securities convertible into common stock. The Company cannot predict the size of future issuances of common stock or the size and terms of future issuances of debt instruments or other securities convertible into common stock or the effect, if any, that future issuances and sales of the Company’s securities will have on the market price of its common stock. Any transaction involving the issuance of previously authorized but unissued shares, or securities convertible into common stock, would result in dilution, possibly substantial, to present and prospective security holders. Demand for equity securities in the mining industry has been weak; therefore, equity financing may not be available on attractive terms and, if available, will likely result in significant dilution to existing shareholders.
No dividends are anticipated.
At the present time, the Company does not anticipate paying dividends, cash or otherwise, on its common stock in the foreseeable future. Future dividends will depend on the Company’s earnings, if any, its financial requirements and other factors. There can be no assurance that the Company will pay dividends.
The Company’s stock price can be very volatile.
The common stock of the Company is listed on the TSX and trades on the OTCQB. The trading price of the Company’s common stock has been, and could continue to be, subject to wide fluctuations in response to announcements of its business developments, results and progress of its exploration activities at the Sierra Mojada Project, progress reports on its exploration activities, and other events or factors. In addition, stock markets have experienced significant price volatility in recent months and years. This volatility has had a substantial effect on the share prices of companies, at times for reasons unrelated to their operating performance. These fluctuations could be in response to:
- volatility in metal prices;
- political developments in the foreign countries in which its properties are located; and
- news reports relating to trends in the industry or general economic conditions.
These broad market and industry fluctuations may adversely affect the price of the Company’s common stock, regardless of its operating performance.
The Company cannot make any predictions or projections as to what the prevailing market price for its common stock will be at any time, including as to whether its common stock will achieve or remain at levels at or near its offering price, or as to what effect the sale of shares or the availability of common stock for sale at any time will have on the prevailing market price.
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| Item 1B. | UNRESOLVED STAFF COMMENTS |
None.
| Item 1C. | CYBERSECURITY |
Not applicable.
| Item 3. | LEGAL PROCEEDINGS |
Mineros Norteños Case
On May 20, 2014, Mineros Norteños filed an action in the Local First Civil Court in the District of Morelos, State of Chihuahua, Mexico, against the Company’s subsidiary, Minera Metalin, claiming that Minera Metalin breached an agreement regarding the development of the Sierra Mojada Property. Mineros Norteños sought payment of the Royalty, including interest at a rate of 6% per annum since August 30, 2004, even though no revenue has been produced from the applicable mining concessions. It also sought payment of wages to the cooperative’s members since August 30, 2004, even though none of the individuals were hired or performed work for Minera Metalin under this agreement and Minera Metalin did not commit to hiring them. On January 19, 2015, the case was moved to the Third District Court (of federal jurisdiction). On October 4, 2017, the court ruled that Mineros Norteños was time barred from bringing the case. On October 19, 2017, Mineros Norteños appealed this ruling. On July 31, 2019, the Federal Appeals Court upheld the original ruling. This ruling was subsequently challenged by Mineros Norteños and on January 24, 2020, the Federal Circuit Court ruled that the Federal Appeals Court must consider additional factors in its ruling. In March 2020, the Federal Appeals Court upheld the original ruling after considering these additional factors. In August 2020, Mineros Norteños appealed this ruling, which appeal the Company timely responded and objected to on October 5, 2020. On March 26, 2021, the Federal Circuit Court issued a final and conclusive resolution, affirming the Federal Appeals Court decision. Despite the judgments in favour of the Company, Mineros Norteños has continued to block access to the facilities at Sierra Mojada since September 2019. The Company has filed criminal complaints with the State of Coahuila, federal and state authorities have been contacted to intervene and terminate the blockade, and the Company has attempted to negotiate with Mineros Norteños, without resolution to date. The Company has not accrued any amounts in its consolidated financial statements with respect to this claim.
Valdez Case
On February 15, 2016, Messrs. Jaime Valdez Farias and Maria Asuncion Perez Alonso (collectively, “Valdez”) filed an action before the Local First Civil Court of Torreon, State of Coahuila, Mexico, against the Company’s subsidiary, Minera Metalin, claiming that Minera Metalin had breached an agreement regarding the development of the Sierra Mojada Property. Valdez sought payment in the amount of $5.9 million for the alleged breach of the agreement. On April 28, 2016, Minera Metalin filed its response to the complaint, asserting various defenses, including that Minera Metalin terminated the agreement before the payment obligations arose and that certain conditions precedent to such payment obligations were never satisfied by Valdez. The Company and its Mexican legal counsel asserted all applicable defenses. In May 2017, a final judgment was entered finding for the Company, the defendant, acquitting it of all of the plaintiff’s claims and demands. However, due to a technicality in an early procedural act, Valdez was allowed to, and did, challenge the judgment before a local Appeals Court. On October 1, 2020, the Appeals Court entered a resolution overturning the previous judgment and entering a resolution in favor of Valdez in the amount of $5 million, plus court costs. In November 2020, the judgment of the Appeals Court was timely challenged by the Company by means of an “Amparo” lawsuit (Constitutional protection) before a Federal Circuit Court. In June 2021, the Federal Circuit Court ruled in favor of the plaintiff. In consultation with the Company’s Mexican legal counsel, the Company believes these judgments are contrary to applicable law. No efforts have been made by the plaintiff to enforce the Appeals Court resolution, and in the event such efforts are undertaken, the Company intends to assert a variety of further defenses. The Company believes the likelihood of the plaintiff succeeding in collecting any amount on this claim is remote, as such it has not accrued any amounts in the consolidated financial statements with respect to this claim.
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ICSID Arbitration
On March 2, 2023, the Company filed a NAFTA Notice of Intent to seek compensation for losses arising out of the illegal blockade of the Sierra Mojada Property by Mineros Norteños and Mexico’s unlawful conduct in respect of the blockade.
As is required by Article 1118 of NAFTA, the Company sought to settle this dispute with Mexico through consultations. On May 30, 2023, the Company attended a meeting with Mexican government officials in Mexico City, but, notwithstanding the Company’s good faith efforts to resolve the dispute amicably, no settlement was reached. Accordingly, the Company filed a request for arbitration with the ICSID on June 28, 2023. On July 20, 2023, ICSID registered the request.
The Arbitration was initiated under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States process, which falls under the auspices of ICSID.
As Arbitration proceedings are in early stages, the Company cannot determine the likelihood of succeeding in collecting any amount, as such has not accrued any amounts in the consolidated financial statements with respect to this claim.
See Note 16 – Commitments and Contingencies to the Company’s consolidated financial statements.
| Item 4. | MINE SAFETY DISCLOSURES |
Not applicable.
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PART II
| Item 5. | MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES |
Market Information
From May 2, 2011 to June 28, 2015,
Silver Bull’s common stock traded on the NYSE MKT (the predecessor stock exchange to the NYSE American) under the symbol “
The sales prices on the OTCQB reflect inter-dealer prices, without retail mark-up, mark-down or commission and may not necessarily represent actual transactions.
Holders
As of January 26, 2024, there were 262 holders of record of the Company’s common stock. This does not include persons or entities that hold common stock in brokerage accounts or otherwise in “street name.”
Dividends
The Company has not declared or paid any cash dividends on its common stock during the last two fiscal years. The Company has no plans to pay any cash dividends in the foreseeable future.
Securities Authorized for Issuance Under Equity Compensation Plans
As of October 31, 2023, the Company had one formal equity compensation plan under which equity securities were authorized for issuance to its officers, directors, employees and consultants: the 2019 Stock Option and Stock Bonus Plan (the “2019 Plan”). The 2019 Plan was adopted by the board of directors in February 2019 and approved by the shareholders in April 2019. The 2019 Plan was amended by the board of directors in February 2022, and the amendment was approved by shareholders in April 2022 (the “Amended 2019 Plan”). Under the Amended 2019 Plan, the lesser of (i) 15,000,000 shares or (ii) 10% of the total shares outstanding will be reserved to be issued upon the exercise of options or the grant of stock bonuses. As of October 31, 2023, there were 2,436,565 shares reserved for issuance under the Amended 2019 Plan.
The following table gives information about the Company’s common stock that may be issued upon the exercise of options, warrants and rights under its compensation plans as of October 31, 2023.
| Plan Category | Number of securities to be issued upon exercise of outstanding options and rights |
Weighted average exercise price of outstanding options and rights |
Number of securities remaining available for future issuance | |||
| Equity compensation plans approved by security holders | 2,300,000 | $0.22 | 2,436,565 | |||
| Total | 2,300,000 | $0.22 | 2,436,565 |
Recent Sales of Unregistered Securities and Purchases of Equity Securities by the Issuer and Affiliated Purchasers
Recent Sales of Unregistered Securities
On October 30, 2023, the Company completed a private placement of an aggregate of 11,685,000 units at a purchase price of $CDN 0.11 per unit (the “$CDN 0.11 Unit”) for aggregate gross proceeds of approximately $929,786 ($CDN 1,285,350). Each $CDN 0.11 Unit consists of one share of common stock and one half of one transferable common stock purchase warrant (each whole warrant, a “$CDN 0.13 Warrant”). Each $CDN 0.13 Warrant entitles the holder thereof to acquire one share of common stock at a price of $CDN 0.13 until October 30, 2028. The Company paid finder’s fees totaling $14,210 to agents with respect to certain purchasers who were introduced by these agents. The Company relied on the exemption from registration under Section 4(a)(2) of the Securities Act or Rule 506 of Regulation D, or Regulation S, for purposes of the $CDN 0.11 Unit private placement.
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Purchases of Equity Securities by the Company and Affiliated Purchasers
No purchases of equity securities were made by or on behalf of Silver Bull or any “affiliated purchaser” within the meaning of Rule 10b-18 under the Exchange Act during the period covered by this report.
| Item 6. | [RESERVED] |
| Item 7. | MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
Business Overview
Silver Bull, incorporated in Nevada, is an exploration stage company, engaged in the business of mineral exploration. The Company’s primary objective is to define sufficient mineral reserves on the Sierra Mojada Property to justify the development of a mechanized mining operation. Operations in Mexico are conducted through the Company’s wholly-owned Mexican subsidiaries, Minera Metalin and Minas. However, as noted above, Silver Bull has not established any reserves at the Sierra Mojada Property, is in the exploration stage and may never enter the development or production stage.
Silver Bull’s corporate office is located at 777 Dunsmuir Street, Suite 1605, Vancouver, British Columbia, Canada V7Y 1K4, telephone number is (604) 687-5800.
Recent Developments
2023 Private Placement
On October 30, 2023, the Company completed a private placement financing under the Canadian Listed Issuer Financing Exemption, raising gross proceeds of $929,786, by issuing 11,685,000 units consisting of one share of common stock and one half of one common stock purchase warrant as described below in the “Material Changes in Financial Condition; Liquidity and Capital Resources” section.
Litigation Funding Agreement
On September 5, 2023, the Company entered into a litigation funding agreement (“Funding Agreement” or the “LFA”) with Bench Walk. Under the terms of the Funding Agreement, Bench Walk has agreed to fund the Company with up to $9.5 million to cover the Company’s legal, tribunal and external expert costs and defined corporate operating expenses associated with the Arbitration proceedings as a purchase of a contingent entitlement to damages.
ICSID Arbitration
On June 28, 2023, the Company commenced international arbitration proceedings against Mexico under the USMCA and NAFTA, arising from Mexico’s unlawful expropriation and other unlawful treatment of Silver Bull and its investments resulting from the illegal blockade of the Company’s Sierra Mojada project.
Management and Board Changes
On April 25, 2023, Mr. Darren Klinck ceased serving as the President of the Company. Mr. Tim Barry (the Company’s Chief Executive Officer) was appointed as the Company’s President, replacing Mr. Klinck.
On March 2, 2023, Mr. William Matlack was appointed to the board of directors of the Company as an independent director. Mr. Matlack is a veteran geologist with over a 20-year career in the mining industry, working primarily with Santa Fe Pacific Gold Corp. (now Newmont Mining) and Gold Fields. Mr. Matlack was involved in the exploration and development of several world-class gold discoveries in Nevada and California. Later, he was an equity research analyst in metals & mining with Citigroup and BMO Capital Markets, and an investment banker in metals & mining with Scarsdale Equities. Mr. Matlack was interim CEO of Klondex Mines Limited (“Klondex”) in 2012 and was a director of Klondex from 2012 to 2018 during its transformation from an explorer to gold producer in Nevada. Mr. Matlack has served as a director of Timberline Resources Corp. since October 2019.
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Results of Operations
Fiscal Year Ended October 31, 2023 Compared to Fiscal Year Ended October 31, 2022
For the fiscal year ended October 31, 2023, the Company reported a consolidated net loss of $1,251,000 or approximately $0.04 per share, compared to a consolidated net loss of $3,168,000 or approximately $0.09 per share during the fiscal year ended October 31, 2022. The $1,917,000 decrease in the consolidated net loss was primarily due to a $2,060,000 decrease in exploration and property holding costs (which was mainly the result of the $2,058,000 goodwill impairment during the fiscal year ended October 31, 2022) and a $110,000 decrease in administrative expenses, which was partially offset by a $255,000 decrease in other income in the 2023 fiscal year compared to the 2022 fiscal year as described below.
Exploration and Property Holding Costs
Exploration and property holding costs decreased by $2,060,000 to $332,000 in the 2023 fiscal year from $2,392,000 in the 2022 fiscal year. This decrease was mainly the result of a $2,058,000 goodwill impairment during the fiscal year ended October 31, 2022 and a $9,000 decrease in exploration and holding costs, which was offset by a $16,000 concession impairment in the 2023 fiscal year.
General and Administrative Costs
General and administrative expenses decreased by $110,000 to $935,000 in the 2023 fiscal year from $1,045,000 in the 2022 fiscal year as described below.
Stock-based compensation was a factor in the fluctuations in general and administrative expenses. Overall stock-based compensation included in general and administrative expense decreased to $73,000 in the 2023 fiscal year from $296,000 in the 2022 fiscal year. This was mainly due to stock options granted to the Company’s employees, directors and advisors in the 2022 fiscal year.
Personnel costs decreased by $161,000 to $292,000 in the 2023 fiscal year from $453,000 in the 2022 fiscal year. This decrease was mainly due to a $177,000 decrease in stock-based compensation expenses in the 2023 fiscal year to $47,000 from $224,000 in the 2022 fiscal year as a result of stock options vesting in the 2023 fiscal year having a lower fair value than stock options vesting in the 2022 fiscal year, which were partially offset by a $18,000 increase in employees’ salaries and bonuses.
Office and administrative expenses decreased by $16,000 to $219,000 in the 2023 fiscal year from $235,000 in the 2022 fiscal year. This decrease was primarily due to decreased insurance, which were partially offset by a $13,000 increase in travel costs.
Professional services increased by $291,000 to $474,000 in the 2023 fiscal year from $183,000 in the 2022 fiscal year. This increase was mainly due to arbitration-related costs incurred in relation to the Arbitration (as described in the “Recent Developments” section).
Directors’ fees decreased by $45,000 to $113,000 in the 2023 fiscal year as compared to $158,000 for the 2022 fiscal year. This decrease was primarily due to a $46,000 decrease the stock-based compensation expense to $26,000 in the 2023 fiscal year from $72,000 in the 2022 fiscal year as a result of stock options vesting in the 2023 fiscal year having a lower fair value than stock options vesting in the 2022 fiscal year.
The Company recorded a $45,000 provision for uncollectible VAT for the 2023 fiscal year as compared to a $14,000 provision for uncollectible VAT in the 2022 fiscal year. The allowance for uncollectible taxes in Mexico was estimated by management based upon a number of factors, including the length of time the returns have been outstanding, responses received from tax authorities, general economic conditions in Mexico and estimated net recovery after commissions.
In the current year, the Company recorded a contra expense of $209,000 which is comprised of funds from the litigation Funding Agreement. Bench Walk is funding the Company’s legal, tribunal and external expert costs and defined corporate operating expenses. This is a nonrecourse agreement, and the Company has no obligation to repay any funds received under the agreement. In the event of a favorable outcome, Bench Walk would recover disbursed funding as part of their investment return.
As part of that funding arrangement, Bench Walk agreed to reimburse Silver Bull $237,000 which was comprised of $97,000 for reimbursement of previously incurred expenses and $140,000 for working capital including incurred general and administrative costs. As the Funding Agreement was entered into in September 2023, there is no comparable amount in the prior year.
During the fiscal year ended October 31, 2023, the arbitration lawyers incurred $473,774 in legal costs, all of which was paid by Bench Walk directly.
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Other Income
The Company recorded other income of $18,000 in the 2023 fiscal year as compared to other income of $273,000 in the 2022 fiscal year. The significant factor contributing to other income in the 2023 fiscal year was a $32,000 interest income and a $9,000 foreign currency transaction income, which was offset by $20,000 other costs related to the certain years’ VAT and corporate taxes disputes with Mexican tax authorities and a $3,000 expense related to the issuance of warrants. The significant factor contributing to other income in the 2022 fiscal year was a gain of $301,000 from selling Arras common shares and interest income of $6,000, which was offset by a $34,000 foreign currency transaction loss.
Material Changes in Financial Condition; Liquidity and Capital Resources
2023 Private Placement
On October 30, 2023, the Company completed a private placement of 11,685,000 units at a purchase price of $CDN 0.11 per unit (the “$CDN 0.11 Unit”) for aggregate gross proceeds of $929,786 ($CDN 1,285,350). Each $CDN 0.11 Unit consists of one share of common stock of the Company and one half of one transferable common stock purchase warrant (each whole warrant, a “$CDN 0.13 Warrant”). Each $CDN 0.13 Warrant entitles the holder thereof to acquire one share of common stock at a price of $CDN 0.13 for a period of 60 months from the closing of the private placement. The Company paid finders’ fees totaling $14,210 to agents with respect to certain purchasers who were introduced by these agents. In addition, the Company incurred other offering costs of approximately $29,145.
Litigation Funding Agreement
As noted above, pursuant to the Funding Agreement, Bench Walk is paying up to an aggregate of $9.5 million to fund legal costs and other expenses incurred by the Company in connection with the Claim, including an amount for reasonably incurred day-to-day operating expenses of the Company. During the 2023 fiscal year, the Company received initial funding of $97,000 as reimbursement of corporate operating costs incurred. In January 2024, the Company received an additional reimbursement of $200,000 from Bench Walk.
The Company agreed that the Bench Walk shall be entitled to receive a share of any proceeds arising from the Claim (the “Claim Proceeds”) of up to 3.5x Bench Walk’s capital outlay (or, if greater, a return of 1.0x Bench Walk’s capital outlay plus 30% of the Claim Proceeds). The actual return to Bench Walk may be lower than the foregoing amounts depending on how quickly the Claim is resolved.
Cash Flows
During the 2023 fiscal year, cash and cash equivalents were primarily utilized to fund general and administrative expenses and exploration activities at the Sierra Mojada Property. In addition, the Company received net proceeds of $916,000 from the private placement and $97,000 from Bench Walk . As a result of the net cash proceeds received from the private placement and the arbitration funding from Bench Walk, which was partially offset by exploration activities and general and administrative expenses, cash and cash on hand increased from $887,000 at October 31, 2022 to $1,009,000 at October 31, 2023.
Cash flows used in operations for the 2023 fiscal year were $794,000 as compared to $1,255,000 for the 2022 fiscal year. The decrease was mainly due to the timing of certain payments.
Cash flows provided by investing activities for the 2023 fiscal year was $nil. Cash flows provided by investing activities for the 2022 fiscal year were $1,434,000 from the sale of Arras common shares.
Cash flows provided by financing activities for the 2023 fiscal year were $916,000 as compared to $518,000 in the 2022 fiscal year. The cash flows provided by financing activities in the 2023 fiscal year was due to the private placement the Company completed and the cash flows provided by financing activities in the 2022 fiscal year were due to funding from South32.
Capital Resources
As of October 31, 2023, the Company had cash and cash equivalents of $1,009,000 as compared to cash and cash equivalents of $887,000 as of October 31, 2022. The increase in liquidity was primarily the result of the proceeds from the private placement, which were partially offset by exploration activities and property holding costs at the Sierra Mojada Property and general and administrative expenses.
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Since the Company’s inception in November 1993, it has not generated revenue and has incurred an accumulated deficit of $138,645,000. Accordingly, the Company has not generated cash flows from operations, and since inception has relied primarily upon proceeds from private placements and registered direct offerings of its equity securities, warrant exercises, the sale of investments and funding from Bench Walk and South32 as the primary sources of financing to fund operations. Based on the limited cash and cash equivalents, and history of losses, there is substantial doubt as to whether the Company’s existing cash resources are sufficient to enable it to continue operations for the next 12 months as a going concern. Management plans to pursue possible financing and strategic options, including, but not limited to, obtaining additional equity financing and the exercise of warrants by warrantholders. However, there is no assurance that the Company will be successful in pursuing these plans.
Any future additional financing in the near term will likely be in the form of the issuance of equity securities, which will result in dilution to Silver Bull’s existing shareholders. Moreover, the Company may incur significant fees and expenses in the pursuit of a financing or other strategic transaction, which will increase the rate at which its cash and cash equivalents are depleted.
Capital Requirements and Liquidity; Need for Additional Funding
The Company’s management and board of directors monitor overall costs, expenses, and financial resources and, if necessary, will adjust planned operational expenditures in an attempt to ensure that the Company has sufficient operating capital. The Company continues to evaluate its costs and planned expenditures, including its Sierra Mojada Property as discussed below.
If the blockade is resolved, and exploration of the Sierra Mojada project is restarted, the Company will require significant amounts of additional capital. As of December 31, 2023, the Company had approximately $0.3 million in cash and cash equivalents. The continued exploration of the Sierra Mojada Property ultimately would require the Company to raise additional capital, identify other sources of funding, identify a strategic partner or other strategic alternatives.
The Company will continue to evaluate its ability to obtain additional financial resources, and will attempt to reduce or limit expenditures on the Sierra Mojada Property as well as general and administrative costs if it is determined that additional financial resources are unavailable or available on terms that it determines are unacceptable. However, it may not be possible to reduce costs, and even if the Company is successful in reducing costs, it still may not be able to continue operations for the next 12 months as a going concern. Debt or equity financing may not be available on acceptable terms, if at all. Equity financing, if available, may result in substantial dilution to existing stockholders. If the Company is unable to fund future operations by way of financings, including public or private offerings of equity or debt securities, its business, financial condition and results of operations will be adversely impacted.
Off-Balance Sheet Arrangements
There are no significant off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on the Company’s financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that are material to its shareholders.
Recent Accounting Pronouncements Adopted in the Fiscal Year Ended October 31, 2023
In November 2021, Silver Bull adopted the Financial Accounting Standards Board’s (“FASB”) Accounting Standards Updated (“ASU”) 2021-10, “Government Assistance (Topic 832)” which provides guidance for required annual disclosures about transactions with a government that are accounted for by applying a grant or contribution accounting model by analogy. The Company adopted this standard as of November 1, 2022. The adoption did not have a significant impact on the Company’s financial position, results of operations or cash flows and disclosures.
Recent Accounting Pronouncements Not Yet Adopted
In November 2023, the FASB issued ASU 2023-07, Segment Reporting (Topic 280): Improvements to Reportable Segment Disclosures. The ASU expands public entities’ segment disclosures by requiring disclosure of significant segment expenses that are regularly provided to the chief operating decision maker and included within each reported measure of segment profit or loss, an amount and description of its composition for other segment items, and interim disclosures of a reportable segment’s profit or loss and assets. All disclosure requirements under ASU 2023-07 are also required for public entities with a single reportable segment. The ASU is effective for the Company’s Annual Report on Form 10-K for the fiscal year ended October 31, 2024, with early adoption permitted. The Company is currently evaluating the impact of adopting this ASU on its consolidated financial statements and disclosures.
In March 2022, the FASB issued ASU 2022-01, “Derivatives and Hedging (Topic 815): Fair Value Hedging—Portfolio Layer Method” which is intended to make amendments to the fair value hedge accounting previously issued in ASU 2017-12 “Derivatives and Hedging (Topic 815): Targeted Improvements to Accounting for Hedging Activities”. The new standard will be effective for reporting periods beginning after December 15, 2022. The standard introduced the portfolio layer method allowing multiple hedged layers of a single closed portfolio when applying fair value hedge accounting. The adoption of this update is not expected to have a significant impact on the Company’s financial position, results of operations or cash flows and disclosures.
Other recent accounting pronouncements issued by the FASB (including its Emerging Issues Task Force) and the SEC did not or are not expected to have a significant impact on the present or future consolidated financial statements of the Company.
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Critical Accounting Policies and Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America (“GAAP”) requires the Company to establish accounting policies and make estimates and assumptions that affect reported amounts of assets and liabilities at the date of the consolidated financial statements. These consolidated financial statements include some estimates and assumptions that are based on informed judgments and estimates of management. The Company evaluates its policies and estimates on an ongoing basis and discuss the development, selection and disclosure of critical accounting policies with the audit committee of the board of directors. Predicting future events is inherently an imprecise activity and as such requires the use of judgment. The Company’s consolidated financial statements may differ based upon different estimates and assumptions.
Significant accounting policies are discussed in Note 2, Summary of Significant Accounting Policies, to the consolidated financial statements. The significant accounting policies are subject to judgments and uncertainties that affect the application of such policies. The Company believes that these consolidated financial statements include the most likely outcomes with regard to amounts that are based on management’s judgment and estimates. The consolidated financial position and results of operations may be materially different when reported under different conditions or when using different assumptions in the application of such policies. If estimates or assumptions prove to be different from the actual amounts, adjustments are made in subsequent periods to reflect more current information. The Company believes that the following accounting policies are critical to the preparation of its consolidated financial statements due to the estimation process and business judgment involved in their application:
Principles of Consolidation – South32 Option Agreement
The Company consolidated entities in which it had a controlling financial interest based on either the variable interest entity (VIE) or voting interest model. Generally, the primary beneficiary of a VIE is a reporting entity that has (a) the power to direct the activities that most significantly impact the VIE’s economic performance, and (b) the obligation to absorb losses of, or the right to receive benefits from, the VIE that could potentially be significant to the VIE. Currently, the Company manages the mineral exploration program in the property concessions in Mexico through its wholly-owned subsidiary corporations Minera Metalin.
The Company determined that Minera Metalin was a variable interest entity and it was the primary beneficiary.
Management had applied judgment in reaching its conclusion with respect to accounting for the South32 Option Agreement with South32, described in Note 3 to the consolidated financial statements. Under the South32 Option Agreement, South32 was able to obtain an option to purchase 70% of the shares of Minera Metalin (the “South32 Option”). Management had determined that the South32 Option Agreement did not result in the transfer of control of the Sierra Mojada Project to South32 and that the South32 Option Agreement represented non-employee share-based compensation associated with the collaborative exploration program undertaken by the parties. The compensation cost was expensed when the associated exploration activity occurred. The share-based payments had been classified as equity instruments and valued based on the fair value of consideration received, as it was more reliably measurable than the fair value of the equity interest. In the event the South32 Option was exercised and shares were issued prior to a decision to develop a mine, such shares would have been classified as temporary equity as they would have been contingently redeemable in exchange for a net smelter royalty under circumstances not wholly in control of the Company or South32 and which were not probable. No portion of the equity value has been classified as temporary equity as the South32 Option has no intrinsic value.
Use of Estimates
The preparation of the consolidated financial statements in conformity with GAAP requires management to make estimates based on assumptions about future events that affect the amounts reported in the consolidated financial statements and related notes to the consolidated financial statements. Actual results could differ from those estimates. Estimates and assumptions are reviewed on an ongoing basis based on historical experience and other factors that are considered to be relevant under the circumstances. Revisions to estimates and assumptions are accounted for prospectively.
Significant areas involving the use of estimates include determining the allowance for uncollectible taxes, evaluating recoverability of property concessions, evaluating impairment of long-lived assets, evaluating impairment of goodwill, establishing a valuation allowance on future use of deferred tax assets, calculating a valuation for stock option liability and calculating stock-based compensation.
| 30 |
Accounts Receivable
Accounts Receivable consists of corporate costs that are to be reimbursed by Bench Walk pursuant to the terms of the Funding Agreement. The Company anticipates full recovery of its current receivables within three months.
Property Concessions
Property concession acquisition costs are capitalized when incurred and will be amortized using the units of production method following the commencement of production. If a property concession is subsequently abandoned or impaired, any capitalized costs will be expensed in the period of abandonment or impairment. To date, no property concessions have reached the production stage.
Acquisition costs include cash consideration and the fair market value of shares issued on the acquisition of property concessions.
Exploration Costs
Exploration costs incurred are expensed to the date of establishing that costs incurred are economically recoverable. Exploration expenditures incurred subsequent to the establishment of economic recoverability are capitalized and included in the carrying amount of the related property. To date, the Company has not established the economic recoverability of its exploration prospects; therefore, all exploration costs are being expensed.
Impairment of Long-Lived Assets
The Company reviews and evaluates its long-lived assets for impairment when events and changes in circumstances indicate that the related carrying amounts of its assets may not be recoverable. Impairment is considered to exist if the future cash flows on an undiscounted basis are less than the carrying amount of the long-lived asset. An impairment loss is measured and recorded based on the difference between book value and fair value of the asset group. In estimating future cash flows, assets are grouped at the lowest level for which there is identifiable cash flows that are largely independent of cash flows from other asset groups. In estimating future cash flows, the Company estimates the price that would be received to sell an asset group in an orderly transaction between market participants at the measurement date. Significant factors that impact this price include the price of silver and zinc, and general market conditions for exploration companies, among other factors.
Goodwill
Goodwill is the purchase premium after adjusting for the fair value of net assets acquired. Goodwill is tested for impairment at the reporting unit level at least annually, or more frequently if events or changes in circumstances indicate that the assets may be impaired. Goodwill impairment tests require judgment, including the identification of reporting units, assignment of assets and liabilities to reporting units, assignment of goodwill to reporting units, and determination of the fair value of each reporting unit. Annual goodwill impairment testing is performed on April 30th of each fiscal year.
Income Taxes
The Tax Cuts and Jobs Act of 2017 was signed into law on December 22, 2017. The law includes significant changes to the U.S. corporate income tax system, including a federal corporate rate reduction from 35% to 21%, limitations on the deductibility of interest expense and executive compensation, and the transition of U.S. international taxation from a worldwide tax system to a territorial tax system. The law did not have a material impact on the Company’s financial position, results of operations or cash flows and disclosures.
The asset and liability method of accounting for income taxes is followed. Under this method, deferred income tax assets and liabilities are determined based on temporary differences between the tax basis and accounting basis of the assets and liabilities measured using tax rates enacted at the balance sheet date. The tax benefit from uncertain tax positions is recognized only if it is at least “more likely than not” that the tax position will be sustained on examination by the taxing authorities, based on the technical merits of the position. The tax benefits recognized in the financial statements from such a position are measured based on the largest benefit that has a greater than 50% likelihood of being realized upon settlement with the taxing authorities. This accounting standard also provides guidance on de-recognition, classification, interest and penalties, accounting in interim periods and disclosure.
A valuation allowance is recorded against deferred tax assets if management does not believe that the Company has met the “more likely than not” standard imposed by this guidance to allow recognition of such an asset. Management recorded a full valuation allowance at October 31, 2023 and October 31, 2022 against the deferred tax assets as it determined that future realization would not meet the “more likely than not” criteria.
| 31 |
Warrant Derivative liability
The Company classified warrants on the Company’s balance sheet as a derivative liability which is fair valued at each reporting period subsequent to the initial issuance as the Company’s functional currency is the U.S. dollar and the exercise price of the warrants is the $CDN. The Company has used the Black-Scholes pricing model to value the warrants that do not have an acceleration feature. Determining the appropriate fair-value model and calculating the fair value of warrants requires considerable judgment. Any change in the estimates used may cause the value to be higher or lower than that reported. The estimated volatility of the common stock of the Company at the date of issuance, and at each subsequent reporting period, is based on historical volatility adjusted to reflect implicit discount to historical volatilities observed in the prices of traded warrants. The risk-free interest rate is based on rates published by the government for bonds with a maturity similar to the expected remaining life of the warrants at the valuation date. The expected life of the warrants is assumed to be equivalent to their remaining contractual term. The dividend yield is expected to be none as the Company has not paid dividends nor does the Company anticipate paying any dividend in the foreseeable future.
The derivative is not traded in an active market and the fair value is determined using valuation techniques. The estimates may be significantly different from those recorded in the consolidated financial statements because of the use of judgment and the inherent uncertainty in estimating the fair value of these instruments that are not quoted in an active market. All changes in the fair value are recorded in the consolidated statement of operations and comprehensive loss each reporting period.
Stock-Based Compensation
The Black-Scholes pricing model is used as a method for determining the estimated fair value for all stock options awarded to employees, officers, directors and consultants. The expected term of the options is based upon an evaluation of historical and expected future exercise behavior. The risk-free interest rate is based on rates published by the government for bonds with a maturity similar to the expected remaining life of the options at the valuation date. Volatility is determined based upon historical volatility of the Company’s stock and adjusted if future volatility is expected to vary from historical experience. The dividend yield is assumed to be none as Silver Bull has not paid dividends nor does it anticipate paying any dividends in the foreseeable future. The graded vesting attribution method is used to recognize compensation costs over the requisite service period.
Cumulative compensation cost associated with options on subsidiary equity are classified as additional paid-in capital until exercised.
Foreign Currency Translation
During the fiscal years ended October 31, 2023 and October 31, 2022, the functional currency of Silver Bull Resources, Inc. and its subsidiaries was the U.S. dollar.
During the fiscal years ended October 31, 2023 and October 31, 2022, Silver Bull’s Mexican operations’ monetary assets and liabilities with foreign source currencies were translated into U.S. dollars at the period-end exchange rate, and non-monetary assets and liabilities with foreign source currencies were translated using the historical exchange rate. The Mexican operations’ revenue and expenses were translated at the average exchange rate during the period except for depreciation of office and mining equipment, costs of office and mining equipment sold and impairment of property concessions, all of which are translated using the historical exchange rate. Foreign currency translation gains and losses of the Mexican operations are included in the consolidated statements of operations.
Accounting for Loss Contingencies and Legal Costs
From time to time, the Company is named as a defendant in legal actions arising from its normal business activities. An accrual for the estimated loss from a loss contingency is recorded when information available prior to issuance of the financial statements indicates that it is probable that a liability has been incurred at the date of the financial statements and the amount of the loss can be reasonably estimated. Disclosure of a loss contingency is made by the Company if there is at least a reasonable possibility that a loss has been incurred, and either an accrual has not been made or an exposure to loss exists in excess of the amount accrued. In cases where only disclosure of the loss contingency is required, either the estimated loss or a range of estimated loss is disclosed or it is stated that an estimate cannot be made. Legal costs incurred in connection with loss contingencies are considered period costs and accordingly are expensed in the period services are provided.
| Item 7A. | Quantitative AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
Not applicable.
| Item 8. | FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA |
See “Index to Consolidated Financial Statements” following the signature page of this Annual Report on Form 10-K.
| 32 |
| Item 9. | CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE |
None.
| Item 9A. | CONTROLS AND PROCEDURES |
(a) Evaluation of Disclosure Controls and Procedures
As of October 31, 2023, the Company has carried out an evaluation under the supervision of, and with the participation of its Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of its disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act). Based on the evaluation as of October 31, 2023, the Company’s Chief Executive Officer and Chief Financial Officer have concluded that its disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) were effective.
Disclosure controls and procedures are designed to ensure that information required to be disclosed in the Company’s reports filed or submitted under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed in its reports filed under the Exchange Act is accumulated and communicated to management, including the Company’s principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure.
(b) Management’s Report on Internal Control over Financial Reporting
Management is responsible for establishing and maintaining adequate internal control over financial reporting, as that term is defined in Rule 13a-15(f) under the Exchange Act. Under the supervision and with the participation of the Company’s management, including its principal executive and principal financial officers, the Company assessed, as of October 31, 2023, the effectiveness of its internal control over financial reporting. This assessment was based on criteria established in the Internal Control-Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on the Company’s assessment using those criteria, management concluded that its internal control over financial reporting as of October 31, 2023 was effective.
Internal control over financial reporting is defined as a process designed by, or under the supervision of, the Company’s principal executive and principal financial officers and effected by its board of directors, management and other personnel to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles, and includes those policies and procedures that:
- pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the Company’s assets;
- provide reasonable assurance that transactions are recorded as necessary to permit the preparation of financial statements in accordance with U.S. generally accepted accounting principles and that receipts and expenditures are being made only in accordance with authorizations of management and directors; and
- provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of assets that could have a material effect on the financial statements.
A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the internal control system are met. Because of the inherent limitations of any internal control system, no evaluation of controls can provide absolute assurance that all control issues, if any, within a company have been detected.
(c) Changes in Internal Controls over Financial Reporting
There were no changes in the Company’s internal control over financial reporting during the fiscal year ended October 31, 2023 that materially affected, or were reasonably likely to materially affect, its internal control over financial reporting.
| Item 9B. | OTHER INFORMATION |
None.
| Item 9C. | DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS |
Not applicable.
| 33 |
PART III
| Item 10. | DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE |
Information relating to this item will be included in an amendment to this report or in the proxy statement for Silver Bull’s 2024 annual meeting of shareholders and is incorporated by reference in this report.
The Company has adopted a Code of Ethics that applies to all directors and employees, including its principal executive officer, principal financial officer, principal accounting officer, and those officers performing similar functions. The full text of the Company’s Code of Ethics can be found on the Corporate Governance page of its website – at http://www.silverbullresources.com/corporate/corporate-governance/. If the board of directors approves an amendment to or waiver from any provision of the Code of Ethics, Silver Bull will disclose the required information pertaining to such amendment or waiver on its website.
| Item 11. | EXECUTIVE COMPENSATION |
Information relating to this item will be included in an amendment to this report or in the proxy statement for Silver Bull’s 2024 annual meeting of shareholders and is incorporated by reference in this report.
| Item 12. | SECURITY OWNERSHIP OF Certain BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS |
Information relating to this item will be included in an amendment to this report or in the proxy statement for Silver Bull’s 2024 annual meeting of shareholders and is incorporated by reference in this report.
| Item 13. | CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE |
Information relating to this item will be included in an amendment to this report or in the proxy statement for Silver Bull’s 2024 annual meeting of shareholders and is incorporated by reference in this report.
| Item 14. | PRINCIPAL ACCOUNTant FEES AND SERVICES |
Information relating to this item will be included in an amendment to this report or in the proxy statement for Silver Bull’s 2024 annual meeting of shareholders and is incorporated by reference in this report.
| 34 |
PART IV
| Item 15. | EXHIBITS, FINANCIAL STATEMENT SCHEDULES |
Financial Statements and Financial Statement Schedules
See “Index to Consolidated financial statements” on page F-1.
| 35 |
X Filed herewith.
XX Furnished herewith.
+ Indicates a management contract or compensatory plan, contract or arrangement.
† Filed herewith under Items 1 and 2 – Business and Properties.
†† Portions of this exhibit have been omitted in accordance with Item 601(b)(10) of Regulation S-K. The omitted information is not material, and the registrant customarily and actually treats such information as private and confidential. The registrant hereby agrees to furnish supplementally an unredacted copy of this exhibit to the Securities and Exchange Commission upon request.
* The following financial information from Silver Bull Resources, Inc.‘s Annual Report on Form 10-K for the fiscal year ended October 31, 2023, formatted in XBRL (Extensible Business Reporting Language): Consolidated Balance Sheets, Consolidated Statements of Operations and Comprehensive Loss, Consolidated Statement of Stockholders’ Equity, Consolidated Statements of Cash Flows.
| Item 16. | FORM 10-K SUMMARY |
None.
| 36 |
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| SILVER BULL RESOURCES, INC. | |||
| Date: January 29, 2024 | By: | /s/ Timothy Barry | |
| Timothy Barry | |||
| Chief Executive Officer | |||
| (Principal Executive Officer) | |||
| Date: January 29, 2024 | By: | /s/ Christopher Richards | |
| Christopher Richards | |||
| Chief Financial Officer | |||
| (Principal Financial Officer and Principal Accounting Officer) |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| Date: January 29, 2024 | By: | /s/ Timothy Barry | |
| Timothy Barry | |||
| Chief Executive Officer and Director | |||
| Date: January 29, 2024 | By: | /s/ Brian Edgar | |
| Brian Edgar | |||
| Director | |||
| Date: January 29, 2024 | By: | /s/ William Matlack | |
| William Matlack | |||
| Director | |||
| Date: January 29, 2024 | By: | /s/ David Underwood | |
| David Underwood | |||
| Director |
| 37 |
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
SILVER BULL RESOURCES, INC.
(An Exploration Stage Company)
| PAGE NO. | ||
| Report of Independent Registered Public Accounting Firm | F-2 | |
| Consolidated Financial Statements: | ||
| Consolidated Balance Sheets | F-3 | |
| Consolidated Statements of Operations and Comprehensive Loss | F-4 | |
| Consolidated Statements of Cash Flows | F-5 – F-6 | |
| Consolidated Statements of Stockholders’ Equity | F-7 | |
| Notes to Consolidated Financial Statements | F-8 – F-25 |
[The balance of this page has been intentionally left blank.]
| F-1 |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of Silver Bull Resources, Inc.:
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of Silver Bull Resources, Inc. (an exploration stage company) (the “Company”) as of October 31, 2023 and 2022, and the related consolidated statements of operations and comprehensive loss, cash flows, and stockholders’ equity for the years then ended, and the related notes (collectively referred to as the “consolidated financial statements”).
In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of October 31, 2023 and 2022, and the results of its operations and its cash flows for the years then ended, in conformity with
accounting principles generally accepted in the United States of America.
Going Concern Uncertainty
The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the consolidated financial statements, the Company has suffered recurring losses from operations and has limited cash and cash equivalents at October 31, 2023. These circumstances raise substantial doubt about its ability to continue as a going concern. Management’s plans in regard to these matters are also described in Note 1. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matters
Critical audit matters are matters arising from the current period audit of the consolidated financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the consolidated financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing a separate opinion on the critical audit matters or on the accounts or disclosures to which they relate.
We have determined that there are no critical audit matters to communicate in our auditors’ report.
/s/ Smythe LLP
We have served as the Company’s auditor since 2016.
January 29, 2024
| F-2 |
SILVER BULL RESOURCES, INC.
(AN EXPLORATION STAGE COMPANY)
CONSOLIDATED BALANCE SHEETS
October 31, 2023 |
October 31, 2022 | |||||||
| ASSETS | ||||||||
| CURRENT ASSETS | ||||||||
| Cash and cash equivalents | $ | $ | ||||||
| Other receivables | ||||||||
| Accounts receivable (Note 4) | ||||||||
| Prepaid expenses and deposits | ||||||||
| Due from related party (Note 5) | ||||||||
| Total Current Assets | ||||||||
| Value-added tax receivable, net of allowance for uncollectible taxes of $ | ||||||||
| Office and mining equipment, net (Note 7) | ||||||||
| Property concessions (Note 8) | ||||||||
| TOTAL ASSETS | $ | $ | ||||||
| LIABILITIES AND STOCKHOLDERS’ EQUITY | ||||||||
| CURRENT LIABILITIES | ||||||||
| Accounts payable | $ | $ | ||||||
| Accrued liabilities and expenses | ||||||||
| Income tax payable | ||||||||
| Loan payable (Notes 10 and 18) | ||||||||
| Total Current Liabilities | ||||||||
| Loan payable (Notes 10 and 18) | ||||||||
| Warrant derivative liability (Note 13) | ||||||||
| TOTAL LIABILITIES | ||||||||
| COMMITMENTS AND CONTINGENCIES (Note 16) | ||||||||
| STOCKHOLDERS’ EQUITY (Notes 3, 11, 12 and 13) | ||||||||
| Common stock, $ | ||||||||
| Additional paid-in capital | ||||||||
| Accumulated deficit | ( | ) | ( | ) | ||||
| Other comprehensive income | ||||||||
| Total Stockholders’ Equity | ||||||||
| TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY | $ | $ | ||||||
The accompanying notes are an integral part of these consolidated financial statements.
| F-3 |
SILVER BULL RESOURCES, INC.
(AN EXPLORATION STAGE COMPANY)
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
| Years Ended October 31, | ||||||||
| 2023 | 2022 | |||||||
| REVENUES | $ | $ | ||||||
| EXPLORATION AND PROPERTY HOLDING COSTS | ||||||||
| Exploration and property holding costs (Note 4) | ||||||||
| Depreciation (Note 7) | ||||||||
| Concession impairment (Note 8) | — | |||||||
| Goodwill impairment (Note 9) | — | |||||||
| TOTAL EXPLORATION AND PROPERTY HOLDING COSTS | ||||||||
| GENERAL AND ADMINISTRATIVE EXPENSES | ||||||||
| Personnel | ||||||||
| Office and administrative | ||||||||
| Professional services | ||||||||
| Directors’ fees | ||||||||
| Provision for uncollectible value-added taxes (Note 6) | ||||||||
| Funding Agreement reimbursement (contra expenses) (Note 4) | ( | ) | — | |||||
| TOTAL GENERAL AND ADMINISTRATIVE EXPENSES | ||||||||
| LOSS FROM OPERATIONS | ( | ) | ( | ) | ||||
| OTHER INCOME | ||||||||
| Interest income | ||||||||
| Foreign currency transaction gain (loss) | ( | ) | ||||||
| Other costs (Note 15) | ( | ) | — | |||||
| Warrant issuance costs (Note 11) | ( | ) | — | |||||
| Change in fair value of warrants derivative liability (Note 13) | ( | ) | — | |||||
| Gain on investment (Note 1) | — | |||||||
| TOTAL OTHER INCOME | ||||||||
| LOSS BEFORE INCOME TAXES | ( | ) | ( | ) | ||||
| INCOME TAX EXPENSE (Note 14) | ( | ) | ( | ) | ||||
| NET AND COMPREHENSIVE LOSS | ( | ) | ( | ) | ||||
| $ | ( | ) | $ | ( | ) | |||
The accompanying notes are an integral part of these consolidated financial statements.
| F-4 |
SILVER BULL RESOURCES, INC.
(AN EXPLORATION STAGE COMPANY)
CONSOLIDATED STATEMENTS OF CASH FLOWS
| Years Ended October 31, | ||||||||
| 2023 | 2022 | |||||||
| CASH FLOWS FROM OPERATING ACTIVITIES: | ||||||||
| Net loss | $ | ( | ) | $ | ( | ) | ||
| Adjustments to reconcile net loss to net cash used by operating activities: | ||||||||
| Depreciation (Note 7) | ||||||||
| Concession impairment (Note 8) | ||||||||
| Provision for uncollectible value-added taxes (Note 6) | ||||||||
| Foreign currency transaction (income) loss | ( | ) | ||||||
| Stock options issued for compensation (Note 12) | ||||||||
| Shares of common stock issued for services (Note 11) | ||||||||
| Change in fair value of warrant derivative liability (Note 13) | ||||||||
| Warrant issuance costs (Note 11) | ||||||||
| Goodwill impairment (Note 9) | ||||||||
| Gain on investment (Note 1) | ( | ) | ||||||
| Changes in operating assets and liabilities: | ||||||||
| Other receivables | ( | ) | ||||||
| Accounts receivables (Note 4) | ( | ) | ||||||
| Prepaid expenses and deposits | ||||||||
| Due from related party (Note 5) | ( | ) | ( | ) | ||||
| Accounts payable | ( | ) | ||||||
| Accrued liabilities and expenses | ( | ) | ||||||
| Value-added tax receivable | ( | ) | ( | ) | ||||
| Income tax payable | ||||||||
| Net cash used in operating activities | ( | ) | ( | ) | ||||
| CASH FLOWS FROM INVESTING ACTIVITIES: | ||||||||
| Proceeds from sale of investments, net of costs (Note 1) | ||||||||
| Net cash provided by investing activities | ||||||||
| CASH FLOWS FROM FINANCING ACTIVITIES: | ||||||||
| Proceeds from issuance of common stock, net of offering costs (Note 11) | ||||||||
| Property concessions funding (Note 3) | ||||||||
| Net cash provided by financing activities | ||||||||
| Net increase in cash and cash equivalents | ||||||||
| Cash and cash equivalents beginning of year | ||||||||
| Cash and cash equivalents end of year | $ | $ | ||||||
The accompanying notes are an integral part of these consolidated financial statements.
| F-5 |
SILVER BULL RESOURCES, INC.
(AN EXPLORATION STAGE COMPANY)
CONSOLIDATED STATEMENTS OF CASH FLOWS (CONTINUED)
| Years Ended October 31, | ||||||||
| 2023 | 2022 | |||||||
| SUPPLEMENTAL CASH FLOW DISCLOSURES: | ||||||||
| Income taxes paid | $ | $ | ||||||
| Interest paid | ||||||||
| NON-CASH INVESTING AND FINANCING ACTIVITIES: | ||||||||
| Offering costs included in accounts payable and accrued liabilities | $ | $ | ||||||
The accompanying notes are an integral part of these consolidated financial statements.
| F-6 |
SILVER BULL RESOURCES, INC.
(AN EXPLORATION STAGE COMPANY)
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
| Common Stock | |||||||||||||||||||||||
| Number of Shares | Amount | Additional Paid-in Capital | Accumulated Deficit | Other Comprehensive Income | Total Stockholders’ Equity | |||||||||||||||||||
| Balance, October 31, 2022 | $ | $ | $ | ( | ) | $ | $ | |||||||||||||||||
| Issuance of common stock as follows: | ||||||||||||||||||||||||
| - for cash at a price of $CDN $ | ||||||||||||||||||||||||
| - For compensation at $ | ||||||||||||||||||||||||
| Stock option activity as follows: | ||||||||||||||||||||||||
| - Stock-based compensation for options issued to directors, officers, employees, and advisors (Note 12) | — | |||||||||||||||||||||||
| Net loss for the year ended October 31, 2023 | — | ( | ) | ( | ) | |||||||||||||||||||
| Balance, October 31, 2023 | $ | $ | $ | ( | ) | $ | $ | |||||||||||||||||
| Common Stock | |||||||||||||||||||||||
| Number of Shares | Amount | Additional Paid-in Capital | Accumulated Deficit | Other Comprehensive Income | Total Stockholders’ Equity | |||||||||||||||||||
| Balance, October 31, 2021 | $ | $ | $ | ( | ) | $ | $ | |||||||||||||||||
| Earn-in option agreement (Note 3) | — | |||||||||||||||||||||||
| Issuance of common stock as follows: | ||||||||||||||||||||||||
- for compensation at $ | ||||||||||||||||||||||||
| Stock option activity as follows: | ||||||||||||||||||||||||
| - Stock-based compensation for options issued to directors, officers, employees and advisors (Note 12) | — | |||||||||||||||||||||||
| Net loss for the year ended October 31, 2022 | — | ( | ) | ( | ) | |||||||||||||||||||
| Balance, October 31, 2022 | $ | $ | $ | ( | ) | $ | $ | |||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
| F-7 |
NOTE 1 – ORGANIZATION AND DESCRIPTION OF BUSINESS
Silver Bull Resources, Inc. (the “Company”) was incorporated in the State of Nevada on November 8, 1993 as the Cadgie Company for the purpose of acquiring and developing mineral properties. The Cadgie Company was a spin-off from its predecessor, Precious Metal Mines, Inc. On June 28, 1996, the Company’s name was changed to Metalline Mining Company. On April 21, 2011, the Company’s name was changed to Silver Bull Resources, Inc. The Company’s fiscal year-end is October 31. The Company has not realized any revenues from its planned operations and is considered an exploration stage company. The Company has not established any reserves with respect to its exploration projects and may never enter into the development stage with respect to any of its projects.
The Company engages in the business of mineral exploration. The Company currently owns a number of property concessions in Mexico (collectively known as the “Sierra Mojada Property”). The Company conducts its operations in Mexico through its wholly-owned subsidiary corporations, Minera Metalin S.A. de C.V. (“Minera Metalin”), Contratistas de Sierra Mojada S.A. de C.V. (“Contratistas”) and Minas de Coahuila SBR S.A. de C.V. (“Minas”). On August 26, 2021, Contratistas merged with and into Minera Metalin.
On April 16, 2010, Metalline Mining Delaware, Inc., a wholly-owned subsidiary of the Company incorporated in the State of Delaware, was merged with and into Dome Ventures Corporation (“Dome”), a Delaware corporation. As a result, Dome became a wholly-owned subsidiary of the Company. Dome has a wholly-owned subsidiary Dome Asia Inc., which is incorporated in the British Virgin Islands.
On April 23, 2023, Nomad Minerals Ltd. (“Nomad Minerals”), a wholly-owned subsidiary of the Company, was incorporated in British Columbia, Canada. On April 28, 2023, Nomad Metals Limited was incorporated at Astana International Financial Centre in Astana, Republic of Kazakhstan, as a wholly-owned subsidiary of Nomad Minerals.
On August 12, 2020, the Company entered
into an option agreement (the “Beskauga Option Agreement”) with Copperbelt AG, a corporation existing under the laws of Switzerland
(“Copperbelt Parent”), and Dostyk LLP, an entity existing under the laws of Kazakhstan and a wholly-owned subsidiary of Copperbelt
(the “Copperbelt Sub,” and together with Copperbelt Parent, “Copperbelt”), pursuant to which the Company has the
exclusive right and option to acquire Copperbelt’s right, title and
On February
5, 2021, Arras Minerals Corp. (“Arras”) was incorporated in British Columbia, Canada, as a wholly-owned subsidiary of the
Company. On March 19, 2021, pursuant to an asset purchase agreement with Arras, the Company transferred its right, title and interest
in and to the Beskauga Option Agreement, among other things, to Arras in exchange for
The Company’s efforts and expenditures have been concentrated on the exploration of properties, principally in the Sierra Mojada Property located in Coahuila, Mexico. The Company has not determined whether its exploration properties contain ore reserves that are economically recoverable. The ultimate realization of the Company’s investment in exploration properties is dependent upon the success of future property sales, the existence of economically recoverable reserves, and the ability of the Company to obtain financing or make other arrangements for exploration, development, and future profitable production activities. The ultimate realization of the Company’s investment in exploration properties cannot be determined at this time.
Exploration Stage
The Company has established the existence of mineral resources for the Sierra Mojada Project. The Company has not established proven or probable reserves, as defined by the United States Securities and the U.S. Securities and Exchange Commission (the “SEC”) subpart 1300 of Regulation S-K (“S-K 1300”), through the completion of a “final” or “bankable” feasibility study for Sierra Mojada Project. Furthermore, the Company has no plans to establish proven or probable reserves for Sierra Mojada Project. As a result, and despite the fact that the Company commenced extraction of mineral resources at the Sierra Mojada Property, the Company remains an exploration stage company, as defined by the SEC
Beginning with the Company’s annual report on Form 10-K for the year ended October 31, 2022, the Company reports its mineral resources in accordance with S-K 1300.
| F-8 |
Going Concern
Since its inception in November 1993, the
Company has not generated revenue and has incurred an accumulated deficit of $
NOTE 2 – SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
This summary of significant accounting policies is presented to assist in understanding the consolidated financial statements. The consolidated financial statements and notes are representations of the Company’s management, which is responsible for their integrity and objectivity.
Basis of Presentation
The Company’s consolidated financial statements have been prepared in conformity with accounting principles generally accepted in the United States of America (“ GAAP”) using the accrual method of accounting, except for cash flow amounts.
All figures are in United States dollars unless otherwise noted.
Principles of Consolidation
The consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries, after elimination of intercompany accounts and transactions. The wholly owned subsidiaries of the Company are listed in Note 1 to the consolidated financial statements.
The Company consolidated entities in which it has a controlling financial interest based on either the variable interest entity (VIE) or voting interest model.
Under the VIE model, a VIE is a reporting entity that has (a) the power to direct the activities that most significantly impact the VIE’s economic performance, and (b) the obligation to absorb losses of, or the right to receive benefits from, the VIE that could potentially be significant to the VIE. Currently, the Company manages the mineral exploration program in the property concessions in Mexico through its wholly-owned subsidiary corporation Minera Metalin.
Use of Estimates
The preparation of these consolidated financial statements in conformity with GAAP requires management to make estimates based on assumptions about future events that affect the amounts reported in the consolidated financial statements and related notes to the consolidated financial statements. Actual results could differ from those estimates. Estimates and assumptions are reviewed on an ongoing basis based on historical experience and other factors that are considered to be relevant under the circumstances. Revisions to estimates and assumptions are accounted for prospectively.
Significant areas involving the use of estimates include determining the allowance for uncollectible taxes, evaluating recoverability of property concessions, evaluating impairment of long-lived assets, evaluating impairment of goodwill, establishing a valuation allowance on future use of deferred tax assets, calculating a valuation for stock option liability and calculating stock-based compensation.
| F-9 |
Cash and Cash Equivalents
Cash and cash equivalents include all highly-liquid investments with an original maturity of three months or less at the date of purchase.
Accounts Receivable
Accounts Receivable consists of corporate costs that are to be reimbursed by Bench Walk 23P, L.P., a Delaware limited partnership (“Bench Walk”), pursuant to the terms of the Funding Agreement (Note 4). The Company anticipates full recovery of its current receivables within three months.
Property Concessions
Property concession acquisition costs are capitalized when incurred and will be amortized using the units of production method following the commencement of production. If a property concession is subsequently abandoned or impaired, any capitalized costs will be expensed in the period of abandonment or impairment. To date, no property concessions have reached the production stage.
Acquisition costs include cash consideration and the fair market value of shares issued on the acquisition of property concessions.
Exploration Costs
Exploration costs incurred are expensed to the date of establishing that costs incurred are economically recoverable. Exploration expenditures incurred subsequent to the establishment of economic recoverability are capitalized and included in the carrying amount of the related property. To date, the Company has not established the economic recoverability of its exploration prospects; therefore, all exploration costs are being expensed.
Office and Mining Equipment
Property and equipment are recorded at cost less accumulated depreciation and impairment losses. Assets under construction are depreciated when they are substantially complete and available for their intended use, over their estimated useful lives. Repairs and maintenance of property and equipment are expensed as incurred. Costs incurred to enhance the service potential of property and equipment are capitalized and depreciated over the remaining useful life of the improved asset. Property and equipment are depreciated using the straight-line method over the estimated useful lives of the related assets as follows:
| ● | Mining equipment – |
| ● | Vehicles – |
| ● | Building and structures – |
| ● | Computer equipment and software – |
| ● | Well equipment – |
| ● | Office equipment – |
Impairment of Long-Lived Assets
Management reviews and evaluates its long-lived assets for impairment when events and changes in circumstances indicate that the related carrying amounts of its assets may not be recoverable. Impairment is considered to exist if the future cash flows on an undiscounted basis are less than the carrying amount of the long-lived asset. An impairment loss is measured and recorded based on the difference between book value and fair value of the asset group. In estimating future cash flows, assets are grouped at the lowest level for which there is identifiable cash flows that are largely independent of cash flows from other asset groups. In estimating future cash flows, the Company estimates the price that would be received to sell an asset group in an orderly transaction between market participants at the measurement date. Significant factors that impact this price include the price of silver and zinc, and general market conditions for exploration companies, among other factors.
Goodwill
Goodwill is the purchase
premium after adjusting for the fair value of net assets acquired. The Company tests goodwill for impairment at the reporting unit level
at least annually, or more frequently if events or changes in circumstances indicate that the assets may be impaired. Goodwill impairment
tests require judgment, including the identification of reporting units, assignment of assets and liabilities to reporting units, assignment
of goodwill to reporting units, and determination of the fair value of each reporting unit. The Company performs its annual goodwill impairment
tests on April 30th of each fiscal year. Based on this assessment, management determined it is more likely than not that
the fair value of the reporting unit is less than its carrying amount, and recorded a goodwill impairment of $
| F-10 |
Income Taxes
The Company follows the asset and liability
method of accounting for income taxes. Under this method, deferred income tax assets and liabilities are determined based on temporary
differences between the tax basis and accounting basis of the assets and liabilities measured using tax rates enacted at the balance sheet
date. The Company recognizes the tax benefit from uncertain tax positions only if it is at least “more likely than not” that
the tax position will be sustained on examination by the taxing authorities, based on the technical merits of the position. The tax benefits
recognized in the financial statements from such a position are measured based on the largest benefit that has a greater than
A valuation allowance is recorded against deferred tax assets if management does not believe that the Company has met the “more likely than not” standard imposed by this guidance to allow recognition of such an asset. Management recorded a full valuation allowance at October 31, 2023 and 2022 against the deferred tax assets as it determined that future realization would not meet the “more likely than not” criteria.
Warrant Derivative Liability
The Company classifies warrants on its consolidated balance sheets as a derivative liability which is fair valued at each reporting period subsequent to the initial issuance, as the functional currency of Silver Bull is the U.S. dollar and the exercise price of the warrants is the Canadian dollar (“$CDN”). The Company has used the Black-Scholes pricing model to fair value the warrants that do not have an acceleration feature. Determining the appropriate fair-value model and calculating the fair value of warrants requires considerable judgment. Any change in the estimates used may cause the value to be higher or lower than that reported. The estimated volatility of the Company’s common stock at the date of issuance, and at each subsequent reporting period, is based on the historical volatility adjusted to reflect the implicit discount to historical volatilities observed in the prices of traded warrants. The risk-free interest rate is based on rates published by the government for bonds with a maturity similar to the expected remaining life of the warrants at the valuation date. The expected life of the warrants is assumed to be equivalent to their remaining contractual term. The dividend yield is expected to be none as the Company has not paid dividends nor does the Company anticipate paying any dividend in the foreseeable future.
The derivative is not traded in an active market, and the fair value is determined using valuation techniques. The estimates may be significantly different from those recorded in the consolidated financial statements because of the use of judgment and the inherent uncertainty in estimating the fair value of these instruments that are not quoted in an active market. All changes in the fair value are recorded in the consolidated statement of operations and comprehensive loss each reporting period.
Stock-Based Compensation
The Company uses the Black-Scholes pricing model as a method for determining the estimated fair value for all stock options awarded to employees, officers, directors and consultants. The expected term of the options is based upon an evaluation of historical and expected future exercise behavior. The risk-free interest rate is based on rates published by the government for bonds with a maturity similar to the expected remaining life of the options at the valuation date. Volatility is determined based upon historical volatility of the Company’s stock and adjusted if future volatility is expected to vary from historical experience. The dividend yield is assumed to be none as the Company has not paid dividends nor does the Company anticipate paying any dividends in the foreseeable future. The Company uses the graded vesting attribution method to recognize compensation costs over the requisite service period.
The Company classifies cumulative compensation cost associated with options on subsidiary equity as additional paid-in capital until exercise.
| F-11 |
Loss per Share
Basic loss per share includes no dilution and
is computed by dividing net loss available to common shareholders by the weighted average common shares outstanding for the period. Diluted
loss per share reflects the potential dilution of securities that could share in the earnings of an entity similar to fully diluted loss
per share. Although there were stock options and warrants in the aggregate of
Foreign Currency Translation
During the years ended October 31, 2023 and 2022, the functional currency of Silver Bull Resources, Inc. and its subsidiaries was the U.S. dollar.
During the years ended October 31, 2023 and 2022, the Company’s Mexican operations’ monetary assets and liabilities with foreign source currencies were translated into U.S. dollars at the period-end exchange rate and non-monetary assets and liabilities with foreign source currencies were translated using the historical exchange rate. The Company’s Mexican operations’ revenue and expenses were translated at the average exchange rate during the period except for depreciation of office and mining equipment, costs of office and mining equipment sold and impairment of property concessions, all of which are translated using the historical exchange rate. Foreign currency translation gains and losses of the Company’s Mexican operations are included in the consolidated statement of operations.
Accounting for Loss Contingencies and Legal Costs
From time to time, the Company is named as a defendant in legal actions arising from its normal business activities. The Company records an accrual for the estimated loss from a loss contingency when information available prior to issuance of its financial statements indicates that it is probable that a liability has been incurred at the date of the financial statements and the amount of the loss can be reasonably estimated. Disclosure of a loss contingency is made by the Company if there is at least a reasonable possibility that a loss has been incurred, and either an accrual has not been made or an exposure to loss exists in excess of the amount accrued. In cases where only disclosure of the loss contingency is required, either the estimated loss or a range of estimated loss is disclosed or it is stated that an estimate cannot be made. Legal costs incurred in connection with loss contingencies are considered period costs and accordingly are expensed in the period services are provided.
Recent Accounting Pronouncements Adopted in the Year
In November 2021, the Company adopted the Financial Accounting Standards Board’s (“FASB”) Accounting Standards Updated (“ASU”) 2021-10, “Government Assistance (Topic 832)” which provides guidance for required annual disclosures about transactions with a government that are accounted for by applying a grant or contribution accounting model by analogy. The Company adopted this standard as of November 1, 2022. The adoption did not have a significant impact on the Company’s financial position, results of operations or cash flows and disclosures.
Recent Accounting Pronouncements Not Yet Adopted
In November 2023, the FASB issued ASU 2023-07, Segment Reporting (Topic 280): Improvements to Reportable Segment Disclosures. The ASU expands public entities’ segment disclosures by requiring disclosure of significant segment expenses that are regularly provided to the chief operating decision maker and included within each reported measure of segment profit or loss, an amount and description of its composition for other segment items, and interim disclosures of a reportable segment’s profit or loss and assets. All disclosure requirements under ASU 2023-07 are also required for public entities with a single reportable segment. The ASU is effective for the Company’s Annual Report on Form 10-K for the fiscal year ended October 31, 2024, with early adoption permitted. The Company is currently evaluating the impact of adopting this ASU on its consolidated financial statements and disclosures.
In March 2022, the FASB issued ASU 2022-01, “Derivatives and Hedging (Topic 815): Fair Value Hedging—Portfolio Layer Method” which is intended to make amendments to the fair value hedge accounting previously issued in ASU 2017-12 “Derivatives and Hedging (Topic 815): Targeted Improvements to Accounting for Hedging Activities”. The new standard will be effective for reporting periods beginning after December 15, 2022. The standard introduced the portfolio layer method allowing multiple hedged layers of a single closed portfolio when applying fair value hedge accounting. The adoption of this update is not expected to have a significant impact on the Company’s financial position, results of operations or cash flows and disclosures.
Other recent accounting pronouncements issued by the FASB (including its Emerging Issues Task Force) and the SEC did not or are not expected to have a significant impact on the Company’s present or future consolidated financial statements.
| F-12 |
NOTE 3 – ILLEGAL BLOCKADE OF SIERRA MOJADA PROPERTY AND ICSID ARBITRATION
The Company’s efforts and expenditures have been concentrated on the exploration of properties, principally with respect to the Sierra Mojada Property located in Coahuila, Mexico.
On June 1, 2018, the Company and its subsidiaries
Minera Metalin and Contratistas de Sierra Mojada S.A. de C.V. entered into an earn-in option agreement (the “South32 Option Agreement”)
with South32 International Investment Holdings Pty Ltd (“South32”), a wholly-owned subsidiary of South32 Limited (ASX/JSE/LSE:
S32), whereby South32 was able to obtain an option to purchase
On October 11, 2019, the Company and its subsidiary Minera Metalin issued a notice of force majeure to South32 pursuant to the South32 Option Agreement. Due to an illegal blockade by a cooperative of local miners called Sociedad Cooperativa de Exploración Minera Mineros Norteños, S.C.L. (“Mineros Norteños”), the Company halted all work on the Sierra Mojada Property. The notice of force majeure was issued because the Company and its subsidiary Minera Metalin were unable to perform their obligations under the South32 Option Agreement due to the blockade. Pursuant to the South32 Option Agreement, any time period provided for in the South32 Option Agreement was to be generally extended by a period equal to the period of delay caused by the event of force majeure.
On August 31, 2022, due to the ongoing blockade of the site, the South32 Option Agreement was mutually terminated by South32 and the Company.
No portion of the equity value of the Company
was classified as temporary equity as the South32 Option had no intrinsic value. South32 paid $
As of January 26, 2024, the blockade by Mineros Norteños at, on and around the Sierra Mojada Property is ongoing, and the Company remains unable to access the Sierra Mojada Property.
On March 2, 2023, the Company filed the NAFTA Notice of Intent. The Company has been unable to access the project since the illegal blockade commenced in September 2019. Despite numerous demands and requests for action by the Company, Mexican governmental agencies have allowed this unlawful conduct to continue and, as such, failed to protect the Company’s investment.
The Company held a meeting with Mexican government officials in Mexico City on May 30, 2023, in an attempt to explore amicable settlement options and avoid arbitration. However, the 90-day period for amicable settlement under NAFTA expired on June 2, 2023, without a resolution.
On June 28, 2023, the Company commenced international arbitration proceedings against Mexico under the United States-Mexico-Canada Agreement (“USMCA”) and NAFTA (the “Arbitration”). The Arbitration was initiated under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States process, which falls under the auspices of the World Bank’s International Centre for Settlement of Investment Disputes (“ICSID”), to which Mexico is a signatory.
The Company has engaged Boies Schiller Flexner (UK) LLP as its legal advisers on the legacy NAFTA claim.
NOTE 4 – ARBITRATION FINANCING
On September 5, 2023, the Company entered into
a litigation funding agreement (“Funding Agreement” or the “LFA”) with Bench Walk, a third party, which specializes
in funding litigation and arbitration claims. Under the terms of the LFA, Bench Walk has agreed to fund the Company with up to $
During fiscal 2023,
the Company has received reimbursement of corporate operating costs totaling $
The Company agreed that Bench Walk shall be entitled
to receive a share of any proceeds arising from the Claim (the “Claim Proceeds”) of up to 3.5x Bench Walk’s capital
outlay (or, if greater, a return of 1.0x Bench Walk’s capital outlay plus
| F-13 |
As security for Bench Walk’s entitlement to receive a share of the Claim Proceeds under the LFA, the Company granted to Bench Walk a security interest in the Claim Proceeds, the Claim, all documents of title pertaining to the Claim, rights under any appeal bond or similar instrument posted by any of the defendants in the Claim, and all proceeds of any of the foregoing.
| 2023 | ||||
| Exploration and property holding costs | $ | |||
| Personnel | ||||
| Office and administrative | ||||
| Professional services | ||||
| Directors’ fees | ||||
| Less: Received | ( | ) | ||
| Accounts receivable | $ | |||
NOTE 5 – DUE FROM RELATED PARTY
As of October 31, 2023, due from related party
consists of $
NOTE 6 – VALUE-ADDED TAX RECEIVABLE
Value-added tax (“VAT”) receivable
relates to VAT paid in Mexico. The Company estimates net VAT of $
| Allowance for uncollectible VAT – October 31, 2021 | $ | |||
| Provision for uncollectible VAT | ||||
| Foreign currency translation adjustment | ||||
| Allowance for uncollectible VAT – October 31, 2022 | ||||
| Provision for uncollectible VAT | ||||
| Foreign currency translation adjustment | ||||
| Allowance for uncollectible VAT – October 31, 2023 | $ | |||
| F-14 |
NOTE 7 – OFFICE AND MINING EQUIPMENT
| October 31, | October 31, | |||||||
| 2023 | 2022 | |||||||
| Mining equipment | $ | $ | ||||||
| Vehicles | ||||||||
| Buildings and structures | ||||||||
| Computer equipment and software | ||||||||
| Well equipment | ||||||||
| Office equipment | ||||||||
| Less: Accumulated depreciation | ( | ) | ( | ) | ||||
| Office and mining equipment, net | $ | $ | ||||||
NOTE 8 – PROPERTY CONCESSIONS
| Property concessions – October 31, 2022 | $ | |||||
| Impairment | ( | ) | ||||
| Property concessions – October 31, 2023 | $ |
During the
fiscal year ended October 31, 2023, the Company decided to withdraw certain concession applications in Sierra Mojada, Mexico. As a result, the Company has written off
the capitalized property concession balance related to these concessions of $
If the blockade at Sierra Mojada Property continues, further impairment of property concessions is possible.
NOTE 9 – GOODWILL
Goodwill
represents the excess, at the date of acquisition, of the purchase price of the business acquired over the fair value of the net tangible
and intangible assets acquired. The Company’s inability to advance the Sierra Mojada Project due to the ongoing blockade has resulted
in a sustained decrease in the value of the Company’s common stock. As such, the Company concluded that this constituted an indication
of impairment of goodwill. On April 30, 2022, the Company elected to perform a qualitative assessment to determine whether it is more
likely than not that the fair value of the reporting unit is less than its carrying amount. Based on this assessment, management determined
it is more likely than not that the fair value of the reporting unit is less than its carrying amount, and as such, the Company recorded
a goodwill impairment of $
| Goodwill – October 31, 2021 | $ | |||||
| Impairment | ( | ) | ||||
| Goodwill – October 31, 2022 | $ |
NOTE 10 – LOAN PAYABLE
In June 2020, the Company received $
As at October 31, 2023, the total CEBA loan
amount stands at $CDN
| F-15 |
| Loan payable – October 31, 2021 | $ | |||
| Foreign currency translation adjustment | ( | ) | ||
| Loan payable – October 31, 2022 | ||||
| Foreign currency translation adjustment | ( | ) | ||
| Loan payable – October 31, 2023 | $ |
NOTE 11 – COMMON STOCK
On
October 30, 2023, the Company completed a private placement for
On March 9, 2023, the Company issued
On February 17, 2022, the Company issued
NOTE 12 – STOCK OPTIONS
The Company has one stock option plan under
which equity securities are authorized for issuance to officers, directors, employees and advisors: the 2019 Stock Option and Stock Bonus
Plan (the “2019 Plan”). The 2019 Plan was amended on April 19, 2022 (the “Amended 2019 Plan”). Under the Amended
2019 Plan,
Options are typically granted with an exercise
price equal to the closing market price of the Company’s stock at the date of grant, have a graded vesting schedule over
On March 2, 2023, the Company granted options to
acquire
On February 17, 2022, the Company granted options
to acquire
No options were exercised during the years ended October 31, 2023 and 2023.
| F-16 |
|
Year Ended October 31, | ||||
| Options | 2023 | 2022 | |||
| Expected volatility | |||||
| Risk-free interest rate | |||||
| Dividend yield | |||||
| Expected term (in years) | |||||
| Options | Shares | Weighted Average Exercise Price | Weighted Average Remaining Contractual Life (Years) | Aggregate Intrinsic Value | ||||||||||||||
| Outstanding at October 31, 2021 | $ | $ | ||||||||||||||||
| Granted | ||||||||||||||||||
| Cancelled | ( | ) | ||||||||||||||||
| Outstanding at October 31, 2022 | ||||||||||||||||||
| Granted | ||||||||||||||||||
| Cancelled | ( | ) | ||||||||||||||||
| Expired | ( | ) | ||||||||||||||||
| Outstanding at October 31, 2023 | ||||||||||||||||||
| Exercisable at October 31, 2022 | $ | $ | ||||||||||||||||
The Company recognized stock-based compensation
costs for stock options of $
| Options Outstanding | Options Exercisable | |||||||||||||||||||||
| Exercise Price | Number Outstanding | Weighted Average Remaining Contractual Life (Years) | Weighted Average Exercise Price | Number Exercisable | Weighted Average Exercise Price | |||||||||||||||||
| $ | $ | $ | ||||||||||||||||||||
NOTE 13 – WARRANTS
During the year ended October 31, 2023, the
Company issued
| Warrants | Shares | Weighted Average Exercise Price | Weighted Average Remaining Contractual Life (Years) | Aggregate Intrinsic Value | ||||||||||||
| Outstanding and exercisable at October 31, 2021* | $ | $ | ||||||||||||||
| Outstanding and exercisable at October 31, 2022 | $ | $ | ||||||||||||||
| Issued in the $CDN | ||||||||||||||||
| Outstanding and exercisable at October 31, 2023 | $ | $ | ||||||||||||||
*
No warrants were exercised during the year ended October 31, 2023.
No warrants were issued or exercised during the year ended October 31, 2022.
| F-17 |
| Warrants Outstanding and Exercisable | ||||||||||||||
| Exercise Price | Number Outstanding | Weighted Average Remaining Contractual Life (Years) | Weighted Average Exercise Price | |||||||||||
| $ | $ | |||||||||||||
| $ | $ | |||||||||||||
The Company’s $CDN warrants have been recognized
as a derivative liability.
| Warrant derivative liability at October 31, 2022 | $ | |||
| Warrants issued in $CDN | ||||
| Change in fair value of warrant derivative liability | ||||
| Foreign currency translation adjustment | ( | ) | ||
| Warrant derivative liability at October 31, 2023 | $ |
NOTE 14 – INCOME TAXES
Provision for Taxes
The Tax Act was signed into law on December 22,
2017 and the Tax Act required the Company to use a statutory tax rate of
The Company files a United States federal income tax return and a Canadian branch return on a fiscal year-end basis and files Mexican income tax returns for its two Mexican subsidiaries on a calendar year-end basis. The Company and two of its wholly-owned subsidiaries, Minera Metalin and Minas, have not generated taxable income since inception.
Contratistas, another wholly-owned Mexican subsidiary, has historically generated taxable income based upon intercompany fees billed to Minera Metalin on the services it provides. On August 26, 2021, Contratistas merged with and into Minera Metalin.
On April 16, 2010, a wholly-owned subsidiary of the Company was merged with and into Dome, resulting in Dome becoming a wholly-owned subsidiary of the Company. Dome, a Delaware corporation, files a tax return in the United States as part of the Company’s consolidated tax return.
| For the year ended | ||||||||
| October 31, | ||||||||
| 2023 | 2022 | |||||||
| United States | $ | ( | ) | $ | ( | ) | ||
| Foreign | ( | ) | ( | ) | ||||
| Loss before income taxes | $ | ( | ) | $ | ( | ) | ||
| F-18 |
| For the year ended | ||||||||
| October 31, | ||||||||
| 2023 | 2022 | |||||||
| Current tax expense | $ | $ | ||||||
| Deferred tax expense | ||||||||
| $ | $ | |||||||
The Company’s provision for income taxes
for the fiscal year ended October 31, 2023 consisted of a tax expense of $
| For the year ended | ||||||||
| October 31, | ||||||||
| 2023 | 2022 | |||||||
| Income tax benefit calculated at U.S. federal income tax rate | $ | ( | ) | $ | ( | ) | ||
| Differences arising from: | ||||||||
| Other permanent differences | ||||||||
| Differences due to foreign income tax rates | ( | ) | ( | ) | ||||
| Adjustment to prior year taxes | ||||||||
| Inflation adjustment foreign net operating loss | ( | ) | ( | ) | ||||
| Foreign currency fluctuations | ( | ) | ( | ) | ||||
| Decrease in valuation allowance | ( | ) | ( | ) | ||||
| Net operating loss carry forwards expiration - Mexico | ||||||||
| Other | ( | ) | ||||||
| Net income tax provision | $ | $ | ||||||
| For the year ended October 31, | ||||||||
| 2023 | 2022 | |||||||
| Deferred tax assets: | ||||||||
| Net operating loss carry forwards – U.S. | $ | $ | ||||||
| Net operating loss carry forwards – Mexico | ||||||||
| Exploration costs | ||||||||
| Other – United States | ||||||||
| Other – Mexico | ||||||||
| Total net deferred tax assets | ||||||||
| Less: valuation allowance | ( | ) | ( | ) | ||||
| Net deferred tax asset | $ | $ | ||||||
At October 31, 2023, the Company has U.S.
net operating loss carry-forwards of approximately $
The valuation allowance for deferred tax assets
of $
| F-19 |
Net Operating Loss Carry Forward Limitation
For U.S. federal income tax purposes, a change in ownership under IRC Section 382 has occurred as a result of the Dome merger in April 2010. When an ownership change has occurred, the utilization of these losses against future income would be subject to an annual limitation, which would be equal to the value of the acquired company immediately prior to the change in ownership multiplied by the IRC Section 382 rate in effect during the month of the change.
Accounting for Uncertainty in Income Taxes
During the fiscal years ended October 31, 2023 and 2022, the Company has not identified any unrecognized tax benefits or had any additions or reductions in tax positions and therefore a reconciliation of the beginning and ending amount of unrecognized tax benefits is not presented.
The Company does not have any unrecognized tax benefits as of October 31, 2023, and accordingly the Company’s effective tax rate will not be materially affected by unrecognized tax benefits.
The following tax years remain open to examination by the Company’s principal tax jurisdictions:
| United States: | 2019 and all following years | ||
| Mexico: | 2018 and all following years | ||
| Canada: | 2019 and all following years |
The Company has not identified any uncertain tax position for which it is reasonably possible that the total amount of unrecognized tax benefit will significantly increase or decrease within the next 12 months.
The Company’s policy is to classify tax related interest and penalties as income tax expense. There is no interest or penalties estimated on the underpayment of income taxes as a result of unrecognized tax benefits.
NOTE 15 – FINANCIAL INSTRUMENTS
Fair Value Measurements
All financial assets and financial liabilities are recorded at fair value on initial recognition. Transaction costs are expensed when they are incurred, unless they are directly attributable to the acquisition of financial assets or the assumption of liabilities carried at amortized cost, in which case the transaction costs adjust the carrying amount.
The three levels of the fair value hierarchy are as follows:
| Level 1 | Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets or liabilities; |
| Level 2 | Quoted prices in markets that are not active, or inputs that are observable, either directly or indirectly, for substantially the full term of the asset or liability; and |
| Level 3 | Prices or valuation techniques that require inputs that are both significant to the fair value measurement and unobservable (supported by little or no market activity). |
Under fair value accounting, assets and liabilities are classified in their entirety based on the lowest level of input that is significant to the fair value measurement. The Company’s financial instruments consist of cash and cash equivalents, accounts receivable, due from related party, investments, accounts payable, loan payable and warrant derivative liability.
Cash and cash equivalents, accounts receivable, due from related party and accounts payable are classified as Level 1 in the fair value hierarchy. Their carry amounts approximate fair value at October 31, 2023 and 2022 due to the short maturities of these financial instruments. Investments and loan payable are classified as Level 2 in the fair value hierarchy.
| F-20 |
Derivative liability
The Company classifies warrants on its consolidated balance sheets as a derivative liability which is fair valued at each reporting period subsequent to the initial issuance, as the functional currency of Silver Bull is the U.S. dollar and the exercise price of the warrants is the $CDN. The Company has used the Black-Scholes pricing model to fair value the warrants (Note 13). Determining the appropriate fair-value model and calculating the fair value of warrants requires considerable judgment. Any change in the estimates used may cause the value to be higher or lower than that reported. The estimated volatility of the Company’s common stock at the date of issuance, and at each subsequent reporting period, is based on the historical volatility adjusted to reflect the implicit discount to historical volatilities observed in the prices of traded warrants. The risk-free interest rate is based on rates published by the government for bonds with a maturity similar to the expected remaining life of the warrants at the valuation date. The expected life of the warrants is assumed to be equivalent to their remaining contractual term. The dividend yield is expected to be none as the Company has not paid dividends nor does the Company does not anticipate paying any dividend in the foreseeable future.
The derivative is not traded in an active market, and the fair value is determined using valuation techniques. The estimates may be significantly different from those recorded in the consolidated financial statements because of the use of judgment and the inherent uncertainty in estimating the fair value of these instruments that are not quoted in an active market. All changes in the fair value are recorded in the consolidated statement of operations and comprehensive loss each reporting period. This is considered to be a Level 3 financial instrument.
| October 31, 2023 | ||||||||||||
| Liability | Level 1 | Level 2 | Level 3 | |||||||||
| Warrant derivative liability | $ | $ | $ | |||||||||
Credit Risk
Credit risk is the risk that the counterparty to a financial instrument will cause a financial loss for the Company by failing to discharge its obligations. To mitigate exposure to credit risk on financial assets, the Company has established policies to ensure liquidity of funds and ensure that counterparties demonstrate minimum acceptable credit worthiness.
The Company maintains its U.S. dollar and $CDN cash and cash equivalents in
bank and demand deposit accounts with major financial institutions with high credit standings. Cash deposits held in Canada are insured
by the Canada Deposit Insurance Corporation (“CDIC”) for up to $CDN
As at October 31, 2023 and 2022, cash and cash
equivalents consist of guaranteed investment certificates of $
The Company also maintains cash in bank accounts
in Mexico. These accounts are denominated in the local currency and are considered uninsured. As of October 31, 2023 and 2022, the
U.S. dollar equivalent balance for these accounts was $
Other receivables, accounts receivable and due from related party comprise receivable from GST refunds, Bench Walk and a related party. Receivable balances are monitored on an ongoing basis with the result that the Company’s exposure to impairment is not significant. At October 31, 2023 and 2022, none of the Company’s receivables are impaired.
Interest Rate Risk
The Company holds substantially all of the
Company’s cash and cash equivalents in bank and demand deposit accounts with major financial institutions. The interest rates received
on these balances may fluctuate with changes in economic conditions. Based on the average cash and cash equivalent balances during the
fiscal year ended October 31, 2023, a
| F-21 |
Foreign Currency Exchange Risk
Certain purchases of labor, operating supplies and capital assets are denominated in $CDN, $MXN or other currencies. As a result, currency exchange fluctuations may impact the costs of the Company’s operations. Specifically, the appreciation of the $MXN or $CDN against the U.S. dollar may result in an increase in operating expenses and capital costs in U.S. dollar terms. The Company currently does not engage in any currency hedging activities.
Based on the net exposures as at October 31,
2023, a
Liquidity Risk
Liquidity risk is the risk that the Company will be unable to meet its financial obligations as they fall due. The Company’s approach to managing its liquidity risk is to ensure, as far as possible, that it will have sufficient liquid funds to meet its liabilities when due.
At October 31, 2023, the Company has $
NOTE 16 – COMMITMENTS AND CONTINGENCIES
Compliance with Environmental Regulations
The Company’s exploration activities are subject to laws and regulations controlling not only the exploration and mining of mineral properties, but also the effect of such activities on the environment. Compliance with such laws and regulations may necessitate additional capital outlays or affect the economics of a project, and cause changes or delays in the Company’s activities.
Property Concessions Mexico
To properly maintain property concessions in Mexico, the Company is required to pay a semi-annual fee to the Mexican government and complete annual assessment work.
Royalty
The Company
has agreed to pay a
Litigation and Claims
Mineros Norteños Case
On
May 20, 2014, Mineros Norteños filed an action in the Local First Civil Court in the District of Morelos, State of Chihuahua,
Mexico, against the Company’s subsidiary, Minera Metalin, claiming that Minera Metalin breached an agreement regarding the development
of the Sierra Mojada Property. Mineros Norteños sought payment of the Royalty, including interest at a rate of
| F-22 |
ICSID Arbitration
On March 2, 2023, the Company filed the NAFTA Notice of Intent (Note 3). As is required by Article 1118 of NAFTA, the Company sought to settle this dispute with Mexico through consultations. On May 30, 2023, the Company attended a meeting with Mexican government officials in Mexico City, but, notwithstanding the Company’s good faith efforts to resolve the dispute amicably, no settlement was reached. Accordingly, the Company filed a request for arbitration with the ICSID on June 28, 2023. On July 20, 2023, ICSID registered the request.
As Arbitration proceedings are in early stages, the Company cannot determine the likelihood of succeeding in collecting any amount, as such has not accrued any amounts in the consolidated financial statements with respect to this claim.
Valdez Case
On February 15,
2016, Messrs. Jaime Valdez Farias and Maria Asuncion Perez Alonso (collectively, “Valdez”) filed an action before the
Local First Civil Court of Torreon, State of Coahuila, Mexico, against the Company’s subsidiary, Minera Metalin, claiming that Minera
Metalin had breached an agreement regarding the development of the Sierra Mojada Property. Valdez sought payment in the amount of $
From time to time, the Company is involved in other disputes, claims, proceedings and legal actions arising in the ordinary course of business. The Company intends to vigorously defend all claims against the Company, and pursue its full legal rights in cases where the Company has been harmed. Although the ultimate outcome of these proceedings cannot be accurately predicted due to the inherent uncertainty of litigation, in the opinion of management, based upon current information, no other currently pending or overtly threatened proceeding is expected to have a material adverse effect on the Company’s business, financial condition or results of operations.
Arbitration Financing
On September 5, 2023, the Company entered into the
LFA with Bench Walk (Note 4). Under the terms of the LFA, Bench Walk has agreed to fund the Company with up to $
The Company agreed that Bench Walk shall be entitled
to receive a share of any proceeds arising from the Claim Proceeds of up to 3.5x Bench Walk’s capital outlay (or, if greater, a
return of 1.0x Bench Walk’s capital outlay plus
As security for Bench Walk’s entitlement to receive a share of the Claim Proceeds under the LFA, the Company granted to Bench Walk a security interest in the Claim Proceeds, the Claim, all documents of title pertaining to the Claim, rights under any appeal bond or similar instrument posted by any of the defendants in the Claim, and all proceeds of any of the foregoing.
Management Retention Agreement and Salaries
The Company has established a Management Retention
Agreement (the “MRA”), which is a long-term incentive program to retain key personnel of the Company who have important historical
information and knowledge to contribute with respect to the ICSID Arbitration. The MRA provides that if the Company is successful and
the Company receives damages proceeds,
Additionally, management of the Company has
agreed to defer a portion of its salaries, as well as an annual bonuses granted, with the deferred amounts only being paid in the event
that the Company is successful in its ICSID Arbitration proceedings and the Company having sufficient funds to pay the deferred amounts
after discharging amounts owed to priority creditors, such as Bench Walk. Deferred amounts owed to management will accrue interest
at a rate of
As the outcome of the ICSID Arbitration is not determinable as at October 31, 2023, no expense has been recorded in relation to the above.
| F-23 |
NOTE 17 – SEGMENT INFORMATION
The Company operates in a single reportable segment: the exploration of mineral property interests. The Company has mineral property interests in Sierra Mojada, Mexico.
| For the Year Ended | ||||||||
| October 31, | ||||||||
| 2023 | 2022 | |||||||
| Net loss | ||||||||
| Mexico | $ | ( | ) | $ | ( | ) | ||
| Kazakhstan | ( | ) | — | |||||
| Canada | ( | ) | ( | ) | ||||
| Net Loss | $ | ( | ) | $ | ( | ) | ||
| Canada | Mexico | Total | ||||||||||
| Cash and cash equivalents | $ | $ | $ | |||||||||
| Other receivables | ||||||||||||
| Accounts receivables | ||||||||||||
| Prepaid expenses and deposits | ||||||||||||
| Due from related party | ||||||||||||
| Value-added tax receivable, net | ||||||||||||
| Office and mining equipment, net | ||||||||||||
| Property concessions | ||||||||||||
| $ | $ | $ | ||||||||||
| Canada | Mexico | Total | ||||||||||
| Cash and cash equivalents | $ | $ | $ | |||||||||
| Other receivables | ||||||||||||
| Prepaid expenses and deposits | ||||||||||||
| Due from related party | ||||||||||||
| Value-added tax receivable, net | ||||||||||||
| Office and mining equipment, net | ||||||||||||
| Property concessions | ||||||||||||
| $ | $ | $ | ||||||||||
The Company has significant assets in Coahuila, Mexico. Although Mexico is generally considered economically stable, it is always possible that unanticipated events in Mexico could disrupt the Company’s operations. The Mexican government does not require foreign entities to maintain cash reserves in Mexico.
| For the Year Ended | ||||||||
| October 31, | ||||||||
| 2023 | 2022 | |||||||
| Exploration and property holding costs for the year | ||||||||
| Mexico | $ | ( | ) | $ | ( | ) | ||
| Kazakhstan | ( | ) | ||||||
| $ | ( | ) | $ | ( | ) | |||
| F-24 |
NOTE 18 – SUBSEQUENT EVENTS
On December 8, 2023, the Company repaid $
On January 24, 2024, the Company received
the second payment of $
On January 26, 2024, the Company granted options to
acquire
F-25
| |
Exhibit 4.1
DESCRIPTION OF CAPITAL STOCK
The following is a description of each class of securities of Silver Bull Resources, Inc. (“Silver Bull” or the “Company”) that is registered under Section 12 of the Securities Exchange Act of 1934, as amended, and does not purport to be complete. For a complete description of the terms and provisions of such securities, refer to the Company’s articles of incorporation and the Company’s bylaws, which are incorporated herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on April 21, 2021 and Exhibit 3.1.2 to the Company’s Annual Report on Form 10-K filed with the SEC on January 14, 2011, respectively. This summary is qualified in its entirety by reference to these documents.
Common Stock
Silver Bull’s articles of incorporation authorize Silver Bull to issue 150,000,000 shares of common stock, $0.01 par value per share. As of October 31, 2023, 47,365,652 shares of Silver Bull common stock were issued and outstanding. The rights of the holders of Silver Bull common stock are governed by Chapter 78 of the Nevada Revised Statutes, Silver Bull’s articles of incorporation and Silver Bull’s bylaws.
Dividend Rights
Holders of Silver Bull common stock will be entitled to receive dividends when, as and if declared by the Company’s board of directors, and out of funds legally available for their payment. At the present time, the Company does not anticipate paying dividends, cash or otherwise, on Silver Bull common stock in the foreseeable future. Future dividends will depend on the Company’s earnings, if any, the Company’s financial requirements and other factors.
Redemption Rights
Silver Bull common stock is not redeemable or convertible.
Voting Rights
Each holder of Silver Bull common stock is entitled to one vote per share, and all voting rights are vested in the holders of shares of Silver Bull common stock. Holders of shares of common stock will have noncumulative voting rights, which means that the holders of more than 50% of the shares voting for the election of directors will be able to elect 100% of the directors, and the holders of the remaining shares voting for the election of directors will not be able to elect any directors.
Election of Directors
The Company’s directors are elected by a majority vote in a meeting at which a quorum is present. A director candidate that receives a majority of the votes in favor of such candidate will be elected to serve on the Company’s board of directors.
In February 2016, the Company’s board of directors adopted a majority voting policy stipulating that stockholders shall be entitled to vote in favor of, or withhold from voting for, each individual director nominee at a stockholders’ meeting. If the number of shares “withheld” for any nominee exceeds the number of shares voted “for” such nominee, then, notwithstanding that such director was duly elected as a matter of corporate law, he or she shall tender his or her written resignation to the chair of the board. The Corporate Governance and Nominating Committee will consider such offer of resignation and will make a recommendation to the board of directors concerning the acceptance or rejection of the resignation after considering, among other things, the stated reasons, if any, why certain stockholders “withheld” votes for the director, the qualifications of the director and whether the director’s resignation from the board would be in the best interests of the Company. The board of directors must take formal action on the Corporate Governance and Nominating Committee’s recommendation within 90 days and announce its decision by a press release. According to the majority voting policy, the affected director cannot participate in the deliberations of the Corporate Governance and Nominating Committee or the board of directors regarding his or her resignation. The majority voting policy applies only in circumstances involving an uncontested election of directors, meaning an election in which the number of nominees is equal to the number of directors to be elected.
| |
Liquidation Rights
In the event of the Company’s voluntary or involuntary liquidation, dissolution or winding up, the holders of Silver Bull common stock will be entitled to share equally in any of Silver Bull’s assets available for distribution after the payment in full of all debts and distributions.
No Preemptive or Similar Rights
Under Nevada law, a stockholder of a corporation does not have a preemptive right to acquire the corporation’s unissued shares unless there is a provision to the contrary in the articles of incorporation. The Company’s articles of incorporation do not provide the Company’s stockholders with any preemptive or similar rights.
Transfer Agent
The transfer agent and registrar for Silver Bull common stock is Olympia Trust Company, located at 925 West Georgia Street, Suite 1900, Vancouver, British Columbia V6C 3L2, Canada.
Warrants
As of October 31, 2023, the Company had issued and outstanding warrants to purchase 1,971,289 shares at $0.59 per share (the “$0.59 Warrants”) and 5,842,499 shares at $0.11 per share, exercisable on October 27, 2020 and October 30, 2023 and expiring on October 27, 2025 and October 30, 2028, respectively. In accordance with the terms of the Separation and Distribution Agreement between Silver Bull and Arras, the Company will receive $0.34 of the proceeds from the exercise of each of these warrants and the remaining proceeds will be paid to Arras from the $0.59 Warrants.
The number of shares of Silver Bull common stock to be received upon the exercise of each warrant may be adjusted from time to time upon the occurrence of certain events, including but not limited to (i) a declaration of a dividend or other distribution in respect of Silver Bull common stock; (ii) a subdivision, redivision or change to the outstanding shares of Silver Bull common stock into a greater number of shares of Silver Bull common stock; (iii) a reduction, combination or consolidation of Silver Bull common stock into a lesser number of shares of Silver Bull common stock; (iv) a rights offering to subscribe for or purchase Silver Bull common stock or securities convertible into or exchangeable for Silver Bull common stock; and (v) a reorganization, reclassification, consolidation, amalgamation, arrangement or merger of the Company with or into any other corporation or entity, or a sale, lease, exchange or transfer of substantially all of the undertaking of assets of the Company, or similar event.
Anti-Takeover Provisions in the Company’s Articles of Incorporation and Bylaws
The Company’s articles of incorporation and bylaws also contain provisions that the Company describes in the following paragraphs, which may delay, defer, discourage, or prevent a change in control of the Company, the removal of the Company’s existing management or directors, or an offer by a potential acquirer to the Company’s stockholders, including an offer by a potential acquirer at a price higher than the market price for the stockholders’ shares.
Among other things, Silver Bull’s articles of incorporation and bylaws:
| · | provide that vacancies on the board of directors may be filled by the vote of a two-thirds (2/3) majority of the directors then in office or in the case of a vacancy by resignation or death, by the majority of directors then in office; |
| · | establish advance notice procedures with regard to stockholder proposals relating to the nomination of candidates for election as directors or new business to be brought before meetings of the Company’s stockholders. These procedures provide that notice of stockholder proposals must be timely given in writing to the Company’s corporate secretary prior to the meeting at which the action is to be taken. Generally, to be timely, notice must be received at the Company’s principal executive offices not less than 120 days prior to the first anniversary of the prior year’s annual meeting (or, in the case of a special meeting, a reasonable time before the Company begins to print and send its proxy materials). The Company’s bylaws specify the information that must be included in a stockholder’s notice. These requirements may prevent stockholders from bringing matters before the stockholders at an annual or special meeting; |
| · | provide that stockholders may not act by written consent in lieu of a meeting; |
| · | provide that stockholders are not permitted to call special meetings of stockholders. Only the board of directors, by a two-thirds (2/3) majority vote, and the Company’s president are permitted to call a special meeting of stockholders; and |
| · | provide that the Company’s board of directors, by a two-thirds (2/3) majority vote, may amend or repeal the Company’s bylaws without further stockholder approval unless otherwise required by law, and provide that a stockholder amendment to the bylaws requires a favorable vote of sixty-six and two-thirds percent (66 2/3%) of the Company’s outstanding voting shares then entitled to vote at an election of directors. |
Exhibit 10.2
LP 22822400.6 \ 43915-138481 |
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXLCUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND THE REGISTRANT CUSTOMARILY AND ACTUALLY TREATS SUCH INFORMATION AS PRIVATE AND CONFIDENTIAL. [***] INDICATES THAT INFORMATION HAS BEEN REDACTED.
LITIGATION FUNDING AGREEMENT
Date: September 4, 2023
| (1) | BENCH WALK 23P, L.P. |
| (2) | SILVER BULL RESOURCES, INC. |
THIS LITIGATION FUNDING AGREEMENT is dated September 4, 2023 (this Agreement)
BETWEEN:
| (1) | Bench Walk 23p, L.P., a Delaware limited partnership with a principal place of business at 123 Justison Street, 7th Floor, Wilmington, DE 19801, USA (the Funder); and |
| (2) | Silver Bull Resources, Inc., a United States company incorporated under the laws of Nevada, with its principal executive offices at 777 Dunsmuir Street, Suite 1605, Vancouver, British Columbia, Canada V7Y 1K4 (the Claimant). |
| 1. | DEFINITIONS |
| 1.1 | The defined terms and rules of interpretation in Schedules 1 and 2 apply to this Agreement. |
| 1.2 | All determinations under the Transaction Documents will be made by the Funder acting in good faith except where expressly stipulated otherwise and those determinations will be binding absent manifest or proven error. |
| 2. | AGREEMENT TO FUND |
| 2.1 | Not more than once per month, the Solicitor may issue to the Funder a draw down request in writing in the amount of: |
| (a) | the Disbursements; |
| (b) | the proportion of the Legal Costs that the parties have agreed in the Budget will be paid current by the Funder, rather than being contingent on success; and |
| (c) | any premium for Insurance that the Funder has agreed to pay |
| 2.2 | Not more than once per quarter, the Claimant may issue to the Funder a draw down request in writing for the Working Capital in the amount of up to USD 200,000, subject to a maximum in aggregate of the Working Capital Limit. |
| 2.3 | If the Conditions Precedent are all satisfied at that time the Funder will, within 30 calendar days of a request under clause 2.1 or clause 2.2, pay into the Solicitor’s Client Account or the Claimant’s Account, as appropriate, amounts properly requested under that clause. |
| 2.4 | If the Funder believes that any amount for which a draw down is requested has not been reasonably incurred the Funder may decline to fund the disputed amount for a period of 20 business days. During that period the Funder must instruct an independent, appropriately-qualified solicitor or barrister to determine whether the relevant amount was reasonably incurred. The Solicitor will be entitled to make representations to the reviewing solicitor or barrister. The decision of that solicitor or barrister will be binding on both parties and his costs will be paid by the Funder and, if the Funder was correct, treated as legal fees incurred by it in connection with the Transaction Documents. |
| 3 | PROCEEDS |
| 3.1 | Without prejudice to any other right of the Funder to receive payment under this Agreement or otherwise, if any Proceeds are received by the Solicitor or the Claimant or any connected party, they will be applied as provided for in the Priorities Agreement. |
| 2 |
| 3.2 | If any amount is not paid when due to the Funder under the Transaction Documents, interest will accrue on that amount at the Funder’s reasonably anticipated return on equity as at the date of signing, which is [***]% per annum. |
| 4 | ADDITIONAL FUNDING |
| 4.1 | The Claimant will notify the Funder promptly if: |
| (a) | the Budget is materially less, for any period or in total, than the Solicitor’s reasonable estimation of the costs that will actually be required; |
| (b) | it expects that there will be an Appeal; or |
| (c) | it expects that there will be a Related Claim, |
and the Funder will then have the option, in its absolute discretion, to provide any additional funding required. Unless otherwise agreed in writing, that additional funding will be on the same terms, mutatis mutandis, as this Agreement but with an increase of [***]% to each of the numbers in the “Profit Share” column set out in relevant table in the definition of “Profit Share” for each [***]% increase in the Commitment Amount. If the Funder exercises that option the Budget and the Commitment Amount (and any other relevant terms of this Agreement) will be automatically deemed amended to reflect that exercise.
| 4.2 | If the Funder does not elect to provide additional funding under clause 4.1, the original Budget will continue to apply to this Agreement. |
| 4.3 | Without prejudice to any other rights of the Funder and notwithstanding that the Funder has no contractual obligation to do any of the following, if the Funder either: |
| (a) | provides (or pays any third party to provide) any security for costs in connection with the Claim; or |
| (b) | pays any Adverse Costs in connection with the Claim; or |
| (c) | pays, or advances money to the Solicitor to pay, any Disbursements or Legal Costs that when added to the Outstanding Principal Amount, exceed the Commitment Amount in circumstances where the Funder reasonably determines that, if those amounts were not paid, the merits of the Claim might be materially impaired, |
Then the following will apply:
| (i) | the value of the security provided or the amount paid by the Funder, as applicable, will be added to the Outstanding Principal Amount and the Commitment Amount; and |
| (ii) | there will be a pro rata increase in each of the numbers in the column entitled “% of Proceeds” of the table in the definition of “Profit Share”; and |
| (iii) | in the case of assets posted by the Funder as security, if those assets or equivalent assets or value, are released from the security requirements, the Claimant will procure that those assets be paid immediately to the Funder and will not be subject to the waterfall or any other order of priorities. |
| 3 |
| 5. | REPRESENTATIONS AND WARRANTIES |
| 5.1 | The Claimant represents and warrants on a continuing basis that: |
| 5.1.1 | it is duly organised, validly existing and in good standing under the laws of its jurisdiction of incorporation; it has the power and has obtained all necessary authority and consents to bring the Claim and to execute and perform its obligations under the Transaction Documents and all documents relating to the Claim; and it is, and expects to remain, solvent and able to pay its debts as they fall due; |
| 5.1.2 | it has disclosed to the Funder all information of which it is aware after reasonable enquiry (including all material advice received) that it believes is relevant to the Funder’s evaluation of the risk of this Agreement and the Claim and all information provided to the Funder or its representatives in connection with the Transaction Documents or the Claim is, to the best of the Claimant’s knowledge, true, complete and not misleading; |
| 5.1.3 | except as disclosed in writing to the Funder prior to signing no person has any security interest or quasi security interest nor any other right to receive payments from the Claim or the Proceeds that are not subordinated to the Funder’s entitlements under the Transaction Documents; |
| 5.1.4 | prior to signing it has taken such legal and other advice on the terms of the Transaction Documents as it deems necessary and it believes the Transaction Documents are in its best interests and of significant commercial value and it has not relied on the Funder or any of the Funder’s affiliates or representatives in deciding whether or not to enter into any Transaction Documents or in deciding whether or not to take any action in respect of the Claim; |
| 5.1.5 | each of the Transaction Documents is legal, valid, binding and enforceable in accordance with its stated terms and remains in full force and effect; and |
| 5.1.6 | all representations and warranties given under the Insurance remain true. |
| 5.2 | The Funder represents and warrants on a continuing basis that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; it has the power and has obtained all necessary authority and consents to execute and perform its obligations under this Agreement. |
| 6. | COVENANTS |
| 6.1 | The Claimant covenants that it will: |
| 6.1.1 | not take or, to the extent within its control, permit any other person to take any action that might reasonably be expected to result in a misrepresentation or other breach of any term of the Transaction Documents; |
| 6.1.2 | if so required by the Funder, acting reasonably, maintain ATE insurance coverage sufficient to meet any reasonable Adverse Costs liability that may be awarded if the Claim is lost at trial; comply with the terms of each Insurance and inform the Funder of any material correspondence with the insurer or reinsurer under that Insurance; |
| 6.1.3 | provide the Irrevocable Instructions to the Solicitor and procure that the Solicitor provide to the Funder the Solicitor’s Undertaking and, by the 5th calendar day of each month, the Monthly Report; |
| 6.1.4 | promptly share with the Funder any legal opinion obtained in connection with the Claim and promptly inform the Funder of any significant developments in the Claim including any material adverse change in the prospects of success or recovery and, upon the Claimant’s (or the Solicitor’s) becoming aware of any such material adverse change, immediately cease further drawings under this Agreement and, if moneys have previously been advanced to the Solicitor’s Client Account or the Claimants Client Account under this Agreement, return to the Funder any remaining portion of those moneys; |
| 4 |
| 6.1.5 | comply, and procure that the Solicitor and counsel comply, with any applicable pre-action protocol, CPR, any relevant pre-conditions to commencing arbitration and any order/direction of a court or arbitral tribunal; |
| 6.1.6 | take and follow the legal advice of the Solicitor and counsel at all times (or obtain the consent of the Funder to depart from any such advice), including whether to make or accept any offer to settle the Claim and provide the Solicitor and counsel with such information and support as they may require to pursue the Claim to the best of their abilities; |
| 6.1.7 | at the request of the Funder from time to time and at the Funder’s cost obtain an updated opinion from counsel on the merits of the Claim; |
| 6.1.8 | provide, or arrange with any insurer or other relevant party to provide, at the Claimant’s cost, adequate security for costs in accordance with the terms of any court order or tribunal direction in the Claim including, without limitation, any such order made against the Funder or any entity directly or indirectly related to the Funder; |
| 6.1.9 | if the Funder or any related entity posts, or has arranged for a third party on its behalf to post, any security for costs at any time the Claimants will, within 30 calendar days, replace any such security with adequate security provided at the Claimants’ own cost; |
| 6.1.10 | excluding equity financings by the Claimant, not take any funding from any other person in respect of the Claim or take any action that might result in the subordination of the Funder’s rights under the Transaction Documents without the consent of the Funder, in its absolute discretion; |
| 6.1.11 | procure that all Proceeds in the form of cash be paid to the Solicitor’s Client Account and hold, or procure that the Solicitor hold, any Proceeds (whether or not in cash) on trust for the Funder until all amounts due under all the Transaction Documents have been paid in full; and |
| 6.1.12 | not, without the prior written consent of the Funder, institute or join any legal proceedings that arise out of substantially the same facts as the Claim or that may otherwise materially impact any part of the Claim. |
| 6.2 | The Funder covenants that it will: |
| 6.2.1 | not take any steps that could reasonably be expected to cause the Solicitor, or any other representative of the Claimant in the Claim, to act in breach of its professional duties; and |
| 6.2.2 | not seek to influence the Solicitor, or any other representative of the Claimant, to cede control or conduct of the Claim to the Funder. |
| 5 |
| 7. | CONFIDENTIALITY AND PRIVILEGE |
| 7.1 | Each Party agrees to keep the Confidential Information confidential except that a party may disclose Confidential Information where that party is under a legal or regulatory obligation to do so, but only to the extent of that legal or regulatory obligation and only after notifying the other party of the fact of that disclosure. |
| 7.2. | Any privileged information disclosed to the Funder is disclosed on the basis that the Funder has, or will have, a common interest in the pursuit and success of the Claim and for the dominant purpose of litigating the Claim and the Funder will use reasonable endeavours to preserve that privilege. |
| 7.3 | The Funder may disclose Confidential Information to its manager, professional advisors, service providers, auditors, insurers and actual or potential co-investors or hedge providers, in each case provided that those parties are bound by obligations to maintain privilege and preserve the confidentiality of those documents substantially on the same terms as the Funder. |
| 8. | ADVERSE COSTS |
| 8.1 | Notwithstanding any other provision of any Transaction Document, the Funder will have no liability to pay, or to fund, any Adverse Costs or any security for costs and the Claimant indemnifies the Funder and its affiliates against any Adverse Costs order or order for security for costs or analogous tribunal or court direction made against the Funder or its affiliates and against any legal fees incurred by the Funder or its affiliates in enforcing this clause and/or in complying with that order or direction. |
| 8.2 | Where the court or tribunal in which the claim is to be heard customarily awards recovery of Adverse Costs to a successful party, the Claimant will use all reasonable endeavours to recover all amounts incurred in connection with the Claim. |
| 9. | SOLICITOR |
| 9.1 | Nothing in any Transaction Document will permit the Funder to override any advice given by the Solicitor or to require the Claimant to conduct the Claim otherwise than in accordance with that advice. |
| 9.2 | The Claimant may not amend any material term of the Legal Costs Agreement without the prior written consent of the Funder, in its reasonable discretion. |
| 9.3 | Without prejudice to the Funder’s other rights under the Transaction Documents, the Claimant may instruct any solicitor or counsel it may choose provided that (a) the Claimant must first obtain the Funder’s consent to the proposed new solicitor or counsel and (b) if a new solicitor is instructed, the Claimant immediately provide a new set of Irrevocable Instructions to that new solicitor and procure that the new solicitor immediately provide a new Solicitor’s Undertaking to the Funder and adheres to the terms of the Priorities Agreement in the form required by the Funder. |
| 10. | TERMINATION EVENTS |
| 10.1 | At any time after a Termination Event has occurred, the Funder may give written notice to the Claimant exercising its rights under this clause. Notification of a Termination Event will not preclude notice of a different Termination Event at any time, including after conclusion of the Claim (for example, but without limitation, if it transpires that material information has been withheld from the Funder in breach of this Agreement). |
| 10.2 | Upon delivery of a notice of exercise under this clause, without prejudice to any other rights the Funder may have under the Transaction Documents or by law: |
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| 10.2.1 | the Claimant shall, within 20 business days, put in place alternative arrangements to discharge any order for security for costs that has been satisfied by the Funder; |
| 10.2.2 | the Funder will be released from all further obligations under the Transaction Documents other than its obligation to maintain confidentiality and privilege in respect of Confidential Information; |
| 10.2.3 | if a Termination Event is notified under sub-clause (b) of that definition the Claimant will, within 10 business days, repay to the Funder the Outstanding Principal Amount plus interest at the Funder’s reasonably anticipated return on equity as at the date of signing, which is [***]% per annum; |
| 10.2.4 | the Claimant will (and will procure, that the Solicitor will) promptly return to the Funder any moneys advanced under the Funding Agreement that remain in the Solicitor’s client account or otherwise unspent; and |
| 10.2.5 | that exercise by the Funder will not affect any of its rights under the Transaction Documents, including its right to be paid the Outstanding Principal Amount and the Profit Share (after giving credit for any amounts received by the Funder under the immediately preceding sub-clause). |
| 10.3 | If the Termination Event is waived by the Funder or is cured during the period, if any, stipulated for that purpose in the definition of Termination Event, clause 10.2 will cease to apply in respect of the relevant Termination Event. |
| 10.4 | No failure to exercise or any delay in exercising any right, power or remedy under a Transaction Document shall operate as a waiver of such right, power or remedy or constitute an election to affirm any of the Transaction Documents. |
| 11. | TAX GROSS-UP |
| 11.1. | The Claimant shall make, and procure that each person acting on its behalf makes, all payments under the Transaction Documents without any Tax Deduction, unless a Tax Deduction is required by law. |
| 11.2. | If a Tax Deduction is required by law to be made from any such payment the amount of the payment due shall be increased to an amount that (after making all Tax Deductions) leaves an amount equal to the payment which would have been due if no Tax Deductions had been required. |
| 12 | SECURITY AGREEMENT |
| 12.1. | As security for the payment, performance and observance in full of all of the Secured Obligations, the Claimant hereby grants, assigns and pledges to the Funder, its successors, agents, designees and assigns, a continuing security interest in any and all right, title or interest of the Claimant in or to any and all of the following assets, rights and properties now owned or at any time hereafter acquired by the Claimant or in which the Claimant now has or at any time in the future may acquire any right, title or interest (collectively, the Collateral): |
(a) the Proceeds;
(b) the Claim;
(c) all documents of title, chattel paper and instruments pertaining to the Claim, and a true and correct copy of the Claimant’s books, Records, files, correspondence, evidentiary materials and records pertaining to the Claim, all of which are stipulated as accurate by the Claimant;
(d) rights under any appeal bond or similar instrument posted by any of the defendants in the Claim; and
(e) to the extent not otherwise included, all proceeds (as defined in the UCC) of any and all of the foregoing.
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| 12.2 | The Claimant acknowledges and agrees that the security interest of the Funder in the Collateral constitutes continuing collateral security for all of the Secured Obligations and shall remain in full force and effect until the Claimant has performed all of its obligations under the Transaction Documents in full, including payment of the Secured Obligations. |
| 12.3 | The Claimant hereby irrevocably authorizes the Funder at any time and from time to time to file in any filing office in any jurisdiction that the Funder deems advisable (a) any UCC financing statement, providing the name of the Claimant as debtor, the Funder or its designee as secured party and indicating the Collateral as collateral covered by the financing statement and (b) any other notice, filing or other document that the Funder deems necessary or advisable to perfect or protect the security interest or to maintain its first priority. |
| 12.4 | The Claimant represents and warrants to the Funder that: |
(a)the Claimant has not acquired the Claim from any person;
(b)value has been given and the Claimant has the right, power and authority to grant to the Funder a security interest in the Collateral;
(c)the security interest granted by the Claimant pursuant to this Agreement constitutes a legal and valid security interest that is enforceable against the Collateral in which the Claimant now has rights and will create a security interest that is enforceable against the Collateral in which the Claimant hereafter acquires rights at the time the Claimant acquires any such rights. In respect of Collateral for which a security interest may be perfected by the filing of a financing statement at the applicable recording office (Financing Statement Collateral), upon such filing the Funder will have a perfected security interest in Financing Statement Collateral in which the Claimant now has rights, and will have a perfected security interest in Financing Statement Collateral in which the Claimant hereafter acquires rights at the time the Claimant acquires any such rights. The security interest of the Funder in Financing Statement Collateral is and shall be prior to any other Encumbrance on any such Financing Statement Collateral; and
(d)except as contemplated by this Agreement with respect to filings for the benefit of the Funder, the Claimant has not filed or consented to the filing of any financing statement or analogous document under the UCC or any other applicable laws covering any Collateral.
| 12.5 | So long as any of the Secured Obligations shall remain unpaid or unsatisfied, the Claimant shall: |
(a)take such action and execute, acknowledge and deliver such agreements, instruments or other documents as the Funder may from time to time require in order (i) to perfect and protect or maintain the perfection of the security interest in the Collateral and (ii) to enable the Funder to enforce its rights in respect of the Collateral;
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(b)do all things reasonably necessary at the written request of the Funder so that the Funder will have a perfected first-priority security interest in any judgment obtained in the Claim and to establish the Funder’s priority in any judgment obtained in the Claim under applicable procedural law or court rules;
(c)ensure that the Funder has a first priority right and Encumbrance in and to the Proceeds; and
(d)not (i) assign or transfer any interest in the Collateral, (ii) make any sale, lease or other disposition of any of the Collateral, (iii) license any of the Collateral or (iv) grant or permit to exist any claims or Encumbrances (voluntary or involuntary) in or on the Collateral, other than Encumbrances in favor of the Funder.
| 12.6 | If the Claimant fails to pay or perform any of the Secured Obligations when due to be paid or performed, the failure shall constitute a default under this Agreement for the purposes of Part 6 of Article 9 of the UCC, and the Funder shall have, in addition to all other rights and remedies granted to it in this Agreement and the other Transaction Documents, all rights and remedies of a secured party under the UCC and other applicable law. |
| 12.7 | The Claimant waives, to the fullest extent permitted by applicable law: |
(a)except for the exercise of reasonable care in the custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder, any duty of the Funder as to the preservation of any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral;
(b)any right to require the Funder to marshal any of the Collateral or other collateral or security for any of the Secured Obligations;
(c)any right to require the Funder (i) to proceed against any party, (ii) to exhaust any other collateral or security for any of the Secured Obligations, (iii) to pursue any remedy to the exclusion of any other remedy, or (iv) to make or give any presentments, demands for performance, notices of nonperformance, protests, notices of protests or notices of dishonor in connection with any of the Collateral; and
(d)its rights, if any, under all provisions of applicable law that would in any manner limit, restrict or otherwise affect the Funder's rights and remedies hereunder or impose any additional obligations on the Funder or any receiver, manager or receiver and manager of the Collateral (or any part thereof) or the business and undertaking of the Claimant.
| 12.8 | Upon any default by the Claimant, the Claimant hereby appoints the Funder as the Claimant’s attorney-in-fact to do all things in the Claimant’s name and on the Claimant’s behalf in connection with the Funder’s exercise of its rights and remedies under the Transaction Documents, including making any court filings required pursuant to clause 12.5(b). Such appointment and power of attorney is hereby declared by the Claimant to be an irrevocable power coupled with an interest. If this clause 12.8, or the application thereof, is or becomes invalid or unenforceable with respect to any circumstance, the application of this clause 12.8 to any other circumstance shall not be affected and shall remain valid and be enforceable to the full extent permitted by applicable law. |
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| 13. | ASSIGNMENT |
| 13.1 | Save as provided by clause 13.2 below, the Funder may not assign any of its rights and transfer by novation any of its rights and obligations under the Transaction Documents to any person without providing the Claimant with 30 days’ prior notice and obtaining the Claimant’s consent, not to be unreasonably withheld. |
| 13.2 | The Funder may assign any of its rights and transfer by novation any of its rights and obligations under the Transaction Documents to any affiliate of the Funder or entity which is advised or managed by Bench Walk Advisors LLC without the consent of the Claimant or Solicitor, provided that the Funder shall give prior written notice to the Claimant of any such assignment. |
| 13.3 | The Claimant may not assign or transfer by novation any of its rights and obligations under the Transaction Documents. |
| 14. | ARBITRATION AND GOVERNING LAW |
| 14.1 | Except as otherwise provided pursuant to the definition of UCC herein and in clause 12, the Transaction Documents and any non-contractual obligations out of or in relation to them are governed by the law of the State of New York. |
| 14.2 | Any dispute, claim or controversy arising out of or in connection with this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including any determination regarding the scope or applicability of this Agreement to arbitrate, shall be determined by mandatory, final and binding arbitration and subject to the following: |
| (a) | the tribunal shall consist of one arbitrator, who is to be nominated by agreement of the parties (or by the American Arbitration Association (AAA) if the parties have not agreed a nomination within 10 business days of first notification of the dispute); |
| (b) | the seat, or legal place, of arbitration shall be New York; |
| (c) | the arbitrator shall be a practicing attorney licensed to practice law in the State of New York; |
| (d) | the language to be used in the arbitral proceedings shall be English; |
| (e) | the arbitration shall be administered by the AAA pursuant to AAA rules and procedures; and |
| (f) | the arbitrator shall have the discretion to award the prevailing party in such arbitration reimbursement from the other party of the prevailing party’s legal fees, costs and disbursements in connection with such arbitration. |
| 14.3 | The Claimant and the Funder each hereby waives any right to trial by jury of any claims, demand, action, or cause of action (i) arising under the Transaction Documents or (ii) in any way connected with or related or incidental to the dealings of the parties hereto in respect of the Transactions Documents or thereto in each case whether now existing or hereafter arising, and whether in contract, tort, equity or otherwise. |
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| 15. | MISCELLANEOUS |
| 15.1 | The Transaction Documents constitute the entire agreement and understanding between the Parties with respect to all matters referred to herein. If there is any conflict between the terms of this Agreement and any other agreement (including any other Transaction Document), this Agreement shall prevail. |
| 15.2 | This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which, taken together, shall constitute one agreement binding on all Parties. Copies of executed counterparts may be exchanged by email or other electronic transmission, and such an exchange shall constitute effective delivery by the Parties of their respective executed counterparts. |
| 15.3 | If, at any time, any provision of a Transaction Document is or becomes illegal, invalid, contrary to public policy or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity, compliance with public policy or enforceability of the remaining provisions nor the legality, validity, compliance with public policy or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired. The applicable Transaction Documents shall be construed as though it did not contain the particular provision held to be invalid or unenforceable and the rights and obligations of the parties shall be construed and enforced only to such extent as shall be permitted by applicable law. |
| 15.4 | The Claimant will execute any instruction, notice, registration or other additional document as the Funder may reasonably require from time to time to preserve or enforce its rights under the Transaction Documents. |
| 15.5 | The Claimant agrees not to do, or permit to be done, anything likely to deprive the Funder of any benefit for which the Funder has entered into the Transaction Documents. |
| 15.6 | The parties do not intend the transactions contemplated by this Agreement to constitute a loan and this Agreement does not create a debt instrument. The parties intend that, for United States federal, state, and local tax purposes, the transaction set forth in this Agreement shall be treated as a purchase and sale, and not as a debt instrument or as a partnership. To the maximum extent permitted by law, the payment of the Outstanding Principal Amount plus the Profit Share shall constitute a termination of this Agreement within the meaning of Section 1234A of the Code resulting in a sale or exchange of any assets created or transferred as a consequence of this Agreement. |
| 15.7 | The trust period for all trusts in the Transaction Documents will be 80 years. |
| 15.8 | The rights and remedies provided by this Agreement are cumulative and are not exclusive of any rights and remedies provided by law. |
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| 15.9 | Notices shall be made by letter or email at the address of each Party indicated below or at such other address as a Party may notify each other Party by not less than 5 Business Days’ notice: |
| Funder |
| Address: | c/o
Bench Walk Advisors LLC 1 Bow Lane London, EC4M 9EE UK |
| and |
123
Justison Street
Wilmington, DE 19801
USA
| Attention: | Adrian Chopin; Stuart Grant |
| Email: | [***] |
| Claimant |
Address: Suite 1605, 777 Dunsmuir Street
Vancouver, BC, V7Y 1K4
Canada
Attention:Timothy Barry
Email:tbarry@silverbullresources.com
Attention: Chris Richards
Email: crichards@silverbullresources.com
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SCHEDULE 1
KEY TERMS
| Solicitor: | Boies Schiller Flexner (UK) LLP and any replacement or additional solicitor appointed by the Claimant in respect of the Claim. |
| Claim: | Claimant: Silver Bull Resources, Inc. Respondent: The United Mexican States The claim by the Claimant, and any related party, against the Respondent commenced by a Request for Arbitration dated 28 June 2023 for breaches of the North American Free Trade Agreement (“NAFTA”) by way of arbitration under the rules of The International Centre for Settlement of Investment Disputes, including the same if transferred to any jurisdiction or forums (arbitral, judicial or otherwise), together with (a) any and all claims, suits, causes of action, proceedings, and other rights relating to, or arising therefrom, (b) any and all appellate proceedings, proceedings on remand, and enforcement, ancillary, parallel or alternate dispute resolution proceedings and processes arising out of or related thereto, and (c) any additional cases, lawsuits, arbitration matters or other proceedings filed or initiated by or on behalf of the Claimant based upon the same or substantially similar claims. |
| Commitment Amount: | (a)USD 9.5 m; plus (b)any legal fees the Funder incurs in connection with the Transaction Documents or the Claim (including prior to signing). |
| Solicitor Client Account: | Bank: [***] Bank Address: [***] Sort Code: [***] Account: [***] SWIFT: [***] IBAN: [***] |
| Claimant Client Account: | Bank: [***] Bank Address: [***] Account: [***] IBAN: [***] SWIFT: [***] |
| Profit Share: | Subject to the Increased Risk and MFN provisions below, the amount set out in the appropriate column of the table below determined by reference to the date on which the Funder is paid in full all amounts due under the Transaction Documents: |
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| Date on or prior to which Funder is paid in full | Profit
Share (greater of two columns) | ||
| Multiple of Outstanding Principal Amount | % of Proceeds | ||
| [***] | [***]x | [***]% | |
| [***] | [***]x | [***]% | |
| [***] | [***]x | [***]% | |
| [***] | 2.5x | 30% | |
| Increased Risk | Without prejudice to any other rights of the Funder, if [***], the Profit Share in each of the two columns above will be [***]. This provision will apply again every time [***](but not more than once every [***] days). | ||
| MFN: | Without prejudice to any other rights of the Funder, if the Claimant takes funding from any other person in respect of the Claim without the prior written consent of the Funder and if that funding is, in the commercially reasonable opinion of the Funder, on more favourable pricing (or other) terms than this Agreement, this Agreement shall be automatically modified to include those more favourable pricing or other terms. | ||
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SCHEDULE 2
DEFINED TERMS
Adverse Costs means any costs that a court or tribunal directs one party to pay another party pursuant to an adverse costs order.
Appeal means an appeal or a judgment or award in respect of any aspect of the Claim, whether or not by the Claimant.
Budget means the budget and timetable for the Claim as agreed by the Funder on or prior to closing.
Conditions Precedent means each of the following:
| (a) | that no Termination Event has occurred; |
| (b) | that no event has occurred that, with the giving of notice or the passage of time, would constitute a Termination Event; |
| (c) | that the Transaction Documents are valid and enforceable and remain in full force and effect; |
| (d) | in respect of any drawing request, that the requested amount, if drawn in full, would not result in either (i) total drawn amounts for that stage of the Claim exceeding 110% of the amounts provided for in the Budget for that stage of the Claim or (ii) the Outstanding Principal Amount’s exceeding the Commitment Amount after subtracting from the Commitment Amount an allowance for future expected drawings in accordance with the Budget; |
| (e) | final disposition of the Claim whether by trial, judgment, settlement or other final disposition has not occurred; and |
| (f) | the Funder shall have received evidence, in form and substance satisfactory to the Funder in its sole discretion, that the Funder has a valid priority security interest in all of the Proceeds and other Collateral set forth in clause 12, including but not limited to granting the Funder the authorization to file a UCC-1 financing statement and any other applicable filings with respect to such security interest. |
Confidential Information means all information and documents that are received by a Party, in whatever form and that:
| (a) | relate to the Claim and that are clearly identified as confidential or are by their nature or the circumstances of their receipt generally regarded as confidential; |
| (b) | relate to the existence or terms of the Transaction Documents or the Solicitor’s retainer and / or the negotiations relating to them; |
| (c) | relate to each other Party and that Party’s affiliates and/or representatives (including, without limitation, information relating to the business, operations, structure, technology and/or finances of each other Party and that Party’s affiliates and/or representatives and any intellectual property of each other Party and that Party’s affiliates and/or representatives). |
but excluding anything that:
| (i) | is, or becomes, generally available to the public (other than as a result of disclosure by the receiving party in breach of this Agreement); or |
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| (ii) | is, or becomes, available to the receiving party on a non-confidential basis from any person who, to the best of the receiving party’s knowledge after due enquiry, is not bound by a confidentiality agreement with the disclosing party, or otherwise prohibited from disclosing the information to the receiving party; or |
| (iii) | was lawfully in the possession of the receiving party before the information was disclosed to it by the disclosing party; or |
| (iv) | is developed by or for the receiving party, independently of the information disclosed by the disclosing party. |
Disbursements means all disbursements incurred by, or on behalf of, the Claimants or the Solicitor in connection with the Claim but only to the extent that those amounts have been incurred reasonably and in accordance with the Budget and the terms of the Transaction Documents.
Encumbrance means any mortgage, pledge, lien, security or ownership interest, charge, hypothecation, or other encumbrance, option agreement, transfer, set-off right, counterclaim, security or subordination arrangement, or other similar interest or arrangement of any kind.
Insurance means each litigation costs insurance policy relating to the Claim and entered into by the Claimant, or any person on its behalf, on or after the date of this Agreement.
Irrevocable Instructions means irrevocable instructions substantially in the form of Schedule 3 Part 1.
Legal Costs means the Solicitor’s time costs that it has invoiced in connection with the Claim, calculated in accordance with the Solicitor’s hourly rates set out in its retainer but only to the extent that those amounts have been incurred reasonably and in accordance with the Budget and the terms of the Transaction Documents.
Legal Costs Agreement means the Solicitor’s retainer, CFA, DBA and/or other agreements under which the Solicitor agrees to represent each of the Claimants in respect of the Claim and/or is entitled to receive fees in connection with the Claim. For the purposes of the Transaction Documents, all references will be deemed to include all such agreements with any actual or potential claimant in respect of the Claim, notwithstanding the use of the singular.
Monthly Report means a report substantially in the form of Schedule 4 or such other form as the Funder may reasonably require from time to time.
Outstanding Principal Amount means (a) any amounts advanced by the Funder under this Agreement (for the avoidance of doubt, including Working Capital and any amount to cover Insurance premium for security for costs plus (b) any legal fees the Funder incurs in connection with the Transaction Documents or the Claim (including prior to signing). The Outstanding Principal Amount will be reduced by each repayment actually received by the Funder under this Agreement that is stipulated to be so applied.
Priorities Agreement means the priorities agreement relating to the Claim and dated on or about the date of this Agreement.
Proceeds means any receipt of money, financial gain or non-monetary value by the Claimant or the Solicitor or a related party from a respondent or related party or from an insurer in each case in connection with the Claim or with any claim arising out of substantially the same facts and against the same respondent (or any related party). Proceeds will include, without limitation, any recovery from the respondent or a related party of the Solicitor’s time costs or disbursements and any payment under an Insurance policy. Where Proceeds are in a form other than cash, the Funder will determine the present value of the relevant thing in a commercially reasonable manner for the purposes of calculating the Profit Share due to the Funder.
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Reasonable Offer means an offer to settle all or any material part of the Claim on terms that:
| (a) | the Solicitor or counsel recommends be accepted; |
| (b) | the Solicitor or counsel confirms it would recommend be accepted but for any costs payable to the Funder and/or any insurer under the Transaction Documents; |
| (c) | the Solicitor or counsel, when asked by the Funder whether it can provide a confirmation under (a) or (b) above, declines to provide a response within 5 business days; or |
| (d) | an experienced barrister or solicitor instructed by the Funder for this purpose confirms he would recommend be accepted if he were acting for the claimant in the Claim or that he would so recommend but for any costs payable to the Funder and/or any insurer under the Transaction Documents. |
Records shall have the meaning assigned to such term in the UCC.
Related Claim means any proceedings involving the Claimants and deriving from the Claim or arising out of substantially the same facts as the Claim.
Secured Obligations means, collectively: (a) the prompt payment by the Claimant, as and when due, of the Outstanding Principal Amount plus the Profit Share (plus any other amounts due and payable to the Funder pursuant to the Transaction Documents) to the Funder, and the due performance by the Claimant of all of its obligations in respect of the Transaction Documents, (b) all other debts, liabilities, obligations, covenants and duties of the Claimant owing to the Funder now or hereafter existing, whether direct or indirect, absolute or contingent or due or to become due, arising under or in connection with the Transaction Documents or any of the transactions contemplated thereby and including any interest due thereon and all fees, costs and expenses incurred by the Funder in connection therewith; (c) all debts, liabilities, obligations, covenants and duties of the Claimant to pay or reimburse the Funder for all expenses, including attorneys’ fees, incurred by the Funder in connection with the enforcement, attempted enforcement or preservation of any rights or remedies under the Transaction Documents, including all such costs and expenses incurred during any legal proceeding, including any proceeding under any applicable bankruptcy, insolvency or other similar debtor relief laws; and (d) all interest and fees on any of the foregoing, whether accruing prior to or after the commencement by or against the Claimant of any proceeding under any applicable bankruptcy, insolvency or other similar debtor relief laws naming the Claimant as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
Solicitor’s Undertaking means a letter from the Solicitor substantially in the form of Schedule 3 Part 2.
Tax means any tax, duty, contribution, impost, withholding, levy or other charge or withholding of a similar nature (including use, sales and value added taxes), whether domestic or foreign, and any fine, penalty, surcharge or interest in connection therewith.
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Tax Deduction means a deduction or withholding for or on account of Tax from a payment under any Transaction Document.
Termination Event means either of the following:
| (a) | the Funder is not satisfied as to the merits of the Claim or believes the Claim is not commercially viable, in each case as determined in good faith but otherwise in its sole discretion; or |
| (b) | the Claimant or the Solicitor has made a misrepresentation or is otherwise in breach of any term of any Transaction Document and that misrepresentation or other breach is not reasonably capable of remedy or has not been remedied to the satisfaction of the Funder within 10 Business Days of that party’s becoming aware of the breach or the Claimant, or any of its agents or employees, is the subject of a formal finding by a relevant tribunal of dishonesty or corrupt practices in connection with the events giving rise to the Claim; or |
| (c) | any of the Conditions Precedent have not been satisfied. |
Transaction Documents means this Agreement, the Priorities Agreement, the Irrevocable Instructions, the Solicitor’s Undertaking, the Legal Costs Agreement, each Insurance and any other ancillary or related document stipulated by the Funder from time to time.
UCC means the Uniform Commercial Code as in effect on the date hereof in the State of New York or, in relation to the perfection or priority of a security interest, the Uniform Commercial Code that governs under the choice of law rules applicable to questions of perfection or priority.
Working Capital means amounts required to fund the reasonably incurred day-to-day operating expenses of the Claimant.
Working Capital Limit means USD 2.3m, provided that, if [***], the Working Capital Limit will increase by USD 1.4m (or such lower amount as may be stipulated in the Budget to be reserved to pay [***]).
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SCHEDULE 3
PART 1: FORM OF IRREVOCABLE INSTRUCTIONS
[ON CLAIMANT’S HEADED PAPER]
[NAME AND ADDRESS OF SOLICITOR]
Dear Sir,
[NAME OF CLAIM]
We refer to the funding agreement we have entered with Bench Walk 23p, L.P. in respect of the claim referenced above. Terms used in this letter have the same meanings as in that funding agreement.
We hereby irrevocably instruct and authorise you:
| 1. | to take such steps as may be necessary or desirable to give effect to the Transaction Documents including acting as our agent to discharge our obligations to the extent within your reasonable control; |
| 2. | to keep the Funder reasonably informed about developments in the Claim (including any actual or threatened termination or modification of your retainer, any failure by us to follow your advice and any actual or threatened misrepresentation or other breach by us of the terms of the Funding Agreement) and to provide the Funder with the Monthly Report each month and, immediately upon your becoming aware of any material adverse change in the prospects of success or recovery in the Claim, to cease further drawings and promptly to return to the Funder any portion of the moneys advanced under the Funding Agreement that remains in your client account; |
| 3. | to inform the Funder promptly of the receipt of any funds that would arguably be part of the Proceeds and to direct, to the extent within your control, that all Proceeds be paid into your client account; |
| 4. | to hold any Proceeds paid to you on trust for the Funder and any other person entitled to payment in accordance with the terms of the Funding Agreement and the Priorities Agreement; |
| 5. | promptly to apply all Proceeds received by you or your bank in accordance with the order of priorities stipulated in the Priorities Agreement; |
| 6. | to notify the Funder immediately in writing if your representation of us terminates or changes in a material way, including but not limited to any actual or proposed modification of your retainer, CFA, DBA or other fee agreement; and |
| 7. | to disregard any subsequent instructions from us that conflict with these instructions and/or with our or your obligations under the Funding Agreement. |
These Irrevocable Instructions may be amended only in writing and with the prior express, written consent of the Funder.
Yours faithfully,
..............................................
For and on behalf of the Claimant
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SCHEDULE 3
PART 2: FORM OF ACKNOWLEDGEMENT
[ON SOLICITOR’S HEADED PAPER]
Bench Walk 23p, L.P.
Dear Sir
[NAME OF CLAIM]
We refer to the funding agreement you have entered in respect of the claim referenced above. Terms used in this letter have the same meanings as in that funding agreement.
We act for the Claimants in the Claim. In consideration of the benefit we receive from your agreeing to enter into the Funding Agreement, we provide you with this letter and acknowledge that you will rely on it.
We confirm:
| (a) | we have provided every material piece of advice that we or counsel have given in connection with the Claim and all other information that would reasonably be relevant to the Funder’s assessment of the merits of the Claim or the likelihood of recovery; |
| (b) | the information we have provided to the Funder and its representatives is, to the best of our knowledge and belief after appropriate enquiry, true, complete and not misleading; and |
| (c) | our opinion is that the Claimant is more likely to win than not. |
We undertake to you:
| (a) | to direct, to the extent within our control, that all Proceeds be paid into our client account; |
| (b) | to hold any Proceeds paid to us, or our bank, on trust for the Funder and any other person entitled to payment in accordance with the terms of the Funding Agreement and the Priorities Agreement; |
| (c) | promptly to apply all Proceeds in accordance with the order of priorities stipulated in the Priorities Agreement; |
| (d) | to comply with the terms of the Irrevocable Instructions; |
| (e) | to inform you immediately if we believe that the confirmations given above were untrue when given or cease to be true at any later time; and |
| (f) | not to amend any material term of our retainer, CFA, DBA or other fee agreement without your prior written consent and not to enforce our rights to receive payment of any amounts in connection with the Claim except in accordance with the Priorities Agreement. |
Yours faithfully,
..............................................
For and on behalf of the Solicitor
| 20 |
SCHEDULE 4
PRO FORMA MONTHLY UPDATE REPORT
| Name of Claim / Case: | |
| Date of report: | |
| Name of solicitor making report: | |
| Key events or features of the Claim that have occurred or changed since the last report: | |
| Key steps Claimant and/or Solicitor expect to occur in the next three months | |
| Any change in Solicitor’s or counsel’s assessment of the merits or recoverability of the Claim or other risks under the Funding Agreement since last report | |
| Any change in Budget or expected timetable |
Signed ……………………………………………..
Dated
……………………………………………..
| 21 |
LFA EXECUTION PAGE
This Agreement has been signed on the date stated at the beginning of this Agreement.
FUNDER
Signed for and on behalf of BENCH WALK 23P, L.P.:
By:/s/ Michael Leavitt
Name:Michael Leavitt
Title:Authorized Signatory
CLAIMANT
Signed for and on behalf of SILVER BULL RESOURCES, INC.:
By:/s/ Timothy Barry
Name:Timothy Barry
Title:President & CEO
| 22 |
*****************************
CLOSING CHECKLIST:
FUNDING AGREEMENT
IRREVOCABLE INSTRUCTIONS
SOLICITOR’S UNDERTAKING
PRIORITIES AGREEMENT
LEGAL COSTS AGREEMENT
BUDGET
| 23 |
Exhibit 21.1
Subsidiaries of the Registrant
Silver Bull Resources, Inc. (the “Company”) currently conducts its operations through subsidiaries. The names and ownership structure of its subsidiaries as of October 31, 2023 are set forth in the chart below:
| Name | Jurisdiction of Incorporation or Organization | Ownership Percentage |
| Metalline, Inc. (“Metalline”) | Colorado, USA | 100% by Silver Bull |
| Minera Metalin S.A. de C.V. (“Minera Metalin”) | Mexico | 99.998% by Silver Bull and 0.002% by Metalline |
| Minas de Coahuila SBR S.A. de C.V. | Mexico | 99.998% by Silver Bull and 0.002% by Metalline |
| Dome Ventures Corporation (“Dome”) | Delaware, USA | 100% by Silver Bull |
| Dome Asia Inc. | British Virgin Islands | 100% by Dome |
| Dome Minerals Nigeria Limited | Nigeria | 99.99% by Dome Asia Inc. |
| Nomad Minerals Ltd. (“Nomad Minerals”) | Kazakhstan | 100% by Silver Bull |
| Nomad Metals Limited. | Kazakhstan | 100% by Nomad Minerals |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statements on Form S-1 (File Nos. 333-214228, 333-221459, 333-227465, and 333-251229), as amended, and Form S-8 (File Nos. 333-171723, 333-180142, 333-214229, 333-221460, and 333-232627) of Silver Bull Resources, Inc. of our report dated January 26, 2024 relating to the audit of the consolidated financial statements, which appears in this Annual Report on Form 10-K for the year ended October 31, 2023.
/s/ Smythe LLP
Smythe LLP
Chartered Professional Accountants
Vancouver, Canada
January 29, 2024
Exhibit 23.2
CONSENT OF ARCHER, CATHRO & ASSOCIATES (1981) lIMITED
We, Archer, Cathro & Associates (1981) Limited, hereby consent to the incorporation by reference of any mineral resources and other analyses performed by us in our capacity as an independent consultant to Silver Bull Resources, Inc. (the “Company”), which are set forth in the Company’s Annual Report on Form 10-K for the year ended October 31, 2023 (the “Form 10-K”), in the Company’s Registration Statements on Form S-1 (File Nos. 333-214228, 333-221459, 333-227465, and 333-251229), as amended, and Form S-8 (File Nos. 333-171723, 333-180142, 333-214229, 333-221460, and 333-232627), or in any prospectuses or amendments or supplements thereto. We also consent to the reference to us under the heading “Experts” in such Registration Statements and any related amendments or prospectuses.
In connection with the Company’s Form 10-K, we also consent to:
| · | the filing and use of the technical report summary titled “S-K 1300 Summary Technical Report on the Resources of the Silver-Zinc Sierra Mojada Project Coahuila, Mexico” (the “Technical Report Summary”), dated January 24, 2023, as an exhibit to and referenced in the Form 10-K or any amendment or supplement thereto; |
| · | the use of and references to our name, including our status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the Securities and Exchange Commission), in connection with the Form 10-K or any amendment or supplement thereto and any such Technical Report Summary; and |
| · | the information derived, summarized, quoted or referenced from the Technical Report Summary, or portions thereof, that was prepared by us, that we supervised the preparation of and/or that was reviewed and approved by us, that is included or incorporated by reference in the Form 10-K or any amendment or supplement thereto. |
We are a qualified person responsible for authoring, and this consent pertains to, the following sections of the Technical Report Summary:
| · | Sections 1 - 3, 9, 11 and 22 |
| ARCHER, CATHRO & ASSOCIATES (1981) LIMITED | |||
| Date: January 29, 2024 | By: | /s/ Matthew Dumala | |
| Name: Matthew Dumala, P.Eng. | |||
| Title: Partner and Senior Engineer | |||
Exhibit 23.3
CONSENT OF TIMOTHY BARRY
I, Timothy Barry, in connection with Silver Bull Resources, Inc.’s Annual Report on Form 10-K dated January 29, 2024 (the “Form 10-K”), consent to:
| · | the filing and use of the technical report summary titled “S-K 1300 Summary Technical Report on the Resources of the Silver-Zinc Sierra Mojada Project Coahuila, Mexico” (the “Technical Report Summary”), dated January 24, 2023, as an exhibit to and referenced in the Form 10-K or any amendment or supplement thereto; |
| · | the use of and references to my name, including my status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the Securities and Exchange Commission), in connection with the Form 10-K or any amendment or supplement thereto and any such Technical Report Summary; and |
| · | the information derived, summarized, quoted or referenced from the Technical Report Summary, or portions thereof, that was prepared by me, that I supervised the preparation of and/or that was reviewed and approved by me, that is included or incorporated by reference in the Form 10-K or any amendment or supplement thereto. |
I am a qualified person responsible for authoring, and this consent pertains to, the following sections of the Technical Report Summary:
| · | Sections 1 - 8, 10 and 20 - 22 |
| Date: January 29, 2024 | By: | /s/ Timothy Barry | |
| Name: Timothy Barry, MAusIMM (CP) |
Exhibit 31.1
Certification
of CEO Pursuant to Exchange Act Rules 13a-14 and 15d-14,
as adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002
I, Timothy Barry, certify that:
| 1. | I have reviewed this Annual Report on Form 10-K of Silver Bull Resources, Inc.; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
| a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
| b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
| Dated: January 29, 2024 | By: | /s/ Timothy Barry |
|
Timothy Barry, Chief Executive Officer (Principal Executive Officer) | ||
Exhibit 31.2
Certification
of CFO Pursuant to Exchange Act Rules 13a-14 and 15d-14,
as adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002
I, Christopher Richards, certify that:
| 1. | I have reviewed this Annual Report on Form 10-K of Silver Bull Resources, Inc.; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
| a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
| b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
| Dated: January 29, 2024 | By: | /s/ Christopher Richards |
|
Christopher Richards, Chief Financial Officer (Principal Accounting and Financial Officer) | ||
Exhibit 32.1
CERTIFICATION OF CEO PURSUANT TO 18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (Section 1350 of Chapter 63 of Title 18 of the United States Code), the undersigned officer of Silver Bull Resources, Inc. (the “Company”) does hereby certify with respect to the Annual Report of the Company on Form 10-K for the period ended October 31, 2023 (the “Report”) that:
| 1. | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
| 2. | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
| Dated: January 29, 2024 | By: | /s/ Timothy Barry | ||
|
Timothy Barry, Chief Executive Officer (Principal Executive Officer) | ||||
The foregoing certification is being furnished solely pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (Section 1350 of Chapter 63 of Title 18 of the United States Code). It shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934 (15 U.S.C. Section 78r) or otherwise subject to the liability of that section. It shall also not be deemed incorporated by reference into any filing under the Securities Exchange Act of 1934, as amended, or the Securities Act of 1933, as amended, except to the extent that the Company specifically incorporates it by reference.
Exhibit 32.2
CERTIFICATION OF CFO PURSUANT TO 18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (Section 1350 of Chapter 63 of Title 18 of the United States Code), the undersigned officer of Silver Bull Resources, Inc. (the “Company”) does hereby certify with respect to the Annual Report of the Company on Form 10-K for the period ended October 31, 2023 (the “Report”) that:
| 1. | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
| 2. | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
| Dated: January 29, 2024 | By: | /s/ Christopher Richards | ||
|
Chief Financial Officer (Principal Accounting and Financial Officer) | ||||
The foregoing certification is being furnished solely pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (Section 1350 of Chapter 63 of Title 18 of the United States Code). It shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934 (15 U.S.C. Section 78r) or otherwise subject to the liability of that section. It shall also not be deemed incorporated by reference into any filing under the Securities Exchange Act of 1934, as amended, or the Securities Act of 1933, as amended, except to the extent that the Company specifically incorporates it by reference.