UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K/A
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
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For
the Fiscal Year Ended September 30, 2008
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OR
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
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For
the transition period from _______________ to
_______________
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Commission
File Number: 001-32998
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Energy
Services of America Corporation
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(Exact
Name of Registrant as Specified in its
Charter)
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Delaware
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20-4606266
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(State
or Other Jurisdiction of Incorporation or Organization)
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(I.R.S.
Employer Identification
Number)
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2450
First Avenue, Huntington, West Virginia
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25703
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(Address
of Principal Executive Office)
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(Zip
Code)
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(304)
528-2791
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(Registrant’s
Telephone Number including area
code)
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Securities
Registered Pursuant to Section 12(b) of the Act:
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Title
of Class
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Name
of Each Exchange
On
Which Registered
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Common
Stock, par value $0.0001 per share
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American
Stock Exchange
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Units
(each Unit consisting of one share of
Common
Stock and two Warrants)
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American
Stock Exchange
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Warrants
(each Warrant is exercisable
for
one share of Common Stock)
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American
Stock Exchange
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Securities
Registered Pursuant to Section 12(g) of the Act:
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. YES
o
NO
x
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act. YES
o
NO
x
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 twelve months (or for such shorter period that the Registrant was
required to file such reports) and (2) has been subject to such requirements for
the past 90 days. YES
x
NO
o
.
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K is not contained herein, and will not be contained, to the best
of Registrant’s knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K.
x
.
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, or a non-accelerated filer. See definition of “accelerated
filer and large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check
one):
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Large
Accelerated Filer
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Accelerated
Filer
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Non-Accelerated
Filer
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Smaller
Reporting Company
x
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(Do
not check if a Smaller reporting
Company)
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As
of December 20, 2008, there were issued and outstanding 12,092,307 shares of the
Registrant’s Common Stock.
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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NO
x
The aggregate market value
of the voting and non-voting common equity held by non-affiliates of the
Registrant, computed by reference to the last sale price on March 31, 2008, as
reported by the American Stock Exchange, was $46,146,982.
DOCUMENTS
INCORPORATED BY REFERENCE
EXPLANATORY
NOTE
Energy
Services of America Corporation is filing this Amendment to its Annual Report on
Form 10-K for the period ended September 30, 2008 (the “Annual Report”) to
correct certain disclosure errors identified during a regulatory review of the
Company’s Securities and Exchange Commission filings. This Form 10-K/A only
amends disclosures to Items 11 and 13 to include previously omitted
information.
This
Amendment does not reflect events that have occurred after the filing date of
the Annual Report on Form 10-K that the Company originally filed with the
Securities and Exchange Commission on December 29, 2008, or modify or update the
disclosures presented in the original Form 10-K, except to reflect the
corrections described above. Accordingly, this Form 10-K/A should be read in
conjunction with our filings with the Securities and Exchange Commission
subsequent to the filing of the original Form 10-K.
Energy
Services of America Corporation
Annual
Report On Form 10-K/A
For
The Fiscal Year Ended
September
30, 2008
Table
Of Contents
PART
III
PART
III
ITEM
11. Executive
Compensation
No
executive officer or director has received any compensation (cash or other) for
services rendered during the year ended September 30, 2008.
Summary
Compensation Table
. The following table shows for the fiscal years ended
September 30, 2008 and 2007, the compensation of our principal executive
officer.
No
executive officer received total compensation of $100,000 or more for services
to us or any of our subsidiaries during the year ended September 30,
2008.
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Name
and principal position
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Year
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Salary
($)
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Bonus
($)
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All
other
compensation
($)
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Total
($)
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Marshall
T. Reynolds,
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2008
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—
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—
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—
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—
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Chairman
of the Board,
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2007
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—
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—
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—
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—
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Chief
Executive Officer and Secretary
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Edsel
R. Burns, President
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2008
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(1
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93,750
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100,000
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2,900
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196,650
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of
CJ Hughes Construction Company, Inc.
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2007
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(1
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125,000
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—
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1,900
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126,900
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(1)
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Information
for Mr. Burns for the year ended December 31, 2007 and the period from
January 1, 2008 through August 15, 2008 reflects compensation paid by CJ
Hughes Construction Company, Inc. pre-acquisition. Compensation from
August 15, 2008 through September 30, 2008 reflects compensation paid by
CJ Hughes Construction Company, Inc. and consisted solely of salary
totaling $15,753, 401(k) matching contribution of $236 and car lease
payments of $942.
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Compensation
Committee Interlocks and Insider Participation
The
compensation committee is comprised of our independent directors. Under the
board’s policies, Mr. Marshall Reynolds, Mr. Jack Reynolds, and any other
director who is also an executive officer, will not participate in the Board of
Directors’ determination of compensation for their respective offices in the
future if compensation is given to executive officers.
Report
of the Compensation Committee on Executive Compensation
As
of the end of fiscal 2008, Energy Services paid no compensation to any executive
officer except for the period from August 15, 2008 through September 30, 2008.
Because the majority of the compensation was paid to the individual named above
by the predecessor company and the Company paid such compensation from August
15, 2008 through September 30, 2008 in order to honor the terms of his existing
employment terms with CJ Hughes Construction Company, Inc., the independent
members of the Board of Directors have not met in their capacity as the
Compensation Committee and have not formulated any policies on executive
compensation. If we offer compensation in the future to our executive officers,
including our Chief Executive Officer, we will adopt standards and policies to
govern compensation.
ITEM
13. Certain
Relationships and Related Transactions, and Director
Independence
Transactions
with Certain Related Persons
The
Company leases its headquarter offices from a corporation in which two
directors, Douglas Reynolds and Jack Reynolds are significant shareholders. One
of the Company’s subsidiaries, ST Pipeline, leases its offices from Director
James Shafer. Management feels that the rentals are comparable to similar rates
for similar space in independent transactions. From time to time, the Company
may purchase office supplies or furniture from Chapman Printing, Co. which is
owned in part by Marshall Reynolds.
We
will reimburse our officers and directors for any reasonable out-of-pocket
business expenses incurred by them in connection with certain activities on our
behalf such as identifying and investigating possible target businesses and
business combinations. There is no limit on the amount of accountable
out-of-pocket expenses reimbursable by us, which will be reviewed only by our
board or a court of competent jurisdiction if such reimbursement is
challenged.
On
March 30, 2006, we issued 2,150,000 shares of our common stock to the parties
set forth below for $25,000 in cash, as follows:
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Name
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Number
of
Shares
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Relationship
to Us
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Marshall
T. Reynolds
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537,500
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Chairman
of the Board, Chief Executive Officer and Secretary(1)
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Jack
M. Reynolds
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430,000
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Director,
President and Chief Financial Officer(1)
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Edsel
R. Burns
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537,500
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Director
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Neal
W. Scaggs
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107,500
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Director
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Joseph
L. Williams
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107,500
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Director
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Douglas
Reynolds
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430,000
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Director
nominee (1)
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(1)
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Douglas
Reynolds is the son of Marshall T. Reynolds and the brother of Jack M.
Reynolds.
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The
holders of the majority of these shares may request that we register these
shares pursuant to an agreement signed on September 6, 2006. We will use our
best efforts to prepare and file such registration statement, although we are
not obligated to do so. The holders of the majority of these shares may elect to
exercise these registration rights at any time after the date on which these
shares of common stock are released from escrow. In addition, these stockholders
may request certain “piggy-back” registration rights on registration statements
filed subsequent to the date on which these shares of common stock are released
from escrow. We will use our best efforts to prepare and file such registration
statements although we are not obligated to do so. We will bear the expenses
incurred in connection with the filing of any such registration
statements.
Five
of our directors as well as Douglas Reynolds and as agreed with Ferris, Baker
Watts, Incorporated, purchased in the aggregate 3,076,923 warrants in a private
placement that occurred prior to our initial public offering at a price of $0.65
per warrant. In no event shall we be obligated to settle these warrants, in
whole or in part, for cash. Therefore any and all such warrants can expire
unexercised or unredeemed.
The
Companies have advances from a stockholder of $6,000,000. The unsecured advance
bears interest at prime, resulting in interest of $38,763 for the period of
August 16, 2008 through September 30, 2008. Certain Energy Services subsidiaries
routinely engage in transactions in the normal course of business with each
other, including sharing employee benefit plan coverage, payment for insurance
and other expenses on behalf of other affiliates, and other services incidental
to business of each of the affiliates.
Board
Independence
The
Board of Directors consists of a majority of “independent directors” within the
meaning of the American Stock Exchange corporate governance listing standards.
The Board of Directors has determined that Messrs. Adams, Dosch, Molihan, Scaggs
and Williams are “independent directors” within the meaning of such
standards.
The
Board of Directors has adopted a policy that the independent directors of the
Board of Directors shall meet in executive sessions periodically, which meetings
may be held in conjunction with regularly scheduled board meetings. Three
executive sessions were held during the fiscal year ended September 30, 2007 and
three were held during the fiscal year ended September 30,
2008.
ITEM
15. Exhibits and
Financial Statement Schedules
The
exhibits filed as a part of this Form 10-K/A are as follows:
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Exhibit
No.
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Description
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31.1
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Certification
of Chief Executive Officer pursuant to Rule 13a-14(a) of the Securities
Exchange Act of 1934, as amended, as adopted pursuant to Section 302 of
the Sarbanes-Oxley Act of 2002.
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31.2
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Certification
of Chief Financial Officer pursuant to Rule 13a-14(a) of the Securities
Exchange Act of 1934, as amended, as adopted pursuant to Section 302 of
the Sarbanes-Oxley Act of 2002.
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32
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Certification
of Chief Executive Officer and Chief Financial Officer pursuant to 18
U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
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(b)
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The
exhibits listed under (a)(3) above are filed herewith.
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(c)
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Not
applicable.
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SIGNATURES
Pursuant
to the requirements of Section 13 of the Securities Exchange Act of 1934, the
Company has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
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ENERGY
SERVICES OF AMERICA CORPORATION
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Date:
May 6, 2009
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By:
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/s/
Marshall T. Reynolds
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Marshall
T. Reynolds
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Chairman
and Chief Executive Officer
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(Duly
Authorized Representative)
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Pursuant
to the requirements of the Securities Exchange 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.
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Name
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Position
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Date
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By:
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/s/
Marshall T. Reynolds
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Chairman
of the Board,
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May
6, 2009
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Marshall
T. Reynolds
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Chief
Executive Officer
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By:
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/s/
Jack R. Reynolds
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Director
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May
6, 2009
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Jack
R. Reynolds
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President
and Director
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By:
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/s/
Edsel R. Burns
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(Principal
Executive Officer)
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May
6, 2009
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Edsel
R. Burns
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Secretary/Treasurer,
Chief
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Financial
Officer
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By:
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/s/
Larry A. Blount
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(Principal
Financial and Accounting Officer)
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May
6, 2009
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Larry
A. Blount
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By:
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/s/
Neal W. Scaggs
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Director
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May
6, 2009
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Neal
W. Scaggs
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By:
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/s/
Joseph L. Williams
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Director
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May
6, 2009
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Joseph
L. Williams
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By:
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/s/
Richard M. Adams, Jr.
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Director
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May
6, 2009
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Richard
M. Adams, Jr.
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By:
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/s/
Keith Molihan
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Director
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May
6, 2009
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Keith
Molihan
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By:
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/s/
Douglas Reynolds
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Director
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May
6, 2009
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Douglas
Reynolds
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By:
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/s/
Eric Dosch
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Director
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May
6, 2009
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Eric
Dosch
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By:
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/s/
James Shafer
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Director
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May
6, 2009
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James
Shafer
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Grafico Azioni Energy Services of America Corp. (AMEX:ESA)
Storico
Da Giu 2024 a Lug 2024
Grafico Azioni Energy Services of America Corp. (AMEX:ESA)
Storico
Da Lug 2023 a Lug 2024
