As filed with the Securities and Exchange Commission on August 1, 2002
Registration No. 333-56044
--------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8/A
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-------------------------------------
ABLE ENERGY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 22-3520840
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
198 Green Pond Road Rockaway, New Jersey 07866
(Address of principal executive offices) (Zip Code)
(973) 625-1012
-------------------------------------
1999 Stock Option Plan
and
2000 Stock Bonus Plan
-------------------------------------
Timothy Harrington
Chief Executive Officer
198 Green Pond Road Rockaway, New Jersey 07866
(Name and address of agent for service)
(973) 625-1012
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
-----------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) Per Share (2) Price(2) Fee
---------- ----------- ------------ ---------- -----------
Common Stock 700,000 $3.00 $2,100,000 $ 525.00
$0.001 par value shares (3)
Common Stock 350,000 $3.00 $1,050,000 $ 262.50
$0.001 par value shares (4)
=========
Total Registration Fee: $ 787.50*
--------------------------------------------------------------------------------
* Registration Fee previously paid.
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1999 Stock Option Plan and the
2000 Stock Bonus Plan, by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration which results in an increase in the number of the
outstanding shares of Common Stock of Able Energy, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(c) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low selling prices per share of Common Stock of Able Energy, Inc. on
February 15, 2000, as reported on the OTC Electronic Bulletin Board.
(3) Represents shares underlying options that may be issued pursuant to the
registrant's 1999 Stock Option Plan.
(4) Represents shares that may be issued pursuant to the registrant's 2000
Stock Bonus Plan.
EXPLANATORY NOTE
The Prospectus filed as part of this Registration Statement has been
prepared in accordance with the requirements of Form S-3 and may be used for
reofferings and resales of registered shares of common stock which have been
issued upon the grants of common stock to employees, non-employee directors and
consultants of Able Energy, Inc.
Prospectus
ABLE ENERGY, INC.
12,000 SHARES OF COMMON STOCK
issued pursuant our
2000 STOCK BONUS PLAN
This prospectus relates to the sale of up to 12,000 shares of common stock
of Able Energy, Inc. offered by certain holders of our securities acquired
pursuant to our 2000 Stock Bonus Plan. The shares may be offered by the selling
stockholders from time to time in regular brokerage transactions, in
transactions directly with market makers or in certain privately negotiated
transactions. For additional information on the methods of sale, you should
refer to the section entitled "Plan of Distribution." We will not receive any of
the proceeds from the sale of the shares by the selling stockholders.
Our common stock trades on NASDAQ under the symbol "ABLE." On July 23,
2002, the closing sale price of the common stock was $3.95 per share. The
securities offered hereby are speculative and involve a high degree of risk and
substantial dilution. Only investors who can bear the risk of loss of their
entire investment should invest. See "Risk Factors" beginning on page 7.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is August 1, 2002.
TABLE OF CONTENTS
PAGE
Prospectus Summary 6
Risk Factors 7
Selling Stockholders 11
Plan of Distribution 12
Interest of Named Experts and Counsel 13
Incorporation of Certain Documents by Reference 13
Disclosure of Commission Position on Indem?ification For Securities Act Liabilities 13
Available Information 14
PROSPECTUS SUMMARY
GENERAL OVERVIEW
Able Energy, Inc., was incorporated on March 13, 1997 in the state of
Delaware, to act as a holding company for six operating subsidiaries: Able Oil
Company, Inc.; Able Propane, LLC; Able Oil Melbourne, Inc; Able Energy New York,
Inc; PriceEnergy.com, Inc; PriceEnergy.com Franchising, LLC. In August 1999, the
company formed a wholly-owned subsidiary, Able Energy Terminal, LLC for the sole
purpose of purchasing property located at 344 Route 46 in Rockaway, New Jersey
for the Company's operations.
Able Energy, Inc., is engaged in the retail distribution of, and the
provision of services relating to, fuel oil, propane gas and diesel fuel. In
addition to selling home energy products, we offer complete HVAC (heating,
ventilation and air conditioning) installation and repair and also markets other
petroleum products to commercial customers, including diesel fuel, gasoline and
lubricants. We also provide installation and repair of heating equipment as a
service to its customers. We consider service and installation services to be an
integral part of its business. Accordingly, we regularly provide service
incentives to obtain and retain customers. We also provide home heating
equipment repair service on a 24 hours-a-day, seven days-a-week basis, generally
within two hours of request. Except in isolated instances, we do not provide
service to any person who is not a customer.
Our principal offices are located at 198 Green Pond Road Rockaway, New
Jersey 07866, and our telephone number is (973) 625-1012. Able Energy, Inc. was
formed under the laws of the state of Delaware.
THIS OFFERING
Shares of common stock outstanding prior to this offering............. 2,001,250
Shares offered in this prospectus..................................... 12,000
Total shares outstanding after this offering.......................... 2,013,250
Use of proceeds............. We will not receive any proceeds from the sale of
the shares of common stock offered in this
prospectus.
RISK FACTORS
PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER THE FOLLOWING FACTORS, IN
ADDITION TO THE OTHER INFORMATION CONTAINED IN THIS PROSPECTUS, IN CONNECTION
WITH INVESTMENTS IN THE SECURITIES OFFERED HEREBY. THIS PROSPECTUS CONTAINS
CERTAIN FORWARD-LOOKING STATEMENTS WHICH INVOLVE RISKS AND UNCERTAINTIES. THE
COMPANY'S ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE ANTICIPATED IN THE
FORWARD-LOOKING STATEMENTS AS A RESULT OF CERTAIN FACTORS, INCLUDING THOSE SET
FORTH BELOW AND ELSEWHERE IN THIS PROSPECTUS. AN INVESTMENT IN THE SECURITIES
OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK.
LIMITED OPERATING HISTORY; MANAGEMENT OF GROWTH; SUBSTANTIAL LONG-TERM
DEBT.
The Company was incorporated in March 1997 to act as a holding company for
its operating subsidiaries. Although the Company has only been in operation for
a limited time, Able Oil, the Company's major operating subsidiary, has been in
business since 1989 and currently accounts for approximately 87% of the
Company's total revenue. The Company's remaining subsidiaries were each
established within the past five years and, accordingly, have limited operating
histories upon which evaluation of its prospects can be made. There can be no
assurance that the subsidiaries, other than Able Oil, will generate substantial
revenues or attain profitable operations. The Company plans to continue to
pursue an aggressive growth strategy through its operating subsidiaries, and
anticipates significant change in its business activities and operations. The
Company's growth has required, and will continue to require, increased
investment in management personnel, financial and management systems and
controls and facilities. The Company's past expansion has placed, and any future
expansion would place, significant demands on the Company's administrative,
operational, financial and other resources. The Company intends to continue to
expand its business and operations, including entry into new markets, that will
place additional strain on the Company's management and operations. The
Company's future operating results will depend, in part, on its ability to
continue to broaden the Company's senior management group and administrative
infrastructure, and its ability to attract, hire and retain skilled employees.
The Company's success will also depend on the ability of its officers and key
employees to continue to implement and improve the Company's operational and
financial control systems and to expand, train and manage its employee base. In
addition, the Company's future operating results will depend on its ability to
expand its sales and marketing capabilities and expand its customer support
operations commensurate with its growth, should such growth occur. If the
Company's revenues do not increase in proportion to its operating expenses, the
Company's management systems do not expand to meet increasing demands, the
Company fails to attract, assimilate and retain qualified personnel, or the
Company's management otherwise fails to manage the Company's expansion
effectively, there would be a material adverse effect on the Company's business,
financial condition and operating results. As of March 31, 2002, the Company had
long term liabilities of 1,516,457. The Company's ability to satisfy such
obligations will depend on the Company's future operating performance, which
will be affected by, among other things, prevailing economic conditions and
financial, business and other factors, many of which are beyond the Company's
control. There can be no assurance that the Company will be able to service its
indebtedness. If the Company is unable to service its indebtedness, it will be
forced to examine alternative strategies that may include actions such as
reducing or delaying capital expenditures, restructuring or refinancing its
indebtedness, or the sale of assets or seeking additional equity and/or debt
financing. There can be no assurance that any of these strategies could be
effected on satisfactory terms, if at all.
SEASONAL FACTORS.
To date substantially all of the Company's revenues and income have been
derived from the home heating oil business. The Company's home heating oil
business is seasonal, as a substantial portion of its business is conducted
during the fall and winter months. Weather patterns during the winter months can
have a material adverse impact on its revenues. Although temperature levels for
the heating season have been relatively stable over time, variations can occur
from time to time, and warmer than normal winter weather will adversely effect
the results of the Company's fuel oil operations.
FUEL PRICING: EFFECT ON PROFITABILITY.
Gasoline, Heating Oil and Diesel Fuel are commodities and, as such, their
wholesale prices are subject to changes in supply or other market conditions
over which the Company has no control. While, in the past, the Company has been
able to pass on any increases in commodities prices to its customers, there can
be no assurance that the Company may be able to fully pass on future increases
in the wholesale prices of these commodities to its
customers and still be competitive. Additionally, approximately 5% of the
Company's total sales are made to customers pursuant to an agreement which
pre-establishes the maximum sales price of fuel oil over a twelve-month period.
Such prices are renegotiated in April of each year and the Company has
historically purchased fuel oil for these customers in advance and at a fixed
cost. Should the Company be unable to make such advance purchases of fuel oil,
any future increase in wholesale fuel oil prices could have an adverse affect on
the Company. Because the Company sells fuel to its customers at fixed amounts
over its wholesale cost, the Company's gross profit as a percentage of gross
revenue may not fluctuate as a result of changes in the wholesale prices of
these goods. The Company does not engage in derivatives or futures trading to
hedge fuel price movements.
GROWTH DEPENDENT UPON UNSPECIFIED ACQUISITIONS.
The Company's growth strategy includes the acquisition of existing fuel
distributors. There can be no assurance that the Company will be able to
identify new acquisition candidates or, even if a candidate is identified, that
the Company will have access to the capital necessary to consummate such
acquisitions. Shareholders will not have an opportunity to vote on any
acquisition proposed by the Company, nor will shareholders have any opportunity
to review the financial status of such acquisition candidates. Furthermore, the
acquisition of additional companies involve a number of additional risks. These
risks include the diversion of Management's attention from the operations of the
Company, possible difficulties with the assimilation of personnel and operations
of acquired companies, the amortization of acquired intangible assets, and the
potential loss of key employees of acquired companies. The future success of the
Company's business will depend upon the Company's ability to manage its growth
through acquisitions.
GOVERNMENT REGULATION.
Federal, state and local laws, particularly laws relating to the protection
of the environment and worker safety, can materially affect the Company's
operations. The transportation of fuel oil, diesel fuel, propane and gasoline is
subject to regulation by various federal, state and local agencies, including
the U.S. Department of Transportation ("DOT"). These regulatory authorities have
broad powers and the Company is subject to regulatory and legislative changes
that can effect the economies of the industry by requiring changes in operating
practices or influencing demand for, and the cost of providing, its services.
Additionally, the Company is subject to random DOT inspections. Any material
violation of DOT rules or the Hazardous Materials Transportation Act may result
in citations and/or fines upon the Company. In addition, the Company depends on
the supply of petroleum products from the oil and gas industry and, therefore,
is affected by changing taxes, price controls and other laws and regulations
relating to the oil and gas industry generally. The Company cannot determine the
extent to which future operations and earnings may be affected by new
legislation, new regulations or changes in existing regulations.
POTENTIAL ENVIRONMENTAL LIABILITY.
The Company's operations are subject to all of the operating hazards and
risks that are normally incidental to handling, storing, transporting and
delivering fuel oils, gasoline, diesel and propane, which are classified as
hazardous materials. The Company faces potential liability for, among other
things, fuel spills, gas leaks and negligence in performing environmental
clean-ups for its customers. Specifically, the Company maintains fuel storage
facilities on sites owned or leased by the Company, and could incur significant
liability to third parties or governmental entities for damages, 9 clean-up
costs and/or penalties in the event of certain discharges into the environment.
Such liability can be extreme and could have a material adverse effect on the
Company's financial condition or results of operations. Although the Company
believes that it is in compliance with existing laws and regulations, there can
be no assurance that substantial costs for compliance will not be incurred in
the future. Any substantial violations of these rules and regulations could have
an adverse affect upon the Company's operations. Moreover, it is possible that
other developments, such as more stringent environmental laws, regulations and
enforcement policies thereunder, could result in additional, presently
unquantifiable, costs or liabilities to the Company.
NO ASSURANCE OF ADEQUATE INSURANCE PROTECTION.
The Company maintains insurance policies in such amounts and with coverage
and deductibles as the Company' management ("Management") believes are
reasonable and prudent. There can be no assurance, however, that such insurance
will be adequate to protect the Company from liabilities and expenses that may
arise from claims for personal and property damage arising in the ordinary
course of business or that such levels of insurance will be maintained by the
Company or will be available at economic prices.
FRANCHISING.
The Company intends to expand franchise arrangements to expand its
operations and revenue base. The Company's future growth may be dependent upon
new franchisees and the manner in which they operate and develop their Able
Energy locations to promote and develop the Company's concept and its reputation
for quality and value. In addition, because the Company believes that a
potential franchisee's total estimated investment relating to an Able Energy
location is generally low, the Company may be more likely to attract franchisees
with limited franchise experience and limited financial resources. As a result
of its franchising activity, the Company is be subject to Federal Trade
Commission ("FTC") regulation and various state laws that govern the offer, sale
and termination of, and refusal to renew, franchises. Several state laws also
regulate substantive aspects of the franchisor-franchisee relationship. The FTC
requires the Company to furnish prospective franchisees a franchise offering
circular containing prescribed information. A number of states in which the
Company might consider franchising also regulate the sale of franchises and
require registration of the franchise offering circular with state authorities.
Substantive state laws that regulate the franchisor-franchisee relationship
presently exist in substantial number of states, and bills have been introduced
in Congress from time to time which would provide for federal regulation of the
franchisor-franchisee relationship in certain respects. The state laws often
limit, among other things, the duration and scope of non-competition provisions
and the ability of a franchisor to terminate or refuse to renew a franchise.
TRADEMARKS AND SERVICE MARKS.
The Company believes that its trademarks and service marks have significant
value and are important to the marketing of its products and services,
especially if the Company is successful in implementing its franchise program.
There can be no assurance, however, that the Company's proprietary marks do not
or will not violate the proprietary rights of others, that the Company's marks
would be upheld if challenged or that the Company would not be prevented from
using its marks, any of which could have an adverse effect on the Company. In
addition, there can be no assurance that the Company will have the financial
resources necessary to enforce or defend its trademarks and service marks
against infringement.
COMPETITION FROM ALTERNATE ENERGY SOURCES.
The Company is engaged primarily in the retail home heating business and
competes for customers with suppliers of alternate energy products, principally
natural gas and electricity. While the Company is now marketing regulated
natural gas, every year, a small percentage of the Company's oil customers
convert to other home heating sources, primarily natural gas. In addition, the
Company may lose additional customers due to conversions during periods in which
the cost of its services exceeds the cost of alternative energy sources.
COMPETITION FOR NEW CUSTOMERS.
The Company's business is highly competitive. In addition to competition
from alternative energy sources, the Company competes with distributors offering
a broad range of services and prices, from full service distributors similar to
the Company, to those offering delivery only. Competition with other companies
in the retail home heating industry is based primarily on customer service and
price. Longstanding customer relationships are typical in the industry. Many
companies, including the Company, deliver fuel to their customers based upon
weather conditions and historical consumption patterns without the customers
making an affirmative purchase decision each time fuel is needed. In addition,
most companies, including the Company, provide equipment repair service on a 24
hour a day basis, which tends to build customer loyalty. The Company competes
against companies that may have greater financial resources than the Company. As
a result, the Company may experience difficulty in acquiring new retail
customers due to existing relationships between potential customers and other
retail home heating distributors.
ABSENCE OF WRITTEN AGREEMENTS.
Approximately 50% of the Company's customers do not have written agreements
with the Company and can terminate services at any time, for any reason.
Although the Company has never experienced a significant loss of its customers,
if the Company were to experience a high rate of terminations, the Company's
business and financial condition could be adversely affected.
RISKS ASSOCIATED WITH EXPANSION INTO NEW MARKETS.
A significant element of the Company's future growth strategy involves the
expansion of the Company's business into new geographic and product markets.
Expansion of the Company's operations depend, among other things, the success of
the Company's marketing strategy in new markets, successfully establishing and
operating
new locations, hiring and retaining qualified management and other personnel,
and obtaining adequate financing for vehicle and site purchases and working
capital purposes.
DEPENDENCE ON KEY PERSONNEL.
The Company's future success will depend, to a significant extent, on the
efforts of key management personnel, including Timothy Harrington, the Company's
Chairman and Chief Executive Officer. The loss of one or more of these key
employees could have a material adverse effect on the Company's business. In
addition, the Company believes that its future success will depend, in large
part, upon its continued ability to attract and retain highly qualified
management, technical and sales personnel. There can be no assurance that the
Company will be able to attract and retain the qualified personnel necessary for
its business.
POSSIBLE ADVERSE EFFECT OF PENNY STOCK REGULATIONS ON THE LIQUIDITY OF THE
COMPANY'S SECURITIES.
The Common Stock is listed on the Nasdaq SmallCap Market and the Boston
Stock Exchange. In the absence of the Common Stock being quoted on Nasdaq and if
the Common Stock is not listed on another exchange, trading in the Common Stock
would be covered by Rule 15g-9 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act") if the Common Stock is a "penny stock."
Under such rule, broker-dealers who recommend such securities to persons other
than established customers and accredited investors must make a special written
suitability determination for the purchaser and receive the purchaser's written
agreement to a transaction prior to sale. Securities are exempt from this rule
if the market price is at least $5.00 per share. The Commission adopted
regulations that generally define a penny stock to be any equity security that
has a market price of less than $5.00 per share, subject to certain exceptions.
Such exceptions include an equity security listed on Nasdaq, and an equity
security issued by an issuer that has (i) net tangible assets of at least
$2,000,000, if such issuer has been in continuous operation for three years,
(ii) net tangible assets of at least $5,000,000, if such issuer has been in
continuous operation for less than three years, or (iii) average revenue of at
least $6,000,000 for the preceding three years. Unless an exception is
available, the regulations require the delivery, prior to any transaction
involving a penny stock, of a disclosure schedule explaining the penny stock
market and the risks associated therewith. If the Company's securities were to
become subject to the regulations applicable to penny stocks, the market
liquidity for the securities would be severely affected, limiting the ability of
broker-dealers to sell the securities and the ability of purchasers in this
Offering to sell their securities in the secondary market. There can be no
assurance that trading in the securities will not be subject to these or other
regulations that would adversely affect the market for such securities.
SELLING STOCKHOLDERS
The table below sets forth information concerning the resale of the shares
of common stock by the selling stockholders. We will not receive any proceeds
from the resale of the common stock by the selling stockholders.
The following table also sets forth the name of each person who is offering
the resale of shares of common stock by this prospectus, the number of shares of
common stock beneficially owned by each person, the number of shares of common
stock that may be sold in this offering and the number of shares of common stock
each person will own after the offering, assuming they sell all of the shares
offered.
SHARES BENEFICIALLY OWNED SHARES BENEFICIALLY OWNED
PRIOR TO THE OFFERING AFTER THE OFFERING
----------------------------------- TOTAL -------------------------------------------
SHARES OFFERED
NAME NUMBER PERCENT ----------------- NUMBER PERCENT
------------------------------- ---------------------- ------------- --------------------- ---------------------
Timothy Harrington, 1,200,000 49% 2,000 1,000,000 49%
Chief Executive Officer
Christopher P. Westad, 2,000 * 2,000 0 -
President
James Purcaro, 2,000 * 2,000 0 -
Director
Gregory Sichenzia, (1) 2,000 * 2,000 0 -
Director
Patrick O'Neill, 2,000 * 2,000 0 -
Edward C. Miller, Jr., 2,000 * 2,000 0 -
Director
* Less than 1%
(1) Director of Able Energy, Inc., and member of the firm Sichenzia Ross
Friedman Ference LLP, Securities counsel to Able Energy, Inc.
PLAN OF DISTRIBUTION
Sales of the shares may be effected by or for the account of the selling
stockholders from time to time in transactions (which may include block
transactions) on the NASDAQ Small Capital Market and the Boston Stock Exchange,
in negotiated transactions, through a combination of such methods of sale, or
otherwise, at fixed prices that may be changed, at market prices prevailing at
the time of sale or at negotiated prices. The selling stockholders may effect
such transactions by selling the shares directly to purchasers, through
broker-dealers acting as agents of the selling stockholders, or to
broker-dealers acting as agents for the selling stockholders, or to
broker-dealers who may purchase shares as principals and thereafter sell the
shares from time to time in transactions (which may include block transactions)
on the NASDAQ Small Capital Market, in negotiated transactions, through a
combination of such methods of sale, or otherwise. In effecting sales,
broker-dealers engaged by a selling stockholder may arrange for other
broker-dealers to participate. Such broker-dealers, if any, may receive
compensation in the form of discounts, concessions or commissions from the
selling stockholders and/or the purchasers of the shares for whom such
broker-dealers may act as agents or to whom they may sell as principals, or both
(which compensation as to a particular broker-dealer might be in excess of
customary commissions).
The selling stockholders and any broker-dealers or agents that participate
with the selling stockholders in the distribution of the shares may be deemed to
be "underwriters" within the meaning of the Securities Act of 1933. Any
commissions paid or any discounts or concessions allowed to any such persons,
and any profits received on the resale of the shares purchased by them may be
deemed to be underwriting commissions or discounts under the Securities Act of
1933.
We have agreed to bear all expenses of registration of the shares other
than legal fees and expenses, if any, of counsel or other advisors of the
selling stockholders. The selling stockholders will bear any commissions,
discounts, concessions or other fees, if any, payable to broker-dealers in
connection with any sale of their shares.
We have agreed to indemnify the selling stockholders, or their transferees
or assignees, against certain liabilities, including liabilities under the
Securities Act of 1933 or to contribute to payments the selling stockholders or
their respective pledgees, donees, transferees or other successors in interest,
may be required to make in respect thereof.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of common stock offered hereby will be passed
upon for the Registrant by Sichenzia Ross Friedman & Ference LLP, 1065 Avenue of
the Americas, 21st Floor, New York, NY 10018. Members of such firm have received
shares of common stock, for services rendered, which are registered hereunder.
INFORMATION INCORPORATED BY REFERENCE
The Securities and Exchange Commission allows us to incorporate by
reference certain of our publicly-filed documents into this prospectus, which
means that such information is considered part of this prospectus. Information
that we file with the SEC subsequent to the date of this prospectus will
automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings made with the SEC under all
documents subsequently filed by us pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 until the selling stockholders have sold
all of the shares offered hereby or such shares have been deregistered.
The following documents filed with the SEC are incorporated herein by reference:
o Reference is made to the Registrant's annual report on Form 10-KSB, as
filed with the SEC on April 2, 2001, which is hereby incorporated by
reference for the December 31, 2000 year end.
o Reference is made to the Registrant's Transition Report filed with the
SEC on September 28, 2001 covering January 1, 2001 through June 30,
2001.
o Reference is made to the Registrant's quarterly reports on Form
10-QSB, as filed with the SEC on February 14, 2002, which are hereby
incorporated by reference.
o Reference is made to the description of the Registrant's securities
contained in the Registrant's registration statement on Form SB-2, as
filed with the SEC on July 15, 1998, and amendments thereto filed on
November 6, 1998, April 15, 1998, May 17, 1999, May 26, 1999 and May
27, 1999, respectively.
We will provide without charge to each person to whom a copy of this
prospectus has been delivered, on written or oral request a copy of any or all
of the documents incorporated by reference in this prospectus, other than
exhibits to such documents. Written or oral requests for such copies should be
directed to Christopher Westad, President, 198 Green Pond Road, Rockaway, New
Jersey, 07866.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission,
SEC such indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
ADDITIONAL INFORMATION AVAILABLE TO YOU
This prospectus is part of a Registration Statement on Form S-8 that we
filed with the SEC. Certain information in the Registration Statement has been
omitted from this prospectus in accordance with the rules of the SEC. We file
annual, quarterly and special reports, proxy statements and other information
with the SEC. You can inspect and copy the Registration Statement as well as
reports, proxy statements and other information we have filed with the SEC at
the public reference room maintained by the SEC at 450 Fifth Street, NW,
Washington, D.C. 20549, and at the following Regional Offices of the SEC:
Northwest Atrium Center, 500 West Madison Street, Chicago, Illinois 60661. You
can obtain copies from the public reference room of the SEC at 450 Fifth Street,
NW, Washington, D.C. 20549, upon payment of certain fees. You can call the SEC
at 1-800-732-0330 for further information about the public reference room. We
are also required to file electronic versions of these documents with the SEC,
which may be accessed through the SEC's World Wide Web site at
http://www.sec.gov. Our common stock is quoted on NASDAQ Small Capital Market
and the Boston Stock Exchange. Reports, proxy and information statements and
other information concerning us may be inspected at The Nasdaq Stock Market at
1735 K Street, NW, Washington, D.C. 20006.
No dealer, salesperson or other person is authorized to give any
information or to make any representations other than those contained in this
prospectus, and, if given or made, such information or representations must not
be relied upon as having been authorized by us. This prospectus does not
constitute an offer to buy any security other than the securities offered by
this prospectus, or an offer to sell or a solicitation of an offer to buy any
securities by any person in any jurisdiction where such offer or solicitation is
not authorized or is unlawful. Neither delivery of this prospectus nor any sale
hereunder shall, under any circumstances, create any implication that there has
been no change in the affairs of our company since the date hereof.
------------------------
12,000 SHARES OF COMMON STOCK
------------------------
PROSPECTUS
---------------
August 1, 2002
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in Item 1 will be
sent or given to the registrant's employees that are eligible to participate in
the 1999 Stock Option Plan or 2000 Stock Bonus Plan.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10 (a) Prospectus), other
documents required to be delivered to eligible employees, non-employee directors
and consultants, pursuant to Rule 428 (b) or additional information about the
1999 Stock Option Plan and 2000 Stock Bonus Plan are available without charge by
contacting:
Christopher Westad
President
198 Green Pond Road
Rockaway, New Jersey 07866
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the documents listed below. In addition, all documents subsequently
filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act"), prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents:
o Reference is made to the Registrant's annual report on Form 10-KSB,
as filed with the SEC on April 2, 2001, which is hereby
incorporated by reference for December 31, 2000 year end.
o Reference is made to the Registrant's Transition Report filed with
the SEC on September 28, 2001 covering January 1, 2001 through June
30, 2001.
o Reference is made to the Registrant's quarterly report on Form
10-QSB, as filed with the SEC on May 14, 2002, which is hereby
incorporated by reference.
o Reference is made to the Registrant's quarterly reports on Form
10-QSB, as filed with the SEC on February 14, 2002, which are
hereby incorporated by reference.
o Reference is made to the description of the Registrant's
securities contained in the Registrant's registration statement
on Form SB-2, as filed with the SEC on July 15, 1998, and
amendments thereto filed on November 6, 1998, April 15, 1998, May
17, 1999, May 26, 1999 and May 27, 1999, respectively.
ITEM 4. DESCRIPTION OF SECURITIES.
Common stock, $0.001 par value per share.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The registrant's Certificate of Incorporation eliminates, to the
fullest extent permitted by law, the liability of its directors to the
registrant and its stockholders for monetary damages for breach of the
directors' fiduciary duty.
This provision is intended to afford the registrant's directors the benefit of
the Delaware General Corporation Law, which provides that directors of Delaware
corporations may be relieved of monetary liability for breach of their fiduciary
duty of care, except under certain circumstances involving breach of a
director's duty of loyalty, acts or omissions not in good faith or involving
intentional misconduct or a knowing violation of law or any transaction from
which the director derived an improper personal benefit.
The By-laws of the registrant provide that the registrant shall
indemnify to the fullest extent permitted by Delaware law directors and officers
(and former officers and directors) of the registrant. Such indemnification
includes all costs and expenses and charges reasonably incurred in connection
with the defense of any civil, criminal or administrative action or proceeding
to which such person is made a party by reason of being or having been an
officer or director of the registrant if such person was substantially
successful on the merits in his or her defense of the action and he or she acted
honestly and in good faith with a view to the best interests of the registrant,
and if a criminal or administrative action that is enforced by a monetary
penalty, such person had reasonable grounds to believe his or her conduct was
lawful.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NUMBER EXHIBIT
4.1 1999 Stock Option Plan. (1)
4.2 2000 Stock Bonus Plan. (1)
5.1 Opinion of Sichenzia Ross & Friedman, LLP.
23.1 Consent of Simontacchi & Company LLP.
23.2 Consent of Sichenzia Ross & Friedman, LLP is contained in
Exhibit 5.1.
24.1 Power of Attorney (included in the Signature Page).
(1) Incorporated by reference in Form S-8 Registration Statement, filed with
the Securities and Exchange Commission on February 22, 2001.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange SEC such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in City of Rockaway, State of New Jersey, on this 1st day of
August, 2002.
ABLE ENERGY, INC.
By: /s/ TIMOTHY HARRINGTON
------------------------------------
Timothy Harrington, Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Able Energy, Inc., a
Delaware corporation, do hereby constitute and appoint Timothy Harrington the
lawful attorney in-fact and agent with full power and authority to do any and
all acts and things and to execute any and all instruments which said attorney
and agent, determine may be necessary or advisable or required to enable said
corporation to comply with the Securities Act of 1933, as amended, and any rules
or regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, and to any and all
instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each of the
undersigned hereby ratifies and confirms that said attorney and agent, shall do
or cause to be done by virtue thereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ TIMOTHY HARRINGTON Chief Executive Officer, Secretary and Chairman July 25, 2002
-------------------------
Timothy Harrington
/s/ CHRISTOPHER P. WESTAD President, Chief Financial Officer and Director July 25, 2002
-------------------------
Christopher P. Westad
/s/ JAMES PURCARO Director July 25, 2002
-------------------------
James Purcaro
/s/ GREGORY SICHENZIA Director July 25, 2002
-------------------------
Gregory Sichenzia
/s/ PATRICK O'NEILL Director July 25, 2002
-------------------------
Patrick O'Neill
/s/ EDWARD C. MILLER, JR. Director July 25, 2002
-------------------------
Edward C. Miller, Jr.
/s/ RON J. PONDER Director July 25, 2002
-------------------------
Ron J. Ponder