UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported) May 25, 2005
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ABLE ENERGY, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 001-15035 22-3520840
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
198 GREEN POND ROAD, ROCKAWAY, NEW JERSEY 07866
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(Address of Principal Executive Offices) (Zip Code)
(973) 625-1012
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(Registrant's Telephone Number, Including Area Code)
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (SEE General Instruction A.2. below):
|_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
At our Annual Meeting of Stockholders held on May 25, 2005 (the "Annual
Meeting"), our Board of Directors proposed that the stockholders approve our
2005 Incentive Stock Plan (the "Plan"), which was unanimously adopted by the
Board on April 5, 2005. The Plan was adopted by the stockholders at the Annual
Meeting.
It is anticipated that our directors and officers will be accepting compensation
under the Plan.
The following description of the Plan is only a summary of the important
provisions of the Plan and does not contain all of the terms and conditions
thereof. Such description is qualified in its entirety by the entire Plan, a
copy of which is attached to this Current Report on Form 8-K as Exhibit 4.1 and
incorporated herein by reference.
ADMINISTRATION. The Plan will be administered by the Board of Directors
(provided however, that the Board may delegate such administration to the
Compensation Committee or such other committee that is designated by the Board
to administer the Plan).
Subject to the express terms and conditions of the Plan, the Board of Directors
will have full power to make Awards (as defined below), to construe or interpret
the Plan, to prescribe, amend and rescind rules and regulations relating to it
and to make all other determinations necessary or advisable for its
administration. Except as otherwise provided in the Plan, the Board of Directors
may also determine which persons shall be granted Awards, the nature of the
Awards granted, the number of shares subject to Awards and the time at which
Awards shall be made. Such determinations will be final and binding.
ELIGIBILITY. Persons eligible for Awards under the Plan will be limited to
directors, executives and selected employees and consultants of the Company and
our subsidiaries. The Board of Directors will select who will receive Awards and
the amount and nature of such Awards.
GRANT. The Board of Directors may, at its discretion, award any form of stock
option, stock award, or stock purchase offer, whether granted singly, in
combination or in tandem to a recipient (the "Awards"). The Awards will be
issued pursuant to an agreement between the company and the awardee. Each
recipient of an Award will be a stockholder and have all the rights of a
stockholder with respect to such shares, including the right to vote and receive
all dividends or other distributions made or paid with respect to such shares. A
form of Incentive Stock Option Agreement, Employee Nonstatutory Stock Option
Agreement, Nonstatutory Stock Option Agreement, Consultant Nonstatutory Stock
Option Agreement, Stock Award Agreement and Restricted Stock Purchase Agreement
is attached to this Current Report on Form 8-K as Exhibits 10.1, 10.2, 10.3,
10.4, 10.5 and 10.6, respectively.
If the recipient of an Award ceases to be a director, executive or selected
employee or consultant for any reason, then the Award may be subject to
forfeiture, as provided in the particular agreement, unless such forfeiture is
waived by the Board of Directors when it, in its discretion, determines that
such waiver is in our best interests.
In the event of a participant's retirement, permanent disability or death, or in
cases of special circumstances, the Board of Directors may waive any or all of
the remaining restrictions and limitations imposed under the Plan with respect
to any Awards.
AVAILABILITY UNDER THE PLAN. The maximum number of shares of Common Stock with
respect to which Awards may be granted directly by options, stock awards or
restricted stock purchase offers is 1,000,000 shares; however, this number is
subject to adjustment in the event of a recapitalization, reorganization or
similar event, including, without limitation, a business combination.
Shares shall consist, in whole or in part, of authorized and unissued shares or
treasury shares. Any shares represented by Awards that are cancelled, forfeited,
terminated or expired will again be available for grants and issuance under the
Plan.
RECAPITALIZATION AND CHANGE OF CONTROL. In the event that our outstanding
shares of Common Stock are increased, decreased or changed or converted into
other securities by reason of merger, reorganization, consolidation,
recapitalization, business combination, stock dividend, extraordinary cash
dividend or other change in our corporate structure affecting the stock, the
number of shares that may be delivered under the Plan and the number and/or the
purchase price of shares subject to outstanding Awards under the Plan may be
adjusted at the sole discretion of the Board of Directors to the extent that the
Board of Directors determines to be appropriate, provided, however, that the
number of shares subject to any Awards will always be a whole number.
TERMINATION AND AMENDMENT OF THE PLAN. The Plan will expire on May 3, 2015,
but the Board of Directors may terminate the Plan at any time prior to that date
and Awards granted prior to such termination may extend beyond such date.
Termination of the Plan will not alter or impair, without the consent of the
awardee, any of the rights or obligations of any Award made thereunder.
The Board may from time to time alter, amend, suspend or discontinue the Plan.
However, no such action of the Board may alter the provisions of the Plan so as
to alter any outstanding Awards to the detriment of the awardee or participant
without such participant's or awardee's consent, and no amendment to the Plan
may be made without stockholder approval if such amendment would materially
increase the benefits to the awardees or the participants in the Plan,
materially increase the number of shares issuable under the Plan, extend the
terms of the Plan or the period during which Awards may be granted or exercised
or materially modify requirements as to eligibility to participate in the Plan.
RESTRICTIONS ON TRANSFERABILITY. The securities may not be sold, exchanged,
transferred, pledged, hypothecated, or otherwise disposed of until such time as
any stated restrictions lapse. The Board of Directors, in its absolute
discretion, may impose such restrictions on the transferability of the Awards
granted in the Plan as it deems appropriate. Any such restrictions shall be set
forth in the agreement with respect to such Awards and may be referred to on the
certificates evidencing shares or other instruments issued pursuant to any such
Award. Shares of restricted stock and other securities will be evidenced by a
certificate or other instrument that bears a restrictive legend.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
The following exhibit is furnished with this report:
Exhibit No. Description
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4.1 2005 Incentive Stock Plan
10.1 Incentive Stock Option Agreement
10.2 Employee Nonstatutory Stock Option Agreement
10.3 Nonstatutory Stock Option Agreement
10.4 Consultant Nonstatutory Stock Option Agreement
10.5 Stock Award Agreement
10.6 Restricted Stock Purchase Agreement
SIGNATURES
Pursuant to the requirements 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.
ABLE ENERGY, INC.
BY: /s/ Christopher P. Westad
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Name: Christopher P. Westad
Title: President and Interim Chief
Executive Officer
Date: June 1, 2005