UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
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þ | | 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 December 31, 2008 |
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o | | 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 _________ |
Commission file number 000-51965
WESTERN IOWA ENERGY, LLC
(Exact name of registrant in its charter)
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| Iowa | | 41-2143913 |
(State or other jurisdiction of
incorporation or organization) | | (I.R.S. Employer Identification No.) |
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1220 S. CENTER STREET, P.O BOX 399
WALL LAKE, IOWA | | 51466 |
| (Address of principal executive offices) | | (Zip Code) |
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| | (712) 664-2173 | |
| | (Registrant’s telephone number, including area code) | |
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Limited Liability Company Membership Units
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
o Yesþ No
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.
o Yesþ No
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.þ Yeso No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) 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.þ
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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| o | Large accelerated filer | | o | Accelerated filer |
| þ | Non-accelerated filer (Do not check if a smaller reporting company) | | o | Smaller reporting company |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).o Yesþ No
The aggregate market value of the membership units held by non-affiliates of the registrant was $18,794,250 at June 30, 2008. There is no established public trading market for the registrant’s membership units. The aggregate market value was computed by reference to the average bid and asked price of the membership units in the registrant’s qualified matching service as of June 30, 2008, the last business day of the registrant’s most recently completed second fiscal quarter.
As of the date of this filing, there are 26,447 membership units of the registrant outstanding.
Explanatory Note Regarding Amendment No. 2
This Amendment No. 2 to the Annual Report on Form 10-K of Western Iowa Energy, LLC (the “Company”) for the fiscal year ended December 31, 2008, is being filed for the purpose of amending Item 9A(T), Controls and Procedures. In the Annual Report on Form 10-K, management identified a material weakness in the Company’s internal control over financial reporting, but concluded that internal controls over financial reporting were effective as of December 31, 2008. Management has concluded that in light of this material weakness, the Company should have concluded that its internal control over financial reporting was not effective as of December 31, 2008. This Amendment No. 2 clarifies that the Company’s internal control over financial reporting was not effective as of December 31, 2008.
This Amendment No. 2 also provides the full definition of “disclosure controls and procedures,” as defined in Exchange Act Rule 13a-15(e) and as requested in a letter dated September 4, 2009 from the SEC staff related to the Registration Statement on Form S-4 of REG Newco, Inc., which has proposed an acquisition of substantially all of the Company’s assets. The remainder of the Company’s Form 10-K is unchanged and is not reproduced in this Amendment No. 2.
This report speaks as of the original filing date of the Form 10-K and has not been updated to reflect events occurring subsequent to the original reporting date. Accordingly, in conjunction with reading this Form 10-K/A, you should also read all other filings that we have made with the Securities and Exchange Commission since the date of the original filings.
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ITEM 9A(T). CONTROLS AND PROCEDURES.
Disclosure Controls and Procedures
Our management, including our principal executive officer, William J. Horan, along with our principal financial and accounting officer, Joe Neppl, have reviewed and evaluated the effectiveness of our disclosure controls and procedures as of December 31, 2008. Disclosure controls and procedures are defined in Rules 13a-15(e) and 15(d)-15(e) under the Securities Exchange Act of 1934 as controls and other procedures of an issuer that are designed to ensure that information required to be disclosed by the issuer in the reports that it files or submits under the Act (15 U.S.C. 78a et seq.) is recorded, processed, summarized, and reported, within the time periods specified in the Commission’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by an issuer in the reports that it files or submits under the Act is accumulated and communicated to the issuer’s management, including its principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure. Based on a review and evaluation, these officers believe that our disclosure controls and procedures are effective as of December 31, 2008.
Management’s Report on Internal Control Over Financial Reporting
Our management, including our principal executive officer and our principal financial and accounting officer, is responsible for establishing and maintaining adequate internal control over financial reporting for the Company. Internal control over financial reporting is defined in Rule 13a-15(f) or 15d-15(f) promulgated under the Securities Exchange Act of 1934 as a process designed by, or under the supervision of, the Company’s principal executive and principal financial officers, or persons performing similar functions, and effected by the Company’s 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 assets of the Company; |
| | • | | Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with Generally Accepted Accounting Principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company; and |
| | • | | Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the financial statements. |
Our management evaluated the effectiveness of our internal control over financial reporting as of December 31, 2008. In making this evaluation, the Company’s management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control-Integrated Framework. Based upon this evaluation, management has noted that the financial statements prepared for the fiscal year ended December 31, 2008, failed to account for a change in our SEC reporting status from the previous fiscal year. Management believes that this is a material weakness in our internal controls. Management has contacted our accounting firm to ensure that future financial statements comply with the specific requirements for issuers of our reporting status. Based on this evaluation, our management concluded that, as of December 31, 2008, our integrated controls over financial reporting were not effective based on the criteria of the COSO framework.
This annual report does not include an attestation report of the Company’s registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by the Company’s registered public accounting firm pursuant to temporary rules of the Securities and Exchange Commission that permit the Company to provide only management’s report in this annual report.
Changes in Internal Control Over Financial Reporting
Our management, consisting of our principal executive officer and our chief financial officer, have reviewed and evaluated any changes in our internal control over financial reporting that occurred as of December 31, 2008 and except as disclosed above, there has been no change that has materially affected or is reasonably likely to materially affect our internal control over financial reporting.
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ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES.
The following exhibits are filed as part of, or are incorporated by reference into, this report:
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Exhibit
No. | | Description | | Method of
Filing |
| 31.1 | | Certificate Pursuant to 17 CFR 240 15d-14(a) | | * |
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| 31.2 | | Certificate Pursuant to 17 CFR 240 15d-14(a) | | * |
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| 32.1 | | Certificate Pursuant to 18 U.S.C. Section 1350 | | * |
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| 32.2 | | Certificate Pursuant to 18 U.S.C. Section 1350 | | * |
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.
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| | WESTERN IOWA ENERGY, LLC
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| Date: November 3, 2009 | /s/ William J. Horan | |
| | William J. Horan | |
| | Chairman, President and Director
(Principal Executive Officer) | |
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| Date: November 3, 2009 | /s/ Joe Neppl | |
| | Joe Neppl
Chief Financial Officer
(Principal Financial and Accounting Officer) | |
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