SCHEDULE 14-A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
Filed by the Registrant [x]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[x] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss.240.14a-11(c) or ss.240.14a-12
Energy Services of America Corporation
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
[x] No fee required.
[ ] $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), or 14a-6(j)(2). [ ]
$500 per each party to the controversy pursuant to Exchange Act Rule
14a-6(i)(3). [ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4)
and 0-11.
1) Title of each class of securities to which transaction applies:
.......................................................................
2) Aggregate number of securities to which transaction applies:
.......................................................................
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:
.......................................................................
4) Proposed maximum aggregate value of transaction:
.......................................................................
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
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Energy Services of America Corporation
2450 First Avenue
Huntington, West Virginia 25703
October 17, 2008
Dear Stockholder:
We cordially invite you to attend the Annual Meeting of Stockholders of
Energy Services of America Corporation. The Annual Meeting will be held at the
Pullman Plaza Hotel, 1001 Third Avenue, Huntington, West Virginia 25701 at 2:00
p.m., local time, on November 19, 2008.
The enclosed Notice of the Annual Meeting and Proxy Statement describe
the formal business to be transacted at the Annual Meeting. During the Annual
Meeting we will also report on the operations of Energy Services of America
Corporation. Directors and officers will be present to respond to any questions
that stockholders may have. Also enclosed for your review is our Annual Report
to Stockholders, which contains detailed information concerning our activities
and operating performance.
The business to be conducted at the Annual Meeting consists of the
election of ten (10) directors to the Board of Directors, the ratification of
the appointment of Arnett & Foster P.L.L.C. as our independent registered public
accounting firm for the fiscal year ending September 30, 2008 and the approval
of the Energy Services of America Corporation 2009 Employee Stock Purchase Plan.
The Board of Directors has determined that the matters to be considered at the
Annual Meeting are in the best interests of Energy Services of America
Corporation and our stockholders. For the reasons set forth in the Proxy
Statement, the Board of Directors recommends a vote "FOR" the election of
directors, "FOR" the ratification of Arnett & Foster P.L.L.C. as our independent
registered public accounting firm for the 2008 fiscal year, and "FOR" the
approval of the Energy Services of America Corporation 2009 Employee Stock
Purchase Plan.
On behalf of the Board of Directors, we urge you to sign, date and
return the enclosed proxy card as soon as possible, even if you currently plan
to attend the Annual Meeting. This will not prevent you from voting in person,
but will assure that your vote is counted if you are unable to attend the Annual
Meeting. Your vote is important, regardless of the number of shares that you
own.
Sincerely,
/s/ Marshall T. Reynolds
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Marshall T. Reynolds
Chairman and Chief Executive Officer
Energy Services of America Corporation
2450 First Avenue
Huntington, West Virginia 25703
(304) 528-2791
NOTICE OF
ANNUAL MEETING OF STOCKHOLDERS
To Be Held On November 19, 2008
Notice is hereby given that the Annual Meeting of Stockholders of
Energy Services of America Corporation will be held at the Pullman Plaza Hotel,
1001 Third Avenue, Huntington, West Virginia 25701 at 2:00 p.m., local time, on
November 19, 2008.
A Proxy Card and a Proxy Statement for the Annual Meeting are enclosed.
The Annual Meeting is being held for the purpose of considering and
acting upon:
1. the election of ten (10) directors to the Board of Directors;
2. the ratification of the appointment of Arnett & Foster
P.L.L.C. as our independent registered public accounting firm
for the fiscal year ending September 30, 2008;
3. the approval of the Energy Services of America Corporation
2009 Employee Stock Purchase Plan; and
such other matters as may properly come before the Annual Meeting or any
adjournments thereof. The Board of Directors is not aware of any other business
to come before the Annual Meeting.
Any action may be taken on the foregoing proposals at the Annual
Meeting on the date specified above or on any date or dates to which the Annual
Meeting may be adjourned. Stockholders of record at the close of business on
October 10, 2008 are the stockholders entitled to vote at the Annual Meeting and
any adjournments thereof.
A list of stockholders entitled to vote at the Annual Meeting will be
available at our main office located at 2450 First Avenue, Huntington, West
Virginia 25703 for a period of ten days prior to the Annual Meeting and will
also be available for inspection at the Annual Meeting.
EACH STOCKHOLDER, WHETHER HE OR SHE PLANS TO ATTEND THE ANNUAL MEETING,
IS REQUESTED TO SIGN, DATE AND RETURN THE ENCLOSED PROXY CARD WITHOUT DELAY IN
THE ENCLOSED POSTAGE-PAID ENVELOPE. ANY PROXY GIVEN BY THE STOCKHOLDER MAY BE
REVOKED AT ANY TIME BEFORE IT IS EXERCISED. A PROXY MAY BE REVOKED BY FILING
WITH THE CORPORATE SECRETARY A WRITTEN REVOCATION OR A DULY EXECUTED PROXY
BEARING A LATER DATE. ANY STOCKHOLDER PRESENT AT THE ANNUAL MEETING MAY REVOKE
HIS OR HER PROXY AND VOTE IN PERSON ON EACH MATTER BROUGHT BEFORE THE ANNUAL
MEETING. HOWEVER, IF YOU ARE A STOCKHOLDER WHOSE SHARES ARE NOT REGISTERED IN
YOUR OWN NAME, YOU WILL NEED ADDITIONAL DOCUMENTATION FROM YOUR RECORD HOLDER IN
ORDER FOR YOU TO VOTE IN PERSON AT THE ANNUAL MEETING.
By Order of the Board of Directors
/s/ Larry A. Blount
-------------------
Larry A. Blount
Huntington, West Virginia Corporate Secretary
October 17, 2008
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IMPORTANT: THE PROMPT RETURN OF PROXIES WILL SAVE ENERGY SERVICES OF AMERICA
CORPORATION THE EXPENSE OF FURTHER REQUESTS FOR PROXIES. A SELF-ADDRESSED
ENVELOPE IS ENCLOSED FOR YOUR CONVENIENCE. NO POSTAGE IS REQUIRED IF MAILED
WITHIN THE UNITED STATES.
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PROXY STATEMENT
Energy Services of America Corporation
2450 First Avenue
Huntington, West Virginia 25703
(304) 528-2791
ANNUAL MEETING OF STOCKHOLDERS
November 19, 2008
This Proxy Statement is furnished in connection with the solicitation
of proxies on behalf of the Board of Directors of Energy Services of America
Corporation to be used at the Annual Meeting of Stockholders, which will be held
at the Pullman Plaza Hotel, 1001 Third Avenue, Huntington, West Virginia 25701
on November 19, 2008, at 2:00 p.m., local time, and all adjournments of the
Annual Meeting. The accompanying Notice of Annual Meeting of Stockholders and
this Proxy Statement are first being mailed to stockholders on or about October
17, 2008.
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RECENT DEVELOPMENTS
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On August 15, 2008, we completed our acquisitions of ST Pipeline, Inc.
and C.J. Hughes Construction Company, Inc. At that time the Board of Directors
appointed Richard M. Adams, Jr., and Keith Molihan as directors. As a result of
the acquisitions, we are no longer a special purpose acquisition corporation.
Our business and operations consist of the gas pipeline and infrastructure
operations of ST Pipeline, Inc. and C.J. Hughes Construction Company, Inc., each
of which is being held as a separate subsidiary of Energy Services of America
Corporation.
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REVOCATION OF PROXIES
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Stockholders who execute proxies in the form solicited hereby retain
the right to revoke them in the manner described below. Unless so revoked, the
shares represented by such proxies will be voted at the Annual Meeting and all
adjournments thereof. Proxies solicited on behalf of the Board of Directors will
be voted in accordance with the directions given thereon. Where no instructions
are indicated, validly executed proxies will be voted "FOR" the proposals set
forth in this Proxy Statement for consideration at the Annual Meeting.
The Board of Directors knows of no additional matters that will be
presented for consideration at the Annual Meeting. Execution of a proxy,
however, confers on the designated proxy holders discretionary authority to vote
the shares in accordance with their best judgment on such other business, if
any, that may properly come before the Annual Meeting or any adjournments
thereof.
Proxies may be revoked by sending written notice of revocation to our
Corporate Secretary at the address shown above, delivering to us a duly executed
proxy bearing a later date, or attending the Annual Meeting and voting in
person. However, if you are a stockholder whose shares are not registered in
your own name, you will need appropriate documentation from your record holder
to vote personally at the Annual Meeting. The presence at the Annual Meeting of
any stockholder who had returned a proxy shall not revoke such proxy unless the
stockholder delivers his or her ballot in person at the Annual Meeting or
delivers a written revocation to our Corporate Secretary prior to the voting of
such proxy.
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VOTING SECURITIES AND VOTING PROCEDURES
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Holders of record of our common stock, par value $0.0001 per share, as
of the close of business on October 10, 2008 are entitled to one vote for each
share then held, except as described below. As of the record date, we had
12,092,307 shares outstanding and entitled to vote. The presence in person or by
proxy of a majority of the outstanding shares of common stock entitled to vote
is necessary to constitute a quorum at the Annual Meeting. Broker non-votes and
proxies marked ABSTAIN will be counted for purposes of determining whether a
quorum is present. In the event there are not sufficient votes for a quorum, or
to approve or ratify any matter being presented at the time of the Annual
Meeting, the Annual Meeting may be adjourned in order to permit the further
solicitation of proxies.
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As to the election of directors, the proxy card being provided by the
Board of Directors enables a stockholder to vote FOR the election of the ten
(10) nominees proposed by the independent directors acting as the nominating
committee of the Board of Directors or to WITHHOLD AUTHORITY to vote for one or
more of the nominees being proposed. Directors are elected by a plurality of
votes cast, without regard to either broker non-votes or proxies as to which the
authority to vote for the nominees being proposed is withheld. Each share of
common stock is entitled to one vote.
As to the ratification of the appointment of the independent registered
public accounting firm, and the approval of the 2009 Employee Stock Purchase
Plan, the proxy card being provided by the Board of Directors enables a
stockholder to: (i) vote FOR the proposal; (ii) vote AGAINST the proposal; or
(iii) ABSTAIN from voting on the proposal. The ratification of the appointment
of the independent registered public accounting firm and the approval of the
2009 Employee Stock Purchase Plan must each be approved by the affirmative vote
of a majority of the votes cast without regard to broker non-votes or proxies
marked ABSTAIN.
Proxies solicited hereby will be returned to us and will be tabulated
by an inspector of election designated by the Board of Directors.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
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Persons and groups who beneficially own in excess of five percent of
our common stock are required to file certain reports with the Securities and
Exchange Commission regarding such ownership. The following table sets forth, as
of the record date, the shares of common stock beneficially owned by each person
who was the beneficial owner of more than five percent of our outstanding shares
of common stock, as well as the shares owned by our directors, nominees and
executive officers as a group.
Amount of Shares
Owned and Nature Percent of Shares
Name and Address of of Beneficial of Common Stock
Beneficial Owners Ownership(1) Outstanding
------------------ ---------------- ---------------
All Directors, Nominees and 7,931,857 50.39%
Executive Officers as a Group
(11 persons)
Principal Stockholders:
Marshall T. Reynolds 4,661,864(2) 30.20%
2450 First Avenue,
Huntington, West Virginia 25703
Edsel R. Burns 861,415(3) 7.08%
2450 First Avenue,
Huntington, West Virginia 25703
Douglas V. Reynolds 1,284,815(4) 10.56%
2450 First Avenue,
Huntington, West Virginia 25703
- -----------------------------
(1) In accordance with Rule 13d-3 under the Securities Exchange Act of
1934, a person is deemed to be the beneficial owner for purposes of
this table of any shares of common stock if he has sole or shared
voting or investment power with respect to such security, or has a
right to acquire beneficial ownership at any time within 60 days from
the date as of which beneficial ownership is being determined. As used
herein, "voting power" is the power to vote or direct the voting of
shares and "investment power" is the power to dispose or direct the
disposition of shares. Includes all shares held directly as well as by
spouses and minor children, in trust and other indirect ownership, over
which shares the named individuals effectively exercise sole or shared
voting and investment power.
(2) Based upon Schedule 13D/A, dated August 8, 2008, filed on behalf of
Marshall T. Reynolds. (3) Based upon Schedule 13D/A, dated August 8,
2008, filed on behalf of Edsel R. Burns. (4) Based upon Schedule 13D,
dated August 8, 2008, filed on behalf of Douglas V. Reynolds.
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PROPOSAL 1--ELECTION OF DIRECTORS
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Our Board of Directors currently is composed of seven members. On
August 15, 2008, in connection with our acquisitions of ST Pipeline, Inc. and
C.J. Hughes Construction Company, Inc., we increased the size of our Board of
Directors from five members to seven members. We intend to increase the size of
the board of directors to ten (10) members effective at the annual meeting.
Under our bylaws, all of our directors are to be elected annually. Directors are
generally elected to serve for a one-year period and until their respective
successors have been elected and shall qualify. The independent members of the
Board of Directors has nominated to serve as directors each of the nominees
listed in the table below, each of whom is currently a member of the Board of
Directors and each of whom has been nominated to serve for a one-year period and
until his successor has been elected and shall qualify.
The table below sets forth certain information regarding the
composition of our Board of Directors, including the terms of office of board
members. It is intended that the proxies solicited on behalf of the Board of
Directors (other than proxies in which the vote is withheld as to one or more
nominees) will be voted at the Annual Meeting for the election of the nominees
identified below. If the nominee is unable to serve, the shares represented by
all such proxies will be voted for the election of such substitute as the Board
of Directors may recommend. At this time, the Board of Directors knows of no
reason why any of the nominees might be unable to serve, if elected. Except as
indicated herein, there are no arrangements or understandings between any
nominee and any other person pursuant to which such nominee was selected. None
of the shares beneficially owned by directors, executive officers or nominees to
the Board of Directors have been pledged as security or collateral for any
loans.
Current Shares of Common Stock
Director Term to Beneficially Owned on Percent
Names and Address (1) Age(2) Positions Held Since Expire Record Date (3) of Class
- --------------------------- ------ -------------- -------- ------ ------------------------ --------
Directors/Nominees:
Marshall T. Reynolds 71 Chairman, Chief 2006 2008 4,661,864(4) 30.20%
Executive Officer
Edsel R. Burns 57 President and 2006 2008 861,415(6) 7.08%
Director
Larry A. Blount 59 Secretary/Treasurer, n/a n/a -- --
Chief Financial
Officer
Jack M. Reynolds 43 Director 2006 2008 506,924(5) 4.17%
Neal W. Scaggs 71 Director 2006 2008 431,415(7) 3.55%
Joseph L. Williams 62 Director 2006 2008 184,424(8) 1.52%
Richard M. Adams, Jr. 40 Director 2008 2008 -- --
Keith Molihan 66 Director 2008 2008 -- --
Douglas Reynolds 32 Director 2008 2008 1,284,815 10.56%
Eric Dosch 30 Director 2008 2008 -- --
James Shafer 65 Director 2008 2008 1,000 --
All Directors and Executive 7,931,857(9) 50.39%
Officers as a Group (11 persons)
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(1) The mailing address for each person listed is 2450 First Avenue, Huntington,
West Virginia 25703.
(2) As of October 10, 2008.
(3) In accordance with Rule 13d-3 under the Securities Exchange Act of 1934, a
person is deemed to be the beneficial owner for purposes of this table of
any shares of common stock if he has sole or shared voting or investment
power with respect to such security, or has a right to acquire beneficial
ownership at any time within 60 days from the date as of which beneficial
ownership is being determined. As used herein, "voting power" is the power
to vote or direct the voting of shares and "investment power" is the power
to dispose or direct the disposition of shares. Includes all shares held
directly as well as by spouses and minor children, in trust and other
indirect ownership, over which shares the named individuals effectively
exercise sole or shared voting and investment power.
(4) Includes 3,342,303 shares underlying warrants exercisable within 60 days
from the record date.
(5) Includes 76,924 shares underlying warrants exercisable within 60 days from
the record date.
(6) Includes 76,924 shares underlying warrants exercisable within 60 days from
the record date.
(7) Includes 76,924 shares underlying warrants exercisable within 60 days from
the record date.
(8) Includes 76,924 shares underlying warrants exercisable within 60 days from
the record date.
(9) Includes shares underlying warrants exercisable within 60 days from the
record date.
3
Directors and Executive Officers
The principal occupation during the past five years of each director
and executive officer is set forth below. All directors and executive officers
have held their present positions since our inception unless otherwise stated.
Marshall T. Reynolds has served as Chairman of the Board of Directors
since our inception. Mr. Reynolds has served as Chief Executive Officer and
Chairman of the Board Directors of Champion Industries, Inc., a commercial
printer, business form manufacturer and supplier of office products and
furniture, from 1992 to the present, and sole stockholder from 1972 to 1993;
President and General Manager of The Harrah & Reynolds Corporation, from 1964
(and sole stockholder since 1972) to present; Chairman of the Board of Directors
of Portec Rail Products, Inc.; Chairman of the Board of Directors of the
Radisson Hotel in Huntington, West Virginia; and Chairman of the Board of
Directors of McCorkle Machine and Engineering Company in Huntington, West
Virginia. Mr. Reynolds also serves as a Director of the Abigail Adams National
Bancorp, Inc. in Washington, D.C.; Chairman of the Board of Directors of First
Guaranty Bank in Hammond, Louisiana; and Chairman of the Board of Directors of
Premier Financial Bancorp, Inc. in Huntington, West Virginia. Mr. Reynolds is
the father of Jack Reynolds and Douglas Reynolds.
Jack M. Reynolds has served as President, Chief Financial Officer and a
member of our Board of Directors since our inception. Mr. Reynolds has been a
Vice President of Pritchard Electric Company since 1998. Pritchard is an
electrical contractor providing electrical services to both utility companies as
well as private industries. Mr. Reynolds also serves as a Director of Citizens
Deposit Bank of Vanceburg, Kentucky. Mr. Reynolds is the son of Marshall
Reynolds and the brother of Douglas Reynolds.
Edsel R. Burns has been a Director since our inception. Mr. Burns has
been President and Chief Executive Officer of C. J. Hughes Construction Company,
Inc. from September of 2002 to the present. C. J. Hughes is an underground
utility construction company specializing in gas and water line replacement as
well as utility environmental issues. From January 2002 to September of 2002,
Mr. Burns was self-employed as an independent financial consultant to banks.
From June of 2001 to December 2001, Mr. Burns was the Chief Financial Officer
for Genesis Health Systems, a holding company for a collaborative group of three
hospitals, two in Huntington, West Virginia and one in Point Pleasant, West
Virginia. Mr. Burns is a Certified Public Accountant and is a member of the
American Institute of Certified Public Accountants as well as the West Virginia
and Ohio societies of CPAs. He also is on the Board of Directors of Premier
Financial Bancorp, Inc.
Neal W. Scaggs has been a Director since our inception. Mr. Scaggs has
been president of Basiden Brothers, Inc. (retail and wholesale hardware) from
1963 to the present. Mr. Scaggs is on the Boards of Directors of Premier
Financial Bancorp, Inc., Champion Industries, Inc. and Portec Rail Products,Inc.
Joseph L. Williams has been a Director since our inception. Mr. Williams is
the Chairman and Chief Executive Officer of Basic Supply Company, Inc., which he
founded in 1977. Mr. Williams was one of the organizers and is a Director of
First Sentry Bank, Huntington, West Virginia. Mr. Williams also serves as a
Director of Abigail Adams National Bancorp, Inc., in Washington, D.C. Mr.
Williams is Chairman, President and Chief Executive Officer of Consolidated Bank
& Trust Co., in Richmond, Virginia. Mr. Williams is a member of the West
Virginia Governor's Workforce Investment Council. He is a former Director of
Unlimited Future, Inc. (a small business incubator) and a former Member of the
National Advisory Council of the U.S. Small Business Administration. Mr.
Williams is a former Mayor and City Councilman of the City of Huntington, West
Virginia. He is a graduate of Marshall University with a degree in finance and
is a member of its Institutional Board of
Governors.
Richard M. Adams, Jr. was appointed to the Board of Directors on August 15,
2008. Mr. Adams has been the President of United Bank, Inc., a subsidiary of
United Bankshares, Inc. since 2007. Prior to his appointment as President, Mr.
Adams was the Executive Vice President of United Bank, Inc. He is also Executive
Vice President of United Bankshares, Inc., a multi-state bank holding company
doing business in Ohio, West Virginia, Virginia, Maryland, and Washington, D.C.
Keith Molihan was appointed to the Board of Directors on August 15,
2008. Mr. Molihan is a retired executive director of the Lawrence County
Community Action Organization. Mr. Molihan has served as Chairman of the Board
of Directors of Ohio River Bank, Chairman of the Board of Directors of Farmers
Bank of Eminence Kentucky and Chairman of the Board EMEGA Turbine Technology, as
well as President of the Lawrence County Ohio Port Authority and President of
the Southeast Ohio Emergency Medical organization.
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Eric Dosch has served as credit department manager with First Guaranty
Bank located in Hammond, Louisiana since December 2005. Prior to that time Mr.
Dosch served as credit officer with First Guaranty Bank since October 2003.
Prior to his association with First Guaranty Bank, Mr. Dosch was an analyst with
Livingston & Jefferson, a private asset management firm located in Cincinnati,
Ohio.
Douglas V. Reynolds is an attorney for Reynolds & Brown, PLLC. Mr.
Reynolds is the President of the Transylvania Corporation and is Chairman of
C.J. Hughes Construction Company, and a director of The Harrah and Reynolds
Corporation, and Portec Rail Products, Inc. Mr. Reynolds is a graduate of Duke
University and holds a law degree from West Virginia University. Mr. Reynolds is
the son of Director Marshall T. Reynolds and brother of Jack M. Reynolds.
Larry A. Blount was appointed as Chief Financial Officer and Secretary of
the Company. Mr. Blount graduated from West Virginia State University with a
Bachelor of Science degree in Business Administration and Accounting. He is also
a Certified Public Accountant. Mr. Blount was employed by Union Boiler Company,
in various capacities, including Staff Accountant, Internal Auditor, Chief
Accountant and Controller, from 1980-1996. From 1996-2003 he was Controller and
Vice-President of Accounting and Finance for Williams Group International. He
served as Divisional Accounting Manager for Alberici Constructors from
2003-2005. From 2005-2007, Mr. Blount served as Vice President, Chief Financial
Officer, Secretary and Treasurer for Nitro Electric Company.
James Shafer is the president and until its sale to Energy Services was
the owner of ST Pipeline.
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.
Scaggs, Williams, Adams, Molihan and Dosch are "independent directors" within
the meaning of such standards. Mr. Burns was an independent director during the
fiscal year ended September 30, 2007, but ceased to be an independent director
when we acquired C. J. Hughes Construction Company, Inc. There were no
transactions not required to be reported under "--Certain Relationships and
Related Transactions" that were considered in determining the independence of
our directors.
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.
Section 16(a) Beneficial Ownership Reporting Compliance
Our common stock is registered with the Securities and Exchange
Commission pursuant to Section 12(b) of the Securities Exchange Act of 1934. The
officers and directors and beneficial owners of greater than 10% of our common
stock are required to file reports on Forms 3, 4 and 5 with the Securities and
Exchange Commission disclosing beneficial ownership and changes in beneficial
ownership of the common stock. Securities and Exchange Commission rules require
disclosure in our Proxy Statement or Annual Report on Form 10-K of the failure
of an officer, director or 10% beneficial owner of our common stock to file a
Form 3, 4 or 5 on a timely basis. Based on our review of ownership reports
required to be filed for the fiscal year ended September 30, 2007, all of our
directors, officers and owners of more than 10% of our common stock filed these
reports on a timely basis.
5
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Meetings of the Board of Directors
Beginning in February of 2007, the Board of Directors met monthly or
more often as was necessary. In fiscal 2007, the Board of Directors held five
regular meetings and three special meetings. No director attended fewer than 75%
in the aggregate of the total number of board meetings held. All directors
serving on our committees attended more than 75% of the total number of
committee meetings on which they served during fiscal 2007. Although not
required, attendance of Board members at the Annual Meeting of Stockholders is
encouraged. four members of our Board of Directors attended the 2007 Annual
Meeting of Stockholders.
Board Committees
The Board of Directors has an audit committee. The Board of Directors
has adopted a charter for this committee, which was filed as Appendix A to the
proxy statement for our 2007 Annual Meeting of Stockholders. The charter has not
been amended.
Audit Committee. The audit committee consisted of Messrs. Burns,
Scaggs, and Williams with Mr. Burns acting as chairman of the committee in
fiscal 2007. Following completion of our acquisition of ST Pipeline and C.J.
Hughes the audit committee consisted of Messrs. Scaggs, Williams, Adams and
Molihan with Mr. Scaggs acting as chairman of the committee. The audit committee
met five times during the fiscal year ended September 30, 2007. The independent
directors appointed to the audit committee are independent members of the board
of directors, as defined by Securities and Exchange Commission rules and the
American Stock Exchange corporate governance listing standards. Each member of
the audit committee is financially literate, and the Board of Directors has
determined that Mr. Burns qualified as an audit committee financial expert in
fiscal 2007, as such term is defined by Securities and Exchange Commission
rules. Messrs. Adams and Molihan qualify as audit committee financial experts,
as such term is defined by Securities and Exchange Commission rules.
The audit committee reviews the professional services and independence
of our independent registered public accounting firm and our accounts,
procedures and internal controls. The audit committee also recommends the firm
selected to be our independent registered public accounting firm, reviews and
approves the scope of the annual audit, reviews and evaluates with the
independent public accounting firm our annual audit and annual consolidated
financial statements, reviews with management the status of internal accounting
controls, evaluates problem areas having a potential financial impact on us that
are brought to the committee's attention by management, the independent
registered public accounting firm or the board of directors, and evaluates all
of our public financial reporting documents.
Audit Committee Report
In accordance with rules established by the Securities and Exchange
Commission, the audit committee has prepared the following report for inclusion
in this proxy statement:
As part of its ongoing activities, the audit committee has:
o reviewed and discussed with management and the independent
registered public accounting firm our audited consolidated
financial statements for the fiscal year ended September 30,
2007;
o discussed with the independent registered public accounting firm
the matters required to be discussed by Statement on Auditing
Standards No. 61, Communications with Audit Committees, as
amended; and
o received the written disclosures and the letter from the
independent registered public accounting firm required by
Independence Standards Board Standard No. 1, Independence
Discussions with Audit Committees, and has discussed with the
independent registered public accounting firm their independence.
Based on the review and discussions referred to above, the audit
committee recommended to the Board of Directors that the audited consolidated
financial statements be included in our Annual Report on Form 10-K for the
fiscal year ended September 30, 2007. In addition, the Audit Committee appointed
Arnett & Foster P.L.L.C. as our independent registered public accounting firm
for the fiscal year ending September 30, 2008, subject to the ratification of
this appointment by the stockholders.
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This report shall not be deemed incorporated by reference by any
general statement incorporating by reference this proxy statement into any
filing under the Securities Act of 1933, as amended, or the Securities Exchange
Act of 1934, as amended, except to the extent that we specifically incorporate
this information by reference, and shall not otherwise be deemed filed under
such Acts.
This report has been provided by the Audit Committee:
Edsel R. Burns
Neal W. Scaggs
Joseph L. Williams
Other Committees. The Board has determined that the independent members
of the Board of Directors will perform the duties of the nominating committee
and the compensation committee of the Board of Directors and neither committee
has a written charter. The independent directors will (i) identify individuals
qualified to become members of the Board of Directors and recommend to the Board
of Directors the nominees for election to the Board of Directors, (ii) recommend
director nominees for each committee to the Board of Directors, (iii) identify
individuals to fill any vacancies on the Board of Directors, (iv) discharge the
Board of Directors' responsibilities relating to compensation of our directors
and officers and (v) review and recommend to the Board of Directors,
compensation plans, policies and benefit programs, as well as approve chief
executive officer compensation. The independent members of the Board of
Directors met two times as the nominating committee during the fiscal year ended
September 30, 2007.
The independent directors of the Board identify nominees by first
evaluating the current members of the Board of Directors willing to continue in
service. Current members of the Board of Directors with skills and experience
that are relevant to our business and who are willing to continue in service are
first considered for re-nomination, balancing the value of continuity of service
by existing members of the Board of Directors with that of obtaining a new
perspective. If any member of the Board of Directors does not wish to continue
in service, or if the Board decides not to re-nominate a member for re-election,
or if the size of the Board of Directors is increased, the independent directors
would solicit suggestions for director candidates from all board members. The
independent directors would seek to identify a candidate who at a minimum
satisfies the following criteria:
o has the highest personal and professional ethics and integrity and
whose values are compatible with ours;
o has experiences and achievements that have given him or her the
ability to exercise and develop good business judgment;
o is willing to devote the necessary time to the work of the Board of
Directors and its committees, which includes being available for board
and committee meetings;
o is familiar with the communities in which we operate and/or is
actively engaged in community activities;
o is involved in other activities or interests that do not create a
conflict with his or her responsibilities to us and our stockholders;
and
o has the capacity and desire to represent the balanced, best interests
of our stockholders as a group, and not primarily a special interest
group or constituency.
The independent directors will also take into account whether a
candidate satisfies the criteria for "independence" under Securities and
Exchange Commission rules and the American Stock Exchange and, if a nominee is
sought for service on the audit committee, the financial and accounting
expertise of a candidate, including whether an individual qualifies as an "audit
committee financial expert."
Procedures for the Nomination of Directors by Stockholders
The Board of Directors has adopted procedures for the submission of
director nominees by stockholders. If a determination is made that an additional
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candidate is needed for the Board of Directors, the independent members of the
Board of Directors will consider candidates submitted by our stockholders.
Stockholders can submit the names of qualified candidates for director by
writing to our Corporate Secretary at 2450 First Avenue, Huntington, West
Virginia 25703. The Corporate Secretary must receive a submission not less than
forty-five (45) days prior to the date of our proxy materials for the preceding
year's annual meeting. The submission must include the following information:
o a statement that the writer is a stockholder and is proposing a
candidate for consideration by our independent directors;
o the name and address of the stockholder as they appear on the our
books and number of shares of our common stock that are owned
beneficially by such stockholder (if the stockholder is not a holder
of record, appropriate evidence of the stockholder's ownership will be
required);
o the name, address and contact information for the candidate, and the
number of shares of our common stock that are owned by the candidate
(if the candidate is not a holder of record, appropriate evidence of
the stockholder's ownership should be provided);
o a statement of the candidate's business and educational experience;
o such other information regarding the candidate as would be required to
be included in the proxy statement pursuant to Securities and Exchange
Commission Regulation 14A;
o a statement detailing any relationship between the candidate and
Energy Services of America Corporation;
o a statement detailing any relationship between the candidate and any
customer, supplier or competitor of Energy Services of America
Corporation;
o detailed information about any relationship or understanding between
the proposing stockholder and the candidate; and
o a statement that the candidate is willing to be considered and willing
to serve as a director if
nominated and elected.
A nomination submitted by a stockholder for presentation by the
stockholder at an annual meeting of stockholders will also need to comply with
any additional procedural and informational requirements adopted in the future.
Stockholder Communications with the Board
A stockholder who wants to communicate with the Board of Directors or
with any individual director can write to the Corporate Secretary at 2450 First
Avenue, Huntington, West Virginia 25703, Attention: Corporate Secretary. The
letter should indicate that the author is a stockholder and if shares are not
held of record, should include appropriate evidence of stock ownership.
Depending on the subject matter, management will:
o forward the communication to the director or directors to whom it is
addressed;
o attempt to handle the inquiry directly, i.e. where it is a request for
information about us or it is a stock-related matter; or
o not forward the communication if it is primarily commercial in nature,
relates to an improper or irrelevant topic, or is unduly hostile,
threatening, illegal or otherwise inappropriate.
At each board meeting, management shall present a summary of all
communications received since the last meeting that were not forwarded and make
those communications available to the directors.
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Code of Ethics
We have adopted a Code of Ethics that applies to our principal
executive officer, principal financial officer, principal accounting officer or
controller or persons performing similar functions. The Code of Ethics was
previously filed as an exhibit to our Registration Statement on Form S-1. A copy
of the Code will be furnished without charge upon written request to the
Corporate Secretary, Energy Services of America Corporation, 2450 First Avenue,
Huntington, West Virginia.
Executive and Director Compensation
As of the end of fiscal 2007, we were a blank check company formed for
the purpose of acquiring an operating business, and as a result no compensation
has been paid directly or indirectly to any executive officer or director.
Consequently, we have not formulated any policies on executive compensation.
However, as a result of our acquisitions of St Pipeline, Inc. and C.J. Hughes
Construction Company, Inc. on August 15, 2008, we plan to adopt compensation
standards and policies during fiscal 2009.
No compensation of any kind, including finder's and consulting fees,
has been paid to any of our initial stockholders, officers or directors, or any
of their respective affiliates, for services rendered prior to or in connection
with the business combination.
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.
Compensation Committee Report
As of the end of fiscal 2007, no compensation has been paid to any
executive officer. Consequently, 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.
Certain Relationships and Related Transactions
On August 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:
Number of
Name Shares Relationship to Us
- ---------------------------------------------------------------------------------------
Marshall T. Reynolds.............. 537,500 Chairman of the Board, Chief Executive Officer and Secretary(1)
Jack M. Reynolds.................. 430,000 Director, President and Chief Financial Officer(1)
Edsel R. Burns.................... 537,500 Director
Neal W. Scaggs.................... 107,500 Director
Joseph L. Williams................ 107,500 Director
Douglas Reynolds.................. 430,000 Director nominee (1)
- --------------------------------------------------------------------------------
(1) Douglas Reynolds is the son of Marshall T. Reynolds and the brother of Jack
M. Reynolds.
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.
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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.
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PROPOSAL 2--RATIFICATION OF THE APPOINTMENT OF THE INDEPENDENT REGISTERED
PUBLIC ACCOUNTING FIRM
- --------------------------------------------------------------------------------
The audit committee has approved the appointment of Arnett & Foster
P.L.L.C. to be our independent registered public accounting firm for the 2008
fiscal year, subject to the ratification of the appointment by our stockholders.
At the Annual Meeting, stockholders will consider and vote on the ratification
of the appointment of Arnett & Foster P.L.L.C. for the fiscal year ending
September 30, 2008. A representative of Arnett & Foster P.L.L.C. is not expected
to attend the Annual Meeting. Prior to the appointment of Arnett & Foster
P.L.L.C, Castaing Hussey & Lolan acted as our independent registered
accountants. The following is a summary of fees paid or to be paid to Castaing
Hussey & Lolan for services rendered.
Audit Fees
During the fiscal year ended September 30, 2006, we paid our principal
accountant $42,966 for the services they performed in connection with our
initial public offering, including the financial statements included in the
Current Report on Form 8-K filed with the Securities and Exchange Commission on
September 6, 2006. Additionally, we paid our principal accountant $6,860 and
$13,965 for the services they have performed in connection with the audit of our
financial statements included in this Annual Report for fiscal 2006 and 2007,
respectively.
Audit-Related Fees
During fiscal 2007 and 2006, except as described above, our independent
registered public accounting firm did not render any audit assurance and related
services reasonably related to the performance of the audit or review of
financial statements.
Tax Fees
During the fiscal year ended September 30, 2007, we paid our principal
accountant $2,170 for tax compliance services. During 2006, our principal
accountant did not render services to us for tax compliance, tax advice and tax
planning.
All Other Fees
During fiscal 2007 and 2006, there were no fees billed for products and
services provided by our independent registered public accounting firm other
than those set forth above.
Policy on Audit Committee Pre-Approval of Audit and Non-Audit Services of
Independent Registered Public Accounting Firm
The Audit Committee's policy is to pre-approve all audit and non-audit
services provided by the independent registered public accounting firm. These
services may include audit services, audit-related services, tax services and
other services. Pre-approval is generally provided for up to one year and any
pre-approval is detailed as to particular service or category of services and is
generally subject to a specific budget. The Audit Committee has delegated
pre-approval authority to its Chairman when expedition of services is necessary.
The independent registered public accounting firm and management are required to
periodically report to the full Audit Committee regarding the extent of services
provided by the independent registered public accounting firm in accordance with
this pre-approval, and the fees for the services performed to date. All of the
fees paid in the audit-related, tax and all other categories were approved per
the pre-approval policies.
In order to ratify the appointment of Arnett & Foster P.L.L.C. as the
independent registered public accounting firm for the 2008 fiscal year, the
proposal must receive the affirmative vote of a majority of the shares
represented at the Annual Meeting and entitled to vote. THE BOARD OF DIRECTORS
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RECOMMENDS A VOTE "FOR" THE RATIFICATION OF THE APPOINTMENT OF ARNETT & FOSTER
P.L.L.C. AS THE INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE 2008
FISCAL YEAR.
Changes in Independent Registered Public Accountants
We have engaged Arnett & Foster, Certified Public Accountants, P.L.L.C.
("Arnett & Foster") as our new independent registered public accounting firm,
effective October 1, 2008. We continued our relationship with Castaing, Hussey &
Lolan LLC, CPAs ("CHL") as its independent registered public accounting firm
through the preparation and filing on August 13, 2008 of the Company's Form 10-Q
for the quarter period ended June 30, 2008. On October 1, 2008, the Company
notified CHL that it was dismissing CHL as principal accountants.
CHL's reports on our consolidated financial statements as of and for
the years ended September 30, 2007 and 2006 did not contain an adverse opinion
or a disclaimer of opinion and were not qualified or modified as to uncertainty,
audit scope or accounting principles. Arnett & Foster has been engaged to audit
our consolidated financial statements as of and for the year ending September
30, 2008. The engagement of Arnett & Foster was approved by our Audit Committee.
In connection with the audits of the two fiscal years ended September
30, 2007 and the subsequent interim period, there were (1) no disagreements with
CHL on any matter of accounting principles or practices, financial statement
disclosure or auditing scope or procedure which disagreements, if not resolved
to the satisfaction of CHL, would have caused them to make reference to the
subject matter of the disagreements in connection with their opinion and (2) no
reportable events.
Arnett & Foster was engaged by the Company on October 1, 2008 to audit
the consolidated financial statements of the Company as of and for the year
ending September 30, 2008. During the period beginning October 1, 2006 through
the date of this Report, the Company did not consult with Arnett & Foster
regarding any of the matters set forth in Item 304(a)(2)(i) or (ii) of
Regulation S-K.
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PROPOSAL 3-APPROVAL OF THE ENERGY SERVICES OF AMERICA CORPORATION
2009 EMPLOYEE STOCK PURCHASE PLAN
- --------------------------------------------------------------------------------
Our Board of Directors approved the Energy Services of America
Corporation 2009 Employee Stock Purchase Plan and recommended submitting the
plan to stockholders for approval at the annual meeting. If approved, the plan
will become effective January 1, 2009.
The plan enables eligible employees to purchase common stock through
payroll deductions. The plan is intended to qualify under Section 423 of the
Internal Revenue Code and its regulations. If Code Section 423 is amended in any
way, the Compensation Committee of our Board may amend the plan to conform to
such changes. The following summary is qualified by reference to the complete
text of the plan, which is attached as Exhibit A.
DESCRIPTION OF THE PLAN.
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Shares Reserved For Issuance Under the Plan. Up to 1,200,000 shares
of common stock, subject to adjustments for stock dividends, splits and other
events that affect the number of shares of common stock outstanding, may be
issued under the plan. Stock subject to purchase under the plan will be shares
of common stock that have been authorized but unissued, or have been previously
issued and reacquired by us, or both.
Maximum purchase. The plan is open to eligible employees of Energy
Services of America Corporation and participating subsidiaries. A participant's
stock purchases during a calendar year may not exceed the lesser of: (a) a
percentage of the participant's compensation or a total dollar amount as
specified by the committee, or (b) $25,000.
Benefits. Since participation in the plan is voluntary, future
benefits to be allocated to any individual or group of individuals under the
plan cannot be determined at this time.
Stock purchase agreement. Participants will enter into a stock
purchase agreement with us. The agreement will state the number of shares of
common stock to be purchased and will authorize us, during the offering period,
to withhold from the participant's pay amounts that, together with accrued
interest, will equal the purchase price of the shares. Energy Services of
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America Corporation or the appropriate participating subsidiary will credit
these amounts to a plan account, and this account will bear interest at a rate
determined by the Compensation Committee.
Types of offering. The plan provides for both fixed price and
variable price offerings. In a fixed price offering, the purchase price of a
share of common stock will be at least 85% of its fair market value on the date
of the agreement. In a variable price offering, the purchase price of a share of
common stock will be at least 85% of its fair market value on the date of
purchase. Offering periods will be established by the committee, but may not
exceed 27 months for a fixed price offering and five years for a variable price
offering. The Compensation Committee determines which type of offerings it will
make.
Purchase of shares. At the end of the offering period, if the fair
market value of a share of common stock is equal to or greater than the purchase
price specified in the agreement, the shares covered by the agreement
automatically will be purchased by the participant with the funds held on behalf
of the participant in the plan account. However, the participant may elect not
to purchase any shares or to purchase fewer than all of the shares covered by
the agreement. Any balance in the plan account held on behalf of the participant
after purchase of the shares, including accrued interest, will be paid to the
participant. If a participant does not purchase any shares, all funds in the
plan account held on his or her behalf, including accrued interest, will be paid
to the participant.
The Compensation Committee may permit a participant to purchase all
or part of the shares before the end of the offering period. If the participant
elects to purchase stock before the end of the offering period, but does not
have enough funds held on his or her behalf in the plan account, the participant
must pay the balance in a manner approved by the Compensation Committee.
Termination of agreement. A participant may terminate the agreement
before the end of the offering period and receive a cash refund of his or her
funds in the plan account, including accrued interest. The Compensation
Committee will determine how long a participant must wait before he or she may
participate in the plan again.
Termination of employment. The Compensation Committee will determine
the effects of a participant's retirement, death, disability, leave of absence
or any other termination of employment during the offering period.
Change of control. In the event of or in anticipation of a change in
control of Energy Services of America Corporation, the Compensation Committee
may at any time adjust the terms of outstanding agreements as it deems
appropriate to reflect the change of control, or may cause the surviving
corporation in the change of control to assume the outstanding agreements or
enter into substitute agreements.
Amendments. The Compensation Committee may amend, suspend or
discontinue the plan or amend outstanding agreements made under the plan as long
as such action is not prohibited by Code Section 423.
FEDERAL INCOME TAX CONSEQUENCES
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The following is a brief summary of the principal United States
federal income tax consequences of transactions under the plan. The summary is
not intended to be exhaustive, does not constitute tax advice and does not
describe state, local or foreign tax consequences.
The plan is intended to be a tax-qualified "employee stock purchase
plan" under Section 423 of the Internal Revenue Code. The plan is not qualified
under Section 401(a) of the Code and is not subject to the provisions of the
Employee Retirement Income Security Act of 1974 (ERISA).
Amounts deducted from a participant's pay under the plan remain
taxable income to the participant in the year the amounts are earned, and are
subject to taxation to the same extent as other compensation income received by
the participant. Participants will not recognize additional taxable income
either (a) when the agreement is entered into or (b) when the shares are
purchased.
The participant must pay taxes on the interest he or she accrues.
The tax basis of the shares purchased will be the price at which they are
purchased. The participant's holding period for a share will begin on the date
he or she purchases the shares.
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If stock purchased under the plan is held for more than (a) one year
after the date of purchase and (b) two years after the date of the agreement, or
if the participant dies at any time while holding the shares, the participant
will recognize ordinary compensation income at the time of disposition (by sale,
exchange or gift) or death equal to the lesser of (i) the excess of the fair
market value of the shares on the date of the agreement over the purchase price
or (ii) the excess of the fair market value of the shares at the time of the
disposition or death over the purchase price.
The participant's basis in the shares disposed of will be increased
by the amount of ordinary income recognized. Any additional gain recognized on
the disposition will be taxed as long-term capital gain.
If stock purchased under the plan is held for less than one year
after the date of purchase or less than two years after the date of the
agreement, the participant will recognize ordinary income at the time of
disposition (by sale, exchange or gift) to the extent that the fair market value
of the stock at the date of purchase was greater than the purchase price. This
amount is considered ordinary compensation income in the year of disposition (by
sale, exchange or gift) and is subject to tax withholding even if no gain is
realized on the disposition. Any additional gain or loss recognized by the
participant on the disposition will be short-term or long-term capital gain or
loss, depending on the participant's holding period for the shares transferred.
Energy Services of America Corporation or a participating subsidiary
will not receive a tax deduction when shares are acquired under the plan and
held for the requisite period described above. However, when stock is purchased
under the plan and the shares are disposed of prior to the one and two year
periods described above, the participant's employer generally is entitled to a
tax deduction at that time and in the amount of the compensation income
recognized by the participant.
RECOMMENDATION
- --------------
We believe the plan is an effective means of aligning the interests
of a broad range of employees with the interests of our stockholders. Approval
of the plan must be ratified by a majority of the votes cast at the annual
meeting.
THE BOARD RECOMMENDS THAT YOU VOTE FOR THE ENERGY SERVICES OF AMERICA
CORPORATION 2009 STOCK PURCHASE PLAN.
- --------------------------------------------------------------------------------
STOCKHOLDER PROPOSALS
- --------------------------------------------------------------------------------
In order to be eligible for inclusion in the proxy materials for next
year's Annual Meeting of Stockholders, any stockholder proposal to take action
at such meeting must be received at our executive office located at 2450 First
Avenue, Huntington, West Virginia 25703, no later than January 8, 2009, which is
120 days from the date in which we expect to mail our proxy materials for the
next annual meeting. Any such proposals shall be subject to the requirements of
the proxy rules adopted under the Securities Exchange Act of 1934.
Advance Notice of Business to be Conducted at an Annual Meeting
Our bylaws provide an advance notice procedure for business, or
nominations to the Board of Directors, to be brought before an annual meeting of
stockholders. In order for a stockholder to properly bring business before an
annual meeting, or to propose a nominee to the Board of Directors, a
stockholder's notice must be delivered to or mailed and received at our
principal executive offices not less than sixty (60) days nor more than ninety
(90) days prior to the meeting; provided, however, that in the event that less
than seventy (70) days notice or prior public disclosure of the date of the
annual meeting is given or made to stockholders, notice by a stockholder, to be
timely, must be received no later than the close of business on the tenth (10th)
day following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure was made, whichever first occurs. A
stockholder's notice to the Secretary shall set forth (a) as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, and (ii) any material
interest of the stockholder in such business, and (b) as to the stockholder
giving the notice (i) the name and record address of the stockholder and (ii)
the class, series and number of shares of our capital stock which are
beneficially owned by the stockholder. In the case of nominations to the Board
of Directors, certain information regarding the nominee must be provided.
Nothing in this paragraph shall be deemed to require us to include in our proxy
statement and proxy relating to an annual meeting any stockholder proposal that
does not meet all of the requirements for inclusion established by the
Securities and Exchange Commission in effect at the time such proposal is
received.
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Accordingly, advance written notice for business to be brought before
the next annual meeting must be given to us no later than April 7, 2009 assuming
next year's annual meeting is held on June 8, 2009. If notice is received after
that date, it will be considered untimely, and we will not be required to
present the matter at the meeting.
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OTHER MATTERS
- --------------------------------------------------------------------------------
The Board of Directors is not aware of any business to come before the
Annual Meeting other than the matters described above in this Proxy Statement.
However, if any matters should properly come before the Annual Meeting, it is
intended that holders of the proxies will act as directed by a majority of the
Board of Directors, except for matters related to the conduct of the Annual
Meeting, as to which they shall act in accordance with their best judgment. The
Board of Directors intends to exercise its discretionary authority to the
fullest extent permitted under the Securities Exchange Act of 1934.
- --------------------------------------------------------------------------------
MISCELLANEOUS
- --------------------------------------------------------------------------------
The cost of solicitation of proxies in the form enclosed herewith will
be borne by Energy Services of America Corporation. Proxies also may be
solicited personally or by mail, telephone or telegraph by our directors,
officers and employees, without additional compensation therefor. We also will
request persons, firms and corporations holding shares in their names, or in the
names of their nominees which are beneficially owned by others, to send proxy
materials to and to obtain proxies from such beneficial owners, and will
reimburse such holders for their reasonable expenses in doing so.
ADDITIONAL COPIES OF OUR ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED
SEPTEMBER 30, 2007 WILL BE FURNISHED WITHOUT CHARGE TO STOCKHOLDERS AS OF THE
RECORD DATE UPON WRITTEN OR TELEPHONIC REQUEST TO EDSEL R. BURNS, ENERGY
SERVICES OF AMERICA CORPORATION, 2450 FIRST AVENUE, HUNTINGTON, WEST VIRGINIA
25703, OR CALL (304) 528-2791.
BY ORDER OF THE BOARD OF DIRECTORS
/s/ Larry A. Blount
-------------------
Larry A. Blount
Corporate Secretary
Huntington, West Virginia
October 17, 2008
14
EXHIBIT A
ENERGY SERVICES OF AMERICA CORPORATION
2009 EMPLOYEE STOCK PURCHASE PLAN
1. Purposes. The purposes of the Energy Services of America Corporation
2009 Stock Purchase Plan (the "Plan") are (i) to serve as an employment
incentive and (ii) to encourage stock ownership by Eligible Employees (as
defined below) in order to align their long-term financial interests with those
of the stockholders of Energy Services of America Corporation, a Delaware
corporation (the "Company"). It is the intention of the Company that the Plan
shall qualify as an "employee stock purchase plan" under Section 423 of the
Internal Revenue Code of 1986, as amended (the "Code"). The provisions of the
Plan, accordingly, shall be construed so that participation in the Plan will be
consistent with the requirements of Code Section 423.
2. Effective Date And Duration Of Plan. The Plan will become effective
January 1, 2009, subject to approval by the stockholders of the Company. No
Agreement shall be entered into pursuant to the Plan after December 31, 2019,
unless the Plan is terminated earlier in accordance with the provisions of
Section 21.
3. Definitions. The following capitalized terms shall have the meanings as
set forth below
(a) "Agreement" means a stock purchase agreement, the form of which has
been approved by the Committee, pursuant to which Eligible Employees may
purchase Common Stock under the Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Change Of Control" has the meaning set forth in Section 17.
(d) "Closing Date" means the last day of the stated term of an Agreement as
established by the Committee.
(e) "Committee" means the Compensation Committee of the Board, or its
designee.
(f) "Common Stock" means the Common Stock of the Company, par value $0.0001
per share.
(g) "Compensation" means, unless the Committee determines otherwise, base
salary, but excluding any incentive or other awards, bonus payments, overtime
payments, or similar distributions or contributions to any employee benefit plan
of the Company or any Designated Subsidiary.
(h) "Designated Subsidiary" means a Subsidiary that has been designated by
the Committee from time to time as being eligible to participate in the Plan.
(i) "Eligible Employees" means those Employees who have been designated by
the Committee, in its discretion, in accordance with the provisions of Code
Section 423 as being eligible to participate in the Plan.
(j) "Employee" means an individual who is an employee of the Company or a
Designated Subsidiary as of the date or dates determined by the Committee.
(k) "Fair Market Value" as of any given date means, unless the Committee
determines otherwise, the closing price of a share of Common Stock on the
American Stock Exchange on that business day.
(l) "Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations including the Company provided that, on the date
of the relevant Agreement hereunder, each of the corporations (other than the
last corporation in the unbroken chain) owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
(m) "1934 Act" means the Securities Exchange Act of 1934, as amended,
including the rules and regulations promulgated thereunder and any successor
thereto.
4. Administration. The Committee shall have full and exclusive power to
administer and interpret the Plan. The Committee may determine, from time to
time, that the Company shall offer to Eligible Employees the opportunity to
enter into Agreements.
A-1
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(a) The Committee's authority includes, but is not limited to the authority
to, from time to time, subject to the express provisions of the Plan and Code
Section 423:
(i) determine whether Agreements shall be offered under Section 8(a) or
8(b) of the Plan;
(ii) determine which Employees shall be Eligible Employees and which
Subsidiaries shall be Designated Subsidiaries;
(iii) prescribe and modify the form and provisions of the Agreements and
the method of delivery and execution thereof;
(iii) decide questions which may arise with respect to the interpretation,
construction or application of the Plan or any Agreement;
(v) amend, suspend or terminate the Plan, in accordance with the provisions
of Section 21;
(vi) adopt and amend such administrative rules, regulations, procedures and
guidelines governing the Plan and the Agreements as it may deem necessary in its
discretion;
(vii) establish all other terms, conditions, restrictions and limitations
applicable to Agreements, including but not limited to those relating to an
Eligible Employee's retirement, death, disability, leave of absence or any other
termination of employment; and
(viii) establish the terms, conditions, limitations and restrictions which
will apply to Eligible Employees.
(b) The Committee shall have the power to correct any defect, supply any
omission or clarify any inconsistency in the Plan and/or in any Agreement and to
take such actions and make such administrative determinations that the Committee
deems appropriate in its discretion.
(c) Any decision of the Committee in the administration of the Plan, as
described herein, shall be final, binding and conclusive on all parties
concerned, including the Company, its stockholders, subsidiaries and all
Employees.
(d) The Committee may at any time delegate its responsibilities regarding
the administration of the Plan to another committee or to one or more officers
of the Company. The Committee may not delegate its authority to determine, from
time to time, that the Company shall offer to enter into Agreements.
(e) No member of the Committee shall be personally liable for any action or
determination made with respect to the Plan, except for his or her own willful
misconduct or as expressly provided by statute. The members of the Committee
shall be entitled to indemnification and reimbursement. In the performance of
its functions under the Plan, the Committee shall be entitled to rely upon
information and advice furnished by the Company's officers, accountants, counsel
and any other party the Committee deems necessary, and no member of the
Committee shall be liable for any action taken or not taken in reliance upon any
such advice.
5. Eligibility. Only Eligible Employees may participate in the Plan. No
Eligible Employee may enter into an Agreement if such Eligible Employee,
immediately after the Agreement is entered into, owns stock having five percent
(5%) or more of the total combined voting power or value of all classes of stock
of the Company or any Subsidiary. For this purpose, the rules of Code Section
424(d) shall apply in determining the stock ownership of an Eligible Employee.
Stock which may be purchased by an Eligible Employee under an outstanding
Agreement shall be treated as stock owned by the Eligible Employee.
6. Common Stock.
(a) The stock subject to Agreements shall be shares of Common Stock that
have been authorized but unissued, or have been previously issued and reacquired
by the Company, or both. Reacquired shares of Common Stock may consist of shares
of Common Stock purchased in open market transactions. Subject to adjustment in
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accordance with the provisions of Section 16, the aggregate number of shares of
Common Stock that may be purchased by Eligible Employees pursuant to Agreements
under the Plan shall not exceed one million two hundred thousand (1,200,000)
shares.
(b) In the event that any Agreement expires or is terminated for any
reason, any shares of Common Stock which were the subject of such Agreement but
were not thereby purchased may be subject to another Agreement under this Plan
or another agreement entered into under another employee stock purchase or stock
option plan of the Company.
7. Number Of Shares An Eligible Employee May Purchase.
(a) The Company may offer to Eligible Employees an election to purchase up
to a certain number of shares of Common Stock as shall have an aggregate
purchase price not in excess of (i) a specified percentage (not to exceed 100%)
of each Eligible Employee's Compensation or (ii) an aggregate purchase price
expressed in U.S. dollars, in each case, as determined by the Committee and
subject to the provisions of Code Section 423. An Eligible Employee may elect to
purchase shares of Common Stock with an aggregate purchase price that is less
than the aggregate purchase price which he or she is eligible to elect to
purchase.
(b) No Eligible Employee may enter into an Agreement permitting the
purchase of shares of Common Stock if such Eligible Employee would thereby have
entered into Agreements under the Plan and/or any other qualified employee stock
purchase plan of the Company and/or its Subsidiaries that would permit such
Eligible Employee to purchase shares of Common Stock with an aggregate purchase
price in excess of twenty-five thousand dollars ($25,000) in Fair Market Value
of such shares of Common Stock (determined at the date of grant designated in
the Agreement) for each calendar year in which any such Agreement with such
Eligible Employee is outstanding at any time. Any Agreement which causes such
total to exceed such limit (determined at the date of grant designated in such
Agreement) shall be null and void to the extent of such excess.
8. Offers To Purchase Common Stock. Offers to purchase Common Stock may be
made on terms and conditions established by the Committee, subject to the
limitations set forth in either Section (a) or (b) below:
(a) Fixed Price Offerings. The purchase price for a share of Common Stock
shall be no less than eighty-five percent (85%) of the Fair Market Value of a
share of Common Stock on the date of the Agreement, and each Agreement shall
have a stated term, as established by the Committee, not to exceed twenty-seven
(27) months.
(b) Variable Price Offerings. The purchase price for a share of Common
Stock shall be no less than eighty-five percent (85%) of the Fair Market Value
of a share of Common Stock on the date of purchase, and each Agreement shall
have a stated term, as established by the Committee, not to exceed five (5)
years.
9. Election To Participate. An Eligible Employee's acceptance of an offer
to purchase shares of Common Stock shall be evidenced by the execution and
delivery of an Agreement and such other enrollment documents as may be required
by the Committee. Execution and delivery shall be accomplished by the dates
specified in the terms of the offering, and in such manner as may be approved by
the Committee, which may include electronic signatures and electronic delivery,
in accordance with such rules, regulations and procedures as may be established
by the Committee from time to time for this purpose.
10. Payroll Deductions.
(a) By entering into an Agreement, an Eligible Employee will authorize the
Company or the Designated Subsidiary, as the case may be, to deduct from his or
her Compensation, throughout the duration of such Agreement, commencing on the
date indicated in such Agreement, substantially equal amounts sufficient to
accumulate as of the Closing Date, with allowance for interest accrued thereon
at rates to be determined by the Committee, the aggregate purchase price of the
shares of Common Stock covered by such Eligible Employee's Agreement. Such
amounts shall be credited to a Plan account. For purposes of each Agreement,
Compensation will be determined from the payroll records of the Company or the
Designated Subsidiary, or both, on the date the Eligible Employee enters into
the Agreement with the Company or such other date as may be determined by the
Committee. Subject to the provisions of Code Section 423 and such rules and
administrative guidelines as the Committee may establish from time to time, an
Eligible Employee may decrease the amount of his or her payroll deductions
during the Offering Period by so notifying the Company in the manner specified
by the Committee.
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(b) The Company will credit interest at a rate which may be calculated by
reference to a formula or another rate, as established by the Committee from
time to time, to the amount held in the Plan account on behalf of each Eligible
Employee. Interest will be payable at the time that Common Stock is purchased
under an Agreement or when an Eligible Employee withdraws the balance held on
his or her behalf in the Plan account. Records shall be maintained showing the
amount deducted from each Eligible Employee's Compensation and the amount of
interest credited to such amount held on behalf of each Eligible Employee in the
Plan account.
11. Payment Of Purchase Price. Shares of Common Stock purchased under the
Plan shall be paid for with: (a) the amount held in the Plan account on behalf
of the Eligible Employee, including accrued interest; (b) a combination of the
amount held in the Plan account, including accrued interest, together with
additional funds, if necessary, provided by the Eligible Employee in the event
of a purchase of shares of Common Stock; (c) shares of Common Stock owned by the
Eligible Employee for at least six (6) months, if permitted by the Committee, on
such terms and conditions as may be determined by the Committee; or (d) in any
other manner as may be approved by the Committee.
12. Date Of Purchase. Each Agreement shall provide that the shares of
Common Stock to be purchased thereunder will be purchased on the Closing Date
provided for in the Agreement. If the Committee so determines, Agreements also
may permit the Eligible Employee to purchase shares of Common Stock thereunder
at such earlier dates and on such terms and conditions as may be determined by
the Committee. Fractional shares shall not be purchased, and any remaining funds
from not purchasing a fractional share will be held in the Plan account for the
Eligible Employee to use to purchase whole shares at the next purchase date, or
will be refunded to the Eligible Employee at the time and in a manner determined
by the Committee.
13. Employee's Purchase Directions.
(a) On the Closing Date, each Eligible Employee will purchase shares of
Common Stock, and the amount held in the Plan account on behalf of the Eligible
Employee, including accrued interest, shall be applied to the purchase price
without further authorization, but only if the Fair Market Value on the Closing
Date is equal to or higher than the purchase price. If the Fair Market Value on
the Closing Date is lower than the purchase price, the amount held in the Plan
account on behalf of the Eligible Employee, including accrued interest, will be
returned to such Eligible Employee in a manner determined by the Committee.
(b) If an Eligible Employee desires to purchase fewer than all of the
shares covered by his or her Agreement, such Eligible Employee may do so by
notifying the party determined by the Committee in the manner so provided on or
before the Closing Date. Should the Eligible Employee fail to deliver such
notification, such failure shall be deemed an election by the Eligible Employee
to purchase the number of shares for which such Eligible Employee had enrolled
(and not already purchased) under the Agreement on the Closing Date and to have
the amount held in the Plan account on behalf of the Eligible Employee,
including accrued interest, applied toward such purchase, in accordance with
Section 13(a).
14. Termination Of Agreement. An Eligible Employee may, at any time on or
before the Closing Date, terminate an Agreement in its entirety by giving notice
of such termination delivered in a manner determined by the Committee. Upon such
termination, the Company shall cause the amount held on behalf of such Eligible
Employee in the Plan account, including accrued interest, to be paid to such
Eligible Employee in a manner determined by the Committee and further payroll
deductions shall cease within a reasonable time of notification of such Eligible
Employee's termination of such Agreement. The Committee shall determine the
amount of time that the withdrawn Eligible Employee must wait before he or she
may participate in the Plan again.
15. Termination Of Employment. The Committee shall determine the terms,
conditions, restrictions and limitations applicable to an Agreement in the event
of an Eligible Employee's retirement, death, disability, leave of absence or any
other termination of employment as permitted by the Code.
16. Recapitalization. The aggregate number, kind and class of shares of
Common Stock which may be purchased by Eligible Employees pursuant to
Agreements, the number, kind and class of shares covered by each Agreement, and
the purchase price per share as established in accordance with each such
Agreement all may be equitably adjusted, as determined by the Committee, due to
any changes in the Common Stock resulting from any stock split, combination or
exchange of equity securities, merger, consolidation, recapitalization,
reorganization, divestiture or other distribution (other than ordinary cash
dividends) of assets to stockholders, any other subdivision or consolidation of
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shares or other capital adjustment, or the payment of a stock dividend or other
increase or decrease in such shares. Fractional shares resulting from any such
adjustment shall be rounded or paid, in the discretion of the Committee. The
Committee also may make proportional adjustments in the Agreements of
non-insiders in its discretion if an increase or decrease in the number of
issued shares results from events other than those described in the preceding
sentence.
17. Change Of Control.
(a) The Committee may, in its discretion, at any time prior to, coincident
with or after a Change of Control:
(i) provide for the acceleration of any time periods relating to the
purchase of shares of Common Stock so that any shares which are then subject to
an Agreement may be purchased in full on or before a date fixed by the
Committee;
(ii) terminate any outstanding offering and provide for the payment to each
Eligible Employee of the amount held on his or her behalf in the Plan account,
including accrued interest;
(iii) make such adjustments to the shares of Common Stock covered by any
Agreement then outstanding as the Committee deems appropriate to reflect such
transaction or change; or
(iv) cause the Agreements then outstanding to be amended, assumed or to
have new rights substituted therefor by the surviving corporation in such
change.
The Committee may, in its discretion, include such further provisions and
limitations in any Agreement as it may deem equitable and in the best interests
of the Company.
(b) A "Change of Control" shall be deemed to occur if and when:
(i) any person, including a "person" as such term is used in Section
14(d)(2) of the 1934 Act (a "Person") is or becomes a beneficial owner (as such
term is defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of
securities of the Company representing twenty-five percent (25%) or more of the
combined voting power of the Company's then outstanding securities;
(ii) any plan or proposal for the liquidation of the Company is adopted by
the stockholders of the Company;
(iii) individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
the date hereof whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-ll of Regulation 14A promulgated under the 1934 Act) or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board;
(iv) all or substantially all of the assets of the Company are sold,
liquidated or distributed; or
(v) there occurs a reorganization, merger, consolidation or other corporate
transaction involving the Company (a "Transaction"), in each case, with respect
to which the stockholders of the Company immediately prior to such Transaction
do not, immediately after the Transaction, own more than fifty percent (50%) of
the combined voting power of the Company or other corporation resulting from
such Transaction.
Any good faith determination by the Committee as to whether a Change of
Control within the meaning of this Section has occurred shall be conclusive and
binding for all purposes.
18. Assignability. No Agreement may be assigned or transferred except by
will or by the laws of descent and distribution, unless otherwise determined by
the Committee. During the lifetime of an Eligible Employee who is a party to an
Agreement, only the Eligible Employee may purchase the shares of Common Stock
covered by such Agreement.
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19. Rights As A Stockholder. An Eligible Employee who is a party to an
Agreement entered into under the Plan shall have no rights as a stockholder with
respect to shares of Common Stock covered by such Agreement until the date the
Eligible Employee becomes the holder of record of such shares. No adjustment
will be made for dividends or other rights for which the record date is prior to
such date of purchase.
20. Compliance With Code Section 423. All Agreements entered into and all
transactions that occur under this Plan are intended to comply with all
applicable requirements of Code Section 423, and, with respect to persons
subject to Section 16 of the 1934 Act, with the conditions of Rule 16b-3 of the
1934 Act. To the extent any provision of the Plan or any Agreement fails to so
comply, such provision shall be deemed invalid and shall be omitted from the
Agreements to the extent permitted by law and deemed advisable by counsel, and
remaining terms of the Plan and such Agreements shall not be affected thereby.
If Code Section 423 is subsequently amended in any way which would alter the
benefits generally available under a Code Section 423 plan, then the Committee
may amend this Plan to conform to such amendment to the Code, provided such
amendment would not disqualify the Plan under the provisions of Code Section
423.
21. Amendment And Termination. The Committee may from time to time amend,
suspend, or terminate the Plan in whole or in part or amend any and all
Agreements granted under the Plan to the extent permitted by law and provided
such action is not prohibited by Code Section 423. However, no such action of
the Committee may be taken without the approval of the Board and/or the
stockholders, if Board and/or stockholder approval would be required under then
applicable law.
22. Application Of Funds. The proceeds received by the Company from the
sale of Common Stock pursuant to Agreements entered into under the Plan will be
used for general corporate purposes.
23. Tax Withholding. Any amounts to be paid or shares to be delivered to
any Eligible Employee under the Plan shall be reduced by any sums required by
law to be withheld by the Company for payment of taxes, and the Company may, in
a manner determined by the Committee: (a) withhold such shares from the shares
of Common Stock purchased by each Eligible Employee; (b) withhold and sell such
shares of Common Stock purchased by each Eligible Employee; (c) deduct the
amount from the amount held in the Plan account on behalf of such Eligible
Employee, including accrued interest; (d) deduct the amount from such Eligible
Employee's compensation; or (e) allow an Eligible Employee to pay such taxes in
cash. The value of any shares of Common Stock allowed to be withheld or tendered
for tax withholding may not exceed the amount allowed consistent with fixed plan
accounting in accordance with generally accepted accounting principles.
24. Governing Law. The Plan and all Agreements shall be construed in
accordance with and governed by the laws of the State of Delaware.
25. Employment At Will. This document is neither a contract nor a guarantee
of continued employment for any definite period of time. An Employee's
employment is always on an at-will basis.
26. Arbitration. All claims and disputes between an Employee and the
Company or any Subsidiary or Designated Subsidiary arising out of the Plan or
any Agreement shall be submitted to arbitration in accordance with the then
current arbitration policy of the Company or, if the Subsidiary or Designated
Subsidiary with whom the Employee is employed has adopted an arbitration policy,
the arbitration policy of such Subsidiary or Designated Subsidiary. Notice of
demand for arbitration shall be given in writing to the other party and shall be
made within a reasonable time after the claim or dispute has arisen. The award
rendered by the arbitrator shall be made in accordance with the provisions of
the Plan, shall be final and judgment may be entered upon it in accordance with
applicable law in any court having jurisdiction thereof. The provisions of this
Section 26 shall be specifically enforceable under applicable law in any court
having jurisdiction thereof.
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REVOCABLE PROXY
ENERGY SERVICES OF AMERICA CORPORATION
ANNUAL MEETING OF STOCKHOLDERS
November 19, 2008
The undersigned hereby appoints the Board of Directors with full powers
of substitution to act as attorneys and proxies for the undersigned to vote all
shares of common stock of Energy Services of America Corporation (the "Company")
which the undersigned is entitled to vote at the Annual Meeting of Stockholders
("Annual Meeting") to be held at the Pullman Plaza Hotel, 1001 Third Avenue,
Huntington, West Virginia 25701 on November 19, 2008 at 2:00 p.m., local time.
The proxy holders are authorized to cast all votes to which the undersigned is
entitled as follows:
VOTE
FOR WITHHELD
1. The election as directors of all nominees [ ] [ ]
listed below each to serve for a one-year term.
Marshall T. Reynolds, Jack M. Reynolds, Douglas V. Reynolds,
Edsel R. Burns, Neal W. Scaggs, Joseph L. Williams, Richard M.
Adams, Jr., Keith Molihan, Eric Dosch and James Shafer
INSTRUCTION: To withhold your vote for one or more nominees, write the
name of the nominee(s) on the line(s) below.
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FOR AGAINST ABSTAIN
2. The ratification of the appointment of [ ] [ ] [ ]
Arnett & Foster P.L.L.C. as the independent
registered public accounting firm for the Company
for the fiscal year ending September 30, 2008.
3. Approval of the Energy Services of America [ ] [ ] [ ]
Corporation 2009 Employee Stock Purchase Plan.
The Board of Directors recommends a vote "FOR" each of the listed proposals.
THIS PROXY WILL BE VOTED AS DIRECTED, BUT IF NO INSTRUCTIONS ARE SPECIFIED, THIS
PROXY WILL BE VOTED FOR EACH OF THE PROPOSALS STATED ABOVE. IF ANY OTHER
BUSINESS IS PRESENTED AT SUCH ANNUAL MEETING, THIS PROXY WILL BE VOTED AS
DIRECTED BY A MAJORITY OF THE BOARD OF DIRECTORS. AT THE PRESENT TIME, THE BOARD
OF DIRECTORS KNOWS OF NO OTHER BUSINESS TO BE PRESENTED AT THE ANNUAL MEETING.
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THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
Should the undersigned be present and elect to vote at the Annual Meeting or at
any adjournment thereof and after notification to the Secretary of the Company
at the Annual Meeting of the stockholder's decision to terminate this proxy,
then the power of said attorneys and proxies shall be deemed terminated and of
no further force and effect. This proxy may also be revoked by sending written
notice to the Secretary of the Company at the address set forth on the Notice of
Annual Meeting of Stockholders, or by the filing of a later proxy prior to a
vote being taken on a particular proposal at the Annual Meeting.
The undersigned acknowledges receipt from the Company prior to the execution of
this proxy of notice of the Annual Meeting, a Proxy Statement dated October 17,
2008 and the Company's 2007 Annual Report on Form 10-K, including audited
financial statements.
Dated: _________________________ [ ] Check Box if You Plan
to Attend Annual Meeting
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PRINT NAME OF STOCKHOLDER PRINT NAME OF STOCKHOLDER
- ------------------------------- ----------------------------------
SIGNATURE OF STOCKHOLDER SIGNATURE OF STOCKHOLDER
Please sign exactly as your name
appears on this proxy card. When
signing as attorney, executor,
administrator, trustee or guardian,
please give your full title.
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Please complete and date this proxy card and return it promptly
in the enclosed postage-prepaid envelope.
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