Registration No. 333-_________
As filed with the Securities and Exchange Commission on January 15, 2009
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Energy Services of America Corporation
(Exact Name of Registrant as Specified in its Charter)
Delaware 20-4606266
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
100 Industrial Lane
Huntington, West Virginia 25702-9694
(Address of Principal Executive Offices)
Energy Services of America Corporation
2009 Employee Stock Purchase Plan
(Full Title of the Plan)
Copies to:
Mr. Edsel R. Burns Norma M. Sharara, Esquire
President Luse Gorman Pomerenk & Schick, P.C.
Energy Services of America Corporation 5335 Wisconsin Ave., N.W., Suite 400
100 Industrial Lane Washington, DC 20015-2035
Huntington, West Virginia 25702-9694 (202) 274-2000
(304) 399-6315
(Name, Address and Telephone Number
of Agent for Service)
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of "large accelerated filer," "accelerated filer" and "smaller
reporting company" in Rule 12b-2 of the Securities Exchange Act of 1934, as
amended. (Check one):
Large accelerated filer [ ] Accelerated filer [ ] Non-accelerated filer [ ]
Smaller reporting company [X]
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price(2) Fee
- --------------------------------------------------------------------------------------------------------------------
Common Stock, par value
$0.0001 per share 1,200,000 $ 4.03 $4,836,000 $191
- --------------------------------------------------------------------------------------------------------------------
- -----------------------
(1) Together with an indeterminate number of additional shares that may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Energy Services of America Corporation 2009 Employee Stock Purchase
Plan (the "Stock Benefit Plan") as a result of a stock split, stock
dividend or similar adjustment of the outstanding common stock of Energy
Services of America Corporation (the "Company") pursuant to 17 C.F.R.
Section 230.416(a).
(2) Estimated solely for the purpose of calculating the registration fee. Such
estimate has been computed in accordance with Rule 457(h) based upon the
average of the high and low prices of the Common Stock as reported on the
American Stock Exchange on January 13, 2009, or $4.03 per share.
This Registration Statement shall become effective upon filing in
accordance with Section 8(a) of the Securities Act of 1933, as amended, and 17
C.F.R. ss. 230.462.
2
PART I.
Items 1 and 2. Plan Information and Registrant Information and Employee Plan
Annual Information
The documents containing the information specified in Part I and II of Form
S-8 have been or will be sent or given to participants in the Stock Benefit Plan
as specified by Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended.
Such documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II.
Item 3. Incorporation of Documents by Reference
The following documents previously or concurrently filed with the
Commission are hereby incorporated by reference in this Registration Statement:
a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 2008 (File No. 001-32998), filed with the Commission on December
29, 2008 pursuant to Section 13(a) of the Securities Exchange Act of 1934, as
amended;
b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended, since the end of the
year covered by the Annual Report on Form 10-K referred to in (a) above; and
c) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on August 25, 2006
(File No. 001-32998), as amended.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934, as amended, after the date hereof, and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed incorporated by reference into this Registration Statement and to be a
part thereof from the date of the filing of such documents. Any statement
contained in the documents incorporated, or deemed to be incorporated, by
reference herein or therein shall be deemed to be modified or superseded for
purposes of this Registration Statement and the prospectus to the extent that a
statement contained herein or therein or in any other subsequently filed
document which also is, or is deemed to be, incorporated by reference herein or
therein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement and the prospectus.
All information appearing in this Registration Statement and the prospectus
is qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
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Item 6. Indemnification of Directors and Officers
The Company's certificate of incorporation provides that all directors,
officers, employees and agents of the registrant shall be entitled to be
indemnified by the Company to the fullest extent permitted by Section 145 of the
Delaware General Corporation Law.
Section 145 of the Delaware General Corporation Law concerning
indemnification of officers, directors, employees and agents is set forth below.
"Section 145. Indemnification of officers, directors, employees and agents;
insurance.
(a) A corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final disposition
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of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses (including attorneys'
fees) incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the corporation deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees)."
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to the Company's directors, officers, and
controlling persons pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933, as amended, and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment of expenses
incurred or paid by a director, officer or controlling person in a successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to the court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933, as amended, and will be governed by the
final adjudication of such issue.
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Paragraph B of Article Eighth of the Company's Certificate of
Incorporation provides:
"The Corporation, to the full extent permitted by Section 145 of the GCL,
as amended from time to time, shall indemnify all persons whom it may indemnify
pursuant thereto. Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative, or investigative
action, suit or proceeding for which such officer or director may be entitled to
indemnification hereunder shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized hereby."
Pursuant to the Underwriting Agreement filed as Exhibit 1.1 to the
Company's Registration Statement on Form S-1, the Company has agreed to
indemnify the Underwriter and the Underwriter has agreed to indemnify the
Company against certain civil liabilities that may be incurred in connection
with the stock offering, including certain liabilities under the Securities Act
of 1933, as amended.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. List of Exhibits.
Regulation S-K Reference to Prior Filing or
Exhibit Number Document Exhibit No. Attached Hereto
- -------------- -------- ---------------------------
4 Form of Common Stock Certificate *
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Attached as Exhibit 5
10 Energy Services of America Corporation
2009 Employee Stock Purchase Plan **
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. Contained in Exhibit 5
23.2 Consent of Arnett & Foster P.L.L.C. Attached as Exhibit 23.2
23.3 Consent of Castaing, Hussey & Lolan, LLC Attached as Exhibit 23.3
23.4 Consent of Suttle & Stalmaker, PLLC Attached as Exhibit 23.4
24 Power of Attorney Contained on Signature Page
* Incorporated by reference to Exhibit 4.2 to the Registration Statement on
Form S-1 (File No. 333-133111) filed by the Company under the Securities
Act of 1933, as amended, with the Commission on April 7, 2006, and all
amendments or reports filed for the purpose of updating such description.
** Incorporated by reference to Appendix A to the proxy statement for the
Annual Meeting of Stockholders of Energy Services of America Corporation
(File No. 001-32998), filed by Energy Services of America Corporation under
the Securities Exchange Act of 1934, as amended, on October 16, 2008.
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Item 9. Undertakings
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such information in this
Registration Statement;
2. That, for the purpose of determining any liability under the Securities
Act of 1933, as amended, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
3. To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
Plan;
4. That, for purposes of determining any liability under the Securities Act
of 1933, as amended, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
5. Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Huntington, West
Virginia, on this 14th day of January, 2009.
ENERGY SERVICES OF AMERICA CORPORATION
By:/s/ Marshall T. Reynolds
---------------------------------
Marshall T. Reynolds
Chairman and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of Energy Services of America
Corporation (the "Company") hereby severally constitute and appoint Marshall T.
Reynolds, as our true and lawful attorney and agent, to do any and all things in
our names in the capacities indicated below which said Marshall T. Reynolds may
deem necessary or advisable to enable the Company to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with the registration of
shares of common stock to be purchased by eligible employees under the Energy
Services of America Corporation 2009 Employee Stock Purchase Plan, including
specifically, but not limited to, power and authority to sign for us in our
names in the capacities indicated below the registration statement and any and
all amendments (including post-effective amendments) thereto; and we hereby
approve, ratify and confirm all that said Marshall T. Reynolds shall do or cause
to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the date indicated.
Signatures Title Date
- ---------- ----- ----
/s/ Marshall T. Reynolds Chairman and January 15, 2009
- ------------------------ Chief Executive Officer
Marshall T. Reynolds (Principal Executive Officer)
/s/ Larry A. Blount Secretary, Treasurer January 15, 2009
- --------------------- and Chief Financial Officer
Larry A. Blount (Principal Financial and
Accounting Officer)
/s/ Edsel R. Burns President and Director January 15, 2009
- ---------------------
Edsel R. Burns
/s/ Jack M. Reynolds Director January 15, 2009
- ---------------------
Jack M. Reynolds
/s/ Neal W. Scaggs Director January 15, 2009
- ---------------------
Neal W. Scaggs
/s/ Joseph L. Williams Director January 15, 2009
- ---------------------
Joseph L. Williams
/s/ Richard M. Adams, Jr. Director January 15, 2009
- ---------------------
Richard M. Adams, Jr.
/s/ Keith Molihan Director January 15, 2009
- ---------------------
Keith Molihan
/s/ Douglas Reynolds Director January 15, 2009
- ---------------------
Douglas Reynolds
/s/ Eric Dosch Director January 15, 2009
- ---------------------
Eric Dosch
/s/ James Shafer Director January 15, 2009
- ---------------------
James Shafer
EXHIBIT INDEX
Regulation S-K Reference to Prior Filing or
Exhibit Number Document Exhibit No. Attached Hereto
4 Form of Common Stock Certificate *
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Attached as Exhibit 5
10 Energy Services of America Corporation
2009 Employee Stock Purchase Plan **
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. Contained in Exhibit 5
23.2 Consent of Arnett & Foster P.L.L.C. Attached as Exhibit 23.2
23.3 Consent of Castaing, Hussey & Lolan, LLC Attached as Exhibit 23.3
23.4 Consent of Suttle & Stalmaker, PLLC Attached as Exhibit 23.4
24 Power of Attorney Contained on Signature Page
* Incorporated by reference to Exhibit 4.2 to the Registration Statement on
Form S-1 (File No. 333-133111) filed by the Company under the Securities
Act of 1933, as amended, with the Commission on April 7, 2006, and all
amendments or reports filed for the purpose of updating such description.
** Incorporated by reference to Appendix A to the proxy statement for the
Annual Meeting of Stockholders of Energy Services of America Corporation
(File No. 001-32998), filed by Energy Services of America Corporation under
the Securities Exchange Act of 1934, as amended, on October 16, 2008.