UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-K/A
(Amendment No. 1)
(MARK ONE)
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the fiscal year ended December 31, 2004
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 001-12127
EMPIRE RESOURCES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 22-3136782
(State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification No.)
One Parker Plaza
Fort Lee, New Jersey 07024
(Address of Principal Executive Offices) (Zip code)
201 944-2200
(Registrant's Telephone Number, Including Area Code)
Securities registered pursuant to Section 12 (b) of the Act:
Title of each class Name of each exchange on which registered
Common Stock, par value $0.01 per share American Stock Exchange
Securities registered pursuant to Section 12 (g) of the Act: None
Indicate by check mark whether the registrant: (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
Indicate by check mark whether the registrant is an accelerated filer
(as defined in Exchange Act Rule 12b-2) Yes [ ] No [X]
The aggregate market value of the voting and non-voting common stock of
the registrant held by non-affiliates as of June 30, 2004 (the last business day
of the registrant's most recently completed second fiscal quarter) was $15.5
million. Based upon the closing price of the registrant's common stock on the
American Stock Exchange as of such date. This calculation excludes shares held
by each officer and director of the registrant and any person that owns 5% or
more of the registrant's outstanding common stock. This determination of
affiliate status is not necessarily a conclusive determination for all other
purposes.
The number of shares of common stock outstanding as of March 28, 2005,
was 9,599,251 shares.
DOCUMENTS INCORPORATED BY REFERENCE:
None.
EXPLANATORY NOTE
This Amendment No. 1 to Empire Resources, Inc.'s Annual Report filed on
Form 10-K for the year ended December 31, 2004 (the "Original Filing"), which
was filed with the Securities and Exchange Commission on March 31, 2005, is
being made to amend the Original Filing as follows:
o To provide certain disclosure in Item 9B related to amendments to
all director compensation that occurred in the quarter ended
December 31, 2004;
o To update the exhibit index to reflect management contracts or
compensatory plans or arrangements; and
o To include as an exhibit a summary of the director compensation
policy disclosed in Item 9B.
The complete text of Item 9B and Item 15 is included in this Amendment
pursuant to Rule 12b-15 promulgated under the Securities and Exchange Act of
1934, as amended (the "Exchange Act"). Pursuant to Rule 12b-15 under the
Exchange Act, this Amendment No. 1 also includes new Rule 13(a)-14(a)/15d-14(a)
certifications as Exhibits 31.1 and 31.2, and new certifications pursuant to
Section 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002 as Exhibits 32.1 and 32.2. This Amendment No. 1 is
filed pursuant to Securities and Exchange Commission Release No. 34-50754 which
provides up to 45 additional days beyond the date of the Original Filing for the
filing of the above.
With the exception of the foregoing corrections, no other information
in the Annual Report on Form 10-K for the fiscal year ended December 31, 2004
has been supplemented, updated or amended.
Part II
ITEM 9B. OTHER INFORMATION
The following disclosure would otherwise have been filed on Form 8-K
under the caption "Item 1.01. Entry into a Material Definitive Agreement." On
December 9, 2004, the Board of Directors approved revisions to the director
compensation policy for the 2005 fiscal year. The Board revised the director
compensation policy effective for the fiscal year 2005 to provide the following
compensation: (1) the non-executive Chairman of the Board will be paid $30,000
per annum for his services, and (2) each other director will receive $1,000 for
attendance (either by phone or in person) at each Board meeting.
Prior to such revisions, the director compensation policy was to
provide the following compensation: (a) the non-executive Chairman of the Board
was paid $25,000 per annum for his services, (b) each other director received
$500 for attendance (either by phone or in person) at each Board meeting, and
(c) each director received an annual grant of 2,000 shares under the Empire
Resources' 1996 Stock Option Plan. The Board determined at the meeting held on
December 9, 2004 to discontinue the equity component of the director
compensation. As a result, the Board approved an increase in the annual fee to
the non-executive Chairman of the Board and the attendance fee. The components
of the Director compensation are set forth on Exhibit 10.19 to this Form 10-K/A.
Part IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
(a) 1. Index to Financial Statements:
The following consolidated financial statements of the Company and report of the
Company's independent public accountants were previously filed as part of this
Report:
Report of Independent Certified Public Accountants
Consolidated Balance Sheets
Consolidated Statements of Income
Consolidated Statements of Changes in Stockholders' Equity
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
2. Financial Statement Schedules:
A statement regarding the computation of per share earnings was attached as
Exhibit 11.1 to the Original Filing of this Report. Other schedules have been
omitted because they are not applicable or are not required under the
instructions contained in Regulation S-X or because the information required to
be set forth therein is included in the consolidated financial statements or
notes thereto.
3. Exhibits:
2.1 Agreement and Plan of Merger among the Registrant, Empire Resources Inc.,
Empire Resource Pacific, Ltd., Nathan Kahn and Sandra Kahn, dated as of February
22, 1999 (incorporated by reference to Exhibit 2.1 to the Registrant's Report on
Form 8-K dated March 9, 1999)
3.1 Certificate of Merger of Empire Resources, Inc. into Integrated
Technology USA, Inc. (incorporated by reference from the correspondingly
numbered exhibit in the Company's Annual Report on Form 10-KSB for the year
ended December 31, 1999).
3.2 Amended and Restated Certificate of Incorporation of the Registrant
(incorporated by reference from the correspondingly numbered exhibit in the
Company's Registration Statement on Form SB-2 (No. 333-9697).
3.3 Amendment No. 1 to the Amended and Restated Certificate of Incorporation
(incorporated by reference from the correspondingly numbered exhibit in the
Company's Annual Report on Form 10-K for the year ended December 31, 2001).
3.4 Amended and Restated By-Laws of the Registrant (incorporated by reference
from the correspondingly numbered exhibit in the Company's Registration
Statement on Form SB-2 (No. 333-9697).
3.5 Amendment No. 1 to Amended and Restated By-Laws of the Registrant
(incorporated by reference to the correspondingly numbered exhibit in the
Company's Annual Report on Form 10-K for the year ended December 31, 2002).
3.6 Amendment No. 2 to Amended and Restated By-Laws of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant's Current Report on
Form 8-K dated May 11, 1997).
10.1 Employment Agreement dated September 15, 1999 entered into by Registrant
with Nathan Kahn (incorporated by reference from the correspondingly numbered
exhibit in the Company's Annual Report on Form 10-KSB for the year ended
December 31, 1999).#
10.2 Amendment No. 1 to Employment Agreement and Noncompetition Agreement
entered into by Registrant with Nathan Kahn (incorporated by reference from
Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2002).#
10.3 Employment Agreement dated September 15, 1999 entered into by Registrant
with Sandra Kahn (incorporated by reference from the Company's Annual Report on
Form 10-KSB for the year ended December 31, 1999).#
10.4 Employment Agreement dated September 15, 1999 entered into by Registrant
with Harvey Wrubel (incorporated by reference from the Company's Annual Report
on Form 10-KSB for the year ended December 31, 1999).#
10.5 Restricted Stock Agreement dated September 15, 1999 entered into by
Registrant with Harvey Wrubel (incorporated by reference from the Company's
Annual Report on Form 10-KSB for the year ended December 31, 1999).#
10.6 Third Modification and Extension of Lease for office space, dated as of
the 17th of February, 2000, to the Lease between 400 Kelby Associates, as
Landlord, and Registrant as Tenant (incorporated by reference from the Company's
Annual Report on Form 10-KSB for the year ended December 31, 1999).
10.7 Registrant's 1996 Stock Option Plan (incorporated by reference from the
Company's Registration Statement on Form SB-2 (No. 333-9697).#
10.8 Form of Indemnification Agreement entered into by the Registrant with
executive officers and directors (incorporated by reference from the Company's
Annual Report on Form 10-KSB for the year ended December 31, 2000).#
10.9 Credit Facility dated December 21, 2000 between the Registrant and The
Chase Manhattan Bank, as Lead Arranger and Administrative Agent (incorporated by
reference from the Company's Annual Report on Form 10-KSB for the year ended
December 31, 2000).
10.10 Amendment No. 1 to Credit Facility, dated July 16, 2002 between the
Registrant and The Chase Manhattan Bank, as Lead Arranger and Administrative
Agent (incorporated by reference to Exhibit 10.1 from the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 2002).
10.11 Amendment No. 2 to Credit Facility, dated May 8, 2003 between the
Registrant and The Chase Manhattan Bank, as Lead Arranger and Administrative
Agent (incorporated by reference from the Company's Quarterly Report on Form
10-Q for the quarter ended March 31, 2003).
10.12 Amendment No. 3 to Credit Facility, dated June 19, 2003 between the
Registrant and The Chase Manhattan Bank, as Lead Arranger and Administrative
Agent (incorporated by reference from the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 2003).
10.13 Agreement of Lease for warehouse facility dated September 27, 2000
between Townsend Properties, Inc. and Registrant (incorporated by reference from
the Company's Annual Report on Form 10-KSB for the year ended December 31,
2000).
10.14 Amendment No. 4 to Credit Facility, dated December 13, 2004 between the
Registrant and JP Morgan Chase Bank, N.A. as Lead Arranger and Administrative
Agent.**
10.15 Agreement of purchase and sale of 6900 Quad Avenue dated May 31, 2004
between Dale W. Brougher, Trustee and Registrant.**
10.16 Loan Agreement dated December 27, 2004 between 6900 Quad Avenue a
subsidiary of the Registrant and JP MORGAN CHASE BANK, N.A. **
10.17 Agreement of purchase and sale of extrusion equipment dated November 4,
2004 between Werner Co., and Registrant. **
10.18 Fourth Modification and Extension of Lease for office space, dated as of
the 17th of November 2004, to the Lease between 400 Kelby Associates, as
Landlord, and Registrant as Tenant .**
10.19 Summary of Director Compensation Policy for all directors of the
Registrant*#
11.1 Statement regarding computation of per share earnings.**
21.1 List of subsidiaries of the Registrant.**
31.1 Certification of Chief Executive Officer pursuant to Rule 13a-14(a) of
the Securities Exchange Act of 1934.*
31.2 Certification of Chief Financial Officer pursuant to Rule 13a-14(a) of
the Securities Exchange Act of 1934.*
32.1 Certification of Chief Executive Officer pursuant to 18 U.S.C. Section
1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.*+
32.2 Certification of Chief Financial Officer pursuant to 18 U.S.C. Section
1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*+
* Filed herewith.
** Filed as the exhibit of the same number with Empire Resources, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 2004 on March
31, 2005 and incorporated herein by reference.
# Management contract or compensatory plan or arrangement
+ This certification shall not be deemed "filed" for purposes of Section 18
of the Securities Exchange Act of 1934, or otherwise subject to the
liability of that section, nor shall it be incorporated by reference into
any filing under the Securities Act of 1933 or the Securities Exchange Act
of 1934.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this Amendment No. 1 to
Annual Report on Form 10-K to be signed on its behalf by the undersigned,
thereunto duly authorized.
EMPIRE RESOURCES, INC.
By: /s/ Nathan Kahn
--------------------------
Nathan Kahn
Chief Executive Officer
Date: April 12, 2005