-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SGMyaudtN6KCAUleB9R3kYIMgIcyAM6+M/1CyPDW/vjFpA4eHp3KK4gfrwQggZmH O08kV6l5Do5wwnHk9e5E0g== 0000950117-05-001371.txt : 20050412 0000950117-05-001371.hdr.sgml : 20050412 20050412163515 ACCESSION NUMBER: 0000950117-05-001371 CONFORMED SUBMISSION TYPE: 10-K/A PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20041231 FILED AS OF DATE: 20050412 DATE AS OF CHANGE: 20050412 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EMPIRE RESOURCES INC /NEW/ CENTRAL INDEX KEY: 0001019272 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER PERIPHERAL EQUIPMENT, NEC [3577] IRS NUMBER: 223136782 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-12127 FILM NUMBER: 05746520 BUSINESS ADDRESS: STREET 1: ONE PARKER PLAZA CITY: FORT LEE STATE: NJ ZIP: 07024 BUSINESS PHONE: 201-944-22 MAIL ADDRESS: STREET 1: ONE PARKER PLAZA CITY: FORT LEE STATE: NJ ZIP: 07024 FORMER COMPANY: FORMER CONFORMED NAME: INTEGRATED TECHNOLOGY USA INC DATE OF NAME CHANGE: 19960720 10-K/A 1 a39580.txt EMPIRE RESOURCES, INC. 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 EX-10 2 ex10-19.txt EXHIBIT 10.19 Exhibit 10.19 SUMMARY OF COMPENSATION ARRANGEMENTS WITH ALL DIRECTORS The following summarizes the current compensation and benefits received by the Company's directors. It is intended to be a summary of existing arrangements, and is in no way intended to provide any additional rights to any director. Retainer Fees As of January 1, 2005, the non-executive chairman of the Board of Directors will be paid $30,000 per annum. Meeting Fees All directors receive $1,000 attendance fee for attendance at each Board meeting. Equity Compensation None. Reimbursement of Expenses All directors are entitled to reimbursement of expenses for all services as a director. EX-31 3 ex31-1.txt EXHIBIT 31.1 Exhibit 31.1 CERTIFICATION PURSUANT TO SECTION 302(a) OF THE SARBANES-OXLEY ACT OF 2002 I, Nathan Kahn, certify that: 1. I have reviewed this Amendment No. 1 to the annual report on Form 10-K of Empire Resources, Inc.; 2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report; 3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report; 4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and have: a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared; b) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and c) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: April 12, 2005 By: /s/ Nathan Kahn --------------------------- Nathan Kahn Chief Executive Officer EX-31 4 ex31-2.txt EXHIBIT 31.2 Exhibit 31.2 CERTIFICATION PURSUANT TO SECTION 302(a) OF THE SARBANES-OXLEY ACT OF 2002 I, Sandra Kahn, certify that: 1. I have reviewed this Amendment No. 1 to the annual report on Form 10-K of Empire Resources, Inc.; 2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report; 3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report; 4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and have: i. designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared; ii. evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and iii. disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): i. all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and ii. any fraud whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: April 12, 2005 By: /s/ Sandra Kahn --------------------------- Sandra Kahn Chief Financial Officer EX-32 5 ex32-1.txt EXHIBIT 32.1 Exhibit 32.1 CERTIFICATIONS The undersigned officer of Empire Resources, Inc. (the "Company") hereby certifies that this Amendment No. 1 to the Company's annual report on Form 10-K for the period ended December 31, 2004 (the "Report"), as filed with the Securities and Exchange Commission on the date hereof, fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934, as amended, and that the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. This certification is provided solely pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, and shall not be deemed to be a part of the Report or "filed" for any purpose whatsoever. Date: April 12, 2005 By: /s/ Nathan Kahn ----------------------------- Nathan Kahn, Chief Executive Officer and President EX-32 6 ex32-2.txt EXHIBIT 32.2 Exhibit 32.2 The undersigned officer of Empire Resources, Inc. (the "Company") hereby certifies that this Amendment No. 1 to the Company's annual report on Form 10-K for the period ended December 31, 2003 (the "Report"), as filed with the Securities and Exchange Commission on the date hereof, fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934, as amended, and that the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. This certification is provided solely pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, and shall not be deemed to be a part of the Report or "filed" for any purpose whatsoever. Date: April 12, 2005 By: /s/ Sandra Kahn ---------------------------- Sandra Kahn, Chief Financial Officer -----END PRIVACY-ENHANCED MESSAGE-----