SEC Comment Letter for ABLE ENERGY INC (CIK 0001065728) — Nov 7, 2005
ABLE ENERGY INC (CIK 0001065728)
Date: Nov. 7, 2005 · CIK: 0001065728 · Accession: 0000000000-05-056534
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Mail Stop 3561
November 7, 2005
Mr. Gregory D. Frost
Chief Executive Officer
Able Energy, Inc.
198 Green Pond Road
Rockaway, New Jersey 07866
RE: Able Energy, Inc.
Form 10-K for the Fiscal Year Ended June 30, 2005
Filed September 28, 2005
Form 10-Q/A for the Quarterly period ended September 30,
2005
Filed October 21, 2005
File No. 1-15035
Dear Mr. Frost:
We have reviewed your filings and have the following
comments.
We have limited our review to only your financial statements and
related disclosures and do not intend to expand our review to
other
portions of your documents. Where indicated, we think you should
revise your documents in response to these comments. If you
disagree,
we will consider your explanation as to why our comment is
inapplicable or a revision is unnecessary. Please be as detailed
as
necessary in your explanation. In some of our comments, we may
ask
you to provide us with information so we may better understand
your
disclosure. After reviewing this information, we may or may not
raise
additional comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your
filings.
We look forward to working with you in these respects. We welcome
any
questions you may have about our comments or on any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
Form 10-K for the Fiscal Year Ended June 30, 2005
Management`s Discussion and Analysis of Financial Condition and
Results of Operation, page 14
Results of Operations, page 16
1. We note your listing of extraordinary expense items that
negatively
affected net income for the year ending June 30, 2005. Please
abstain
from using the term extraordinary to describe these expenses since
it
tends to suggest that these expenses are infrequent and unusual in
nature, as defined in APB 30, when they are not. Also, please
include
a narrative that explains, in greater detail, why you have chosen
to
highlight these specific expense items from fiscal year 2005 on
this
table. Furthermore, tell us why director`s fees from prior years
are
being expensed in fiscal year ended June 30, 2005 rather than in
the
prior periods in which they relate.
Fiscal 2005 Compared to Fiscal 2004
2. Your presentation of the change in net loss from fiscal year
2004
to fiscal year 2005 excluding the gain on sale of operating assets
of
Able Propane represents a non-GAAP measure subject to the
disclosure
and reconciliation requirements of Item 10(e) of Regulation S-K.
Please revise your disclosure to indicate the reasons why you
believe
presentation of this non-GAAP measures provides useful information
to
investors and disclose how management uses this non-GAAP measure.
Item 9A. Controls and Procedures, page 22
3. Please refer to Item 308(c) of Regulation S-K and revise your
disclosure to indicate whether there were "any changes," not just
"significant" changes, in your internal control over financial
reporting that materially affected, or are reasonably likely to
materially affect your internal control over financial reporting.
Financial Statements, page 23
Report of Independent Registered Public Accounting Firm, page F-1
4. Please amend your Form 10-K to correct the date of the opinion.
We
assume the date should read September 14, 2005, not 2004.
Additionally, have your auditors provide a separate opinion for
Schedule II or have them incorporate their review of the schedule
into
the financial statement opinion.
Notes to Consolidated Financial Statements, page F-8
Note 1. Summary of Significant Accounting Policies, page F-8
5. Please disclose the types of expenses included in your cost of
goods sold and in your selling, general and administrative expense
line items.
Form 10-Q/A for the Quarterly period ended September 30, 2005
Financial Statements, page 1
Notes to Consolidated Financial Statements, page 6
Note 10 - Convertible Debentures, page 9
6. Since the conversion price of $6.50 is less than the fair
market
value of your common stock at the date of issuance, we would
expect a
beneficial conversion feature to be recorded. If you do not
believe a
beneficial conversion feature should be recorded, either explain
your
position and provide the relevant accounting guidance to support
your
position, or revise your financials accordingly. Additionally,
tell
us how you accounted for the warrants issued with the convertible
debentures. We would expect the warrants to be valued separately
using a fair value model, then allocated based on relative fair
values. Since it does not appear that you have given recognition
to
these warrants, please revise your financials accordingly. Refer
to
EITF 98-5 and EITF 00-27.
* * * * *
As appropriate, please amend your filings and respond to
these
comments within 10 business days or tell us when you will provide
us
with a response. You may want to provide us with marked copies of
the
amendments to expedite our review. Please furnish a letter with
your
amendments that keys your responses to our comments and provides
any
requested information. Detailed letters greatly facilitate our
review. Please understand that we may have additional comments
after
reviewing your amendments and responses to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings to be certain that the
filings include all information required under the Securities
Exchange
Act of 1934 and they have provided all information investors
require
for an informed investment decision. Since the company and its
management are in possession of all facts relating to a company`s
disclosure, they are responsible for the accuracy and adequacy of
the
disclosures they have made.
In connection with responding to our comments, please
provide, in
writing, a statement from the company acknowledging that:
* the company is responsible for the adequacy and accuracy of the
disclosure in the filing;
* staff comments or changes to disclosure in response to staff
comments do not foreclose the Commission from taking any action
with
respect to the filing; and
* the company may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal
securities laws of the United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division
of Corporation Finance in our review of your filings or in
response to
our comments on your filings.
You may contact Yong Kim at (202) 551-3323 if you have
any
questions regarding these comments. Please contact me at (202)
551-
3716 with any other questions.
Sincerely,
William Choi
Branch Chief
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-0404
DIVISION OF
CORPORATION FINANCE
Mr. Christopher P. Frost
Able Energy, Inc.
November 7, 2005
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