SEC Company Response from ABLE ENERGY INC (CIK 0001065728) — Jul 12, 2005
ABLE ENERGY INC (CIK 0001065728)
Date: July 12, 2005 · CIK: 0001065728 · Accession: 0001188112-05-001314
AI Filing Summary & Sentiment
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FULL SERVICE ENERGY COMPANY
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[LOGO] Able Energy
PO Box 630 Rockaway, NJ 07866 (973) 625-1012
Heating Oil * Diesel * HVAC Fax (973 586-9866
Website: www.ableenergy.com
June 24, 2005
Mr. William Choi
Securities Exchange Commission
Division of Corporation Finance
Washington, D.C. 20549
RE: FORM 10-K FOR THE FISCAL YEAR ENDED JUNE 30. 2004
ABLE ENERGY, INC., FILE NO. 1-15035
Dear Mr. Choi:
On behalf of Able Energy, Inc., ("Able" or the "Company"), we hereby
respond to your letter to Mr. Christopher P. Westad of Able, dated June 2, 2005
and the facsimile transmittal of said letter from Ms. Yong Kim also dated June
2, 2005, regarding comments on the Company's Form 10-K for the fiscal year ended
June 30, 2004 and Form 10-Q for the quarter ended March 31, 2005. Please note
that on Friday, June 17, 2005, I contacted Ms. Kim to request an extension of
time to respond to your letter. Ms. Kim granted a short extension of the
Company's time to respond. Please find herein below the Company's responses to
the questions set forth in your June 2, 2005 letter.
For your convenience, we have incorporated into this response letter your
original requests and the Company's responses in italics, as follows:
GENERAL
1. Unless otherwise indicated, where a comment below requests additional
disclosures or other revisions to be made, these revisions should be
included in your future filings, as applicable.
REVISIONS WILL BE INCLUDED IN FUTURE FILINGS OF ABLE ENERGY, INC. AS
APPLICABLE.
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2. Please include "Item 9. Changes in and Disagreements with Accountants
on Accounting and Financial Disclosure" in your Form 10-K. Refer to
the Form 10-K Official Text and Item 304(b) of Regulation S-K. Tell us
if there were any such changes or disagreements during this past
fiscal year.
THERE WERE NO CHANGES IN OR DISAGREEMENTS WITH ACCOUNTANTS DURING THE
PAST FISCAL YEAR. THIS SECTION WILL BE INCLUDED IN FUTURE FILINGS AS
"ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE".
3. Please include "Item 9B. Other Information: as required by SEC Release
No. 33-8400 which was effective on August 23, 2004. Also refer to the
Form 10-K Official Text.
"ITEM 9B. OTHER INFORMATION" WILL BE INCLUDED IN FUTURE FILINGS.
4. Please include all the information required by Item 9(e) of Schedule
14A in "Item 14. Principal Accountant Fees and Services" which was
added by Release No. 33-8183. The new disclosure requirements were
effective for annual reports for the first fiscal year ending after
December 15, 2003. If you choose to incorporate this information by
reference to your definitive proxy statement, please follow the
procedures in paragraph G of the General Instructions to the Form-K
Official Text.
ALL INFORMATION REQUIRED BY ITEM 9(E) OF SCHEDULE 14A IN "ITEM 14.
PRINCIPAL ACCOUNTANT FEES AND SERVICES" WILL BE INCLUDED IN ALL FUTURE
FORM 10-K FILINGS. THE AMOUNTS FOR THE YEAR ENDED JUNE 30, 2004 WERE
AS FOLLOWS:
AUDIT FEES $88,549
AUDIT RELATED FEES 42,901
TAX FEES 10,370
ALL OTHER FEES 0.00
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$141,820
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COVER PAGE
5. Please revise to state the aggregate market value of voting and
non-voting common equity held by non-affiliates as of the last
business day of your most recently completed SECOND fiscal quarter.
THE AGGREGATE MARKET VALUE OF THE COMMON EQUITY HELD BY NON-AFFILIATES
AS OF THE END OF THE FISCAL QUARTER FOR THE YEAR ENDED JUNE 30, 2004
IS AS OF DECEMBER 31, 2003, $2,549,632, AND AS OF THE MOST RECENT
SECOND FISCAL QUARTER, DECEMBER 31, 2004, THE VALUE IS $2,788,660.
SELECTED FINANCIAL DATA, PAGE 14
6. Please properly label this Item 6 as "Selected Financial Data"
THIS ITEM WILL BE PROPERLY LABELED IN FUTURE FILINGS.
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7. In accordance with Item 301 of Regulation S-K, present the required
selected financial data for the last FIVE fiscal years.
THE SELECTED FINANCIAL DATA WAS PREPARED FOR THREE YEARS. IN FUTURE
FILINGS IT WILL BE PREPARED FOR THE PRIOR FIVE FISCAL YEARS.
8. Since you have reported discontinued operations in your statements of
income (loss), please clearly indicate that your net income (loss) and
net income (loss) per share if from continuing operations.
Additionally, please clearly indicate whether your net income (loss)
per share is presented on a basic or diluted basis. Refer to Item 301
of Regulation S-K.
THE SCHEDULE ATTACHED, SELECTED FINANCIAL DATA, STATES THAT IT IS THE
RESULTS OF OPERATIONS FOR CONTINUING OPERATIONS AND SUCH INDICATION
WILL BE MADE IN FUTURE FILINGS. THE NET INCOME (LOSS) PER SHARE IS
PRESENTED ON A BASIC BASIS.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATION PAGE 15
GENERAL
9. As required by Item 303 of Regulation S-K, please revise to include
tabular disclosure of contractual obligations. In addition to the
specific items required by Item 303 of Regulation S-K, please include
either in the table or in a footnote to the table, estimated interest
payments of your debt, commitments and any additional information that
is material to understanding your cash requirements. We believe this
information provides increased transparency of your cash flows.
Additionally, to the extent you have any off-balance sheet
arrangements, please disclose them in a separately captioned section
within Managements' Discussion and Analysis (MD&A).
IN REVIEW OF ITEM 303 OF REGULATION S-K, WE WILL INCLUDE THE REQUIRED
DISCLOSURE IN FUTURE FILINGS. AS OF THE LATEST FILING, ALL ENTITIES
ARE INCLUDED IN THE CONSOLIDATED FINANCIAL STATEMENT AND THERE ARE NO
OFF-BALANCE SHEET ARRANGEMENTS AT THIS TIME, AND SHOULD ANY ARISE IN
THE FUTURE, THEY WILL BE DISCLOSED ACCORDINGLY.
10. Please revise to include a discussion of your critical accounting
estimates. Ensure that your discussion focuses on the level of
subjectivity and judgment involved in the application of your
accounting policies and the likelihood that materially different
amounts would be reported under different conditions or if using
different assumptions. Additionally, disclosure whether you have
discussed your critical accounting estimates with your audit
committee.
WE WILL REVISE THE FORMAT OF OUR MD&A TO EXPAND OUR DISCUSSION
REGARDING OUR CRITICAL ACCOUNTING POLICIES AND WHETHER WE HAVE
DISCUSSED CRITICAL ACCOUNTING ESTIMATES WITH OUR AUDIT COMMITTEE.
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11. With a view towards enhancing your disclosure, please review SEC
Release No. 33-8350 and revise your MD&A to provide a more thoughtful,
qualitative discussion regarding the quality of, and potential
variability of your earnings and cash flows so that readers can
ascertain the likelihood that past performance. Following are some
specific revisions you should consider:
o Consider starting your MD&A with an executive-level overview
section that provides context for the remainder of the
discussion.
o Identify and discuss key performance indicators that are
used to manage the business and would be material to
investors.
o Expand your discussion of the changes in financial statement
line items to indicate whether the changes represent trends
to continue into the future.
WE HAVE REVIEWED SEC RELEASE NO. 33-8350 AND WILL BE GUIDED BY THE
RECOMMENDATIONS THAT ARE CONTAINED THEREIN. AS SUGGESTED IN THE
RELEASE, WE WILL UPON OUR NEXT FILING (FORM 10-K FOR THE YEAR ENDING
JUNE 30, 2005), TAKE A REVISED APPROACH TO OUR MD&A BEGINNING WITH AN
INTRODUCTORY OVERVIEW IN ORDER TO FACILITATE THE READER'S OVERALL
UNDERSTANDING OF OUR COMPANY'S EXECUTIVE LEVEL PRESENTATION THROUGH
THE EYES OF MANAGEMENT.
RESULTS OF OPERATIONS, PAGE 15
YEAR ENDED JUNE 30, 2004; COMPARED TO THE YEAR ENDED JUNE 30, 2003, PAGE 15
12. To the extent material to understanding your results of operations,
please expand your disclosure to include discussions of significant
statement of income line items such as depreciation and amortization
expense, the components of your other income (expense), provision for
income taxes and gains and losses from your discontinued operations.
Refer to the instructions to Item 303 (A) of Regulation S-K.
IN FUTURE FILINGS, OUR MD&A DISCLOSURE WILL REVIEW ALL ITEMS FOR
MATERIALITY IN OUR COMPARISON OF YEAR-TO-YEAR RESULTS, AND COMMENT
ACCORDINGLY FOR ENHANCED READER UNDERSTANDING.
13. When discussing selling, general and administrative expenses (SG&A)
please consider indicating the total year-to-year dollar and
percentage increase in addition to presenting SG&A as a percentage of
sales. Furthermore, please quantify the extent to which each factor
listed contributed to the overall change.
IN DISCUSSIONS OF SG&A (SELLING, GENERAL AND ADMINISTRATIVE EXPENSES),
WE WILL COMMENT ON DOLLAR AND PERCENT CHANGES IN EACH OF THE MAJOR
CATEGORIES AND INCLUDE COMMENTS ON THE FACTORS THAT HAD AN IMPACT ON
THE CHANGES.
LIQUIDITY AND CAPITAL RESOURCES, PAGE 18
14. Please expand your discussion to include any known trends or any known
demands, commitments, events or uncertainties that will result in or
that are reasonably likely to result in a material increase or
decrease in liquidity. Additionally describe your
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internal and external sources of liquidity as well as any material
unused sources of liquid assets. Furthermore, with respect to capital
resources, please disclose any material commitments for capital
expenditures as of the end of the latest fiscal period and indicate
the general purpose and anticipated source to fulfill the commitments.
Refer to Item 303 of Regulation S-K.
WE WILL HAVE DISCLOSURE IN OUR FUTURE FILINGS TO INCLUDE A DISCUSSION
OF OUR NEW FINANCING AGREEMENTS AND THEIR IMPACT ON FUTURE INTEREST
EXPENSE RESULTS. WE WILL EXPAND OUR DISCUSSION RELATIVE TO ANY
INTERNAL AND EXTERNAL SOURCES OF LIQUIDITY IN THE MD&A SECTION OF
FUTURE FILINGS.
FINANCIAL STATEMENTS
GENERAL
15. Please provide Schedule II - Valuation and Qualifying Accounts for the
activity in your allowance for doubtful accounts. Alternatively, you
may provide such disclosure in the notes to the financial statements
or in MD&A. See Rules 5-04 and 12-09 of Regulation S-X.
ATTACHED IS A SCHEDULE OF THE VALUATION AND QUALIFYING ACCOUNTS FOR
THE ACTIVITY IN THE ALLOWANCE FOR DOUBTFUL ACCOUNTS.
16. Please present selected quarterly financial data as required by Item
302(a) of Regulation S-K.
WE WILL INCLUDE SELECTED QUARTERLY FINANCIAL DATA IN FUTURE FILINGS.
CONSOLIDATED BALANCE SHEET, PAGE F-3
17. Either revise your balance sheet to reclassify your due from officer
line item as a contra-equity account or tell us why you believe it is
properly reflected as an asset. Generally, loans made to management or
principle owners are reflected as a contra-equity account unless
repaid by such persons before the financial statements are issued and
filed.
WE WILL SHOW THIS ON OUR FUTURE FILINGS, AS A CONTRA-EQUITY ACCOUNT
WHERE THE AMOUNT OWED FROM OFFICERS HAS NOT BEEN PAID BEFORE THE
FINANCIAL STATEMENTS ARE ISSUED.
CONSOLIDATED STATEMENT OF INCOME, PAGE F-5
18. We note in your business that you consider service and installation
services to be an integral part of your business. To the extent that
these services and/or franchise revenues account for more than 10% of
net sales, please break them out separately on the face of your
statements of income. Similarly, present the related costs of sales in
a similar manner. Refer to Rule 5-03 of Regulation S-X.
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WE WILL CALCULATE THE PERCENTAGE OF SALES RELATED TO SERVICE AND
INSTALLATION AND ALSO, THE COST RELATED THERETO, AND IF THESE AND/OR
FRANCHISE REVENUES ACCOUNT FOR MORE THAN 10% OF NET SALES, THEY WILL
BE BROKEN DOWN ON THE FINANCIAL STATEMENTS FOR THE FISCAL YEAR ENDED
JUNE 30, 2005 AND FOR EACH OF THE FISCAL YEARS PRESENTED.
19. Please correct the 2003 weighted average number of common shares
outstanding and the weighted average number of common shares
outstanding assuming dilution. It appears that you have reversed the
numbers of these line items.
WE HAVE REVIEWED THIS QUESTION WITH REGARD TO THE 2003 WEIGHTED
AVERAGE SHARES AND WE BELIEVE THAT THE NUMBERS ARE CORRECT AS
PRESENTED, AS SHARES WITH DILUTION ARE THE GREATER NUMBER OF SHARES.
CONSOLIDATED STATEMENT OF CASH FLOWS, PAGE F-7
20. Please reclassify your insurance proceeds as cash flows from investing
activities or tell us why you believe your current classification is
appropriate. Refer to footnote 5 to paragraph 16 of SFAS 95 as amended
by SFAS 145.
FOR THE FISCAL YEAR ENDED JUNE 30, 2005, THE INSURANCE PROCEEDS FROM
CASH FLOWS WILL BE RECLASSIFIED AND SHOWN AS INVESTMENT ACTIVITIES AND
NOT OPERATING ACTIVITIES.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
GENERAL
21. Please disclose the types of expenses that you include in the cost of
sales line item and the types of expenses that you include in the
selling, general and administrative expenses line item. In doing so,
please disclose specifically whether you include inbound freight
charges, purchasing and receiving costs, inspection costs, warehousing
costs, internal transfer costs and the other costs of your
distribution network in cost of sales. If you currently exclude a
significant portion of these costs from cost of sales, please provide
cautionary disclosure in MD&A that your gross margins may not be
comparable to others, since some entities include the costs related to
their distribution network in cost of sales and other like you