Indicate by check mark if the registrant is a well-known seasoned
issuer, as defined in Rule 405 of the Securities Act. Yes
¨
No
x
Indicate by check mark if the registrant is not required to
file reports pursuant to Section 13 or Section 15(d) of the Act. Yes
¨
No
x
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 whether the registrant has submitted
electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant
to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit
and post such files). 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 a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated
filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Indicate by check mark whether the registrant is a shell company
(as defined by Rule 12b-2 of the Act). Yes
¨
No
x
The aggregate market value of the voting and non-voting stock
held by non-affiliates of the registrant as of the last business day of the registrant’s most recently completed second fiscal
quarter, based on the price at which the common equity was last sold on the NASDAQ on such date, was approximately $15,697,343.
For purposes of this computation only, all officers, directors and 10% or greater stockholders of the registrant are deemed
to be affiliates.
The number of shares of the registrant’s common stock,
$0.01 par value, outstanding as of
March 31, 2017
:
8,250,455
This Amendment No. 1 on Form 10-K/A (this
“Amendment”) amends our Annual Report on Form 10-K for the fiscal year ended December 31, 2016, originally filed with
the Securities and Exchange Commission (“SEC”) on March 31, 2017 (the “Original Report”). We are filing
this Amendment to include the information required by Part III and not included in the Original Report, as we do not intend to
file a definitive proxy statement for an annual meeting of stockholders within 120 days of the end of our fiscal year ended December
31, 2016.
In addition, in connection with the filing
of this Amendment and pursuant to the requirements of Rule 12b-15 under the Securities Exchange Act of 1934, as amended, we are
including with this Amendment new certifications of our principal executive officer and principal financial officer. Accordingly,
Item 15 of Part IV has also been amended to reflect the filing of these new certifications. Except as described above, no other
changes have been made to the Original Report. The Original Report continues to speak as of the date of the Original Report, and
we have not updated the disclosures contained therein to reflect any events which occurred at a date subsequent to the filing of
the Original Report. Material events may have occurred subsequent to the filing of the Original Filing that are not reflected in
this Amendment.
PART III
Item 10. Directors, Executive Officers
and Corporate Governance.
Executive Officers and Directors
The following table
sets forth information regarding our executive officers and the members of our board of directors.
|
Name
|
|
Age
|
|
Position with the Company
|
|
William Spier
|
|
82
|
|
Chairman of the Board of Directors
|
|
Nathan Kahn
|
|
62
|
|
Chief Executive Officer, President and Director
|
|
Sandra Kahn
|
|
59
|
|
Vice President, Chief Financial Officer, Treasurer, Secretary and Director
|
|
Harvey Wrubel
|
|
63
|
|
Vice President of Sales/Director of Marketing and Director
|
|
Jack Bendheim
|
|
70
|
|
Director
|
|
Peter G. Howard
|
|
81
|
|
Director
|
|
Douglas Kass
|
|
68
|
|
Director
|
|
Nathan Mazurek
|
|
55
|
|
Director
|
|
Morris J. Smith
|
|
59
|
|
Director
|
All directors hold
office for one-year terms until the election and qualification of their successors. Officers are elected by the board of directors
and serve at the discretion of the board.
The following sets
forth biographical information and the qualifications and skills for our executive officers and the members of our board of directors.
William Spier
.
Mr. Spier has
been a director since October 1996 and was acting chief executive officer from November 1997 until September 1999. Mr. Spier presently
is our non-executive chairman of the board. Mr. Spier has been a private investor since 1982. He also served as chairman of DeSoto,
Inc., a manufacturer and distributor of cleaning products, from May 1991 through September 1996, and as chief executive officer
of DeSoto, Inc., from May 1991 to January 1994 and from September 1995 through September 1996. Mr. Spier retired as vice chairman
of Phibro-Salomon, Inc. in 1981. Mr. Spier brings to the board extensive experience with our company, our industry, manufacturing
and distribution generally, and executive leadership.
Nathan Kahn
.
Mr. Kahn has
been our chief executive officer, president and a director since September 1999. Prior to that time, Mr. Kahn was our president
and a director from the time of our formation in 1984. Mr. Kahn has also been the president and a director of Empire Resources
Pacific Ltd, the sales agent in Australia and New Zealand for Empire Resources, Inc. since its formation in 1996. Mr. Kahn brings
to the board extensive experience with our company and our industry. Since he is responsible for, and familiar with, our day-to-day
operations and implementation of our strategy, his insights into our performance and into the current state of the industry are
critical to board discussions and to our success.
Sandra Kahn
.
Ms. Kahn has
been the vice president, chief financial officer and a director since September 1999. Prior to that time, Ms. Kahn was our secretary
and treasurer and a director from the time of our formation in 1984. Ms. Kahn has also been the secretary and treasurer and a director
of Empire Resources Pacific Ltd since its formation in 1996. Ms. Kahn brings to the board extensive experience with our company
and our industry. Since she is responsible for, and familiar with, our financial position and strategy, her insights into our performance
and operations are critical to board discussions and to our success.
Harvey Wrubel
.
Mr. Wrubel
has been vice president of sales/director of marketing since September 1999. He has been with our company for more than 20 years.
Mr. Wrubel brings to the board extensive experience with our company and our industry. Since he is responsible for, and familiar
with, our sales and marketing, he brings important insights into our performance and strategy to board discussions.
Jack Bendheim
.
Mr. Bendheim
has been a director since September 1999. He has been the chairman and president of Phibro Animal Health Corporation for more than
twenty years. Mr. Bendheim brings to the board extensive experience with our company, manufacturing and distribution generally,
and executive leadership.
Peter G. Howard
.
Mr. Howard
has been a director since September 1999. He has been the managing director of Empire Resources Pacific Ltd since its inception
in 1996. From 1961 to 1995, Mr. Howard held various positions within the aluminum industry, the most recent of which was divisional
general manager of Comalco Rolled Products, a unit of Comalco Aluminum Ltd., an aluminum producer. Mr. Howard brings to the board
extensive experience with our company and our industry. Since he is responsible for, and familiar with, our Australian operations,
he brings important insights into our performance and strategy to board discussions.
Douglas
Kass
.
Mr. Kass has been a director since July 2011. He is the president and founder of
Seabreeze Partners Management, Inc. which manages Seabreeze Partners L.P. and advises on managed accounts. Seabreeze
Partners Management was formerly the General Partner of Seabreeze Partners Long/Short, L.P. from 2005 to 2012.
Mr. Kass managed a dedicated short fund, Seabreeze Partners Short L.P., and has managed Seabreeze Partners L.P. since 2003.
From 2003 to 2004, he served as the portfolio manager of Demours Capital Management, LLC, which was the general partner and investment
manager of Circle T. Market Neutral Fund, L.P. and Circle T. Market Neutral Offshore Fund, Ltd. From 1997 to 2003, Mr. Kass was
the general partner of Kass Partners, LLC, the predecessor firm to Kass Partners, Ltd., which was founded in 1997. Mr. Kass has
nearly 45 years of experience with these and several other investment firms. Mr. Kass brings to the board extensive executive leadership,
investment and financial expertise that is important to board discussions and oversight of our financial performance, position
and strategy. In accordance with the Convertible Notes Purchase Agreement entered into in connection with the issuance of our 10%
Convertible Senior Subordinated Notes Due June 1, 2016, we were required to cause the election of a director designated by Leon
G. Cooperman. Mr. Kass was Mr. Cooperman’s designee.
Nathan Mazurek
.
Mr. Mazurek
has been a director since 1999. Mr. Mazurek has over 20 years of experience in the electrical equipment and components industry.
In December 2009, Mr. Mazurek became president and chief executive officer of Pioneer Power Solutions, Inc., a manufacturer of
highly engineered liquid transformers. From December 2009 through August 12, 2010, Mr. Mazurek also served as the chief financial
officer, secretary and treasurer of Pioneer Power Solutions, Inc. Mr. Mazurek has served as the chief executive officer, president,
vice president, sales and marketing and chairman of the board of directors of Pioneer Transformers Ltd. since 1995. Mr. Mazurek
has served as the president of American Circuit Breaker Corp., a manufacturer and distributor of circuit breakers, since 1988.
Mr. Mazurek brings to the board extensive experience with our company, manufacturing and distribution generally, and executive
leadership.
Morris J. Smith
.
Mr. Smith
has been a director since 1994. Since 1993, Mr. Smith has been a private investor and investment consultant. Prior to that, Mr.
Smith was a portfolio manager at Fidelity Investments for more than five years. Mr. Smith brings to the board extensive experience
with our company and executive leadership, and financial expertise that is important to board discussions and oversight of our
financial performance and strategy.
Family Relationships
Nathan Kahn and Sandra Kahn are husband
and wife.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the
Securities Exchange Act of 1934, as amended, requires our directors and officers, and persons who own more than ten percent of
our common stock, to file with the SEC initial reports of ownership and reports of changes in ownership of our common stock. Directors,
officers and persons who own more than ten percent of our common stock are required by SEC regulations to furnish us with copies
of all Section 16(a) forms they file.
To our knowledge, based
solely on a review of the copies of such reports furnished to us, during the fiscal year ended December 31, 2016, each of our directors,
officers and greater than ten percent stockholders complied with all Section 16(a) filing requirements applicable to our directors,
officers and greater than ten percent stockholders, except for two late Form 4 filed by Harvey Wrubel with respect to three transactions.
Code of Ethics
We have adopted a Code of Business Conduct and Ethics that applies
to our directors, officers and other employees, including our principal executive officer, principal financial officer and principal
accounting officer. Copies of the code can be obtained free of charge from our web site, www.empireresources.com. We intend to
disclose any future amendments to certain provisions of the code, or waivers of such provisions granted to executive officers and
directors, on this website within four business days following the date of any such amendment or waiver.
Board Committees
Our board of directors has established an
audit committee, a nominating and corporate governance committee and a compensation committee, each of which has the composition
and responsibilities described below.
Audit Committee.
The audit committee
consists of William Spier, Jack Bendheim and Nathan Mazurek, each of whom our board has determined to be financially literate and
qualify as an independent director under Section 5605(a)(2) and Section 5605(c)(2) of the rules of the Nasdaq Stock Market. In
addition, Jack Bendheim qualifies as a financial expert, as defined in Item 407(d)(5)(ii) of Regulation S-K. The function of the
audit committee is to assist the board of directors in its oversight of (1) the integrity of our financial statements, (2) our
compliance with legal and regulatory requirements and (3) the qualifications, independence and performance of our independent auditors.
Nominating and Corporate Governance Committee.
The nominating and corporate governance committee consists of William Spier and Nathan Mazurek, each of whom our board has determined
qualifies as an independent director under Section 5605(a)(2) of the rules of the Nasdaq Stock Market. The primary function of
the nominating and corporate governance committee is to identify individuals qualified to become board members, consistent with
criteria approved by the board, and select the director nominees for election at each annual meeting of stockholders.
Compensation Committee.
The compensation
committee consists of William Spier and Jack Bendheim, each of whom our board has determined qualifies as an independent director
under Section 5605(a)(2) of the rules of the Nasdaq Stock Market, an “outside director” for purposes of Section 162(m)
of the Internal Revenue Code and a “non-employee director” for purposes of Section 16b-3 under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) and does not have a relationship to us which is material to his ability
to be independent from management in connection with the duties of a compensation committee member, as described in Section 5605(d)(2)
of the rules of the Nasdaq Stock Market. The function of the compensation committee is to discharge the board of directors’
responsibilities relating to compensation of our directors and executives and our overall compensation programs. The primary objective
of the compensation committee is to develop and implement compensation policies and plans that are appropriate for us in light
of all relevant circumstances and which provide incentives that further our long-term strategic plan and are consistent with our
culture and the overall goal of enhancing enduring stockholder value.
Item 11. Executive Compensation.
Compensation Philosophy and Process
Our executive compensation program is administered
by our compensation committee. The compensation committee determines the percentage increase in the base salary of Mr. and Ms.
Kahn and Mr. Wrubel, subject to certain requirements set forth in their employment agreements, and determines the amount of any
bonus to be awarded to Mr. and Ms. Kahn. The compensation committee is responsible for approving any additional compensation paid
to our named executive officers (e.g., any incentive awards). Mr. and Ms. Kahn participate in decision-making regarding Mr. Wrubel’s
compensation.
Our executive compensation program is administered
with the aim of:
|
|
·
|
motivating our executives to enhance
stockholder value by tying compensation to company and individual performance; and
|
|
|
|
|
|
|
·
|
ensuring our ability to retain and, if necessary in the future, attract superior executives.
|
Our named executive officers receive a base
salary and an annual cash bonus as well as benefits that all of our employees receive. We believe we must offer competitive salaries
and other standard benefits to be able to attract, retain and motivate highly-qualified and experienced executives. We believe
that cash compensation for executives in excess of base salary should be tied to some combination of company and individual performance
over the preceding fiscal year.
In setting compensation, the compensation
committee assesses the reasonableness of total compensation levels for our named executive officers. This assessment is made in
part by considering both objective (corporate) and subjective (individual) performance criteria, which are used in determining
the amount of any cash bonus for Mr. and Ms. Kahn and increase in base salary. Mr. Wrubel’s annual cash bonus is determined
based on our earnings before tax. We believe it is necessary to compensate Mr. Wrubel in this manner in order to retain his services.
The compensation committee does not establish specific corporate and individual performance targets at the beginning of each fiscal
year, but rather evaluates both corporate and individual performance at the end of the year in connection with determining the
next year’s compensation and awarding any cash bonuses for the previous year.
In assessing individual and company performance,
the compensation committee considers, among other things, the individual’s contributions to our growth, the attainment of
strategic objectives (whether the objectives relate to our product, geographic or customer diversification, expense control, increasing
inventory turn rates, increasing gross profit margins, increasing pre-tax income or other objectives determined by the compensation
committee or the board of directors from time to time) and the management of our assets or personnel.
The compensation committee does not use
any outside compensation consultant in setting the compensation of our named executive officers. In evaluating the performance
of the named executive officers, the compensation committee has access to, and in its discretion may meet with, any of our officers
or other employees. In addition, the compensation committee is cognizant of, and may review and take into account compensation
levels at other public companies in our industry, for whom information about executive pay is publicly available. However, there
are differences between us and these public companies, many of which are larger in terms of market capitalization, share of the
product and geographic markets, and other factors. In addition, these companies generally use much more complex cash and non-cash
compensation schemes than us, and use equity incentives, which do not play a significant role in the compensation of our named
executive officers. We do not issue equity compensation to our named executive officers because they are already substantial equity
holders and we believe that their incentives and interests are generally aligned with those of our other stockholders. For these
reasons, the compensation committee does not engage in any formal benchmarking of our compensation against peer companies, and
does not target our compensation at any set level with reference to peer companies.
We do not make available to our named executive
officers any pension (defined benefit) plans, deferred compensation arrangements or perquisites. These officers do participate
on the same basis as all other employees (that is, on a non-discriminatory basis) in our 401(k) plan and are eligible for the same
medical benefits, including health insurance, as all other employees.
At the request of Mr. and Ms. Kahn, the
compensation committee did not consider whether to award a bonus to Mr. or Ms. Kahn for 2016. The compensation committee met in
June 2016 and voted to increase salaries for Ms. Kahn and Mr. Wrubel.
2016 and 2015 Summary Compensation Table
The table below sets forth, for the fiscal
years ended December 31, 2016 and 2015, the compensation earned by our named executive officers: (i) Nathan Kahn, our chief executive
officer, president and director; (ii) Sandra Kahn, our chief financial officer, vice president, treasurer, secretary and director;
and (iii) Harvey Wrubel, our vice president of sales and director.
|
|
|
|
|
|
|
|
|
|
|
All other
|
|
|
|
|
|
Name and principal
|
|
|
|
Salary
|
|
|
Bonus
|
|
|
compensation
|
|
|
Total
|
|
|
Position
|
|
Year
|
|
($)
|
|
|
($)
|
|
|
($)(1)
|
|
|
($)
|
|
|
Nathan Kahn, Chief Executive Officer,
|
|
2016
|
|
|
556,160
|
|
|
|
-
|
|
|
|
15,400
|
|
|
|
571,560
|
|
|
President and Director
|
|
2015
|
|
|
556,000
|
|
|
|
-
|
|
|
|
12,540
|
|
|
|
568,540
|
|
|
Sandra Kahn, Chief Financial Officer,
|
|
2016
|
|
|
250,000
|
|
|
|
-
|
|
|
|
15,400
|
|
|
|
265,400
|
|
|
Vice President, Treasurer, Secretary and Director
|
|
2015
|
|
|
225,000
|
|
|
|
-
|
|
|
|
11,400
|
|
|
|
236,400
|
|
|
Harvey Wrubel, Vice President of Sales
|
|
2016
|
|
|
402,379
|
|
|
|
542,750
|
|
|
|
16,048
|
|
|
|
961,177
|
|
|
and Director
|
|
2015
|
|
|
379,760
|
|
|
|
375,960
|
|
|
|
11,500
|
|
|
|
767,220
|
|
|
|
(1)
|
Represents board of director
fees and automotive expense.
|
Agreements with Executive Officers
We entered into employment agreements with
each of our named executive officers in 1999. Under the terms of these agreements, the compensation committee has discretion to
determine annually the percentage increase in base salary (no decrease is permissible), provided that such annual increase must
be no less than the increase in the cost of living for the previous year, based upon a local consumer price index. The employment
agreements with Ms. Kahn and Mr. Wrubel are automatically renewed every two years unless either we or the executive officer gives
notice of termination. The current term of Ms. Kahn’s employment agreement will automatically renew unless it is terminated
on September 17, 2017. The current term of Mr. Wrubel’s employment agreement will automatically renew unless it is terminated
on December 31, 2018. Although Mr. Kahn’s employment agreement terminated in 2004, we have continued to provide Mr. Kahn
a base salary calculated in accordance with its terms and to comply with many other terms of the agreement.
The compensation committee generally determines the amount of
any bonus to be awarded to Mr. and Ms. Kahn. Mr. and Ms. Kahn have agreed to allow the compensation committee to determine their
bonuses in whatever manner they deem appropriate. Mr. Wrubel and the compensation committee have agreed that he will receive an
annual bonus equal to 13% of our earnings before tax.
Ms. Kahn and Mr. Wrubel are subject to non-competition
and non-solicitation restrictions under their employment agreements. Ms. Kahn’s employment agreement provides that she will
not, among other things, (i) directly or indirectly be engaged as a principal in any other business activity or conduct that competes
with our business or be an employee, consultant, director, principal, stockholder, advisor of, or otherwise be affiliated with,
any such business, activity or conduct, or (ii) solicit our customers, clients, suppliers, middlemen, non-clerical employees, sales
representatives, agents, or consultants, in each case during her period of employment and the four-year period thereafter, except
that if her employment is terminated for disability, without cause, or by her following a breach by us, such period will terminate
two years after the date of such termination of employment. Mr. Wrubel’s employment agreement provides that, (i) during the
employment term and for a period of 12 months thereafter, he will not, among other things, be engaged in, or be, an employee, director,
partner, principal, stockholder or advisor of any business, activity or conduct that competes with our business and (ii) during
the employment term and for a period of 18 months thereafter, he will not solicit our customers, clients, suppliers, middlemen,
non-clerical employees, sales representatives, agents, or consultants. Following termination of Mr. Wrubel’s employment,
the foregoing will only apply to competition with regard to aluminum and such other commodities as were being sold by us within
six months prior to such termination, except for solicitation regarding our non-clerical employees, sales representatives, agents,
or consultants.
Potential Payments Upon Termination or Change In Control
Our employment agreements do not require
us to make payments or provide other benefits to our named executive officers in the event of a change in control of us or a termination
without cause, except that in the event of a termination without cause, Mr. Wrubel is entitled, generally, to all earned and accrued
but unpaid benefits and other compensation, plus severance equal to his salary for the remaining contract term.
Outstanding Equity Awards at Fiscal Year End
The following table provides information
on the holdings of stock options of our named executive officers at December 31, 2016.
|
|
|
Option Awards
|
|
|
|
|
|
|
|
Name
|
|
Number of securities
underlying unexercised
options (#) exercisable
|
|
|
Option exercise
price ($)
|
|
|
Option expiration
date
|
|
|
Harvey Wrubel
|
|
|
50,000
|
(1)
|
|
$
|
1.625
|
|
|
|
09/17/19
|
|
|
|
(1)
|
These options are fully
vested.
|
We have not made equity grants to named
executive officers or directors since 2004. However, we could make such grants in the future if deemed necessary or appropriate
by the compensation committee. Stock options and/or restricted stock may be granted from time to time if necessary, for example,
to encourage our named executive officers to continue in their positions or to better align their interests with those of our stockholders.
Such grants could also be made to non-employee directors, for example to provide additional compensation. At such times as we have
issued stock options to executives and directors under our stock option plan, all such grants were made with an exercise price
equal to the closing market price of our common stock at the date of grant.
2006 Stock Option Plan
We previously maintained our 2006 Stock
Option Plan, which provided for the granting of options to purchase not more than an aggregate of 559,000 shares of common stock.
Under the 2006 Stock Option Plan, all canceled or terminated options were available for grants. All officers, directors and employees
of the Company and other persons who perform services for the Company were eligible to participate in the 2006 Stock Option Plan.
Some or all of the options were possibly “incentive stock options” within the meaning of the Internal Revenue Code
of 1986, as amended.
The 2006 Stock Option Plan provided that
it is to be administered by the board of directors, or by a committee appointed by the board, which will be responsible for determining,
subject to the provisions of the 2006 Stock Option Plan, to whom the options are granted, the number of shares of common stock
subject to an option, whether an option shall be incentive or non-qualified, the exercise price of each option (which, other than
in the case of incentive stock options, may be less than the fair market value of the shares on the date of grant), the period
during which each option may be exercised and the other terms and conditions of each option.
The 2006 Stock Option Plan expired on June
26, 2016 pursuant to its terms. As of its expiration, the only options outstanding were those listed in the table above. No new
option grants are permitted to be made under the plan.
Director Compensation
The following table provides compensation
information for the one year period ended December 31, 2016 for each non-employee member of our board of directors.
|
|
|
Fees Earned or Paid
|
|
|
|
|
|
Name
|
|
in Cash ($)
|
|
|
Total ($)
|
|
|
Jack Bendheim
|
|
|
26,000
|
|
|
|
26,000
|
|
|
Peter Howard
|
|
|
4,000
|
|
|
|
4,000
|
|
|
Douglas Kass
|
|
|
26,000
|
|
|
|
26,000
|
|
|
Nathan Mazurek
|
|
|
26,000
|
|
|
|
26,000
|
|
|
Morris Smith
|
|
|
26,000
|
|
|
|
26,000
|
|
|
William Spier
|
|
|
35,000
|
|
|
|
35,000
|
|
Each director is paid $1,000 for attendance
(in person or by telephone) at meetings of the board of directors and $20,000 per annum. Mr. Spier receives an annual retainer
of $30,000 for serving as our non-executive chairman. In addition, all directors are reimbursed for out-of-pocket expenses incurred
in connection with attendance at meetings.
Item 12. Security Ownership of Certain Beneficial Owners
and Management and Related Stockholder Matters.
The following table sets forth information
with respect to the beneficial ownership of our common stock as of April 26, 2017 by:
|
|
·
|
each person known by us to beneficially own more than 5.0% of our common stock;
|
|
|
·
|
each of the named executive officers; and
|
|
|
·
|
all of our directors and executive officers as a group.
|
The percentages of common stock beneficially
owned are reported on the basis of regulations of the SEC governing the determination of beneficial ownership of securities. Under
the rules of the SEC, a person is deemed to be a beneficial owner of a security if that person has or shares voting power, which
includes the power to vote or to direct the voting of the security, or investment power, which includes the power to dispose of
or to direct the disposition of the security. Except as indicated in the footnotes to this table, to our knowledge and subject
to community property laws where applicable, each beneficial owner named in the table below has sole voting and sole investment
power with respect to all shares beneficially owned and each person’s address is c/o Empire Resources, Inc., 2115 Linwood
Avenue, Fort Lee, New Jersey 07024. As of April 26, 2016 we had 8,250,455 common shares outstanding.
|
|
|
|
|
|
|
|
|
|
|
|
Percentage
|
|
|
Name of Beneficial Owner
|
|
Number of Shares
Beneficially Owned(1)
|
|
|
Common
Stock
|
|
|
Options
|
|
|
of Common Stock
Owned (1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William Spier
|
|
|
173,617
|
|
|
|
173,617
|
|
|
|
|
|
|
|
2.1
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nathan Kahn
|
|
|
3,822,523
|
|
|
|
3,822,523
|
|
|
|
|
|
|
|
46.3
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sandra Kahn
|
|
|
3,822,523
|
|
|
|
3,822,523
|
|
|
|
|
|
|
|
46.3
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Harvey Wrubel
|
|
|
67,604
|
(2)
|
|
|
17,604
|
|
|
|
50,000
|
(2)
|
|
|
0.8
|
%
|
|
|
|
|
|
|
|
|
.
|
|
|
|
|
|
|
|
|
|
|
Jack Bendheim
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Peter G. Howard
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Douglas Kass
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nathan Mazurek
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Morris J. Smith
|
|
|
4,703
|
|
|
|
4,703
|
|
|
|
|
|
|
|
0.1
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All directors and executive officers as a group (9 persons)
|
|
|
4,068,447
|
(3)
|
|
|
4,018,447
|
|
|
|
50,000
|
(3)
|
|
|
49.0
|
%
|
|
|
(1)
|
Shares of common stock
beneficially owned and the respective percentages of beneficial ownership of common stock assume the exercise of all options and
other securities convertible into common stock beneficially owned by such person or entity currently exercisable or exercisable
within 60 days of April 26, 2017, except as otherwise noted. Shares issuable pursuant to the exercise of stock options and other
securities convertible into common stock exercisable within 60 days are deemed outstanding and held by the holder of such options
or other securities for computing the percentage of outstanding common stock beneficially owned by such person, but are not deemed
outstanding for computing the percentage of outstanding common stock beneficially owned by any other person.
|
|
|
(2)
|
Includes 50,000 shares
underlying options held by Mr. Wrubel that are currently exercisable or that will become exercisable within 60 days.
|
|
|
(3)
|
Includes (i) 50,000 shares
underlying options that are currently exercisable or that will become exercisable within 60 days
|
Equity Compensation Plan Information
The following table
provides certain information as of December 31, 2016 with respect to our equity compensation plans under which our equity securities
are authorized for issuance:
|
|
|
Number of
|
|
|
|
|
|
|
|
|
|
|
securities to be
|
|
|
|
|
|
|
|
|
|
|
issued upon
|
|
|
Weighted average
|
|
|
Number of securities
|
|
|
|
|
exercise of
|
|
|
exercise price of
|
|
|
remaining available
|
|
|
|
|
outstanding
|
|
|
outstanding
|
|
|
for future issuance
|
|
|
|
|
options, warrants
|
|
|
options, warrants
|
|
|
under equity
|
|
|
|
|
and rights
|
|
|
and rights
|
|
|
compensation plans
|
|
|
Equity compensation plans approved by security holders
|
|
|
50,000
|
|
|
$
|
1.625
|
|
|
|
371,000
|
|
Item 13. Certain Relationships
and Related Transactions, and Director Independence.
In accordance with
our audit committee charter, the audit committee is required to approve all related party transactions. In general, the audit committee
will review any proposed transaction that has been identified as a related party transaction under Item 404 of Regulation S-K,
which means a transaction, arrangement or relationship in which we and any related party are participants in which the amount involved
exceeds the lesser of $120,000 or one percent of the average of our total assets at year end for the last two completed fiscal
years. A related party includes (i) a director, director nominee or executive officer of us, (ii) a security holder known to be
an owner of more than 5% of our voting securities, (iii) an immediate family member of the foregoing or (iv) a corporation or other
entity in which any of the foregoing persons is an executive, principal or similar control person or in which such person has a
5% or greater beneficial ownership interest.
Director Independence
Our board of directors
has determined that each of Jack Bendheim, Douglas Kass, Nathan Mazurek, Morris J. Smith and William Spier satisfy the requirements
for independence set out in Section 5605(a)(2) of the Nasdaq Stock Market Rules and that each of these directors has no material
relationship with us (other than being a director and/or a stockholder). In making its independence determinations, the board of
directors sought to identify and analyze all of the facts and circumstances relating to any relationship between a director, his
immediate family or affiliates and our company and our affiliates and did not rely on categorical standards other than those contained
in the Nasdaq rule referenced above.
Item 14. Principal Accounting Fees and
Services.
The fees billed for professional services
provided to us by EisnerAmper LLP for the fiscal years ended December 31, 2016 and 2015 are described below.
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
|
|
December 31, 2016
|
|
|
December 31, 2015
|
|
|
Audit fees(1)
|
|
$
|
226,000
|
|
|
$
|
219,000
|
|
|
Audit-related fees(2)
|
|
|
-
|
|
|
|
-
|
|
|
Tax fees(3)
|
|
$
|
66,600
|
|
|
$
|
64,700
|
|
|
All other fees(4)
|
|
|
-
|
|
|
|
-
|
|
|
Total
|
|
$
|
292,600
|
|
|
$
|
283,700
|
|
|
|
(1)
|
These fees related to
the audit of our annual financial statements and the review of our interim quarterly financial statements.
|
|
|
(2)
|
EisnerAmper LLP did not perform any audit-related services for us for the years ended December 31, 2016 and 2015.
|
|
|
(3)
|
These fees related to professional services rendered for tax compliance.
|
|
|
(4)
|
EisnerAmper LLP did not perform any other services for us for the years ended December 31, 2016 and 2015.
|
Pre-Approval of the Independent Registered Public Accounting
Firm fees and Services Policy
Our audit committee pre-approves all auditing
services, internal control-related services and permitted non-audit services (including the fees and terms thereof) to be performed
for us by our independent auditor, except for de minimis non-audit services that are approved by the audit committee prior to the
completion of the audit. The audit committee may form and delegate authority to subcommittees consisting of one or more members
when appropriate, including the authority to grant pre-approvals of audit and permitted non-audit services, provided that decisions
of such subcommittee to grant pre-approvals is presented to the full audit committee at its next scheduled meeting. The audit committee
pre-approved all of the fees set forth in the table above.
