SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
For the fiscal year ended December 31, 2009
For the transition period from _________ to _________
Commission file number: 000-53451
ALTERNATE ENERGY HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Registrant’s telephone number, including area code: (208) 939-9311
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.001 per share
(Title of class)
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 Web site, 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 [_] 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. (Check One).
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes |_| No |x|
The aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant was approximately $8,678,984 as of June 30, 2009 (the last business day of the registrant’s most recently completed second fiscal quarter), based on the average bid and asked price of such common equity as quoted by the OTC Bulletin Board on such date.
The number of shares outstanding of the registrant’s common stock as of March 31, 2010, was 252,361,674 shares.
Amendment No. 1 to the Annual Report on Form 10-K
for the Year Ended December 31, 2009
Alternate Energy Holdings, Inc. (“AEHI” or the “Company”) is filing this Amendment No. 1 on Form 10-K/A (this “Amendment”) to its Annual Report on Form 10-K for the fiscal year ended December 31, 2009, which was filed on March 31, 2010 (the “Original Filing”), to amend Part III of the Original Filing to remove Jennifer Ransom (“Ms. Ransom”) as a named executive officer of the Company. The Company previously reported Ms. Ransom’s information based on its mistaken belief that she was an executive officer requiring such disclosure under Item 401 of Regulation S-K under the Securities Act of 1933 (the “Act”) in her position as V.P. of Admin. & Secretary based on her title not her duties. In fact, Ms. Ransom was not, and is not, an executive officer of the Company requiring such disloscure under the Act. This Amendment is also being filed to clarify the description of other compensation paid to Mr. Gillispie as disclosed in the Summary Compensation Table.
Except as described above, no other changes have been made to the Original Filing, and this Amendment No. 1 on Form 10-K/A does not amend, update or change the financial statements or any other items or disclosures in the Original Filing. This Amendment No. 1 on Form 10-K/A does not reflect events occurring after the filing of the Original Filing or modify or update those disclosures, including any exhibits to the Original Filing affected by subsequent events. Information not affected by the changes described above is unchanged and reflects the disclosures made at the time of the Original Filing. Accordingly, this Amendment No. 1 on Form 10-K/A should be read in conjunction with our filings made with the Securities and Exchange Commission subsequent to the filing of the Original Filing, including any amendments to those filings.
Part III of the Original Filing is hereby amended in its entirety to read as follows:
Item 10. Directors, Executive Officers and Corporate Governance
The following table sets forth information as to persons who currently serve as the Company directors or executive officers, including their ages, as of March 26, 2010.
(1) Mr. Mike Sellman was appointed as a director by the board of directors on May 28, 2009.
The Company’s officers are elected by the board of directors at the first meeting after each annual meeting of the Company’s shareholders and hold office until their successors are duly elected and qualified under the Company’s bylaws.
The directors named above will serve until the next annual meeting of the Company’s stockholders. Thereafter, directors will be elected for one-year terms at the annual stockholders’ meeting. Officers will hold their positions at the pleasure of the board of directors absent any employment agreement. There is no arrangement or understanding between the directors and officers of the Company and any other person pursuant to which any director or officer was or is to be selected as a director or officer. The directors of the Company devote part-time to the business affairs and the officers devote full-time to the business.
Donald Gillispie, President, Chief Executive Officer, Chief Operating Officer and Chairman
A past nuclear utility senior executive and current Chairman, Mr. Gillispie has served as President and Chief Executive Officer of the Company since inception. Mr. Gillispie has been the owner of Grace Glens Consulting since 2002, a technical management consulting company, which advises senior utility executives on managing commercial nuclear power companies, and other non-nuclear organizations. Mr. Gillispie helped start up a technical management consulting business, INPO, in Atlanta, Georgia and a nuclear operating company, NMC, in Hudson, Wisconsin, which operated six nuclear power plants, with approximately 5,000 employees. Mr. Gillispie served as a director for Boston Edison. Mr. Gillispie has a Bachelor of Science in Electrical Engineering from Clemson University. He completed the Senior Executive Program at the Massachusetts Institute of Technology. In addition, Mr. Gillispie completed the Navy Nuclear program.
Greg Kane, Vice President and Director
A past nuclear plant manager, Mr. Kane has served as Vice President and Board member of the Company since September 2006. Mr. Kane is the President of Eagle “I” Nuclear Assistance, a consulting firm that has provided management consulting to over 25 nuclear programs. Mr. Kane has held that position since 1998. Mr. Kane was previously the General Manager at Virginia Power’s twin unit PWR North Anna Nuclear Plant, where he was responsible for safe operation and budgeting of the station in the all aspects of operations. Mr. Kane has completed the Navy Nuclear Program.
John Franz, Vice President and Director
John Franz, a past Vice President of Duane Arnold, a nuclear facility, has served on the board of the Company since February 2007. Since leaving the nuclear facility, he has worked as a consultant for 12 nuclear power plants and 2 consulting firms. Mr. Franz has 36 years of experience in the licensing, development, operation and management of nuclear power plants. Mr. Franz received his Bachelor of Science degree in Mechanical Engineering from Drexel University.
Rick J. Bucci, Chief Financial Officer
Mr. Bucci, a certified public Accountant, has served as Chief Financial Officer of the Company since September 2007. Mr. Bucci has 21 years of experience in the field of accounting and tax in various industries such as hospitality, construction, real estate development and banking. Additionally, he served as CFO of two corporations, Veterans Outreach Center and Finger Lakes Family Care, Inc. His experience includes tax planning and preparation, audit services, financial statement preparation and presentation, bank financing and various consulting engagements. Mr. Bucci currently owns and operates a Certified Public Accounting firm, Rick J. Bucci, CPA, which is licensed to practice public accounting in New York State and has over 350 clients. He attended the State University of New York at Geneseo (1984 through 1988).
Leon Eliason, Director
A past President of two nuclear utility business units, NSP and PSE&G, and former Chairman of the Company, Mr.Eliason has served on the Board of the Company since September 2006. Mr. Eliason is a professional in the utilities field, with 33 years of experience in operations, maintenance, engineering, and management of Nuclear, Fossil, Solar, and Hydro Power Plants. He served as President of the Nuclear Business Unit and Chief Nuclear Officer for Public Service Electric and Gas, Newark New Jersey, where he was responsible for all operational and support activities including fuel, technical support, business planning, and financial support for two generating stations. Mr. Eliason has a Bachelor of Science degree in Mechanical Engineering from the South Dakota School of Mines and Technology.
Kenneth A. Strahm, Sr., Director
Mr. Strahm, a past president of the nuclear industry watchdog organization INPO, has served on the Board of the Company since September 2006. Mr. Strahm was employed by the Institute of Nuclear Power Operations (INPO) in Atlanta, Georgia, where he served as the Director of the National Academy for Nuclear Training and later as President of the Institute. Mr. Strahm attended the Naval Academy where he received a BS in Marine Engineering. He also attended the Naval Post Graduate School and obtained an MBA.
Ralph Beedle, Director
Mr. Beedle, a past Senior Vice President of the Nuclear Energy Institute, has served on the Board of the Company since inception. Mr. Beedle was the Senior Vice President and Chief Nuclear Officer of the Nuclear Energy Institute, where (in addition to his operational management duties) he interacted regularly with the U. S. Nuclear Regulatory Commission and other federal agencies, as well as members of Congress. Mr. Beedle attended the US Naval Academy and obtained a BS in Marine Engineering.
Mike Sellman, Director
Mr. Sellman has served on the Board of the Company since May 28, 2009. Mr. Sellman began his career designing reactor cores for Admiral Rickover’s Nuclear Navy and then moved to commercial nuclear power. He progressed from plant manager at Prairie Island Nuclear Plant to General Manager or Site VP at ANO, River Bend and Waterford Nuclear Stations, President of Maine Yankee Power the Company, Chief Nuclear Officer of Wisconsin Electric the Company and finally President and CEO of the Nuclear Management, which operated eight nuclear stations in the mid-west. He has served on the boards of all of the nuclear industries key organizations; Institute of Nuclear Power Operations, Nuclear Energy Institute and American Nuclear Society among others. He also consults internationally and to Idaho National Laboratory.
Code of Ethics
The Company has adopted a Code of Ethics that applies to all of its directors, officers and employees. The Code of Ethics is filed as an exhibit to this Form 10-K. The Company will provide to any person without charge, upon request to the Company at its office, a copy of the Code of Ethics. Any waiver of the provisions of the Code of Ethics for executive officers and directors may be made only by the Audit Committee and, in the case of a waiver for members of the Audit Committee, by the Board of Directors. Any such waivers will be promptly disclosed to our shareholders.
Compliance with Section 16(a) of the Exchange Act
Section 16(a) of the Exchange Act requires a reporting company’s executive officers, directors and persons who own more than 10% of a registered class of the company’s equity securities (“Reporting Person”) to report ownership and changes in ownership with the SEC on Form 3, 4 and 5.
Based solely upon a review of Forms 3 and 4 and amendments thereto furnished to the Company during the fiscal year ended December 31, 2009, and Forms 5 and amendments thereto furnished to the Company with respect to the fiscal year ended December 31, 2009, the Company has determined that the following Reporting Persons have failed to comply with the Section 16(a) of the Exchange Act on a timely basis.
Donald Gillipsie, president, Chief Executive Officer, Chief Operating Officer and Chairman of the Company, did not file a Form 5 on the timely-basis, with respect to the common shares awarded to him as compensation, and shares distributed to his ex-spouse from a jointly owned account, in the fiscal year ended December 31, 2009.
Gregory E. Kane, Vice President and Director of the Company, did not file a form 5 on a timely-basis, with respect to the common shares awarded to him in the fiscal year ended December 31, 2009.
John Franz, Vice President and Director of the Company, did not file a form 5 on a timely-basis, with respect to the common shares awarded to him in the fiscal year ended December 31, 2009.
Rick J. Bucci, Vice President and Chief Financial Officer of the company, did not file a form 5 on a timely-basis, with respect to the common shares awarded to him as compensation in the fiscal year ended December 31, 2009.
Leon Eliason, Director of the Company, did not file a form 5 on a timely-basis, with respect to the common shares awarded to him as compensation in the fiscal year ended December 31, 2009.
Kenneth A. Strahm Sr., Director of the Company, did not file a form 5 on a timely-basis, with respect to the common shares awarded to him as compensation in the fiscal year ended December 31, 2009.
Ralph Beedle, Director of the Company, did not file a form 5 on a timely-basis, with respect to the common shares awarded to him as compensation in the fiscal year ended December 31, 2009.
Mike Sellman, Director of the company, did not file a form 3 when he initially became a Reporting Person of the Company.
Committees of the Board of Directors
The Company is managed under the direction of its board of directors.
The Company formed an audit committee in March 2007. Members of the Audit Committee are Ralph Beedle (Chairman), Gregory E. Kane and John Franz. The audit committee is comprised solely of directors who are independent and financially literate, as required by the Securities Exchange Act of 1934. At least one member of the committee has accounting or related financial management expertise.
Previous “Blank Check” or “Shell” Involvement
Management of the Company has not been involved in prior private “blank-check” or “shell” companies.
Conflicts of Interest – General
Certain of the officers and directors of the Company may be directors and/or principal shareholders of other companies and, therefore, could face conflicts of interest with respect to potential acquisitions. In addition, officers and directors of the Company may in the future participate in business ventures, which could be deemed to compete directly with the Company. Additional conflicts of interest and non-arms length transactions may also arise in the future in the event the Company’s officers or directors are involved in the management of any firm with which the Company transacts business. The Company’s Board of Directors has adopted a policy that the Company will not seek a merger with, or acquisition of, any entity in which management serve as officers or directors, or in which they or their family members own or hold a controlling ownership interest. Although the Board of Directors could elect to change this policy, the Board of Directors has no present intention to do so. In addition, if the Company and other companies with which the Company’s officers and directors are affiliated both desire to take advantage of a potential business opportunity, then the Board of Directors has agreed that said opportunity should be available to each such company in the order in which such companies registered or became current in the filing of annual reports under the Exchange Act subsequent to January 1, 1997.
The Company’s officers and directors may actively negotiate or otherwise consent to the purchase of a portion of their common stock as a condition to, or in connection with, a proposed merger or acquisition transaction. It is anticipated that a substantial premium over the initial cost of such shares may be paid by the purchaser in conjunction with any sale of shares by the Company’s officers and directors which is made as a condition to, or in connection with, a proposed merger or acquisition transaction. The fact that a substantial premium may be paid to the Company’s officers and directors to acquire their shares creates a potential conflict of interest for them in satisfying their fiduciary duties to the Company and its other shareholders. Even though such a sale could result in a substantial profit to them, they would be legally required to make the decision based upon the best interests of the Company and the Company’s other shareholders, rather than their own personal pecuniary benefit.
Item 11. Executive Compensation
The following table sets forth the compensation (including salary, bonus, and certain other compensation) paid to the officers during the fiscal years ended December 31, 2009 and 2008.
Summary Compensation Table
(1) During the year ended December 31, 2008, Mr. Gillispie received 7,500,000 shares of common stock valued at $0.10 per share as compensation for his services; and $120,000 of other compensation. During the year ended December 31, 2009, Mr. Gillispie received 10,000,000 shares of common stock valued at $0.05 per share as compensation for his services; and $133,000 of other compensation. With respect to amounts representing other compensation for the years ended December 31, 2008 and 2009, such amounts represent Mr. Gillispie’s cash compensation which was paid to Energy Executives, LLC, Mr. Gillispie’s consulting business, as Mr. Gillispie is paid by us as an independent contractor.
(2) During the year ended December 31, 2008, Mr. Bucci received 3,500,000 shares of common stock valued at $0.10 per share as compensation for his services. During the year ended December 31, 2009, Mr. Bucci received 2,000,000 shares of common stock valued at $0.05 per share as compensation for his services.
Option/SAR Grants in the Last Fiscal Year
The Company does not have a stock option plan as of the date of this annual report. There was no grant of stock options to the Chief Executive Officer and other named executive officers during the fiscal years ended December 31, 2009, 2008 and 2007.
Employment Agreements and Termination of Employment and Change-In-Control Arrangements
None of the Company’s officers, directors, advisors, or key employees is currently party to employment agreements with the Company. The Company has no pension, health, annuity, bonus, insurance, stock options, profit sharing or similar benefit plans; however, the Company may adopt such plans in the future. There are presently no personal benefits available for directors, officers, or employees of the Company.
Compensation Committee Interlocks and Insider Participation
The Company’s board of directors acts in its entirety as the compensation committee for the Company. Mr. Gillispie is the Chief Executive Officer and Chairman of the Company.
Compensation Committee Report
The board of directors has reviewed and discussed the compensation following with the management:
(i) the objectives of the company’s compensation programs; (ii) what the compensation program is designed to reward; (iii) each element of compensation; (iv) why the company chooses to pay each element; (v) how the company determines the amount (and, where applicable, the formula) for each element to pay; and (vi) how each compensation element and the company's decision regarding that element fit into the company's overall compensation objectives and affect decisions regarding other elements.
The Company does not pay any directors fees for meeting attendance. An Audit Committee has been established; however no compensation has been paid for this function to date.
The following table sets forth certain information concerning compensation paid to the Company’s directors during the year ended December 31, 2009:
Limitation on Liability and Indemnification
The Company is a Nevada corporation. The Nevada Revised Statutes (NRS) provides that the articles of incorporation of a Nevada corporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except that any such provision may not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its shareholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) acts specified in Section 78 (concerning unlawful distributions), or (iv) any transaction from which a director directly or indirectly derived an improper personal benefit. The Company’s articles of incorporation contain a provision eliminating the personal liability of directors to the Company or the Company shareholders for monetary damages to the fullest extent provided by the NRS.
The NRS provides that a Nevada corporation must indemnify a person who was wholly successful, on the merits or otherwise, in defense of any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal (a “Proceeding”), in which he or she was a party because the person is or was a director, against reasonable expenses incurred by him or her in connection with the Proceeding, unless such indemnity is limited by the corporation’s articles of incorporation. The Company’s articles of incorporation do not contain any such limitation.
The NRS provides that a Nevada corporation may indemnify a person made a party to a Proceeding because the person is or was a director against any obligation incurred with respect to a Proceeding to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan) or reasonable expenses incurred in the Proceeding if the person conducted himself or herself in good faith and the person reasonably believed, in the case of conduct in an official capacity with the corporation, that the person’s conduct was in the corporation’s best interests and, in all other cases, his or her conduct was at least not opposed to the corporation’s best interests and, with respect to any criminal proceedings, the person had no reasonable cause to believe that his or her conduct was unlawful. The Company’s articles of incorporation and bylaws allow for such indemnification. A corporation may not indemnify a director in connection with any Proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation or, in connection with any other Proceeding charging that the director derived an improper personal benefit, whether or not involving actions in an official capacity, in which Proceeding the director was judged liable on the basis that he or she derived an improper personal benefit. Any indemnification permitted in connection with a Proceeding by or in the right of the corporation is limited to reasonable expenses incurred in connection with such Proceeding.
The NRS, unless otherwise provided in the articles of incorporation, a Nevada corporation may indemnify an officer, employee, fiduciary, or agent of the corporation to the same extent as a director and may indemnify such a person who is not a director to a greater extent, if not inconsistent with public policy and if provided for by its bylaws, general or specific action of its board of directors or shareholders, or contract. The Company’s articles of incorporation provide for indemnification of directors, officers, employees, fiduciaries and agents of the Company to the full extent permitted by Nevada law.
The Company’s articles of incorporation also provide that the Company may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Company or who is or was serving at the request of the Company as a director, officer or agent of another enterprise against any liability asserted against him or her and incurred by him or her in any such capacity or arising out of his or her status as such, whether or not the Company would have the power to indemnify him or her against such liability.
Equity Compensation Plan Information
The Company has not established an equity compensation plan or Incentive Stock Option Plan.
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 the Company outstanding common stock by:
Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission and generally includes voting or investment power with respect to securities. Shares of common stock and options, warrants and convertible securities that are currently exercisable or convertible within 60 days of the date of this document into shares of the Company’s common stock are deemed to be outstanding and to be beneficially owned by the person holding the options, warrants or convertible securities for the purpose of computing the percentage ownership of the person, but are not treated as outstanding for the purpose of computing the percentage ownership of any other person. The information below is based on the number of shares of the Company’s common stock that the Company believes was beneficially owned by each person or entity as of March 31, 2010.
Rule 13d-3 under the Securities Exchange Act of 1934 governs the determination of beneficial ownership of securities. That rule provides that a beneficial owner of a security includes any person who directly or indirectly has or shares voting power and/or investment power with respect to such security. Rule 13d-3 also provides that a beneficial owner of a security includes any person who has the right to acquire beneficial ownership of such security within 60 days, including through the exercise of any option, warrant or conversion of a security. Any securities not outstanding which are subject to such options, warrants or conversion privileges are deemed to be outstanding for the purpose of computing the percentage of outstanding securities of the class owned by such person. Those securities are not deemed to be outstanding for the purpose of computing the percentage of the class owned by any other person. Included in this table are only those derivative securities with exercise prices that the Company believes have a reasonable likelihood of being “in the money” within the next 60 days.
Item 13. Certain Relationships and Related Transactions
Item 14. Principal Accounting Fees and Services
EFP Rotenberg, LLP (“Rotenberg”) is the Company’s principal auditing accountant firm. The Company’s Board of Directors has considered whether the provisions of audit services are compatible with maintaining Rotenberg’s independence.
The following table represents aggregate fees billed to the Company for the years ended December 31, 2009 by EFP Rotenberg, LLP and December 31, 2008 by Rotenberg, CPA’s, respectively.
All audit work was performed by the auditors’ full-time employees.
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.