The foregoing risks relating to disruption of service, interruption of operations and data loss could impact our and our subsidiaries’ ability to timely perform critical business functions, resulting in disruption or deterioration in our and our subsidiaries’ operations and business and expose us and our subsidiaries to monetary and reputational damages. In addition, potential exposures include substantially increased compliance costs and required computer system upgrades and security related investments. The breach of confidential information also could give rise to legal liability and regulatory action under data protection and privacy laws and regulations.
Risks Relating to Standard Outdoor’s Business
The following section relates to the business of Standard Outdoor LLC and its subsidiaries, the Company’s wholly-owned direct and indirect subsidiaries operating in the outdoor billboard industry.
The out-of-home advertising industry is highly competitive.
The outdoor billboard industry is highly competitive. There is a concentration in the ownership of billboards in the geographic markets in which we compete and significantly larger companies such as Clear Channel Outdoor Communications, OUTFRONT Media Inc. and Lamar Advertising Company, dominate the out-of-home advertising business.
Our outdoor billboard business is subject to various regulations.
Our billboard businesses are regulated by governmental authorities in the jurisdictions in which we operate. These regulations could limit our growth by putting constraints on the number, location and timing of billboards we wish to erect. New regulations and changes to existing regulations may also curtail our ability to expand our billboard business and adversely affect us by reducing our revenues or increasing our operating expenses. For example, settlements between major tobacco companies and all U.S. states and certain U.S. territories include a ban on the outdoor advertising of tobacco products. Alcohol products and other products may be future targets of advertising bans, and legislation, litigation or out-of-court settlements may result in the implementation of additional advertising restrictions that impact our business. Any significant reduction in alcohol-related advertising or the advertising of other products due to content-related restrictions could negatively impact our revenues generated from such businesses and cause an increase in the existing inventory of available outdoor billboard space throughout the industry.
Our operating results are subject to seasonal variations and other factors.
Our business experiences seasonality due to, among other things, seasonal advertising patterns and seasonal influences on advertising markets. Typically, our revenues and profits are highest in the fourth quarter, during the holiday shopping season, and lowest in the first quarter, as advertisers cut back on spending following the holiday shopping season. The effects of such seasonality make it difficult to estimate future operating results based on the previous results of any specific quarter, which may make it difficult to plan capital expenditures and expansion, could affect operating results and could have an adverse effect on our business, financial condition and results of operations.
If our contingency plans relating to hurricanes and other natural disasters fail, the resulting losses could hurt our business.
The Company has determined that it is uneconomical to insure against losses resulting from hurricanes and other natural disasters. Although the Company has developed contingency plans designed to mitigate the threat posed by hurricanes and other forms of inclement weather to its real estate portfolio (e.g., removing advertising faces at the onset of a storm, when possible, which better permits the structures to withstand high winds during the storm), these plans could fail and significant losses could result.
Our business is sensitive to a decline in advertising expenditures, general economic conditions and other external events beyond our control.
We derive our revenues from providing advertising space to customers on out-of-home advertising structures. A decline in the economic prospects of advertisers, the economy in general or the economy of any individual geographic market or industry, particularly a market or industry in which we conduct substantial business could alter current or prospective advertisers’ spending priorities. Disasters, acts of terrorism, political uncertainty, extraordinary weather events, hostilities and power outages could interrupt our ability to display advertising on our advertising structures and lead to a reduction in economic certainty and advertising expenditures. Any reduction in advertising expenditures could harm our business, financial condition or results of operations. Additionally, our financial performance could be adversely affected by, among other things:
| · | unfavorable fluctuations in operating costs, which we may be unwilling or unable to pass through to our customers; |
| · | our inability to successfully adopt or our being late in adopting technological changes and innovations that offer more attractive advertising alternatives than what we offer, which could result in a loss of advertising customers or lower advertising rates, which could have a material adverse effect on our operating results and financial performance; |
| · | unfavorable shifts in population and other demographics, which may cause us to lose advertising customers as people migrate to markets where we have a smaller presence, or which may cause advertisers to be willing to pay less in advertising fees if the general population shifts into a less desirable age or geographical demographic from an advertising perspective; |
| · | adverse political effects and acts or threats of terrorism or military conflicts; and |
| · | unfavorable changes in labor conditions, which may impair our ability to operate or require us to spend more to retain and attract key employees. |
Risks Relating to Interboro’s Line of Business
For purposes of this section, the insurance business relates to the business of Maidstone Insurance Company, the trade name of Interboro Holdings, Inc., an indirect wholly-owned subsidiary of the Company.
The insurance industry is highly competitive and very fragmented.
Our insurance business operates in an environment that is highly competitive and very fragmented. We compete with other insurance providers, including but not limited to GEICO, State Farm, Progressive, Liberty Mutual and Travelers, as well as numerous specialist, regional and local firms in almost every area of our business. Further, new competitors may regularly enter the market. Any additional industries or markets that we may enter through future acquisitions will also likely be occupied by established competitors. Many of our competitors have substantially greater financial, marketing, product development and human resources than we. Accordingly, even if there is a large market for our products and services in the industries in which we compete, there can be no assurance that our products and services will be purchased by consumers at a rate sufficient for us to achieve our growth objectives.
Our management recognizes that we will, therefore, be forced to compete primarily on the basis of price, location, performance, service, and other factors. Our management believes that our ability to achieve sustained profitability will depend primarily on our ability to consummate acquisitions of assets and businesses in competitive markets, skillfully allocate capital, and establish competitive advantages in each of our businesses. This approach requires that our management perform at a high level and is fraught with risks, many of which are beyond our control or ability to foresee.
The insurance industry is subject to significant regulations.
Governmental regulations could adversely affect our business, financial condition, results of operations and prospects. Our insurance business is subject to maintaining compliance within the highly regulated insurance industry as we continue our pursuit of opportunities in that market, including the maintenance of certain levels of operating capital and reserves. Generally, the extensive regulations are designed to benefit or protect policyholders, rather than our investors, or to reduce systemic financial risk. Failure to comply with these regulations could lead to disciplinary action, the imposition of penalties and the revocation of our authorization to operate in the insurance industry. Changes to the regulatory environment in the insurance industry may cause us to adjust our views or practices regarding regulatory risk management, and necessitate changes to our operations that may limit our growth or have an adverse impact on our business.
In addition, certain of the other new markets and industries that we may choose to enter may be regulated by a variety of federal, state and local agencies. We may not be successful in obtaining authority to issue insurance in all states.
We are subject to extensive insurance regulation, which may adversely affect our ability to achieve our business objectives. In addition, if we fail to comply with these regulations, we may be subject to penalties, including fines and suspensions, which may adversely affect our financial condition and results of operations.
Most insurance regulations are designed to protect the interests of insurance policyholders, as opposed to the interests of investors or stockholders. These regulations generally are administered by a department of insurance in each state and relate to, among other things, authorizations to write excess and surplus lines of business, capital and surplus requirements, investment and underwriting limitations, affiliate transactions, dividend limitations, changes in control, solvency and a variety of other financial and non-financial aspects of our business. Significant changes in these laws and regulations could further limit our discretion or make it more expensive to conduct our business. State insurance regulators also conduct periodic examinations of the affairs of insurance companies and require the filing of annual and other reports relating to financial condition, holding company issues and other matters. These regulatory requirements may impose timing and expense constraints that could adversely affect our ability to achieve some or all of our business objectives.
In addition, state insurance regulators have broad discretion to deny or revoke licenses for various reasons, including the violation of regulations. In some instances, where there is uncertainty as to applicability, we follow practices based on our interpretations of regulations or practices that we believe generally to be followed by the industry. These practices may turn out to be different from the interpretations of regulatory authorities. If we do not have the requisite licenses and approvals or do not comply with applicable regulatory requirements, state insurance regulators could preclude or temporarily suspend us from carrying on some or all of our activities or could otherwise penalize us. This could adversely affect our ability to operate our business. Further, changes in the level of regulation of the insurance industry or changes in laws or regulations themselves or interpretations by regulatory authorities could interfere with our operations and require us to bear additional costs of compliance, which could adversely affect our ability to operate our business.
The National Association of Insurance Commissioners, or NAIC, has adopted a system to test the adequacy of capital of insurance companies, known as “risk-based capital.” The Risk-Based Capital (“RBC”) Formula establishes the minimum amount of capital necessary for a company to support its overall business operations. It identifies property and casualty insurers that may be inadequately capitalized by looking at three major areas: 1) Asset Risk; 2) Underwriting Risk; and 3) Other Risk. Insurers falling below a calculated threshold may be subject to varying degrees of regulatory action, including supervision, rehabilitation or liquidation. Failure to maintain Maidstone's risk-based capital at the required levels could adversely affect Maidstone's ability to maintain regulatory authority to conduct its business.
As of December 31, 2018, the capital and surplus of Maidstone did not exceed the RBC requirements; its RBC ratio at that date was between 150% and 100%, which requires it to submit a corrective action plan. Maidstone is in the process of developing a plan to submit to the NAIC and the NAIC will perform an examination or take regulatory action if deemed necessary. If the amount of capital falls below the RBC minimum requirement, Maidstone may face restrictions with respect to soliciting new business and/or keeping existing business. Similar regulations will apply in states in which Maidstone may operate.
We may be unable to obtain reinsurance coverage at reasonable prices or on terms that adequately protect us.
We use reinsurance to help manage our exposure to insurance risks. Reinsurance is a practice whereby one insurer, called the reinsurer, agrees to indemnify another insurer, called the ceding insurer, for all or part of the potential liability arising from one or more insurance policies issued by the ceding insurer. The availability and cost of reinsurance are subject to prevailing market conditions, both in terms of price and available capacity, which can affect our business volume and profitability. In addition, reinsurance programs are generally subject to renewal on an annual basis. We may not be able to obtain reinsurance on acceptable terms or from entities with satisfactory creditworthiness. If we are unable to obtain new reinsurance facilities or to renew expiring facilities, our net exposures would increase. In such event, if we are unwilling to bear an increase in our net exposure, we would have to reduce the level of our underwriting commitments, which would reduce our revenues.
Many reinsurance companies have begun to exclude certain coverages from, or alter terms in, the reinsurance contracts. For example, many reinsurance policies now exclude coverage of terrorism. As a result, we, like other direct insurance companies, write insurance policies which to some extent do not have the benefit of reinsurance protection. These gaps in reinsurance protection expose us to greater risk and greater potential losses.
We may face difficulties in expanding our insurance business.
As we seek to expand our insurance business operations, our limited size may create near-term constraints on our ability to quickly obtain approvals to operate in all states while simultaneously managing our day-to-day operations. We believe expanding our operations may create additional burdens on our personnel as we manage potentially significantly larger operations. As a result, we anticipate we will need to hire additional personnel to assist the current management team in our expanded insurance operations, and we may not be successful in identifying and hiring qualified personnel on a timely basis, if at all.
Our employees may take excessive risks, which could negatively affect our financial condition and business.
As a business which anticipates it will derive a significant portion of its business from the sale of insurance products, we are in the business of binding certain risks. The employees who conduct our business, including executive officers and other members of management, underwriters, product managers and other employees, do so in part by making decisions and choices that involve exposing us to risk. These include decisions such as setting underwriting guidelines and standards, product design and pricing, determining which business opportunities to pursue, setting of claims reserves and making claims payments, selection of reinsurers and structure of reinsurance treaties, and other decisions. We endeavor, in the design and implementation of our compensation programs and practices, to avoid giving our employees incentives to take excessive risks. Employees may, however, take such risks regardless of the structure of our compensation programs and practices. Similarly, although we employ controls and procedures designed to monitor employees’ business decisions and prevent them from taking excessive risks, these controls and procedures may not be effective. If our employees take excessive risks, the impact of those risks could have a material adverse effect on our financial condition and business operations.
If actual insurance claims exceed our claims and claim adjustment expense reserves, or if changes in the estimated level of claims and claim adjustment expense reserves are necessary, our financial results could be materially and adversely affected.
As we grow our insurance operations, we will be establishing claims and claims adjustment expense reserves. These reserves will not represent an exact calculation of liability, but instead will represent management estimates of what the ultimate settlement and administration of claims will cost, generally utilizing actuarial expertise and projection techniques, at a given accounting date.
The process of estimating claims and claim adjustment expense reserves involves a high degree of judgment and is subject to a number of variables. These variables can be affected by both internal and external events, such as: changes in claims handling procedures; adverse changes in loss cost trends, including inflationary pressures; economic conditions including general inflation; legal trends and legislative changes; and varying judgments and viewpoints of the individuals involved in the estimation process, among others. The impact of many of these items on ultimate costs for claims and claim adjustment expenses will be difficult to estimate. We also expect that claims and claim adjustment expense reserve estimation difficulties will also differ significantly by product line due to differences in claim complexity, the volume of claims, the potential severity of individual claims, the determination of occurrence date for a claim and reporting lags (the time between the occurrence of the policyholder event and when it is actually reported to the insurer).
The estimation of claims and claim adjustment expense reserves may also be more difficult during times of adverse or uncertain economic conditions due to unexpected changes in behavior of claimants and policyholders, including an increase in fraudulent reporting of exposures and/or losses, reduced maintenance of insured properties, increased frequency of small claims or delays in the reporting of claims.
We will attempt to consider all significant facts and circumstances known at the time claims and claim adjustment expense reserves are established or reviewed. Due to the recent acquisition of our insurance subsidiary and the inherent uncertainty underlying claims and claim adjustment expense reserve estimates, the final resolution of the estimated liability for claims and claim adjustment expenses will likely be higher or lower than the related claims and claim adjustment expense reserves at the reporting date. Therefore, actual paid losses in the future may yield a materially different amount than will be currently reserved.
Because of the uncertainties set forth above, additional liabilities resulting from an accumulation of insured events may exceed the current related reserves. In addition, our estimate of claims and claim adjustment expenses may change. These additional liabilities or increases in estimates, or a range of either, cannot now be reasonably estimated and could materially and adversely affect our results of operations and/or our financial position.
Our efforts to develop new insurance products or expand in targeted markets may not be successful and may create enhanced risks.
A number of our planned business initiatives in the insurance markets we intend to serve will involve developing new products or expanding existing products in targeted markets. This includes the following efforts, from time to time, to protect or grow market share:
| · | We may develop products that insure risks we have not previously insured, contain new coverage or coverage terms or contain different commission terms. |
| · | We may refine our underwriting processes. |
| · | We may seek to expand distribution channels. |
| · | We may focus on geographic markets within or outside of the United States where we have had relatively little or no market share. |
We may not be successful in introducing new products or expanding in targeted markets and, even if we are successful, these efforts may create enhanced risks. Among other risks:
| · | Demand for new products or in new markets may not meet our expectations. |
| · | To the extent we are able to market new products or expand in new markets, our risk exposures may change, and the data and models we use to manage such exposures may not be as sophisticated or effective as those we use in existing markets or with existing products. This, in turn, could lead to losses in excess of our expectations. |
| · | Models underlying underwriting and pricing decisions may not be effective. |
| · | Efforts to develop new products or markets have the potential to create or increase distribution channel conflict. |
| · | To develop new products or markets, we may need to make substantial capital and operating expenditures, which may also negatively impact results in the near term. |
| · | We may not get adequate support from the reinsurers. |
If our efforts to develop new products or expand in targeted markets are not successful, our results of operations could be materially and adversely affected.
Risks Relating to Turning Point’s Line of Business
Sales of tobacco products are generally expected to continue to decline.
As a result of restrictions on advertising and promotions, increases in regulation and excise taxes, health concerns, a decline in the social acceptability of tobacco and tobacco-related products, increased pressure from anti-tobacco groups, and other factors, the overall U.S. market for tobacco products has generally been declining in terms of volume of sales and is expected to continue to decline. The general climate of declining sales of tobacco products is principally driven by the long-standing declines in cigarettes. OTP, on the other hand, as measured by MSAi, have been generating modest volume gains. For instance, while loose leaf chewing tobacco products have declined for over a decade, MST, a much larger Smokeless segment, has been growing in the low single digits over the same period. Additionally, cigarillo cigars and MYO cigar wraps have each demonstrated MSAi volume gains in recent years. Turning Point’s tobacco products comprised approximately 61% of its total 2018 net sales and, while some of Turning Point’s sales volume declines have been offset by higher prices or by increased sales in other product categories, there can be no assurance that these price increases or increased sales can be sustained, especially in an environment of increased regulation and taxation and changes in consumer spending habits.
Turning Point depends on a small number of key third-party suppliers and producers for its products.
Turning Point’s operations are largely dependent on a small number of key suppliers and producers to supply or manufacture its products pursuant to long-term contracts. In 2018, Turning Point’s three most important suppliers and producers were: (i) Swedish Match, which produces all of its loose leaf chewing tobacco in the U.S., (ii) Bolloré, which provides Turning Point with exclusive access to the Zig-Zag® cigarette paper and related accessories in the U.S. and Canada, and (iii) Durfort, from which Turning Point sources its MYO cigar wraps.
All of Turning Point’s loose leaf tobacco products are manufactured for Turning Point by Swedish Match pursuant to a ten-year renewable agreement, which Turning Point entered into in 2008. The agreement will automatically be renewed for five successive ten-year terms unless either party provides at least 180 days’ notice prior to a renewal term of its intent to terminate the agreement or unless otherwise terminated in accordance with the provisions of the agreement. If a notice of non-renewal is delivered, the contract will expire two years after the date on which the agreement would have otherwise been renewed. Under this agreement, Turning Point retains the rights to all marketing, distribution and trademarks over the loose leaf brands that Turning Point owns or licenses. The agreement renewed for an additional ten-year term in 2018. Turning Point shares responsibilities with Swedish Match related to process control, manufacturing activities, quality control, and inventory management with respect to its loose leaf products. Turning Point relies on the performance by Swedish Match of its obligations under the agreement for the production of its loose leaf tobacco products. Any significant disruption in Swedish Match’s manufacturing capabilities or Turning Point’s relationship with Swedish Match, a deterioration in Swedish Match’s financial condition, or an industry-wide change in business practices with respect to loose leaf tobacco products could have a material adverse effect on Turning Point’s business, results of operations, and financial condition.
All of Turning Point’s Zig-Zag® premium cigarette papers, cigarette tubes, and injectors are sourced from Bolloré, pursuant to a renewable 20-year exclusive agreement. This agreement was most recently renewed in 2012. In addition, under the terms of the agreement with Bolloré, Turning Point renegotiates pricing terms every five years. Further, Bolloré sources its needs for certain of Turning Point’s orders from an affiliate of one of its competitors.
Turning Point sources its MYO cigar wraps through, the patent holder, Durfort pursuant to an agreement entered into in October 2008. The agreement extends until expiration of the patents or cancellation of the agreement by either party. Turning Point relies on Durfort to produce and package its MYO cigar wraps to Turning Point’s specifications. Any significant disruption in Turning Point’s relationship with Durfort, a deterioration in Durfort’s financial condition, an industry-wide change in business practices relating to MYO cigar wraps, or its ability to source the MYO cigar wraps from them could have a material adverse effect on Turning Point’s business, results of operations, and financial condition.
Pursuant to agreements with certain suppliers, Turning Point has agreed to store tobacco inventory purchased on Turning Point’s behalf and generally maintain a 12- to 24-month supply of its various tobacco products at their facilities. Turning Point cannot guarantee its supply of these products will be adequate to meet the demands of its customers. Further, a major fire, violent weather conditions, or other disasters that affect Turning Point or any of its key suppliers or producers, including Bolloré, Swedish Match or Durfort, as well as those of its other suppliers and vendors, could have a material adverse effect on its operations. Although Turning Point has insurance coverage for some of these events, a prolonged interruption in its operations, as well as those of Turning Point’s producers, suppliers, or vendors, could have a material adverse effect on Turning Point’s business, results of operations, and financial condition. In addition, Turning Point does not know whether it will be able to renew any or all of its agreements on a timely basis, on terms satisfactory to Turning Point, or at all.
Any disruptions in Turning Point’s relationships with Bolloré, Swedish Match or Durfort, a failure to renew any of its agreements, an inability or unwillingness by any supplier to produce sufficient quantities of Turning Point’s products in a timely manner or finding a new supplier would have a significant impact on Turning Point’s ability to continue distributing the same volume and quality of products and maintain its market share, even during a temporary disruption, which could have a material adverse effect on Turning Point’s business, results of operations and financial condition.
Turning Point may be unable to identify or contract with new suppliers or producers in the event of a disruption to its supply.
In order to continue selling Turning Point’s products in the event of a disruption to its supply, Turning Point would have to identify new suppliers or producers that would be required to satisfy significant regulatory requirements. Only a limited number of suppliers or producers may have the ability to produce its products at the volumes Turning Point needs, and it could be costly or time-consuming to locate and approve such alternative sources. Moreover, it may be difficult or costly to find suppliers to produce small volumes of its new products in the event Turning Point is looking only to supplement current supply as suppliers may impose minimum order requirements. In addition, Turning Point may be unable to negotiate pricing or other terms with its existing or new suppliers as favorable as those it currently enjoys. Even if Turning Point was able to successfully identify new suppliers and contract with them on favorable terms, these new suppliers would also be subject to stringent regulatory approval procedures that could result in prolonged disruptions to Turning Point’s sourcing and distribution processes.
Furthermore, there is no guarantee that a new third-party supplier could accurately replicate the production process and taste profile of its existing products. Turning Point cannot guarantee that a failure to adequately replace its existing suppliers would not have a material adverse effect on Turning Point’s business, results of operations, and financial condition.
Turning Point licenses to use certain brands and trademarks may be terminated or not renewed.
Turning Point is reliant upon brand recognition in the OTP markets in which it competes as the OTP industry is characterized by a high degree of brand loyalty and a reluctance to switch to new or unrecognizable brands on the part of consumers. Some of the brands and trademarks under which Turning Point’s products are sold are licensed to Turning Point for a fixed period of time in respect of specified markets, such as its distribution and license agreement with Bolloré for use of the Zig-Zag® name and associated trademarks in connection with certain of Turning Point’s cigarette papers and related products.
Turning Point has two licensing agreements with Bolloré, the first of which governs licensing and the use of the Zig-Zag® name with respect to cigarette papers, cigarette tubes, and cigarette injector machines, and the second of which governs licensing and the use of the Zig-Zag® name with respect to e-cigarettes, vaporizers, and e-liquids. In 2018, Turning Point generated $112 million in net sales of Zig-Zag® products, of which approximately $56 million was generated from products sold through Turning Point’s license agreement with Bolloré. In the event the licensing agreements with Bolloré are not renewed, the terms of the agreements bind Turning Point under a five-year non-compete clause, under which Turning Point cannot engage in direct or indirect manufacturing, selling, distributing, marketing, or otherwise promoting of cigarette papers of a competitor without Bolloré’s consent, except in limited instances. Turning Point does not know whether it will renew these agreements on a timely basis, on terms satisfactory to Turning Point, or at all. As a result of these restrictions, if Turning Point’s agreements with Bolloré are terminated, Turning Point may not be able to access the markets with recognizable brands that would be positioned to compete in these segments.
In the event that the licenses to use the brands and trademarks in Turning Point’s portfolio are terminated or are not renewed after the end of the term, there is no guarantee Turning Point will be able to find a suitable replacement, or if a replacement is found, that it will be on favorable terms. Any loss in Turning Point’s brand-name appeal to its existing customers as a result of the lapse or termination of Turning Point’s licenses could have a material adverse effect on its business, results of operations, and financial condition.
Turning Point may not be successful in maintaining the consumer brand recognition and loyalty of its products.
Turning Point competes in a market that relies on innovation and the ability to react to evolving consumer preferences. The tobacco industry in general, and the OTP industry in particular, are subject to changing consumer trends, demands, and preferences. Therefore, products once favored may over time become disfavored by consumers or no longer perceived as the best option. Consumers in the OTP market have demonstrated a high degree of brand loyalty, but producers must continue to adapt their products in order to maintain their status among these customers as the market evolves. The Zig-Zag® brand has strong brand recognition among smokers, and Turning Point continued success depends in part on its ability to continue to differentiate the brand names that Turning Point owns or licenses and maintains similarly high levels of recognition with target consumers. Trends within the OTP industry change often. Turning Point’s failure to anticipate, identify, or react to changes in these trends could, among other things, lead to reduced demand for its products. Factors that may affect consumer perception of its products include health trends and attention to health concerns associated with tobacco, price-sensitivity in the presence of competitors’ products or substitute products, and trends in favor of new NewGen products that are currently being researched and produced by participants in Turning Point’s industry. For example, in recent years, Turning Point has witnessed a shift in consumer purchases from chewing tobacco to moist snuff due to its increased affordability. Along with Turning Point’s biggest competitors in the chewing tobacco market, which also produce moist snuff, Turning Point has been able to shift priorities and adapt to this change. A failure to react to similar trends in the future could enable its competitors to grow or establish their brands’ market shares in these categories before Turning Point has a chance to respond.
Consumer perceptions of the overall health of tobacco-based products is likely to continue to shift, and Turning Point’s success depends, in part, on its ability to anticipate these shifting tastes and the rapidity with which the markets in which Turning Point competes will evolve in response to these changes on a timely and affordable basis. If Turning Point is unable to respond effectively and efficiently to changing consumer preferences, the demand for its products may decline, which could have a material adverse effect on Turning Point’s business, results of operations, and financial condition.
Regulations may be enacted in the future, particularly in light of increasing restrictions on the form and content of marketing of tobacco products, that would make it more difficult to appeal to Turning Point’s consumers or to leverage existing recognition of the brands that Turning Point owns or licenses. Furthermore, even if Turning Point is able to continue to distinguish its products, there can be no assurance that the sales, marketing, and distribution efforts of its competitors will not be successful in persuading consumers of Turning Point’s products to switch to their products. Many of Turning Point’s competitors have greater access to resources than Turning Point does, which better positions them to conduct market research in relation to branding strategies or costly marketing campaigns. Any loss of consumer brand loyalty to its products or reduction of its ability to effectively brand Turning Point’s products in a recognizable way will have a material effect on Turning Point’s ability to continue to sell its products and maintain Turning Point’s market share, which could have a material adverse effect on Turning Point’s business, results of operations, and financial condition.
Turning Point is subject to substantial and increasing regulation.
The tobacco industry has been under public scrutiny for over 50 years. Industry critics include special interest groups, the U.S. Surgeon General, and many legislators and regulators at the state and federal levels. A wide variety of federal, state, and local laws limit the advertising, sale, and use of tobacco, and these laws have proliferated in recent years. Together with changing public attitudes towards tobacco consumption, the constant expansion of regulations has been a major cause of the overall decline in the consumption of tobacco products since the early 1970s. These regulations relate to, among other things, the importation of tobacco products and shipping throughout the U.S. market, increases in the minimum age to purchase tobacco products, imposition of taxes, sampling and advertising bans or restrictions, flavor bans or restrictions, ingredient and constituent disclosure requirements, and media campaigns and restrictions on where smokers can smoke. Additional restrictions may be legislatively imposed or agreed to in the future. These limitations may make it difficult for Turning Point to maintain the value of any brand.
Moreover, the current trend is toward increasing regulation of the tobacco industry, which is likely to differ between the various U.S. states and Canadian provinces in which Turning Point currently conduct the majority of its business. Extensive and inconsistent regulation by multiple states and at different governmental levels could prove to be particularly disruptive to Turning Point’s business as Turning Point may be unable to accommodate such regulations in a cost-effective manner that allows Turning Point to continue to compete in an economically viable way. Regulations are often introduced without the tobacco industry’s input and have been a significant reason behind reduced industry sales volumes and increased illicit trade.
In 1986, federal legislation was enacted regulating smokeless tobacco products (including dry and moist snuff and chewing tobacco) by, among other things, requiring health warnings on smokeless tobacco packages and prohibiting the advertising of smokeless tobacco products on media subject to the jurisdiction of the Federal Communications Commission (“FCC”). Since 1986, other proposals have been made at the federal, state, and local levels for additional regulation of tobacco products. It is likely that additional proposals will be made in the coming years. For example, the Prevent All Cigarette Trafficking Act prohibits the use of the U.S. Postal Service to mail most tobacco products and amends the Jenkins Act, which established cigarette sales reporting requirements for state excise tax collection, to require individuals and businesses that make interstate sales of cigarettes or smokeless tobacco comply with state tax laws. See “—There is uncertainty related to the federal regulation of NewGen products, cigars and pipe tobacco products” for further details. Additional federal or state regulation relating to the manufacture, sale, distribution, advertising, labeling, mandatory ingredients disclosure and nicotine yield information disclosure of tobacco products could reduce sales, increase costs, and have a material adverse effect on Turning Point’s business, results of operations, and financial condition.
On June 22, 2009, the Family Smoking Prevention and Tobacco Control Act (the “Tobacco Control Act”) authorized the FDA for regulatory authority over tobacco products. The Act also amended the Federal Cigarette Labeling and Advertising Act, which governs how cigarettes can be advertised and marketed, as well as the Comprehensive Smokeless Tobacco Health Education Act (“CSTHEA”), which governs how smokeless tobacco can be advertised and marketed. In addition to the FDA and FCC, Turning Point is subject to regulation by numerous other federal agencies, including the Federal Trade Commission (“FTC”), the Department of Justice (“DOJ”), the Alcohol and Tobacco Tax and Trade Bureau (“TTB”), the U.S. Environmental Protection Agency (“EPA”), the U.S. Department of Agriculture (“USDA”), the Consumer Product Safety Commission (“CPSC”), the U.S. Customs and Border Protection (“CBP”) and the U.S. Center for Disease Control and Prevention’s (“CDC”) Office on Smoking and Health. There have also been adverse legislative and political decisions and other unfavorable developments concerning cigarette smoking and the tobacco industry, which have received widespread public attention. FDA has, and other governmental entities have, expressed concerns about the use of flavors in tobacco products and an interest in significant regulation of such use, up to and including de facto bans in certain products. There can be no assurance as to the ultimate content, timing or effect of any regulation of tobacco products by governmental bodies, nor can there be any assurance that potential corresponding declines in demand resulting from negative media attention would not have a material adverse effect on Turning Point's business, results of operations and financial condition.
Some of Turning Point’s products are subject to developing and unpredictable regulation.
Some of Turning Point’s NewGen products marketed through its Nu-X subsidiary and similar third-party products sold through Turning Point’s NewGen distribution vehicles may be subject to uncertain federal, state and local regulations concerning hemp, CBD and other non-tobacco consumable products. Enforcement initiatives by those authorities are therefore unpredictable and impossible to anticipate. Turning Point anticipates that all levels of government are likely to seek in some way to regulate these products, but the type, timing, and impact of such regulations remains uncertain. Accordingly, Turning Point cannot give any assurance that such actions would not have a material adverse effect on this emerging business.
Turning Point products are regulated by the FDA, which has broad regulatory powers.
Substantially all of Turning Point’s 2018 U.S. net sales are derived from the sale of products that are currently regulated by the FDA. The Tobacco Control Act grants the FDA broad regulatory authority over the design, manufacture, sale, marketing and packaging of tobacco products. Among the regulatory powers conferred to the FDA under the Tobacco Control Act is the authority to impose tobacco product standards that are appropriate for the protection of the public health, require manufacturers to obtain FDA review and authorization for the marketing of certain new or modified tobacco products and impose various additional restrictions. Such restrictions may include requiring reduction or elimination of the use of particular constituents or components, requiring product testing, or addressing other aspects of tobacco product construction, constituents, properties or labeling.
Specifically, the Tobacco Control Act (i) increases the number of health warnings required on cigarette and smokeless tobacco products, increases the size of warnings on packaging and in advertising, requires the FDA to develop graphic warnings for cigarette packages, and grants the FDA authority to require new warnings, (ii) imposes restrictions on the sale and distribution of tobacco products, including significant restrictions on tobacco product advertising and promotion as well as the use of brand and trade names, (iii) bans the use of “light,” “mild,” “low” or similar descriptors on tobacco products, (iv) bans the use of “characterizing flavors” in cigarettes other than tobacco or menthol, (v) requires manufacturers to report ingredients and harmful constituents and requires the FDA to disclose certain constituent information to the public, (vi) authorizes the FDA to require the reduction of nicotine and the potential reduction or elimination of other constituents or additives, including menthol, (vii) establishes potentially expensive and time-consuming pre-market and “substantial equivalence” review pathways for tobacco products that are considered new, (viii) gives FDA broad authority to deny product applications thereby preventing the sale or distribution of the product subject to the application (and requiring such product to be removed from the market, if applicable), and (ix) requires tobacco product manufacturers (and certain other entities) to register with the FDA.
The FDA charges user fees based on the USDA unit calculations pro-rated to the annualized FDA congressionally allocated budget. These fees only apply to certain products currently regulated by the FDA, which include Turning Point’s smokeless and smoking products (other than cigarette paper products), but Turning Point may in the future be required to pay such fees on more of its products, and Turning Point cannot accurately predict which additional products may be subject to such fees or the magnitude of such fees, which could become significant.
Although the FDA is prohibited from issuing regulations banning all cigarettes, all smokeless tobacco products, all little cigars, all cigars other than little cigars, all pipe tobacco, or all roll-your-own tobacco, or requiring the reduction of nicotine yields of a tobacco product to zero, it is likely that its regulations in accordance with the Tobacco Control Act could result in a decrease in cigarette and smokeless tobacco sales in the U.S. Turning Point believes that such regulation could adversely affect its ability to compete against Turning Point’s larger competitors, who may be able to more quickly and cost-effectively comply with these new rules and regulations. Turning Point’s ability to gain efficient market clearance for new tobacco products, or even to keep existing products on the market, could also be affected by FDA rules and regulations. Some of Turning Point’s currently marketed products that are subject to FDA regulation will require marketing authorizations from the FDA for Turning Point to continue marketing them (e.g., pre-market or substantial equivalence marketing authorizations, as applicable to the product), which Turning Point cannot guarantee it will be able to obtain. In addition, failure to comply with new or existing tobacco laws under which the FDA imposes regulatory requirements could result in significant financial penalties and government investigations of Turning Point. To the extent Turning Point is unable to respond to, or comply with, new FDA regulations it could have a material adverse effect on Turning Point’s business, results of operations and financial condition.
Many of Turning Point’s products contain nicotine, which is considered to be a highly addictive substance.
Many of Turning Point’s products contain nicotine, a chemical that is considered to be highly addictive. The Tobacco Control Act empowers the FDA to regulate the amount of nicotine found in tobacco products, but not to require the reduction of nicotine yields of a tobacco product to zero. Any FDA regulation, whether of nicotine levels or other product attributes, may require Turning Point to reformulate, recall and/or discontinue certain of the products Turning Point may sell from time to time, which may have a material adverse effect on its ability to market its products and have a material adverse effect on Turning Point’s business, results of operations and financial condition.
There is uncertainty related to the federal regulation of NewGen products, cigars and pipe tobacco products. Increased regulatory compliance burdens could have a material adverse impact on Turning Point’s NewGen business development efforts.
Since their introduction, there has been significant uncertainty regarding whether, how and when tobacco regulations would apply to NewGen products, such as electronic cigarettes or other vaporizer products. Based on a decision in December 2010 by the U.S. Court of Appeals for the D.C. Circuit (the “Sottera decision”), the FDA is permitted to regulate electronic cigarettes containing tobacco-derived nicotine as “tobacco products” under the Tobacco Control Act.
Effective August 8, 2016, FDA’s regulatory authority under the Tobacco Control Act was extended to all remaining tobacco products, including: (i) certain NewGen products (such as electronic cigarettes, vaporizers and e-liquids) and their components or parts (such as tanks, coils and batteries); (ii) cigars and their components or parts (such as cigar tobacco); (iii) pipe tobacco; (iv) hookah products; or (v) any other tobacco product “newly deemed” by FDA. These deeming regulations apply to all products made or derived from tobacco intended for human consumption, but excluding accessories of tobacco products (such as lighters).
The deeming regulations require Turning Point to (i) register with the FDA and report product and ingredient listings; (ii) market newly deemed products only after FDA review and approval; (iii) only make direct and implied claims of reduced risk if the FDA approves after finding that scientific evidence supports the claim and that marketing the product will benefit public health as a whole; (iv) refrain from distributing free samples; (v) implement minimum age and identification restrictions to prevent sales to individuals under age 18; (vi) develop an approved warning plan and include prescribed health warnings on packaging and advertisements; and (vii) refrain from selling the products in vending machines, unless the machine is located in a facility that never admits youth. Newly-deemed tobacco products are also subject to the other requirements of the Tobacco Control Act, such as that they not be adulterated or misbranded. The FDA could in the future promulgate good manufacturing practice regulations for these and Turning Point’s other products, which could have a material adverse impact on its ability and the cost to manufacture its products.
Marketing authorizations will be necessary in order for Turning Point to continue its distribution of NewGen and cigar and pipe tobacco products. Compliance dates vary depending upon type of application submitted, but all newly-deemed products will require an application no later than August 8, 2021, for “combustible” products (e.g. cigar and pipe) and August 8, 2022, for “non-combustible” products (e.g. vapor products) with the exception of Turning Point’s “grandfathered” products (products in commerce as of February 15, 2007) which are already authorized, unless FDA grants extensions to these compliance periods. Turning Point intends to timely file for the appropriate authorizations to allow Turning Point to sell its products in the U.S. Turning Point has no assurances that the outcome of such processes will result in its products receiving marketing authorizations from the FDA. Turning Point also has certain previously-regulated tobacco products which FDA removed from review but remain subject to “provisional” substantial equivalence filings made on March 22, 2011; however, FDA has the discretion to reinitiate review of these products. If the FDA establishes regulatory processes that Tuning Point is unable or unwilling to comply with, Turning Point’s business, results of operations, financial condition and prospects could be adversely affected.
The anticipated costs of complying with future FDA regulations will be dependent on the rules issued by the FDA, the timing and clarity of any new rules or guidance documents accompanying these rules, the reliability and simplicity (or complexity) of the electronic systems utilized by FDA for information and reports to be submitted, and the details required by FDA for such information and reports with respect to each regulated product (which have yet to be issued by FDA). Failure to comply with existing or new FDA regulatory requirements could result in significant financial penalties and could have a material adverse effect on Turning Point’s business, results of operations, financial condition and ability to market and sell its products. Compliance and related costs could be substantial and could significantly increase the costs of operating in Turning Point’s NewGen and cigar and pipe tobacco product markets.
In addition, failure to comply with the Tobacco Control Act and with FDA regulatory requirements could result in litigation, criminal convictions or significant financial penalties and could impair Turning Point’s ability to market and sell its electronic and vaporizer products. At present, Turning Point is not able to predict whether Tobacco Control Act will impact its products to a greater degree than competitors in the industry, thus affecting Turning Point’s competitive position.
Furthermore, neither the Prevent All Cigarette Trafficking Act nor the Federal Cigarette Labeling and Advertising Act currently apply to NewGen products. There may, in the future, also be increased regulation of additives in tobacco products and internet sales of NewGen products. The application of either or both of these federal laws, and of any new laws or regulations which may be adopted in the future, to NewGen products or such additives could result in additional expenses and require Turning Point to change its advertising and labeling, and methods of marketing and distribution of its products, any of which could have a material adverse effect on Turning Point’s business, results of operations and financial condition.
Significant increases in state and local regulation of Turning Point’s NewGen products have been proposed or enacted and are likely to continue to be proposed or enacted in numerous jurisdictions.
There has been increasing activity on the state and local levels with respect to scrutiny of NewGen products. State and local governmental bodies across the U.S. have indicated NewGen products may become subject to new laws and regulations at the state and local levels. Further, some states and cities, have enacted regulations that require obtaining a tobacco retail license in order to sell electronic cigarettes and vaporizer products. If one or more states from which Turning Point generates or anticipates generating significant sales of NewGen products bring actions to prevent Turning Point from selling its NewGen products unless Turning Point obtains certain licenses, approvals or permits, and if Turning Point is not able to obtain the necessary licenses, approvals or permits for financial reasons or otherwise and/or any such license, approval or permit is determined to be overly burdensome to Turning Point, then Turning Point may be required to cease sales and distribution of its products to those states, which could have a material adverse effect on Turning Point’s business, results of operations and financial condition.
Certain states and cities have already restricted the use of electronic cigarettes and vaporizer products in smoke-free venues, imposed excise taxes, or limited sales of flavored NewGen products. Additional city, state or federal regulators, municipalities, local governments and private industry may enact additional rules and regulations restricting electronic cigarettes and vaporizer products. Because of these restrictions, Turning Point’s customers may reduce or otherwise cease using its NewGen products, which could have a material adverse effect on Turning Point’s business, results of operations and financial condition.
Increases in tobacco-related taxes have been proposed or enacted and are likely to continue to be proposed or enacted in numerous jurisdictions.
Tobacco products, premium cigarette papers and tubes have long been subject to substantial federal, state and local excise taxes. Such taxes have frequently been increased or proposed to be increased, in some cases significantly, to fund various legislative initiatives or further disincentivize tobacco usage. Since 1986, smokeless products have been subject to federal excise tax. Smokeless products are taxed by weight (in pounds or fractional parts thereof) manufactured or imported.
Since the State Children’s Health Insurance Program (“S-CHIP”) reauthorization in early 2009, which utilizes, among other things, taxes on tobacco products to fund health insurance coverage for children, the federal excise tax increases adopted have been substantial and have materially reduced sales in the “roll your own” (“RYO”) /MYO cigarette smoking products market, and also caused volume declines in other markets. Although the RYO/MYO cigarette smoking tobacco and related products market had been one of the fastest growing markets in the tobacco industry in the five years prior to 2009, the reauthorization of S-CHIP increased the federal excise tax on RYO tobacco from $1.10 to $24.78 per pound, and materially reduced the MYO cigarette smoking tobacco market in the U.S. There have not been any increases announced since 2009, but Turning Point cannot guarantee that it will not be subject to further increases, nor whether any such increases will affect prices in a way that further deters consumers from purchasing Turning Point’s products and/or affects its net revenues in a way that renders Turning Point unable to compete effectively.
In addition to federal excise taxes, every state and certain city and county governments have imposed substantial excise taxes on sales of tobacco products, and many have raised or proposed to raise excise taxes in recent years. Approximately one-half of the states tax MST on weight-based versus ad valorem system of taxation. Additional states may consider adopting such revised tax structures as well. Tax increases, depending on their parameters, may result in consumers switching between tobacco products or depress overall tobacco consumption, which is likely to result in declines in overall sales volumes.
Any future enactment of increases in federal or state excise taxes on Turning Point’s tobacco products or rulings that certain of its products should be categorized differently for excise tax purposes could adversely affect demand for its products and may result in consumers switching between tobacco products or a depression in overall tobacco consumption, which would have a material adverse effect on Turning Point’s business, results of operations and financial condition.
If Turning Point’s NewGen products become subject to increased taxes it could adversely affect its business.
Presently the federal government and most states do not tax the sale of NewGen products like the sale of conventional cigarettes or other tobacco products, all of which generally have high tax rates and have faced significant increases in the amount of taxes collected on their sales. In recent years, however, state and local governments have taken actions to move towards imposing excise taxes on NewGen products. As of December 31, 2018, California, Delaware, the District of Columbia, Kansas, Louisiana, Minnesota, New Jersey, North Carolina, Pennsylvania, West Virginia and certain localities impose excise taxes on electronic cigarettes and/or liquid vapor. Other jurisdictions are contemplating similar legislation and other restrictions on electronic cigarettes. Should federal, state and local governments and or other taxing authorities begin or continue to impose excise taxes similar to those levied against conventional cigarettes and tobacco products on NewGen products, it may have a material adverse effect on the demand for these products, as consumers may be unwilling to pay the increased costs, which in turn could have a material adverse effect on Turning Point’s business, results of operations and financial condition.
Turning Point may be subject to increasing international control and regulation.
The World Health Organization’s Framework Convention on Tobacco Control (“FCTC”) is the first international public health treaty that establishes a global agenda to reduce initiation of tobacco use and regulate tobacco in an effort to encourage tobacco cessation. Over 170 governments worldwide have ratified the FCTC. The FCTC has led to increased efforts to reduce the supply and demand of tobacco products and to encourage governments to further regulate the tobacco industry. The tobacco industry expects significant regulatory developments to take place over the next few years, driven principally by the FCTC. Regulatory initiatives that have been proposed, introduced or enacted include:
| · | the levying of substantial and increasing tax and duty charges; |
| · | restrictions or bans on advertising, marketing and sponsorship; |
| · | the display of larger health warnings, graphic health warnings and other labeling requirements; |
| · | restrictions on packaging design, including the use of colors and generic packaging; |
| · | restrictions or bans on the display of tobacco product packaging at the point of sale, and restrictions or bans on cigarette vending machines; |
| · | requirements regarding testing, disclosure and performance standards for tar, nicotine, carbon monoxide and other smoke constituents levels; |
| · | requirements regarding testing, disclosure and use of tobacco product ingredients; |
| · | increased restrictions on smoking in public and work places and, in some instances, in private places and outdoors; |
| · | elimination of duty free allowances for travelers; and |
| · | encouraging litigation against tobacco companies. |
If the U.S. becomes a signatory to the FCTC and/or national laws are enacted in the U.S. that reflect the major elements of the FCTC, Turning Point’s business, results of operations and financial condition could be materially and adversely affected. If NewGen products become subject to one or more of the significant regulatory initiatives proposed under the FCTC, Turning Point’s NewGen products segment may also be materially adversely affected.
As part of Turning Point’s strategy, it has begun strategic international expansions, such as introducing its moist snuff tobacco products in South America and cigar products in Canada. This and other future expansions may subject Turning Point to additional or increasing international regulation, either by the countries that are the object of the strategic expansion or through international regulatory regimes, such as the FCTC, to which those countries may be signatories.
Canada and some Canadian provinces have restricted or are contemplating restrictions on the sales and marketing of electronic cigarettes. Furthermore, some Canadian provinces have limited the use of electronic cigarettes and vaporizer products in public places. These measures, and any future measures taken to limit the marketing, sale and use of NewGen products may have a material adverse effect on Turning Point’s business, results of operations and financial condition.
To the extent Turning Point’s existing or future products become subject to international regulatory regimes that it is unable to comply with or fail to comply with, they may have a material adverse effect on Turning Point’s business, results of operations and financial condition.
Turning Point’s distribution efforts rely in part on Turning Point’s ability to leverage relationships with large retailers and national chains.
Turning Point’s distribution efforts rely in part on its ability to leverage relationships with large retailers and national chains to sell and promote its products, which is dependent upon the strength of the brand names that Turning Point owns or licenses and its sales force effectiveness. In order to maintain these relationships, Turning Point must continue to supply products that will bring steady business to these retailers and national chains. Turning Point may not be able to sustain these relationships or establish other relationships with such entities, which could have a material adverse effect on its ability to execute its branding strategies, Turning Point’s ability to access the end-user markets with its products or Turning Point’s ability to maintain its relationships with the producers of its products. For example, if Turning Point is unable to meet benchmarking provisions in contracts or if Turning Point is unable to maintain and leverage its retail relationships on a scale sufficient to make Turning Point an attractive distributor, it would have a material adverse effect on its ability to source products, and on Turning Point business, results of operations and financial condition.
In addition, there are factors beyond Turning Point’s control that may prevent it from leveraging existing relationships, such as industry consolidation. If Turning Point is unable to develop and sustain relationships with large retailers and national chains, or is unable to leverage those relationships due to factors such as a decline in the role of brick-and-mortar retailers in the North American economy, its capacity to maintain and grow brand and product recognition and increase sales volume will be significantly undermined. In such an event, Turning Point may ultimately be forced to pursue and rely on local and more fragmented sales channels, which will have a material adverse effect on Turning Point’s business, results of operations and financial condition.
Turning Point has a substantial amount of indebtedness that could affect its financial condition.
As of February 25, 2019, Turning Point had $212.0 million outstanding under its credit facility with the ability to borrow an additional $30.7 million under its revolving credit facility. If Turning Point cannot generate sufficient cash flow from operations to service its debt, Turning Point may need to further refinance its debt, dispose of assets or issue equity to obtain necessary funds. Turning Point does not know whether it will be able to do any of this on a timely basis or on terms satisfactory to Turning Point or at all.
Turning Point’s substantial amount of indebtedness could limit its ability to:
| · | obtain necessary additional financing for working capital, capital expenditures or other purposes in the future; |
| · | plan for, or react to, changes in Turning Point’s business and the industries in which Turning Point operates; |
| · | make future acquisitions or pursue other business opportunities; |
| · | react in an extended economic downturn; and |
The terms of the agreement governing Turning Point’s indebtedness may restrict its current and future operations, which would adversely affect its ability to respond to changes in Turning Point’s business and to manage its operations.
Turning Point’s 2018 Credit Facility contains (refer to Note 15 of Notes to Consolidated Financial Statements for details regarding Turning Point’s 2018 Credit Facility), and any future indebtedness of Turning Point would likely contain, a number of restrictive covenants that impose significant operating and financial restrictions on Turning Point, including restrictions on its ability to, among other things:
| · | pay dividends and make other restricted payments; |
| · | make investments and acquisitions; |
| · | engage in sales of assets and subsidiary stock; |
| · | enter into sale-leaseback transactions; |
| · | enter into transactions with affiliates; |
| · | transfer all or substantially all of Turning Point’s assets or enter into merger or consolidation transactions; and |
| · | enter into certain hedging agreements. |
Turning Point’s 2018 Credit Facility requires Turning Point to maintain certain financial ratios. As of December 31, 2018, Turning Point was in compliance with the financial and restrictive covenants of the 2018 Credit Facility. However, a failure by Turning Point to comply with the covenants or financial ratios in Turning Point’s debt instruments could result in an event of default under the applicable facility, which could adversely affect its ability to respond to changes in its business and manage its operations. In the event of any default under Turning Point’s 2018 Credit Facility, the lenders under its debt instruments could elect to declare all amounts outstanding under such instruments to be due and payable and require Turning Point to apply all of its available cash to repay these amounts. If the indebtedness under Turning Point’s 2018 Credit Facility were to be accelerated, which would cause an event of default and a cross-acceleration of Turning Point’s obligations under its other debt instruments, there can be no assurance that its assets would be sufficient to repay this indebtedness in full, which could have a material adverse effect on Turning Point’s business, results of operations, and financial condition.
Turning Point faces intense competition and may fail to compete effectively.
Turning Point is subject to significant competition across its segments, and compete against companies in all segments that have access to significant resources in terms of technology, relationships with suppliers and distributors and access to cash flow and financial markets. The OTP industry is characterized by brand recognition and loyalty, with product quality, price, marketing and packaging constituting the primary methods of competition. Substantial marketing support, merchandising display, competitive pricing and other financial incentives generally are required to introduce a new brand or to improve or maintain a brand’s market position. Turning Point principal competitors are “big tobacco,” Altria Group, Inc. (formerly Phillip Morris) and British American Tobacco p.l.c. (formerly Reynolds) as well as Swedish Match, Swisher International and manufacturers of electronic cigarettes, including U.K.-based Imperial Brands PLC. These competitors are significantly larger than Turning Point and aggressively seek to limit the distribution or sale of other companies’ products, both at the wholesale and retail levels. For example, certain competitors have entered into agreements limiting retail-merchandising displays of other companies’ products or imposing minimum prices for OTP products, thereby limiting their competitors’ ability to offer discounted products. In addition, the tobacco industry is experiencing a trend toward industry consolidation, most recently evidenced by the December 2018 investment in Juul Labs by Altria, the July 2017 acquisition of Reynolds American, Inc., by British American Tobacco p.l.c., and the June 2015 acquisition of Lorillard, Inc., by Reynolds American, Inc. Industry consolidation could result in a more competitive environment if Turning Point’s competitors are able to increase their combined resources, enhance their access to national distribution networks, or become acquired by established companies with greater resources than Turning Point. Any inability to compete due to its smaller scale as the industry continues to consolidate and be dominated by “big tobacco” could have a material adverse effect on Turning Point’s business, results of operations and financial condition.
The competitive environment and Turning Point’s competitive position is also significantly influenced by economic conditions, the state of consumer confidence, competitors’ introduction of low-priced products or innovative products, higher taxes, higher absolute prices and larger gaps between price categories and product regulation that diminishes the consumer’s ability to differentiate tobacco products. Due to the impact of these factors, as well as higher state and local excise taxes and the market share of deep discount brands, the tobacco industry has become increasingly price competitive. As Turning Point seeks to adapt to the price competitive environment, its competitors that are better capitalized may be able to sustain price discounts for long periods of time by spreading the loss across their expansive portfolios, with which Turning Point is not positioned to compete.
“Big tobacco” has also established its presence in the NewGen products market. There can be no assurance that Turning Point’s products will be able to compete successfully against these companies or any of its other competitors, some of which have far greater resources, capital, experience, market penetration, sales and distribution channels than Turning Point. In addition, there are currently no U.S. restrictions on advertising electronic cigarettes and vaporizer products and competitors, including “big tobacco,” may have more resources than Turning Point for advertising expenses, which could have a material adverse effect on its ability to build and maintain market share, and thus have a material adverse effect on Turning Point’s business, results of operations and financial condition.
The market for NewGen products is subject to a great deal of uncertainty and is still evolving.
Vaporizer products and electronic cigarettes, having recently been introduced to market, are at an early stage of development, and represent core components of a market that is evolving rapidly and is characterized by a number of market participants. Rapid growth in the use of, and interest in, vaporizer products and electronic cigarettes is recent, and may not continue on a lasting basis. The demand and market acceptance for these products is subject to a high level of uncertainty. Therefore, Turning Point is subject to all of the business risks associated with a new enterprise in an evolving market. Continued evolution, uncertainty and the resulting increased risk of failure of Turning Point’s new and existing product offerings in this market could have a material adverse effect on its ability to build and maintain market share and on Turning Point’s business, results of operations and financial condition. Further, there can be no assurance that Turning Point will be able to continue to effectively compete in the NewGen products marketplace.
Turning Point is subject to significant product liability litigation.
The tobacco industry has experienced and continues to experience significant product liability litigation. Most tobacco liability lawsuits have been brought against manufacturers and sellers of cigarettes by individual plaintiffs, often participating on a class-action basis, for injuries allegedly caused by cigarette smoking or by exposure to cigarette smoke. However, several lawsuits have also been brought against Turning Point and other manufacturers and sellers of smokeless products for injuries to health allegedly caused by use of smokeless products. There are several such suits pending against Turning Point with limited activity. In addition to the risks to Turning Point’s business, results of operations and financial condition resulting from adverse results in any such action, ongoing litigation may divert management’s attention and resources, which could have an impact on its business and operations. Turning Point cannot predict with certainty the outcome of these claims and there can be no assurance that Turning Point will not sustain losses in connection with such lawsuits and that such losses will not have a material adverse effect on Turning Point’s business, results of operations and financial condition.
In addition to current and potential future claims related to Turning Point’s smoking and smokeless products, Turning Point is subject to several lawsuits alleging personal injuries resulting from malfunctioning vaporizer devices and may be subject to claims in the future relating to its other NewGen products. Turning Point is still evaluating these claims and the potential defenses to them. As a result of their relative novelty, electronic cigarette and vaporizer product manufacturers and sellers have only recently become subject to litigation. Turning Point may see increasing litigation over NewGen products or the regulation of its products, as the regulatory regimes surrounding these products develop. For a description of current material litigation to which Turning Point or its subsidiaries are a party, see “Item 3. Legal Proceedings.”
As a result, Turning Point may face substantial costs due to increased product liability litigation relating to new regulations or other potential defects associated with NewGen products it ships, which could have a material adverse effect on Turning Point’s business, results of operations and financial condition.
The scientific community has not yet studied extensively the long-term health effects of electronic cigarette, vaporizer or e-liquids products use.
Electronic cigarettes, vaporizers and related products were recently developed and therefore the scientific community has not had a sufficient period of time to study the long-term health effects of their use. Currently, there is no way of knowing whether these products are safe for their intended use. If the scientific community were to determine conclusively that use of any or all of these products poses long-term health risks, market demand for these products and their use could materially decline. Such a determination could also lead to litigation and significant regulation. Loss of demand for Turning Point’s product, product liability claims and increased regulation stemming from unfavorable scientific studies on these products could have a material adverse effect on Turning Point’s business, results of operations and financial condition.
Turning Point is required to maintain cash amounts within an escrow account in order to be compliant with a settlement agreement between Turning Point and certain U.S. states and territories.
In November 1998, the major U.S. cigarette manufacturers entered into the Master Settlement Agreement (“MSA”) and the Smokeless Tobacco Master Settlement Agreement (“STMSA”) with 46 U.S. states and certain U.S. territories and possessions. Pursuant to the MSA and subsequent states’ statutes, a “cigarette manufacturer” (which is defined to also include a manufacturer of RYO/MYO cigarette tobacco) has the option of either becoming a signatory to the MSA, or, as Turning Point has elected, operating as a non-participating manufacturer (“NPM”) by funding and maintaining an escrow account, with sub-accounts on behalf of each settling state. These NPM escrow accounts are governed by states’ escrow and complementary statutes that are generally monitored by the Office of the State Attorney General. The statutes require NPM companies to deposit, on an annual basis, into qualified banks’ escrow funds based on the number of cigarettes or cigarette equivalents, which is measured by pounds of RYO/MYO tobacco sold. NPM companies are, within specified limits, entitled to direct the investment of the escrowed funds and withdraw any interest or appreciation, but cannot withdraw the principal for twenty-five years from the year of each annual deposit, except to withdraw funds deposited pursuant to an individual state’s escrow statute to pay a final judgment to that state’s plaintiffs in the event of such a final judgment. The investment vehicles available to Turning Point are specified in the state escrow agreements and are limited to low-risk government securities.
Various states have enacted or proposed complementary legislation intended to curb the activity of certain manufacturers and importers of cigarettes or MYO tobacco that are selling into MSA states without signing the MSA or who have failed to properly establish and fund a qualifying escrow account. Turning Point believes it has been fully compliant with all applicable laws, regulations, and statutes, although compliance-related issues may, from time to time, be disruptive to Turning Point’s business, any of which could have a material adverse effect on Turning Point’s business, results of operations, and financial condition.
Pursuant to the NPM escrow account statutes, in order to be compliant with the NPM escrow requirements, Turning Point is required to deposit such funds for each calendar year into a qualifying escrow account by April 15 of the following year with each year’s deposit being released from escrow after 25 years. During 2018, Turning Point deposited less than $0.1 million relating to 2017 sales. Turning Point discontinued its MYO tobacco line in the third quarter of 2017. As of December 31, 2018, Turning Point had made deposits of approximately $32.1 million. Thus, pending a change in MSA legislation, Turning Point has no remaining product lines covered by the MSA and will not be required to make future escrow deposits.
Although no such legislation has been proposed or enacted, future changes to the MSA, such as legislation that extends the MSA to products to which it does not currently apply or legislation that limits the ability of companies to receive unused escrow funds after 25 years, may have a material adverse effect on Turning Point’s business, results of operations and financial condition. Despite the amounts maintained and funded to the escrow account, compliance with the funding requirements for the escrow account does not necessarily prevent future federal and/or state regulations with respect to the OTP industry from having a material adverse effect on Turning Point’s business, results of operations and financial condition.
Competition from illicit sources may have an adverse effect on Turning Point’s overall sales volume, restricting the ability to increase selling prices and damaging brand equity.
Illicit trade and tobacco trafficking in the form of counterfeit products, smuggled genuine products and locally manufactured products on which applicable taxes are evaded, represent a significant and growing threat to the legitimate tobacco industry. Factors such as increasing tax regimes, regulatory restrictions, and compliance requirements are encouraging more consumers to switch to illegal, cheaper tobacco products and providing greater rewards for smugglers. Illicit trade can have an adverse effect on Turning Point’s overall sales volume, restrict the ability to increase selling prices, damage brand equity and may lead to commoditization of its products.
Although Turning Point combats counterfeiting of its products by engaging in certain tactics, such as requiring all sales force personnel to randomly collect its products from retailers in order to be tested by Turning Point’s quality control team, maintaining a quality control group that is responsible for identifying counterfeit products and using a private investigation firm to help perform surveillance of retailers Turning Point suspects are selling counterfeit products, no assurance can be given that Turning Point will be able to detect or stop sales of all counterfeit products. In addition, Turning Point has in the past and will continue to bring suits against retailers and distributors that sell certain counterfeit products. While Turning Point has been successful in securing financial recoveries from and helping to obtain criminal convictions of counterfeiters in the past, no assurance can be given that Turning Point will be successful in any such suits or that such suits will be successful in stopping other retailers or distributors from selling counterfeit products. Even if Turning Point is successful, such suits could consume a significant amount of management’s time and could also result in significant expenses to the company. Any failure to track and prevent counterfeiting of its products could have a material adverse on its ability to maintain or effectively compete for the products Turning Point distributes under Turning Point’s brand names, which would have a material adverse effect on its business, results of operations and financial condition.
Reliance on information technology means a significant disruption could affect Turning Point’s communications and operations.
Turning Point increasingly relies on information technology systems for its internal communications, controls, reporting and relations with customers and suppliers and information technology is becoming a significantly important tool for its sales staff. Turning Point’s marketing and distribution strategy is dependent upon its ability to closely monitor consumer and market trends on a highly specified level, for which Turning Point is reliant on its highly sophisticated data tracking systems, which are susceptible to disruption or failure. In addition, Turning Point’s reliance on information technology exposes Turning Point to cyber-security risks, which could have a material adverse effect on its ability to compete. Security and privacy breaches may expose Turning Point to liability and cause Turning Point to lose customers, or may disrupt its relationships and ongoing transactions with other entities with whom Turning Point contracts throughout its supply chain. The failure of Turning Point’s information systems to function as intended, or the penetration by outside parties intent on disrupting business processes, could result in significant costs, loss of revenue, assets or personal or other sensitive data and reputational harm.
Security and privacy breaches may expose Turning Point to liability and cause Turning Point to lose customers.
Federal and state laws require Turning Point to safeguard its wholesalers’ and retailers’ financial information, including credit information. Although Turning Point has established security procedures to protect against identity theft and the theft of its customers’ and distributors’ financial information, Turning Point’s security and testing measures may not prevent security breaches and breaches of privacy may occur and could harm Turning Point’s business. Typically, Turning Point relies on encryption and authentication technology licensed from third parties to enhance transmission security of confidential information in relation to financial and other sensitive information that Turning Point has on file. Advances in computer capabilities, new discoveries in the field of cryptography, inadequate facility security or other developments may result in a compromise or breach of the technology used by Turning Point to protect customer data. Any compromise of Turning Point’s security could harm its reputation or financial condition and, therefore, Turning Point’s business. In addition, a party who is able to circumvent Turning Point’s security measures or exploit inadequacies in its security measures, could, among other effects, misappropriate proprietary information, cause interruptions in Turning Point’s operations or expose customers and other entities with which Turning Point interacts to computer viruses or other disruptions. Actual or perceived vulnerabilities may lead to claims against Turning Point. To the extent the measures Turning Point has taken prove to be insufficient or inadequate, Turning Point may become subject to litigation or administrative sanctions, which could result in significant fines, penalties or damages and harm to its reputation.
Contamination of, or damage to, Turning Point’s products could adversely impact sales volume, market share and profitability.
Turning Point’s market position may be affected through the contamination of its tobacco supply or products during the manufacturing process or at different points in the entire supply chain. Turning Point keeps significant amounts of inventory of its products in warehouses and it is possible that this inventory could become contaminated prior to arrival at Turning Point’s premises or during the storage period. If contamination of Turning Point’s inventory or packaged products occurs, whether as a result of a failure in quality control by Turning Point or by one of Turning Point’s suppliers, Turning Point may incur significant costs in replacing the inventory and recalling products. Turning Point may be unable to meet customer demand and may lose customers who purchase alternative brands or products. In addition, consumers may lose confidence in the affected product.
Under the terms of Turning Point’s contracts, it imposes requirements on its suppliers to maintain quality and comply with product specifications and requirements, and on its third-party co-manufacturer to comply with all federal, state and local laws. These third-party suppliers, however, may not continue to produce products that are consistent with Turning Point’s standards or that are in compliance with applicable laws, and Turning Point cannot guarantee that it will be able to identify instances in which its third-party suppliers fail to comply with its standards or applicable laws. A loss of sales volume from a contamination event may occur, and such a loss may affect Turning Point’s ability to supply its current customers and to recapture their business in the event they are forced to switch products or brands, even if on a temporary basis. Turning Point may also be subject to legal action as a result of a contamination, which could result in negative publicity and affect Turning Point’s sales. During this time, Turning Point’s competitors may benefit from an increased market share that could be difficult and costly to regain. Such a contamination event could have a material adverse effect on Turning Point’s business, results of operations and financial condition.
Turning Point intellectual property may be infringed.
Turning Point currently relies on trademark and other intellectual property rights to establish and protect the brand names and logos Turning Point owns or licenses. Third parties have in the past infringed, and may in the future infringe, on these trademarks and its other intellectual property rights. Turning Point’s ability to maintain and further build brand recognition is dependent on the continued and exclusive use of these trademarks, service marks and other proprietary intellectual property, including the names and logos Turning Point owns or licenses. Despite Turning Point’s attempts to ensure these intellectual property rights are protected, third parties may take actions that could materially and adversely affect its rights or the value of this intellectual property. Any litigation concerning Turning Point’s intellectual property rights, whether successful or unsuccessful, could result in substantial costs to Turning Point and diversions of its resources. Expenses related to protecting Turning Point’s intellectual property rights, the loss or compromise of any of these rights or the loss of revenues as a result of infringement could have a material adverse effect on Turning Point’s business, results of operations and financial condition, and may prevent the brands Turning Point owns or licenses from growing or maintaining market share.
Third parties may claim that Turning Point infringes their intellectual property and trademark rights.
Competitors in the tobacco products and NewGen markets may claim that Turning Point infringe their proprietary rights. Such claims, whether or not meritorious, may result in the expenditure of significant financial and managerial resources, injunctions against Turning Point or the payment of damages. Further, Turning Point’s vapor distribution businesses distribute third party product brands with those suppliers’ branding and imagery. If that branding or imagery is alleged by other parties to infringe or otherwise violate intellectual property rights, Turning Point could be drawn into such litigation.
Turning Point may fail to manage its growth.
Turning Point has expanded over its history and intends to grow in the future. Turning Point acquired the Stoker’s® brand in 2003 and has continued to develop it through the introduction of new products, such as moist snuff. Turning Point’s acquisition of the VaporBeast® brand in 2016 accelerated its entry into non-traditional retail channels. More recently, Turning Point’s September 2018 acquisition of IVG adds a top vapor B2C platform which enhances its marketing and selling of proprietary and third party vapor products to adult consumers. Turning Point has also focused on growing its relationships with its key suppliers through expansion into new product lines, such as MYO cigar wraps, which are sourced from Durfort. However, any future growth will place additional demands on Turning Point’s resources, and Turning Point cannot be sure it will be able to manage its growth effectively. If Turning Point is unable to manage its growth while maintaining the quality of its products and profit margins, or if new systems that Turning Point implement to assist in managing its growth do not produce the expected benefits, Turning Point’s business, financial position, results of operations and cash flows could be adversely affected. Turning Point may not be able to support, financially or otherwise, future growth, or hire, train, motivate and manage the required personnel. Turning Point’s failure to manage growth effectively could also limit its ability to achieve its goals as they relate to streamlined sales, marketing and distribution operations and the ability to achieve certain financial metrics.
Turning Point may fail to successfully integrate its acquisitions or otherwise be unable to benefit from pursuing acquisitions.
Turning Point believes there are meaningful opportunities to grow through acquisitions and joint ventures across all OTP product categories and Turning Point expect to continue a strategy of selectively identifying and acquiring businesses with complementary products. Turning Point may be unable to identify, negotiate, and complete suitable acquisition opportunities on reasonable terms. There can be no assurance that any business acquired by Turning Point will be successfully integrated with its operations or prove to be profitable to Turning Point. Turning Point may incur future liabilities related to acquisitions. Should any of the following problems, or others, occur as a result of Turning Point’s acquisition strategy, the impact could be material:
| · | difficulties integrating personnel from acquired entities and other corporate cultures into Turning Point’s business; |
| · | difficulties integrating information systems; |
| · | the potential loss of key employees of acquired companies; |
| · | the assumption of liabilities and exposure to undisclosed or unknown liabilities of acquired companies; or |
| · | the diversion of management attention from existing operations. |
Turning Point is subject to fluctuations in its results that make it difficult to track trends and develop strategies in the short-term.
In response to competitor actions and pricing pressures, Turning Point has engaged in significant use of promotional and sales incentives. Turning Point regularly review the results of its promotional spending activities and adjust its promotional spending programs in an effort to maintain Turning Point’s competitive position. Accordingly, unit sales volume and sales promotion costs in any period are not necessarily indicative of sales and costs that may be realized in subsequent periods. Additionally, promotional activity significantly increases net sales in the month in which it is initiated, and net sales are adversely impacted in the month after a promotion. Accordingly, based upon the timing of Turning Point’s marketing and promotional initiatives, Turning Point has and may continue to experience significant variability in its results, which could affect its ability to formulate strategies that allow Turning Point to maintain its market presence across volatile periods. If Turning Point’s fluctuations obscure its ability to track important trends in its key markets, it may have a material adverse effect on Turning Point’s business, results of operations and financial condition.
Turning Point is subject to the risks of exchange rate fluctuations.
Currency movements and suppliers’ price increases relating to premium cigarette papers and cigarette tubes are the primary factors affecting Turning Point’s cost of sales. These products are purchased from Bolloré and Turning Point makes payments in euros. Thus, Turning Point bears certain foreign exchange rate risk for certain of its inventory purchases. In addition, as part of Turning Point’s strategy, Turning Point has begun strategic international expansions. As a result, Turning Point may be more sensitive to the risks of exchange rate fluctuations. To manage this risk, Turning Point sometimes utilize short-term forward currency contracts to purchase euros for its inventory purchases. Turning Point has a foreign exchange currency policy which governs Turning Point’s hedging of risk. While Turning Point engages in hedging transactions from time to time, no assurance can be made that Turning Point will be successful in eliminating currency exchange risks or that changes in currency rates will not have a material adverse effect on Turning Point’s business, results of operations and financial condition.
Adverse U.S. and global economic conditions could negatively impact Turning Point’s business, prospects, results of operations, financial condition or cash flows.
Turning Point’s business and operations are sensitive to global economic conditions. These conditions include interest rates, energy costs, inflation, recession, fluctuations in debt and equity capital markets and the general condition of the U.S. and world economy. A material decline in the economic conditions affecting consumers, which cause a reduction in disposable income for the average consumer, may change consumption patterns, and may result in a reduction in spending on OTP or a switch to cheaper products or products obtained through illicit channels. Electronic cigarettes, vaporizer and e-liquid products are relatively new to market and may be regarded by users as a novelty item and expendable. As such, demand for Turning Point’s NewGen products may be particularly sensitive to economic conditions such as inflation, recession, high energy costs, unemployment, changes in interest rates and money supply, changes in the political environment and other factors beyond its control, any combination of which could result in a material adverse effect on Turning Point’s business, results of operations and financial condition.
Turning Point’s supply to its wholesalers and retailers is dependent on the demands of their customers who are sensitive to increased sales taxes and economic conditions affecting their disposable income.
Consumer purchases of tobacco products are historically affected by economic conditions, such as changes in employment, salary and wage levels, the availability of consumer credit, inflation, interest rates, fuel prices, sales taxes, and the level of consumer confidence in prevailing and future economic conditions. Discretionary consumer purchases, such as of OTP, may decline during recessionary periods or at other times when disposable income is lower and taxes may be higher.
In addition, states such as New York, Hawaii, Rhode Island, Georgia and North Carolina have begun collecting taxes on internet sales where companies have used independent contractors in those states to solicit sales from residents of those states. These taxes apply to Turning Point’s online sales of NewGen products into those states, and may result in reduced demand from the independent wholesalers who may not be able to absorb the increased taxes or successfully pass them onto the end-user without experiencing reduced demand. Further, as a result of South Dakota v. Wayfair, states are now able to impose sales tax on internet purchases made from out-of-state sellers, even if the seller does not have a physical presence in the taxing state. Consequently, additional states are likely to seek to impose sales tax on Turning Point’s online sales. The requirement to collect, track and remit taxes may require Turning Point to increase its prices, which may affect demand for its products or conversely reduce Turning Point’s net profit margin, which could have a material adverse effect on Turning Point’s business, results of operations and financial condition.
Turning Point’s failure to comply with certain environmental, health and safety regulations could adversely affect its business.
The storage, distribution and transportation of some of the products that Turning Point sells are subject to a variety of federal and state environmental regulations. In addition, Turning Point’s manufacturing facilities are similarly subject to federal, state and local environmental laws. Turning Point is also subject to operational, health and safety laws and regulations. Turning Point failure to comply with these laws and regulations could cause a disruption in its business, an inability to maintain Turning Point’s manufacturing resources, and additional and potentially significant remedial costs and damages, fines, sanctions or other legal consequences that could have a material adverse effect on Turning Point’s business, results of operations and financial condition.
The departure of key management personnel and the failure to attract and retain talent could adversely affect Turning Point’s operations.
Turning Point’s success depends upon the continued contributions of its senior management. Turning Point’s ability to implement its strategy of attracting and retaining the best talent may be impaired by the decreasing social acceptance of OTP usage. The OTP industry competes for talent with the consumer products industry and other companies that enjoy greater societal acceptance. As a result, Turning Point may be unable to attract and retain the best talent, which could have a material adverse effect on Turning Point’s business, results of operations and financial condition.
Imposition of significant tariffs on imports into the U.S., could have a material and adverse effect on Turning Point’s business.
Turning Point is required to purchase all of its cigarette papers, cigarette tubes and cigarette injector machines from Bolloré in France. Additionally, a substantial portion of Turning Point’s NewGen products are sourced from China. In 2018, President Trump and his administration imposed significant additional tariffs on certain goods imported from outside the U.S. and could impose additional tariffs in the future. These additional tariffs apply to a significant portion of Turning Point’s NewGen products and may result in increased prices for Turning Point’s customers. These increased prices may reduce demand where customers are unable to absorb the increased prices or successfully pass them onto the end-user. If the U.S. were to impose additional tariffs on goods Turning Point imports, it is likely to make it more costly for Turning Point to import goods from other countries. As a result, Turning Point’s business, financial condition and results of operations could be materially adversely affected.
The reduced disclosure requirements applicable to emerging growth companies may make Turning Point’s common stock less attractive to investors, potentially decreasing its stock price.
Turning Point is an “emerging growth company” as defined under the federal securities laws. For as long as Turning Point continues to be an emerging growth company, Turning Point may take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not Emerging Growth Companies. Investors may find Turning Point’s common stock less attractive because Turning Point may rely on these exemptions, which include but are not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act (“Section 404”), reduced disclosure obligations regarding executive compensation in Turning Point’s periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved. In addition, Section 107 of the JOBS Act (“Section 107”) provides that an Emerging Growth Company can take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act for complying with new or revised accounting standards. Turning Point has elected to opt out of the extended transition period for complying with the revised accounting standards.
If investors find Turning Point’s common stock less attractive as a result of exemptions and reduced disclosure requirements, there may be a less active trading market for Turning Point’s common stock and Turning Point’s stock price may be more volatile or decrease.
Turning Point may lose its status as an emerging growth company before the five-year maximum time period a company may retain such status.
Turning Point has elected to rely on certain exemptions and reduced disclosure requirements applicable to emerging growth companies and expect to continue to do so. However, Turning Point may choose to “opt out” of such reduced disclosure requirements and provide disclosure required for companies that do not qualify as emerging growth companies. In addition, Turning Point chose to opt out of the provision of the JOBS Act that permits Turning Point to take advantage of an extended transition period to comply with new or revised accounting standards applicable to public companies. Section 107 provides that Turning Point’s decision to opt out of the extended transition period for complying with new or revised accounting standards would be irrevocable.
Furthermore, although Turning Point is able to remain an emerging growth company for up to five years, Turning Point may lose such status at an earlier time if (i) Turning Point’s annual gross revenues exceed $1 billion, (ii) Turning Point becomes a “large accelerated filer” as defined in Rule 12b-2 under the Exchange Act, which would occur if the market value of Turning Point’s common stock that is held by non-affiliates exceeds $700 million as of the last business day of Turning Point’s most recently completed second fiscal quarter, or (iii) Turning Point issued more than $1 billion in non-convertible debt during the preceding three-year period.
When Turning Point loses its emerging growth company status, whether due to an election, the end of the five-year period, or one of the circumstances listed in the preceding paragraph, the emerging growth company exemptions will cease to apply and Turning Point expects it will incur additional expenses and devote increased management effort toward ensuring compliance with the non-emerging growth company requirements. Turning Point cannot predict or estimate the amount of additional costs Turning Point may incur as a result of the change in its status or the timing of such costs, though such costs may be substantial.
Turning Point’s principal stockholders are able to exert significant influence over matters submitted to its stockholders and may take certain actions to prevent takeovers.
SDI, which is controlled by funds managed by Standard General L.P. (together with the funds it manages, “Standard General”), is a significant stockholder. SDI owns approximately 50.3% of Turning Point’s stock and Standard General directly owns approximately 3.4% of Turning Point’s common stock. The existence of these and other significant stockholders may have the effect of deterring hostile takeovers, delaying or preventing changes in control or changes in management, or limiting the ability of Turning Point’s other stockholders to approve transactions that they may deem to be in the best interests of Turning Point. In addition, Turning Point’s significant stockholders will be able to exert significant influence over the decision, if any, to authorize additional capital stock, which, if issued, could have a significant dilutive effect on holders of common stock.
Turning Point’s certificate of incorporation provides that the doctrine of “corporate opportunity” will not apply against SDI and Standard General in a manner that would prohibit them from investing in competing businesses or doing business with Turning Point’s customers. To the extent they invest in such other businesses, SDI and Standard General may have differing interests than Turning Point other stockholders. In addition, SDI and Standard General are permitted to engage in business activities or invest in or acquire businesses which may compete with or do business with any competitors of Turning Point.
Furthermore, Standard General is in the business of managing investment funds and therefore may pursue acquisition opportunities that may be complementary to Turning Point’s business and, as a result, such acquisition opportunities may not be available to Turning Point.
Turning Point’s certificate of incorporation and bylaws, as well as Delaware law and certain regulations, could discourage or prohibit acquisition bids or merger proposals, which may adversely affect the market price of Turning Point’s common stock.
Turning Point’s certificate of incorporation authorizes its board of directors to issue preferred stock without stockholder approval. If Turning Point’s board of directors elects to issue preferred stock, it could be more difficult for a third party to acquire Turning Point. In addition, some provisions of Turning Point’s certificate of incorporation, bylaws and applicable law could make it more difficult for a third party to acquire control of Turning Point, even if the change of control would be beneficial to Turning Point’s stockholders, including:
| · | limitations on the removal of directors; |
| · | limitations on the ability of Turning Point’s stockholders to call special meetings; |
| · | limitations on stockholder action by written consent; |
| · | establishing advance notice provisions for stockholder proposals and nominations for elections to the board of directors to be acted upon at meetings of stockholders; and |
| · | limitations on the ability of Turning Point’s stockholders to fill vacant directorships or amend the number of directors constituting Turning Point’s board of directors. |
Turning Point’s certificate of incorporation limits the ownership of Turning Point’s common stock by individuals and entities that are Restricted Investors. These restrictions may affect the liquidity of Turning Point’s common stock and may result in Restricted Investors being required to sell or redeem their shares at a loss or relinquish their voting, dividend and distribution rights.
For so long as Turning Point or one of its subsidiaries is party to any of the Bolloré distribution agreements, Turning Point’s certificate of incorporation will limit the ownership of Turning Point’s common stock by any “Restricted Investor” to 14.9% of Turning Point outstanding common stock and shares convertible or exchangeable therefor (including Turning Point’s non-voting common stock) (the “Permitted Percentage”). A “Restricted Investor” is defined as: (i) any entity that directly or indirectly manufactures, sells, markets, distributes or otherwise promotes cigarette paper booklets, filter tubes, injector machines or filter tips in the United States, the District of Columbia, the territories, possessions and military bases of the United States and the Dominion of Canada (a “Bolloré Competitor”), (ii) any entity that owns more than a 20% equity interest in any Bolloré Competitor, or (iii) any person who serves as a director or officer of, or any entity that has the right to appoint an officer or director of, any Bolloré Competitor or of any Entity that owns more than a 20% equity interest in any Bolloré Competitor (each, a “Restricted Investor”). Turning Point’s certificate of incorporation further provides that any issuance or transfer of shares to a Restricted Investor in excess of the Permitted Percentage will be ineffective as against Turning Point and that neither Turning Point nor its transfer agent will register the issuance or transfer of shares or be required to recognize the transferee or owner as a holder of Turning Point’s common stock for any purpose except to exercise Turning Point remedies described below. Any shares in excess of the Permitted Percentage in the hands of a Restricted Investor will not have any voting or dividend rights and are subject to redemption by Turning Point in its discretion. The liquidity or market value of the shares of Turning Point’s common stock may be adversely impacted by such transfer restrictions.
As a result of the above provisions, a proposed transferee of Turning Point’s common stock that is a Restricted Investor may not receive any return on its investment in shares it purchases or owns, as the case may be, and it may sustain a loss. Turning Point is entitled to redeem all or any portion of such shares acquired by a Restricted Investor in excess of the Permitted Percentage (“Excess Shares”) at a redemption price based on a fair market value formula that is set forth in Turning Point’s certificate of incorporation, which may be paid in any form, including cash or promissory notes, at its discretion. Excess Shares not yet redeemed will not be accorded any voting, dividend or distribution rights while they constitute Excess Shares. As a result of these provisions, a stockholder who is a Restricted Investor may be required to sell its shares of Turning Point’s common stock at an undesirable time or price and may not receive any return on its investment in such shares. However, Turning Point may not be able to redeem Excess Shares for cash because its operations may not have generated sufficient excess cash flow to fund the redemption and Turning Point may incur additional indebtedness to fund all or a portion of such redemption, in which case its financial condition may be materially weakened.
Turning Point’s certificate of incorporation permits Turning Point to require that owners of any shares of Turning Point’s common stock provide certification of their status as a Restricted Investor. In the event that a person does not submit such documentation, Turning Point’s certificate of incorporation provides Turning Point with certain remedies, including the suspension of the payment of dividends and distributions with respect to shares held by such person and deposit of any such dividends and distributions into an escrow account. As a result of non-compliance with these provisions, an owner of the shares of Turning Point’s common stock may lose significant rights associated with those shares.
Although Turning Point’s certificate of incorporation contains the above provisions intended to assure compliance with the restrictions on ownership of Turning Point’s common stock by Restricted Investors, Turning Point may not be successful in monitoring or enforcing the provisions. A failure to enforce or otherwise maintain compliance could lead Bolloré to exercise its termination rights under the agreements, which would have a material and adverse effect on Turning Point’s financial position and results of operations.
In addition to the risks described above, the foregoing restrictions could delay, defer or prevent a transaction or change in control that might involve a premium price for Turning Point’s common stock or that might otherwise be in the best interest of Turning Point’s stockholders.
Future sales of Turning Point’s common stock in the public market could reduce its stock price, and any additional capital raised by Turning Point through the sale of equity or convertible securities may dilute Turning Point’s stockholders.
Turning Point may sell additional shares of common stock in subsequent public offerings. Turning Point may also issue additional shares of common stock or convertible securities.
Turning Point cannot predict the size of future issuances of its common stock or securities convertible into common stock or the effect, if any, that future issuances and sales of shares of its common stock will have on the market price of its common stock. Sales of substantial amounts of Turning Point’s common stock (including shares issued in connection with an acquisition), or the perception that such sales could occur, may adversely affect prevailing market prices of Turning Point’s common stock.
Turning Point may issue preferred stock whose terms could adversely affect the voting power or value of Turning Point’s common stock.
Turning Point’s certificate of incorporation authorizes it to issue, without the approval of its stockholders, one or more classes or series of preferred stock having such designations, preferences, limitations and relative rights, including preferences over Turning Point’s common stock respecting dividends and distributions, as Turning Point’s board of directors may determine. The terms of one or more classes or series of preferred stock could adversely impact the voting power or value of Turning Point’s common stock. For example, Turning Point might grant holders of preferred stock the right to elect some number of Turning Point’s directors in all events or on the happening of specified events or the right to veto specified transactions. Similarly, the repurchase or redemption rights or liquidation preferences Turning Point might assign to holders of preferred stock could affect the residual value of the common stock.
Turning Point’s status as a “controlled company” could make Turning Point’s common stock less attractive to some investors or otherwise harm Turning Point’s stock price.
Because Turning Point qualifies as a “controlled company” under the corporate governance rules for NYSE-listed companies, Turning Point is not required to have, and could elect in the future not to have, a majority of Turning Point’s board of directors be independent, a compensation committee, or an independent nominating function. Accordingly, should the interests of Turning Point’s controlling stockholder differ from those of other stockholders, the other stockholders may not have the same protections afforded to stockholders of companies subject to all of the corporate governance rules for NYSE-listed companies. Turning Point’s status as a controlled company could make Turning Point’s common stock less attractive to some investors or otherwise harm Turning Point stock price.
| Item 1B. | Unresolved Staff Comments |
None.
The Company is headquartered in Mineola, New York. As of December 31, 2018, Turning Point operated manufacturing, distribution, retail, office, and warehouse space in the U.S. with a total floor area of approximately 410,000 square feet, all of which is leased with the exception of its Dresden, Tennessee manufacturing facility which was purchased in 2016. To provide a cost-efficient supply of products to Turning Point’s customers, Turning Point maintains centralized management of internal manufacturing and nationwide distribution facilities. Turning Point’s three manufacturing and distribution facilities are located in Louisville, Kentucky, Dresden, Tennessee, and Miami, Florida. As of the date of this report, the Company believes that its facilities are adequate for its present purposes.
The following table and discussion describe Turning Point’s principal properties, as well as those properties of SDI, Standard Outdoor and Maidstone as of December 31, 2018:
| Company | Location | | Principal Use | | Segments that use the Properties | | Square Feet | | Owned or Leased |
| Turning Point | Darien, CT | | Administrative office | | Smokeless, Smoking, NewGen | | 1,950 | | Leased |
| Turning Point | Louisville, KY | | Corporate offices, manufacturing, R&D, warehousing, and distribution | | Smokeless, Smoking, NewGen | | 248,800 | | Leased |
| Turning Point | Carlsbad, CA | | Administrative office | | NewGen | | 10,491 | | Leased |
| Turning Point | Dresden, TN | | Manufacturing and administration | | Smokeless | | 76,600 | | Owned |
| Turning Point | Miami, FL | | Administrative offices, manufacturing, and warehousing | | NewGen | | 40,662 | | Leased |
| Turning Point | Various cities in southern Florida | | Sixteen retail stores | | NewGen | | 16,974 | | Leased |
| Turning Point | Various cities in Oklahoma | | Seven retail stores | | NewGen | | 14,660 | | Leased |
| SDI | New York, NY | | Corporate office | | Other | | 1,250
| | Leased |
| Maidstone | Mineola, NY | | Corporate office | | Insurance | | 18,176 | | Leased |
As of December 31, 2018, Standard Outdoor has 176 billboard structures on leased outdoor sites. These leases are for varying terms ranging from month-to-month to a term of ninety-nine years, and many provide the Company with extension or renewal options. There is no significant concentration of displays under any one lease or subject to negotiation with any one landlord. An important part of our management activity is to manage our lease portfolio and negotiate suitable lease renewals and extensions.
The Company is a party from time to time to various proceedings in the ordinary course of business. For a description of the Master Settlement Agreement, to which Turning Point is a party, see “Financial Statements and Supplementary Data - Note 2 Summary of Significant Accounting Policies: Risk and Uncertainties.” Other than the proceedings mentioned below, there is no material litigation, arbitration or governmental proceeding currently pending against the Company or any of our officers or directors in their capacity as such, and the Company and its officers or directors have not been subject to any such proceeding.
Other major tobacco companies are defendants in product liability claims. Turning Point has been a defendant in a number of smokeless tobacco product liability cases in the past. All of those cases have been dismissed with prejudice and Turning Point has no tobacco product liability cases against it. Turning Point is subject to several lawsuits alleging personal injuries resulting from allegedly malfunctioning vaporizer devices and batteries and may be subject to claims in the future relating to other NewGen products. Turning Point is still evaluating these claims and the potential defenses to them. For example, Turning Point did not design or manufacture the products at issue; rather, Turning Point was merely the distributor. Nonetheless, there can be no assurance that Turning Point will prevail in these cases, and they could have a material adverse effect on its financial position, results of operations, or cash flows. See “Risk Factors— Turning Point is subject to significant product liability litigation.”
Turning Point is engaged in discussions and mediation with VMR and Juul, which acquired VMR in 2018. Pursuant to a Distribution and Supply Agreement (“VMR Agreement”), VMR was providing Turning Point with V2 e-cigarettes for exclusive distribution in bricks-and-mortar stores in the United States. Under the terms of the VMR Agreement, in the event of termination following a change in control, the acquirer is required to make a payment to Turning Point under a formula designed to provide Turning Point with a fair share of the value created by Turning Point’s performance under the VMR Agreement. Thus, the impact on Turning Point’s financial position, results of operations, or cash flows are uncertain as of December 31, 2018.
| Item 4. | Mine Safety Disclosures |
Not applicable.
PART II
| Item 5. | Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities |
On April 25, 2018, our Class A common stock began trading on the NYSE American Exchange under the ticker “SDI.” From June 1, 2017 through April 25, 2018, trading in our Class A common stock was conducted in the over-the-counter market on the OTCQB under the symbol “SDOIA.” Prior to the completion of the Contribution and Exchange Transaction on June 1, 2017, trading in the Company’s common stock was conducted in the over-the-counter market on the OTCQB under the symbol “SDOI”.
As of March 4, 2019, there were 89 registered holders of record of our Class A common stock, based on information provided by our transfer agent. The actual number of stockholders is greater than this number of registered record holders, and includes stockholders who are beneficial owners, but whose shares are held in “street name” by brokers and other nominees. The Company has never paid any cash dividends on its common stock.
The following graph compares annual total return of our Common Stock, the S&P SmallCap 600 Consumer Staples Index and the Russell 3000 Index since January 2, 2014. The graph assumes that the value of the investment in our Common Stock, the S&P SmallCap 600 Consumer Staples Index and the Russell 3000 Index was $100 on January 2, 2014.
Common Stock Repurchases
During the fourth quarter of 2018, we purchased shares of our common stock as follows:
Period | | (a) Total number of shares purchased | | | (b) Average price paid per share | | | (c) Total number of shares purchased as part of publicly announced plans or programs | | (d) Maximum number of shares (or approximate dollar value) of shares that may yet be purchased under the plans or programs (in millions) |
| | | | | | | | | | |
|
| December 1, 2018 - December 31, 2018 | | | 103,492 | | | $ | 13.89 | | | | 103,492 | | In the aggregate, up to 5% of the outstanding shares of Common Stock of the Company |
Securities Authorized for Issuance under Equity Compensation Plans
The table below presents certain information as of December 31, 2018 concerning securities issuable in connection with equity compensation plans that have been approved by the Company’s stockholders and that have not been approved by the Company’s stockholders. The 1,000,000 shares available for issuance under equity compensation plan approved by the Company’s stockholders are all available for issuance under the Company’s 2017 Omnibus Equity Compensation Plan, which became effective as of August 17, 2017.
| Plan Category | | Number of securities to be issued upon exercise of outstanding options, warrants, and rights (a) | | | Weighted-average exercise price of outstanding options, warrants, and rights (b) | | | Number of securities remaining available for issuance under equity compensation plans (excluding securities reflected in column (a)) (c) | |
| Equity compensation plan approved by stockholders | | | 11,070 | | | | N/A | (1) | | | 988,930 | |
| Equity compensation not approved by stockholders | | | - | | | | - | | | | - | |
| Total | | | 11,070 | | | | N/A | | | | 988,930 | |
| (1) | All equity awards granted under the 2017 Plan are restricted stock, with no exercise price. |
Recent Sales of Unregistered Securities
None.
| Item 6. | Selected Financial Data |
The following selected financial data should be read in conjunction with “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations” and consolidated financial statements and notes thereto contained in “Item 8. Financial Statements and Supplementary Data” of this report. (Amounts in thousands, except per share data):
| | | For the year ended December 31, | |
| | | 2018 | | | 2017 | | | 2016 | | | 2015 | | | 2014 | |
| Consolidated Statement of Operations Data: | | | | | | | | | | | | | | | |
| Total Revenue | | $ | 365,785 | | | $ | 285,801 | | | $ | 206,228 | | | $ | 197,256 | | | $ | 200,329 | |
| | | | | | | | | | | | | | | | | | | | | |
| Operating costs and expenses: | | | | | | | | | | | | | | | | | | | | |
| Cost of sales | | | 192,336 | | | | 160,835 | | | | 105,683 | | | | 100,775 | | | | 106,986 | |
| Selling, general and administrative expenses | | | 99,479 | | | | 77,865 | | | | 56,626 | | | | 51,758 | | | | 45,241 | |
| Incurred losses and loss adjustment expenses | | | 25,221 | | | | - | | | | - | | | | - | | | | - | |
| Other operating expenses | | | 8,631 | | | | - | | | | - | | | | - | | | | - | |
| Total operating costs and expenses | | | 325,667 | | | | 238,700 | | | | 162,309 | | | | 152,533 | | | | 152,227 | |
| Operating income | | | 40,118 | | | | 47,101 | | | | 43,919 | | | | 44,723 | | | | 48,102 | |
| | | | | | | | | | | | | | | | | | | | | |
| Interest expense | | | 17,237 | | | | 16,904 | | | | 26,739 | | | | 34,284 | | | | 34,311 | |
| Interest and investment income | | | (736 | ) | | | (517 | ) | | | (886 | ) | | | - | | | | - | |
| Loss on extinguishment of debt | | | 2,384 | | | | 6,116 | | | | 2,824 | | | | - | | | | 42,780 | |
| Net periodic benefit expense, excluding service cost | | | 131 | | | | 180 | | | | 334 | | | | 212 | | | | 46 | |
| Income (loss) before income taxes | | | 21,102 | | | | 24,418 | | | | 14,908 | | | | 10,227 | | | | (29,035 | ) |
| Income tax expense (benefit) | | | 6,285 | | | | 7,280 | | | | (12,005 | ) | | | 1,078 | | | | 370 | |
| Net income (loss) | | | 14,817 | | | | 17,138 | | | | 26,913 | | | | 9,149 | | | | (29,405 | ) |
| Net income attributable to noncontrolling interests | | | (12,436 | ) | | | (6,761 | ) | | | - | | | | - | | | | - | |
| Net income (loss) attributable to Standard Diversified Inc. | | $ | 2,381 | | | $ | 10,377 | | | $ | 26,913 | | | $ | 9,149 | | | $ | (29,405 | ) |
| | | For the year ended December 31, | |
| | | 2018 | | | 2017 | | | 2016 | | | 2015 | | | 2014 | |
| | | | | | | | | | | | | | | | |
| Basic net earnings (loss) attributable to SDI per share | | $ | 0.14 | | | $ | 0.49 | | | $ | 1.10 | | | $ | 0.85 | | | $ | (2.73 | ) |
| Diluted net earnings (loss) attributable to SDI per share | | $ | 0.13 | | | $ | 0.48 | | | $ | 1.05 | | | $ | 0.79 | | | $ | (2.73 | ) |
| | | | | | | | | | | | | | | | | | | | | |
| Basic weighted average common shares outstanding | | | 16,697,542 | | | | 21,223,884 | | | | 24,549,060 | | | | 10,728,740 | | | | 10,766,444 | |
| Diluted weighted average common shares outstanding | | | 16,747,585 | | | | 21,289,466 | | | | 25,700,615 | | | | 11,590,477 | | | | 10,766,444 | |
| | | | | | | | | | | | | | | | | | | | | |
| Other Financial Information: | | | | | | | | | | | | | | | | | | | | |
| Net cash provided by operating activities | | $ | 110 | | | $ | 24,946 | | | $ | 9,128 | | | $ | 24,430 | | | $ | 6,025 | |
| Net cash (used in) provided by investing activities | | | (30,805 | ) | | | 18,847 | | | | (55,888 | ) | | | (2,030 | ) | | | (1,314 | ) |
| Net cash provided by (used in) financing activities | | | 31,329 | | | | (27,623 | ) | | | 15,734 | | | | (26,032 | ) | | | (31,623 | ) |
| Capital expenditures | | | (2,564 | ) | | | (2,021 | ) | | | (3,207 | ) | | | (1,602 | ) | | | (1,314 | ) |
| Depreciation and amortization | | | 4,636 | | | | 2,344 | | | | 1,285 | | | | 1,059 | | | | 933 | |
| | | As of December 31, | |
| | | 2018 | | | 2017 | | | 2016 | | | 2015 | | | 2014 | |
| Balance Sheet Data: | | | | | | | | | | | | | | | |
| Cash | | $ | 21,201 | | | $ | 18,219 | | | $ | 2,865 | | | $ | 4,835 | | | $ | 8,467 | |
| Total assets | | | 421,943 | | | | 298,714 | | | | 285,020 | | | | 242,463 | | | | 242,568 | |
| Total debt | | | 244,047 | | | | 202,040 | | | | 218,225 | | | | 292,440 | | | | 304,916 | |
| Total liabilities | | | 327,214 | | | | 230,273 | | | | 250,962 | | | | 324,075 | | | | 334,140 | |
| Total equity (deficit) | | | 94,729 | | | | 68,441 | | | | 34,058 | | | | (81,612 | ) | | | (91,572 | ) |
| Item 7. | Management’s Discussion and Analysis of Financial Condition and Results of Operations |
You should read the following discussion of the historical financial condition and results of operations in conjunction with our historical consolidated financial statements and accompanying notes, which are included elsewhere in this Annual Report on Form 10-K. In addition, this discussion includes forward-looking statements subject to risks and uncertainties which may result in actual results differing from statements we make. See “Cautionary Note Regarding Forward-Looking Statements.” Factors that could cause actual results to differ include those risks and uncertainties discussed in “Risk Factors”.
The following discussion relates to the audited financial statements of the Company included elsewhere in this Annual Report on Form 10-K. In this discussion, unless the context requires otherwise, references to “our Company” “we,” “our,” or “us” refer to Standard Diversified Inc. and our consolidated subsidiaries. References to “SDI” refer to Standard Diversified Inc. without any of its subsidiaries. Dollars are in thousands, except where designated and in per share data. Many of the amounts and percentages in this discussion have been rounded for convenience of presentation.
Overview
We are a holding company. During the year ended December 31, 2018 and prior, our subsidiaries are engaged in the following lines of business:
| · | Other tobacco products (Turning Point Brands, Inc. (“Turning Point”), a 50.3% owned subsidiary); and |
| · | Outdoor advertising (Standard Outdoor LLC (“Standard Outdoor”), a wholly owned subsidiary), beginning in July 2017. |
| · | Insurance (Pillar General Inc. (“Pillar General”), a wholly owned subsidiary), beginning in January 2018. |
We are a diversified holding company with interests in a variety of industries and market sectors. We expect to continue to diversify our operations in the future. We will rely upon our existing cash balances and potential distributions from our subsidiaries to generate the funds necessary to meet our operating obligations and for future acquisitions. In addition, we may be required to raise additional capital through equity and/or debt financings in order to fund our future operations and/or acquisitions.
Recent Developments
On December 10, 2018, we entered into a Stock Purchase Agreement to acquire Tri-State Consumer, Inc. (“Tri-State”), a New York corporation, for a purchase price of $54.1 million, subject to adjustments with respect to Tri-State’s statutory surplus and a liquid asset valuation. The purchase price will consist of $25.0 million in Series A Convertible Redeemable Preferred Stock and cash. The purchase price may be increased or decreased by an amount up to $2.0 million, based on statutory surplus adjustments and the resolution of certain claims over the two years following closing. The Stock Purchase Agreement provided us with 75 days after the execution to conduct due diligence on Tri-State. On February 22, 2019, the due diligence period was extended until March 8, 2019. On March 8, 2019, we exercised our right to terminate the Stock Purchase Agreement by delivering notice to the Stockholders of Tri-State in accordance with the provisions of the Stock Purchase Agreement. The Stock Purchase Agreement has thus been terminated.
On November 1, 2018, we entered into a Stock Purchase Agreement to acquire Century Casualty Company, a Georgia domiciled insurance company with licenses in Georgia and Alabama, for approximately $1.8 million to be paid in shares of our Class A common stock. The transaction is subject to regulatory approval by the Georgia Insurance Commissioner and is expected to close in the first quarter of 2019.
In November 2018, Turning Point paid $2.0 million to acquire a minority ownership position (19.99%) in Canadian American Standard Hemp (“CASH”). CASH is headquartered in Warwick, Rhode Island, and manufactures cannabidiol isolate (“CBD”) developed through highly efficient and proprietary processes. The investment in CASH positions us to participate in the market for hemp-derived products.
In December 2018, Turning Point acquired a minority ownership position in General Wireless Operations, Inc. (d/b/a RadioShack; “RadioShack”) from an affiliate of Standard General LP for $0.4 million. Standard General LP has a controlling interest in Turning Point and us and qualifies as a related party. Turning Point will work together with RadioShack on product development and sourcing teams in China. Furthermore, Turning Point purchased $1.1 million of finished goods inventory from RadioShack during 2018, none of which was outstanding at December 31, 2018.
Both of the above minority investments by Turning Point are presented as assets within the other assets line of the December 31, 2018, Consolidated Balance Sheet.
On October 2, 2018, VMR Products LLC (“VMR”), the supplier of V2 e-cigarettes to Turning Point under a long-term exclusive agreement for retail brick and mortar distribution and sales, was purchased by Juul Labs for a reported $75 million. Turning Point’s contract anticipated such an event and affords an acquirer of VMR the right to terminate the contract, subject to certain terms and conditions including product buyback requirements and a termination payment based on the purchase price. On November 6, 2018, Turning Point received a letter from VMR, now owned by Juul Labs, stating that it would no longer accept orders and that Turning Point is permitted to continue to sell-through any V2 inventory. Turning Point’s net sales of V2 products were approximately $7.8 million for the year ended December 31, 2018. Turning Point has sufficient inventory on hand to satisfy sales through the first quarter of 2019. Refer to Note 21 of Notes to Consolidated Financial Statements for potential mediation involving VMR.
On May 18, 2018, Turning Point entered into an arrangement with VMR which manufactures and distributes vapor products whereby VMR received a $6.5 million loan with a maturity date of May 18, 2019. The note was secured by VMR’s assets and accrued interest at an annual rate of 15% with quarterly interest payments due beginning in August 2018. In September 2018, VMR repaid the full outstanding balance of the loan in addition to a $1.0 million early termination fee which was recorded as a reduction to selling, general, and administrative expenses. As a condition to the loan, VMR agreed to issue warrants to Turning Point to purchase 7.5% of the ownership interest of VMR. In connection with the loan repayments, Turning Point received $1.0 million, net of expenses, for compensation of the warrants which was recorded as a reduction to selling, general, and administrative expenses.
In September 2018, Turning Point acquired IVG for total consideration of $23.8 million satisfied through $14.5 million paid in cash, 153,079 shares of common stock with a fair value of $5.3 million, and a $4.0 million note payable to IVG’s former owners (“IVG Note”) which matures 18 months from the acquisition date. All principal and accrued and unpaid interest under the IVG Note is subject to indemnification obligations of the sellers pursuant to the International Vapor Group Stock Purchase Agreement dated as of September 5, 2018. The arrangement includes an additional $4.5 million of earnouts with both performance-based and service-based conditions payable to former IVG owners who became employees of the Company as a result of the acquisition. The portion of earnout payments a recipient will receive will be calculated by reference to certain performance metrics not to exceed a two-year period as specified within the acquisition agreement. The Company recorded earnout expense of $1.5 million within the consolidated statement of income for the year ended December 31, 2018, based on the probability of achieving the performance conditions.
IVG markets and sells a broad array of proprietary and third-party vapor products directly to adult consumers through an online platform under brand names such as VaporFi, South Beach Smoke, and Direct-Vapor. IVG operates company-owned stores under the VaporFi brand and also operates as a franchisor to franchisee-owned stores. The acquisition of IVG adds a significant business-to-consumer distribution platform to Turning Point’s NewGen portfolio. Refer to Note 3 of Notes to Consolidated Financial Statements for more details regarding the IVG acquisition.
On August 13, 2018, we commenced the ATM Program through which we may, from time to time, issue and sell shares of our Class A common stock having an aggregate offering price of up to $6.7 million under an S-3 Registration Statement filed with the Securities and Exchange Commission in July 2018. In November 2018, we amended the ATM agreement with an S-3 Registration Statement, through which we may, from time to time, issue and sell shares of our Class A common stock having an aggregate offering price of up to $6.0 million. During the year ended December 31, 2018, we sold an aggregate of 313,032 shares of common stock under the ATM Program, receiving net proceeds, after offering costs and commissions, of $4.8 million.
On April 30, 2018, Turning Point purchased the assets of Vapor Supply LLC, vaporsupply.com, and some of its affiliates including the Ecig.com domain through its subsidiary Vapor Acquisitions Company, LLC, for total consideration of $4.8 million paid in cash. Vapor Supply is a business-to-business e-commerce distribution platform servicing independent retail vape shops. Additionally, Vapor Supply manufactures and markets proprietary e-liquids under the DripCo brand and operates company-owned stores. Refer to Note 3 of Notes to Consolidated Financial Statements for more details regarding the Vapor Supply acquisition.
Overview of Turning Point
Turning Point is a leading independent provider of Other Tobacco Products (“OTP”) in the U.S. Turning Point sells a wide range of products across the OTP spectrum including moist snuff tobacco (“MST”), loose leaf chewing tobacco, premium cigarette papers, make-your-own (“MYO”) cigar wraps, cigars, and liquid vapor products; but, Turning Point does not sell cigarettes. Turning Point estimates the OTP industry generated approximately $11 billion in manufacturer revenue in 2017. In contrast to manufactured cigarettes, which have been experiencing declining volumes for decades based on data published by the Alcohol and Tobacco Tax and Trade Bureau (“TTB”), the OTP industry is demonstrating increased consumer appeal with low to mid-single digit consumer unit growth as reported by Management Science Associates, Inc. (“MSAi”), a third-party analytics and informatics company. Under the leadership of a senior management team with an average of 23 years of experience in the tobacco industry, Turning Point has grown and diversified its business through new product launches, category expansions, and acquisitions while concurrently improving operational efficiency.
Products
Turning Point operates in three segments: Smokeless products, Smoking products and NewGen products. In Turning Point’s Smokeless products segment, Turning Point (i) manufactures and market moist snuff and (ii) contracts for and market loose leaf chewing tobacco products. In Turning Point’s Smoking products segment, Turning Point (i) markets and distributes cigarette papers, tubes, and related products; (ii) markets and distributes finished cigars and MYO cigar wraps; and (iii) processes, packages, markets, and distributes traditional pipe tobaccos. In Turning Point’s NewGen products segment, Turning Point (i) markets and distributes e-cigarettes, e-liquids, vaporizers, and certain other products without tobacco and/or nicotine; (ii) distributes a wide assortment of vaping related products to non-traditional retail via VaporBeast, Vapor Shark, Vapor Supply, and IVG; and (iii) distributes a wide assortment of vaping related products to individual consumers via Vapor Shark, Vapor World, and VaporFi branded retail outlets in addition to online platforms.
Turning Points portfolio of brands includes some of the most widely recognized names in the OTP industry, such as Stoker’s® in the Smokeless segment, Zig-Zag® in the Smoking segment, and VaporBeast® and VaporFi® in the NewGen segment. The following table sets forth the market share and category rank of our core products and demonstrates their industry positions:
| Brand | | Product | | TPB Segment | | Market Share (1) | | Category Rank (1) |
| Stoker’s® | | Chewing Tobacco | | Smokeless Products | | 19.2% | | #1 discount, #2 overall |
| Stoker’s® | | Moist Snuff | | Smokeless Products | | 3.5% | | #4 discount, #6 overall |
| Zig-Zag® | | Cigarette Papers | | Smoking Products | | 32.1% | | #1 premium |
| Zig-Zag® | | MYO Cigar Wraps | | Smoking Products | | 78.5% | | #1 overall |
| | | | | | | | | |
(1) Market share and category rank data for all products are derived from MSAi data as of 12/31/18
Operations
As of December 31, 2018, Turning Point’s products are available in approximately 185,000 U.S. retail locations which, with the addition of retail stores in Canada, brings Turning Point’s total North American retail presence to an estimated 210,000 points of distribution. Turning Point subscribes to a sales tracking system from MSAi that records all OTP product shipments (Turning Point’s as well as those of its competitors) from approximately 900 wholesalers to over 250,000 traditional retail stores in the U.S. This system enables Turning Point to understand individual product share and volume trends across multiple categories down to the individual retail store level, allowing us to allocate field salesforce coverage to the highest opportunity stores. Turning Point’s sales and marketing group of approximately 174 professionals utilizes the MSAi system to efficiently target markets and sales channels with the highest sales potential.
Turning Point’s core tobacco business (Smokeless and Smoking segments) primarily generates revenues from the sale of Turning Point products to wholesale distributors who, in turn, resell the products to retail operations. Turning Point’s acquisition of VaporBeast in the fourth quarter of 2016 expanded our revenue streams as Turning Point began selling directly to non-traditional retail outlets. Turning Point’s acquisitions of Vapor Shark in the second quarter of 2017 and Vapor Supply in the second quarter of 2018 further expanded its selling network by allowing it to directly reach ultimate consumers through Vapor Shark and Vapor World branded retail outlets, respectively. Turning Point’s acquisition of IVG in the third quarter of 2018 enhanced its business-to-consumer revenue stream with the addition of Vapor-Fi branded retail outlets accompanying a robust online platform headlined by VaporFi.com and DirectVapor.com. Turning Point’s net sales, which include federal excise taxes, consist of gross sales net of cash discounts, returns, and selling and marketing allowances.
Turning Point relies on long-standing relationships with high-quality, established manufacturers to provide the majority of its produced products. Approximately 85% of Turning Point’s production, as measured by net sales, is outsourced to suppliers. The remaining production consists of Turning Point’s moist snuff tobacco operations located in Dresden, Tennessee, and Louisville, Kentucky; the packaging of Turning Point’s pipe tobacco in Louisville, Kentucky; and the proprietary e-liquids operations located in Louisville, Kentucky, and Miami, Florida. Turning Point’s principal operating expenses include the cost of raw materials used to manufacture the limited number of its products which Turning Point produces in-house; the cost of finished products, which are generally purchased goods; federal excise taxes; legal expenses; and compensation expenses, including benefits and costs of salaried personnel. Turning Point’s other principal expenses include interest expense and other expenses.
Key Factors Affecting Turning Point’s Results of Operations
Turning Point considers the following to be the key factors affecting its results of operations:
| · | Turning Point’s ability to further penetrate markets with its existing products; |
| · | Turning Point’s ability to introduce new products and product lines that complement its core business; |
| · | Decreasing interest in tobacco products among consumers; |
| · | Price sensitivity in its end-markets; |
| · | Marketing and promotional initiatives, which cause variability in Turning Point’s results; |
| · | General economic conditions, including consumer access to disposable income; |
| · | Cost and increasing regulation of promotional and advertising activities; |
| · | Cost of complying with regulation, including newly passed “deeming regulations”; |
| · | Counterfeit and other illegal products in our end-markets; |
| · | Turning Point’s ability to identify attractive acquisition opportunities in OTP; and |
| · | Turning Point’s ability to integrate acquisitions. |
Standard Outdoor
Standard Outdoor is an out-of-home advertising business. Revenues include outdoor advertising revenues, while operating expenses primarily include compensation costs, depreciation and rent expense. The results of Standard Outdoor are included in our consolidated operating results from July 3, 2017, the date of acquisition, and for the full year ended December 31, 2018.
Overview of Pillar General
As described above under Recent Developments, on January 2, 2018, Pillar General acquired all of the outstanding capital stock of Interboro for a cash purchase price of $2.5 million. Under the name Maidstone Insurance Company, Maidstone offers personal automobile and homeowners insurance, primarily in the state of New York. The results of Maidstone are included in our consolidated results as of January 2, 2018, the date of acquisition.
Segment Information
We operate in five reportable segments; (1) smokeless products, (2) smoking products, (3) NewGen products, (4) Insurance and (5) Other, which includes our out-of-home advertising business and SDI holding company, as well as certain unallocated Turning Point amounts. The Smokeless products segment (a) manufactures and markets moist snuff and (b) contracts for and markets chewing tobacco products. The Smoking products segment (a) imports and markets cigarette papers, tubes, and related products; (b) imports and markets finished cigars, MYO cigar tobaccos, and cigar wraps; and (c) processes, packages, and markets pipe tobaccos. The NewGen products segment (a) markets e-cigarettes, e-liquids, vaporizers, and other related products and (b) distributes a wide assortment of vaping products to non-traditional retail outlets via VaporBeast and Vapor Shark. The insurance segment products include auto and homeowners property and casualty insurance.
Critical Accounting Policies and Uses of Estimates
The Company’s accounting policies are described in Note 2 of the Notes to the Consolidated Financial Statements, which are incorporated herein by reference. The accompanying consolidated financial statements have been prepared in conformity with accounting principles generally accepted in the United States. When more than one accounting principle, or the method of its application, is generally accepted, we select the principle or method that is appropriate in the specific circumstances. Application of these accounting principles requires us to make estimates about the future resolution of existing uncertainties. Actual results could differ from these estimates. We evaluate our estimates, including those related to revenue recognition, collectability of accounts receivable, inventory valuation and obsolescence, goodwill, intangibles, pension and postretirement obligations, income taxes, litigation, and contingencies on an ongoing basis. We base these estimates on our historical experience and other assumptions we believe are appropriate under the circumstances. In preparing these consolidated financial statements, we have made our best estimates and judgments of the amounts and disclosures included in the consolidated financial statements.
Revenue Recognition - Turning Point
Turning Point adopted Accounting Standards Update (“ASU”) 2014-09, Revenue from Contracts with Customers (Topic 606), which supersedes nearly all existing revenue recognition guidance under U.S. GAAP, on January 1, 2018. Turning Point recognizes revenues, net of sales incentives and sales returns, including shipping and handling charges billed to customers, upon delivery of goods to the customer—at which time its performance obligation are satisfied—at an amount that Turning Point expects to be entitled to in exchange for those goods in accordance with the five-step analysis outlined in Topic 606: (i) identify the contract with the customer, (ii) identify the performance obligations in the contract, (iii) determine the transaction price, (iv) allocate the transaction price to the performance obligations, and (v) recognize revenue when (or as) performance obligations are satisfied.
A further requirement of ASU 2014-09 is for entities to disaggregate revenue recognized from contracts with customers into categories that depict how the nature, amount, timing, and uncertainty of revenue and cash flows are affected by economic factors.Turning Point’s management views business performance through segments that closely resemble the performance of major product lines. Thus, the primary, and most useful, disaggregation of Turning Point’s contract revenue for decision making purposes is the disaggregation by segment which can be found in Note -23 of Notes to Consolidated Financial Statements. An additional disaggregation of contract revenue by sales channel can be found within Note 23 as well.
Maidstone - Maidstone recognizes revenues from insurance contracts, including premiums and fees, under the guidance in ASC 944, Financial Services-Insurance Premiums. Maidstone’s premiums, which are recorded at the policy inception, are earned pro rata over the period for which the coverage is provided, generally six months for auto policies and one year for homeowner policies. Unearned premiums represent the portion of premiums written that are applicable to the unexpired terms of policies in force.
Interest Rate Swaps
We enter into interest rate swap contracts to manage interest rate risk and reduce the volatility of future cash flows. We account for interest rate swap contracts under the provisions of ASC 815, Derivatives and Hedging. Swap contracts that qualify as hedges are adjusted to their fair value through other comprehensive income as determined by market prices on the measurement date, except any hedge ineffectiveness which is recognized currently in income. Gains and losses on these swap contracts are transferred from other comprehensive income into net income upon settlement of the derivative position or at maturity of the interest rate swap contract. Changes in fair value of any contracts that do not qualify for hedge accounting or are not designated as hedges are recognized currently in income.
Derivative Instruments
We use foreign currency forward contracts to hedge a portion of our exposure to changes in foreign currency exchange rates from time to time. We account for our forward contracts under the provisions of ASC 815, Derivatives and Hedging. Under our policy, as amended, we may hedge up to 100% of its anticipated purchases of inventory in the denominated invoice currency over a forward period not to exceed twelve months. We may also, from time to time, hedge up to ninety percent of its non-inventory purchases in the denominated invoice currency. Forward contracts that qualify as hedges are adjusted to their fair value through other comprehensive income as determined by market prices on the measurement date except any hedge ineffectiveness which is recognized currently in income. Gains and losses on these contracts are transferred from other comprehensive income into net income as the related inventories are received. Changes in fair value of any contracts that do not qualify for hedge accounting or are not designated as hedges are recognized in income currently.
Goodwill and Other Intangible Assets
We follow the provisions of ASC 350, Intangibles – Goodwill and Other in accounting for our goodwill and other intangible assets. Goodwill and indefinite-lived intangible assets are reviewed for impairment annually on December 31, or more frequently if certain indicators are present, in accordance with ASC 350-20-35 and ASC 350-30-35, respectively. If the carrying value of the goodwill or indefinite-life intangible asset exceeds its fair value, determined using the discounted cash flows method and the relief-from-royalty method, respectively, the goodwill or intangible asset is considered impaired. The carrying value of the goodwill or indefinite-life intangible asset would then be reduced to fair value. For goodwill, the determination of a reporting unit’s fair value involves, among other things, our market capitalization and application of the income approach, which includes developing forecasts of future cash flows and determining an appropriate discount rate. Currently our goodwill is recorded at our subsidiaries, Turning Point and Maidstone.
Based on Turning Point’s annual goodwill impairment testing, the estimated fair values of each of Turning Point’s reporting units were substantially in excess of the respective carrying values. We performed a qualitative assessment related to the goodwill at our insurance subsidiary, which was acquired on January 2, 2018. Based on the results of this qualitative assessment, no quantitative assessment was deemed to be required and there were no impairment issues noted.
Fair Value
GAAP establishes a framework for measuring fair value. That framework provides a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (level 1) and the lowest priority to unobservable inputs (level 3). The three levels of the fair value hierarchy under GAAP are described below:
| · | Level 1 – Inputs to the valuation methodology are unadjusted quoted prices for identical assets or liabilities in active markets at the measurement date. |
| · | Level 2 – Inputs to the valuation methodology include: quoted prices for similar assets or liabilities in active markets; quoted prices for identical or similar assets or liabilities in inactive markets; inputs other than quoted prices that are observable for the asset or liability; and inputs that are derived principally from or corroborated by observable market data by correlation or other means. |
| · | Level 3 – Unobservable inputs that reflect management’s best estimate of what market participants would use in pricing the asset or liability at the measurement date. |
Retirement Plans
We follow the provisions of ASC 715, Compensation – Retirement Benefits in accounting for our retirement plans, which requires an employer to (i) recognize in its statement of financial position the funded status of a benefit plan, measured as the difference between the fair value of plan assets and benefit obligations; (ii) recognize, net of tax, the gains or losses and prior service costs or credits that arise during the period but are not recognized as components of net periodic benefit cost; and (iii) measure defined benefit plan assets and obligations as of the date of the employer’s statement of financial position.
Income Taxes
We account for income taxes under ASC 740. We record the effects of income taxes under the liability method in which deferred income tax assets and liabilities are recognized based on the difference between the financial and tax basis of assets and liabilities using the enacted tax rates in effect for the years in which the differences are expected to reverse. We assess our ability to realize future benefits of deferred tax assets by determining if they meet the “more likely than not” criteria in ASC 740, Income Taxes. If we determine that future benefits do not meet the “more likely than not” criteria, a valuation allowance is recorded.
Stock-Based Compensation
We account for stock-based compensation using the fair value method, which requires that compensation costs related to employee share-based payment transactions are measured in the financial statements at the fair value on the date of grant and are recognized over the vesting period of the award.
Accounts Receivable
Accounts receivable are recognized at their net realizable value. All accounts receivable are trade-related and are recorded at the invoiced amount and do not bear interest. We maintain allowances for doubtful accounts receivable for estimated uncollectible invoices resulting from the customer’s inability to pay, which may result in write-offs. We recorded an allowance for doubtful accounts of less than $0.1 million at December 31, 2018 and 2017, respectively.
Inventories
Inventories are stated at the lower of cost or net realizable value. Cost was determined using the LIFO method for approximately 49.1% of the inventories as of December 31, 2018. Leaf tobacco is presented in current assets in accordance with standard industry practice, notwithstanding the fact that such tobaccos are carried longer than one year for the purpose of curing. We recorded an inventory valuation allowance of $2.5 million and $0.5 million at December 31, 2018 and 2017, respectively.
Reserves for losses and loss adjustment expenses
As an insurance company, Maidstone is required by applicable laws and regulations and GAAP to establish loss and loss expense reserves for the estimated unpaid portion of the ultimate liability for losses and loss expenses under the terms of its policies and agreements with its insured customers. The Company estimates reserves for both reported and unreported unpaid losses that have occurred on or before the balance sheet date that will need to be paid in the future. Reserves for unpaid losses fall into two categories: case reserves and reserves for claims incurred but not reported, or “IBNR”. We do not discount the liability for unpaid losses and LAE for financial statement purposes.
Reserves for losses and LAE represent an estimate of the expected cost of the ultimate settlement and administration of losses, based on facts and circumstances then known less the amount paid to date. Our actuaries calculate indicated IBNR loss reserves by using standard actuarial methodologies, which are projection or extrapolation techniques, including: (a) the loss development method and (b) the Bornhuetter-Ferguson method. Each of these methodologies is generally applicable to both long tail and short tail lines of business depending on a variety of circumstances. Informed subjective judgments as to our ultimate exposure to losses are an integral component of our loss reserving process due to numerous factors that contribute to the inherent uncertainty in the process of establishing loss reserves, including:
| · | Inflationary pressures (medical and economic) that affect the size of losses; |
| · | Judicial, regulatory, legislative, and legal decisions that affect insurers’ liabilities; |
| · | Changes in the frequency and severity of losses; |
| · | Changes in the underlying loss exposures of our policies; and |
| · | Changes in our claims handling procedures. |
A review of the emergence of actual losses relative to expectations is generally derived from the quarterly and/or semi-annual in depth reserve analyses is conducted to determine whether the assumptions used in the reserving process continue to form a reasonable basis for the projection of liabilities for each product line. As time passes, estimated loss reserves will be based more on historical loss activity and loss development patterns rather than on assumptions based on underwriters’ input, pricing assumptions or industry experience. During the loss settlement period, it often becomes necessary to refine and adjust the estimates of liability on a claim either upward or downward. No assurance can be given that actual claims made and related payments will not be in excess of the amounts reserved.
A brief summary of each actuarial method discussed above follows:
| · | Incurred Development Method – The incurred development method is based upon the assumption that the relative change in a given year’s incurred loss estimates from one evaluation point to the next is similar to the relative change in prior years’ reported loss estimates at similar evaluation points. |
| · | Paid Development Method - The paid development method is similar to the incurred development method, simply using paid triangles to calculate development factors. |
| · | Incurred Bornhuetter-Ferguson (“BF”) Method – The Incurred BF Method uses an estimated loss ratio for a particular year, and is weighted against the portion of the year’s claims that have been reported, based on historical incurred loss development patterns. The estimate of required reserves assumes that the remaining unreported portion of a particular year will pay out at a rate consistent with the estimated loss ratio for that year. |
| · | Paid Bornhuetter-Ferguson (“BF”) Method – The Paid BF Method uses an estimated loss ratio for a particular year, and is weighted against the portion of the year’s claims that have been paid, based on historical paid loss development patterns. The estimate of required reserves assumes that the remaining unpaid portion of a particular year will pay out at a rate consistent with the estimated loss ratio for that year. |
Maidstone engages an independent external actuarial specialist (the “Appointed Actuary”) to opine on its recorded statutory reserves. The Appointed Actuary estimates a range of ultimate losses, along with a range and recommended central estimate of IBNR reserve amounts. As of December 31,2018, this range was between $25.1 million and $30.8 million. Maidstone’s carried IBNR reserves are based on an internal actuarial analysis and reflect management’s best estimate of unpaid loss and LAE liabilities.
Activity in the liability for losses and loss adjustment expenses for the period from January 2, 2018, the date Maidstone was acquired, to December 31, 2018 is as follows:
| | | Period from January 2, 2018 to December 31, 2018 | |
| Reserve for losses and LAE at January 2, 2018 | | $ | 30,672 | |
| Provision for claims, net of insurance: | | | | |
| Incurred related to: | | | | |
| Current year | | | 25,223 | |
| Total incurred | | | 25,223 | |
| Deduct payment of claims, net of reinsurance: | | | | |
| Paid related to: | | | | |
| Prior year | | | 14,176 | |
| Current year | | | 14,389 | |
| Total paid | | | 28,565 | |
| Reserve for losses and LAE at December 31, 2018 | | $ | 27,330 | |
Refer to Note 13. Liability for Losses and Loss Adjustment Expenses in the consolidated financial statements for additional information on the loss and loss adjustment expenses.
Consolidated Results of Operations
The table and discussion set forth below relate to our consolidated results of operations:
| | | Year Ended December 31, | |
| | | 2018 | | | 2017 | | | $ Change | | | % Change | | | 2016 | | | $ Change | | | % Change | |
| | | | | | | | | | | | | | | | | | | |
| Revenues | | | | | | | | | | | | | | | | | | |
| Smokeless Products | | $ | 90,031 | | | $ | 84,560 | | | $ | 5,471 | | | | 6.5 | % | | $ | 77,913 | | | $ | 6,647 | | | | 8.5 | % |
| Smoking Products | | | 111,507 | | | | 109,956 | | | | 1,551 | | | | 1.4 | % | | | 111,005 | | | | (1,049 | ) | | | -0.9 | % |
| NewGen Products | | | 131,145 | | | | 91,261 | | | | 39,884 | | | | 43.7 | % | | | 17,310 | | | | 73,951 | | | | 427.2 | % |
| Insurance | | | 30,657 | | | | - | | | | 30,657 | | | | 100.0 | % | | | - | | | | - | | | NM | |
| Other | | | 2,445 | | | | 24 | | | | 2,421 | | | NM | | | | - | | | | 24 | | | NM | |
| Total revenues | | $ | 365,785 | | | $ | 285,801 | | | $ | 79,984 | | | | 28.0 | % | | $ | 206,228 | | | $ | 79,573 | | | | 38.6 | % |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Operating Income | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Smokeless Products | | $ | 28,920 | | | $ | 28,005 | | | $ | 915 | | | | 3.3 | % | | $ | 24,571 | | | $ | 3,434 | | | | 14.0 | % |
| Smoking Products | | | 42,650 | | | | 43,816 | | | | (1,166 | ) | | | -2.7 | % | | | 44,213 | | | | (397 | ) | | | -0.9 | % |
| NewGen Products | | | 6,752 | | | | 3,178 | | | | 3,574 | | | | 112.5 | % | | | (924 | ) | | | 4,102 | | | | -443.9 | % |
| Insurance | | | (3,195 | ) | | | - | | | | (3,195 | ) | | | 100.0 | % | | | - | | | | - | | | NM | |
| Other | | | (35,009 | ) | | | (27,898 | ) | | | (7,111 | ) | | | 25.5 | % | | | (23,941 | ) | | | (3,957 | ) | | | 16.5 | % |
| Total operating income | | | 40,118 | | | | 47,101 | | | | (6,983 | ) | | | -14.8 | % | | | 43,919 | | | | 3,182 | | | | 7.2 | % |
| Interest expense | | | 17,237 | | | | 16,904 | | | | 333 | | | | 2.0 | % | | | 26,739 | | | | (9,835 | ) | | | -36.8 | % |
| Interest and investment income | | | (736 | ) | | | (517 | ) | | | (219 | ) | | | 42.4 | % | | | (886 | ) | | | 369 | | | | -41.6 | % |
| Loss on extinguishment of debt | | | 2,384 | | | | 6,116 | | | | (3,732 | ) | | | -61.0 | % | | | 2,824 | | | | 3,292 | | | | 116.6 | % |
| Net periodic benefit expense, excluding service cost | | | 131 | | | | 180 | | | | (49 | ) | | | -27.2 | % | | | 334 | | | | (154 | ) | | | -46.1 | % |
| Income before income taxes | | | 21,102 | | | | 24,418 | | | | (3,316 | ) | | | -13.6 | % | | | 14,908 | | | | 9,510 | | | | 63.8 | % |
| Income tax expense (benefit) | | | 6,285 | | | | 7,280 | | | | (995 | ) | | | -13.7 | % | | | (12,005 | ) | | | 19,285 | | | | -160.6 | % |
| Net income | | | 14,817 | | | | 17,138 | | | | (2,321 | ) | | | -13.5 | % | | | 26,913 | | | | (9,775 | ) | | | -36.3 | % |
| Amounts attributable to noncontrolling interests | | | (12,436 | ) | | | (6,761 | ) | | | (5,675 | ) | | | 83.9 | % | | | - | | | | (6,761 | ) | | NM | |
| Net income attributable to SDI | | $ | 2,381 | | | $ | 10,377 | | | $ | (7,996 | ) | | | -77.1 | % | | $ | 26,913 | | | $ | (16,536 | ) | | | -61.4 | % |
Comparison of the Year Ended December 31, 2018, to the Year Ended December 31, 2017 and Comparison of the Year Ended December 31, 2017, to the Year Ended December 31, 2016
Total Revenues. For the year ended December 31, 2018, revenues were $365.8 million, an increase of $80.0 million or 28.0%, from $285.8 million for the year ended December 31, 2017. The increase in net sales was primarily driven by continued VaporBeast momentum and the acquisitions of Vapor Supply and IVG. In addition, the acquisition of Maidstone on January 2, 2018, contributed $30.7 million of revenues to our Insurance segment from earned insurance premiums, net investment income and other fees.
For the year ended December 31, 2017, revenues were $285.8 million, an increase of $79.6 million or 38.6%, from $206.2 million for the year ended December 31, 2016. This increase was substantially due to an increase in NewGen products sales as a result of the acquisitions of VaporBeast and Vapor Shark.
Total Operating Income. For the year ended December 31, 2018, operating income was $40.1 million, a decrease of $7.0 million or 14.8%, from $47.1 million for the year ended December 31, 2017. This decrease was primarily from the inclusion of Vapor Supply and IVG selling, general, and administrative expenses and transaction costs associated with the IVG and Vapor Supply acquisitions, higher legal and litigation expenses associated with Turning Point’s anti-counterfeiting initiative, and variable logistics costs associated with increased sales at VaporBeast. In addition, there were higher corporate general and administrative expenses incurred by SDI, which were not included for the entire prior period because the reverse acquisition of Turning Point by SDI did not occur until June 1, 2017, and the inclusion of the Insurance operations, which were included for the period from January 2, 2018 through December 31, 2018 only.
For the year ended December 31, 2017, operating income was $47.1 million, an increase of $3.2 million or 7.2%, from $43.9 million for the year ended December 31, 2016. This increase was primary due to Turning Point’s acquisition of VaporBeast, partially offset by the inclusion of expenses of SDI from its June 2017 acquisition date.
Interest Expense. For the year ended December 31, 2018, interest expense increased to $17.2 million from $16.9 million for the year ended December 31, 2017, an increase of $0.3 million or 2.0%, primarily as a result of interest expense for SDI and Standard Outdoor from their new borrowings during the first quarter of 2018, partially offset by lower interest rates from Turning Point’s March 2018 refinancing of its credit facility.
For the year ended December 31, 2017, interest expense decreased to $16.9 million from $26.7 million for the year ended December 31, 2016, a decrease of $9.8 million or 36.8%, primarily as a result of lower interest rates from Turning Point’s 2017 debt refinancing.
Interest and Investment Income. Interest and investment income relating to investment of the MSA escrow deposits as well as SDI’s cash and cash equivalents was $0.7 million for the year ended December 31, 2018 compared to $0.5 million for the year ended December 31, 2017, an increase of $0.2 million or 42.4%.
Interest and investment income was $0.5 million and $0.8 million for the years ended December 31, 2017 and 2016 and includes $0.1 million from SDI’s cash and cash equivalents and $0.4 million from investment of the MSA escrow deposits in 2017, compared to $0.8 million from investment of the MSA escrow deposits in 2016.
Loss on Extinguishment of Debt. For the year ended December 31, 2018, loss on extinguishment of debt was $2.4 million as the result of Turning Point refinancing its credit facility in the first quarter of 2018. For the year ended December 31, 2017, loss on extinguishment of debt was $6.1 million as the result of refinancing Turning Point’s credit facility in the first quarter of 2017.
For the year ended December 31, 2016, loss on extinguishment of debt was $2.8 million as the result of Turning Point retiring certain debt with proceeds from its IPO.
Net Periodic Benefit Expense, Excluding Service Cost. For the year ended December 31, 2018, net periodic benefit expense, excluding service cost was $0.1 million compared to $0.2 million for the year ended December 31, 2017, a decrease of $0.1 million or 27.2%.
For the year ended December 31, 2017, net periodic benefit expense, excluding service cost was $0.2 million compared to $0.3 million for the year ended December 31, 2017, a decrease of $0.1 million or 46.1%.
Total Income Before Income Taxes. For the year ended December 31, 2018, income before income taxes was $21.1 million compared to income before income taxes of $24.4 million for the year ended December 31, 2017, a decrease of $3.3 million or 13.6%. This decrease was primarily due to the inclusion of SDI corporate expenses for a full year in 2018, as compared to the period from the June 2017 acquisition date through December 31, 2017 in the prior year, and the inclusion of the results of the insurance operations for the period from January 2, 2018 through December 31, 2018.
For the year ended December 31, 2017 income before income taxes was $24.4 million compared to income before income taxes of $14.9 million for the year ended December 31, 2016, an increase of $9.5 million or 63.8%. This increase was primarily due to Turning Point’s acquisition of VaporBeast and decreased interest expense from Turning Point’s 2017 debt refinancing, partially offset by the inclusion of expenses of SDI from its June 2017 acquisition date.
Income Tax Expense (Benefit). The Company’s income tax expense of $6.3 million, or 29.8% of income before income taxes, for the year ended December 31, 2018, is higher than the expected annual effective tax rate as a result of the contribution of losses before income taxes by SDI and Standard Outdoor (which due to the impact of valuation allowances do not create income tax benefits) to the income before taxes of Turning Point. Turning Point’s effective tax rate was lower than the statutory rate as a result of discrete tax benefits of $5.4 million from the exercise of Turning Point stock options during the year. SDI and Standard Outdoor contributed no income tax expense or benefit to the consolidated results for the year ended December 31, 2018 because they had net losses and a full valuation allowance. The Company’s income tax expense of $7.3 million, or 29.8% of income before income taxes, for the year ended December 31, 2017 was lower than the expected annual effective tax rate as a result of discrete tax benefits of $4.2 million from the exercise of stock options during the year.
The Company’s income tax expense of $7.3 million, or 29.8% of income before income taxes, for the year ended December 31, 2017, is lower than the expected annual effective tax rate as a result of discrete tax benefits of $4.2 million from the exercise of Turning Point stock options during the year. SDI contributed no income tax expense or benefit to the consolidated results for the year ended December 31, 2017 because it had a net loss and a full valuation allowance. The Company’s income tax benefit for the year ended December 31, 2016 does not bear the normal relationship to income before income taxes primarily due to releasing the valuation allowance on Turning Point’s deferred taxes as it was determined that it is more-likely than not that Turning Point will realize its deferred tax assets which consist primarily of a federal net operating loss (“NOL”) carryforward.
Consolidated Net Income. Due to the factors described above, net income for the year ended December 31, 2018 and 2017, was $14.8 million and $17.1 million, respectively.
Due to the factors described above, net income for the years ended December 31, 2017 and 2016, was $17.1 million and $26.9 million, respectively
Amounts Attributable to Non-Controlling Interests. Amounts attributable to noncontrolling interests of $12.4 million and $6.8 million for the years ended December 31, 2018 and 2017, respectively, was related to the shareholders of Turning Point other than SDI and is based on the increase in Turning Point’s net income, and Vapor Shark, which was accounted for as a VIE by Turning Point during the second quarter of 2017. There were no amounts attributable to noncontrolling interests for the year ended December 31, 2016.
Net income attributable to SDI. For the year ended December 31, 2018, net income attributable to SDI was $2.4 million compared to $10.4 million for the year ended December 31, 2017, a decrease of $8.0 million or 77.1%. This decrease is a result of the items discussed above.
For the year ended December 31, 2017, net income attributable to SDI was $10.4 million compared to $26.9 million for the year ended December 31, 2016, a decrease of $16.5 million or 61.4%. This decrease is a result of the items discussed above.
Segment Results of Operations
Turning Point and Other segments
The table and discussion set forth below relate to the results of operations of the three Turning Point segments, as well as our Other reportable segment, which includes non-allocated amounts of Turning Point, SDI and Standard Outdoor:
| | | Year Ended December 31, | |
| | | 2018 | | | 2017 | | | $ Change | | | % Change | | | 2016 | | | $ Change | | | % Change | |
| Net sales | | | | | | | | | | | | | | | | | | | | | |
| Smokeless products | | $ | 90,031 | | | $ | 84,560 | | | $ | 5,471 | | | | 6.5 | % | | $ | 77,913 | | | $ | 6,647 | | | | 8.5 | % |
| Smoking products | | | 111,507 | | | | 109,956 | | | | 1,551 | | | | 1.4 | % | | | 111,005 | | | | (1,049 | ) | | | -0.9 | % |
| NewGen products | | | 131,145 | | | | 91,261 | | | | 39,884 | | | | 43.7 | % | | | 17,310 | | | | 73,951 | | | | 427.2 | % |
| Other | | | 2,445 | | | | 24 | | | | 2,421 | | | NM | | | | - | | | | 24 | | | NM | |
| Total net sales | | | 335,128 | | | | 285,801 | | | | 49,327 | | | | 17.3 | % | | | 206,228 | | | | 79,573 | | | | 38.6 | % |
| Cost of sales | | | 192,336 | | | | 160,835 | | | | 31,501 | | | | 19.6 | % | | | 105,683 | | | | 55,152 | | | | 52.2 | % |
| Gross profit | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Smokeless products | | | 46,490 | | | | 42,703 | | | | 3,787 | | | | 8.9 | % | | | 38,823 | | | | 3,880 | | | | 10.0 | % |
| Smoking products | | | 57,043 | | | | 57,146 | | | | (103 | ) | | | -0.2 | % | | | 57,595 | | | | (449 | ) | | | -0.8 | % |
| NewGen products | | | 39,026 | | | | 25,121 | | | | 13,905 | | | | 55.4 | % | | | 4,127 | | | | 20,994 | | | | 508.7 | % |
| Other | | | 233 | | | | (4 | ) | | | 237 | | | | -100.0 | % | | | - | | | | (4 | ) | | NM | |
| Total gross profit | | | 142,792 | | | | 124,966 | | | | 17,826 | | | | 14.3 | % | | | 100,545 | | | | 24,421 | | | | 24.3 | % |
| Selling, general and administrative expenses | | | 99,479 | | | | 77,865 | | | | 21,614 | | | | 27.8 | % | | | 56,626 | | | | 21,239 | | | | 37.5 | % |
| Operating income | | $ | 43,313 | | | $ | 47,101 | | | $ | (3,788 | ) | | | -8.0 | % | | $ | 43,919 | | | $ | 3,182 | | | | 7.2 | % |
Comparison of the Year Ended December 31, 2018, to the Year Ended December 31, 2017
Net Sales. For the year ended December 31, 2018, overall net sales increased to $335.1 million from $285.8 million for the year ended December 31, 2017, an increase of $49.3 million or 17.3%. The increase in net sales was primarily driven by continued VaporBeast momentum and the acquisitions of Vapor Supply and IVG.
For the year ended December 31, 2018, net sales in the Smokeless products segment increased to $90.0 million from $84.6 million for the year ended December 31, 2017, an increase of $5.5 million or 6.5%. For the year ended December 31, 2018, Smokeless product volume increased 2.6% and price/mix increased 3.9%. The increase in net sales was primarily driven by the continuing growth of Stoker’s® MST partially offset by declines in chewing tobacco attributable to increased competition, our promotional timing, and a continuing segment shift to lower price products.
For the year ended December 31, 2018, net sales in the Smoking products segment increased to $111.5 million from $110.0 million for the year ended December 31, 2017, an increase of $1.6 million or 1.4%. For the year ended December 31, 2018, Smoking products volumes decreased 0.7%, while price/mix decreased 0.7%. The increase in net sales is primarily due to volume growth for our Zig-Zag® branded papers and cigar wraps offset by offset by Turning Point’s strategic decision to de-emphasize the low margin cigar products business and line rationalization of the MYO tobacco products. Cigar product sales declined by $3.0 million to $5.5 million in the year ended December 31, 2018.
For the year ended December 31, 2018, net sales in the NewGen products segment increased to $131.1 million from $91.3 million for the year ended December 31, 2017, an increase of $39.9 million or 43.7%. The increase in net sales was primarily driven by continued VaporBeast momentum along with the acquisitions of Vapor Supply and IVG.
Gross Profit. For the year ended December 31, 2018, gross profit in the Smokeless products segment increased to $46.5 million from $42.7 million for the year ended December 31, 2017, an increase of $3.8 million or 8.9%. Smokeless gross profit for the year ended December 31, 2018, included $0.1 million of unfavorable LIFO adjustments, $0.2 million of introductory launch costs and $0.1 million of line rationalization expenses compared to $0.7 million and less than $0.1 million, respectively, for the year ended December 31, 2017. Gross profit as a percentage of net sales increased to 51.6% of net sales for the year ended December 31, 2018, from 50.5% of net sales for the year ended December 31, 2017.
For the year ended December 31, 2018, gross profit in the Smoking products segment decreased to $57.0 million from $57.1 million for the year ended December 31, 2017, a decrease of $0.1 million or 0.2%. Smoking gross profit for the year ended December 31, 2018, included less than $0.1 million of unfavorable LIFO adjustments, $0.6 million of introductory launch costs and $1.3 million of line rationalization expenses compared to $0.4 million, $0, and $0.2 million, respectively, for the year ended December 31, 2017. Gross profit as a percentage of net sales decreased to 51.2% of net sales for the year ended December 31, 2018, from 52.0% of net sales for the year ended December 31, 2017. The decrease in gross profit as a percentage of net sales is primarily due to introductory launch costs and line rationalization expenses on discontinued products.
For the year ended December 31, 2018, gross profit in the NewGen products segment increased to $39.0 million from $25.1 million for the year ended December 31, 2017, an increase of $13.9 million or 55.4%. NewGen gross profit for the year ended December 31, 2018, included $0.3 million of introductory launch costs, $1.0 million of line rationalization expenses and $0.5 million of warehouse reorganization expenses compared to less than $0.1 million, $0.2 million, and $0, respectively, for the year ended December 31, 2017. Additionally, the Company paid $2.8 million for newly imposed tariffs on goods from outside the United States in 2018, $1.1 million of which was included in cost of goods sold for the year ended December 31, 2018. Gross profit as a percentage of net sales increased to 29.8% of net sales for the year ended December 31, 2018, from 27.5% of net sales for the year ended December 31, 2017, primarily due to acquisition activity which has resulted in business-to-consumer sales, which generally have higher margins, becoming a larger share of the NewGen segment.
Selling, General and Administrative Expenses. For the year ended December 31, 2018, selling, general and administrative expenses increased to $99.5 million from $77.9 million for the year ended December 31, 2017, an increase of $21.6 million or 27.8%. Selling, general, and administrative expenses for the year ended December 31, 2018, include $10.5 million of expenses relating to the inclusion of Turning Point’s 2018 acquisitions of IVG and Vapor Supply, $4.0 million of transaction costs (primarily relating to IVG and Vapor Supply), $0.5 million of expenses associated with strategic initiatives, $0.9 million of introductory launch costs, $0.8 million of organizational development expenses, $0.9 million of line rationalization expenses, $0.1 million of warehouse reconfiguration expenses, and a $2.0 million net reduction to selling, general, and administrative expenses related to the VMR Loan. Selling, general, and administrative expenses for the year ended December 31, 2017, include $0.9 million of expenses associated with strategic initiatives, $1.7 million of launch costs, $1.2 million of transaction costs, and $0.1 million of line rationalization expenses. Other items leading to the increase in selling, general, and administrative expenses in the year ended December 31, 2018, when compared to the year ended December 31, 2017, include higher legal and litigation expenses associated with Turning Point’s anti-counterfeiting initiative and variable logistics costs associated with increased sales at VaporBeast partially offset by a receivable reserve reversal and prepayment penalty, both of which are associated with the loan issued to a supplier in the second quarter of 2018 that was repaid during the third quarter of 2018. In addition, selling, general and administrative expenses for SDI and Standard Outdoor for the year ended December 31,2018, were $5.4 million compared to $2.6 million for the period from June 1, 2017 to December 31, 2017. These expenses are primarily legal, accounting and other professional fees.
Comparison of the Year Ended December 31, 2017, to the Year Ended December 31, 2016
Net Sales. For the year ended December 31, 2017, overall net sales increased to $285.8 million from $206.2 million for the year ended December 31, 2016, an increase of $79.6 million or 38.6%. For the year ended December 31, 2017, volumes increased 34.2% and price/mix increased 4.4%. This increase was substantially due to an increase in NewGen products sales as a result of the acquisitions of VaporBeast and Vapor Shark.
For the year ended December 31, 2017, net sales in the Smokeless products segment increased to $84.6 million from $77.9 million for the year ended December 31, 2016, an increase of $6.6 million or 8.5%. For the year ended December 31, 2017, volume increased 3.4% and price/mix increased 5.1%. Net sales growth was primarily driven by Stoker’s® MST.
For the year ended December 31, 2017, net sales in the Smoking products segment decreased to $110.0 million from $111.0 million for the year ended December 31, 2016, a decrease of $1.0 million or 0.9%. For the year ended December 31, 2017, Smoking products volumes decreased 3.7%, while price/mix increased 2.8%. The decline in net sales is primarily due to reduced investment in the cigar product line to allow for those resources to be used for other product lines with higher margins.
For the year ended December 31, 2017, net sales in the NewGen products segment increased to $91.3 million from $17.3 million for the year ended December 31, 2016, an increase of $74.0 million or 427.2%. For the year ended December 31, 2017, NewGen products volumes increased 415.8%, while price/mix increased 11.4%. Net sales growth was primarily driven by the acquisitions of VaporBeast and Vapor Shark.
Gross Profit. For the year ended December 31, 2017, overall gross profit increased to $125.0 million from $100.5 million for the year ended December 31, 2016, an increase of $24.4 million or 24.3%, primarily due to acquisition of VaporBeast. Consolidated gross profit for the year ended December 31, 2017, included $1.1 million of unfavorable LIFO adjustments, $0.7 million of introductory launch costs, and $0.4 million of line rationalization expenses compared to $0.9 million, $1.3 million, and $0, respectively, for the year ended December 31, 2016. Gross profit as a percentage of net sales weakened to 43.7% for the year ended December 31, 2017, from 48.8% for the year ended December 31, 2016, as a result of the mix impact of VaporBeast’s inherently lower distribution margins.
For the year ended December 31, 2017, gross profit in the Smokeless products segment increased to $42.7 million from $38.8 million for the year ended December 31, 2016, an increase of $3.9 million or 10.0%. Smokeless gross profit for the year ended December 31, 2017, included $0.7 million of unfavorable LIFO adjustments and $0.7 million of introductory launch costs compared to $1.0 million and $1.1 million, respectively, for the year ended December 31, 2016. Gross profit as a percentage of net sales increased to 50.5% of net sales for the year ended December 31, 2017, from 49.8% of net sales for the year ended December 31, 2016. The increase in gross profit as a percentage of net sales is due to Turning Point being able to take price increases and the further expansion of Stoker’s® MST sales, leveraging its Smokeless fixed costs across a higher sales volume.
For the year ended December 31, 2017, gross profit in the Smoking products segment decreased to $57.1 million from $57.6 million for the year ended December 31, 2016, a decrease of $0.4 million or 0.8%. Smoking gross profit for the year ended December 31, 2017, included $0.4 million of unfavorable LIFO adjustments and $0.2 million of line rationalization expenses compared to $0.1 million of favorable LIFO adjustments for the year ended December 31, 2016. Gross profit as a percentage of net sales increased to 52.0% of net sales for the year ended December 31, 2017, from 51.9% of net sales for the year ended December 31, 2016.
For the year ended December 31, 2017, gross profit in the NewGen products segment increased to $25.1 million from $4.1 million for the year ended December 31, 2016, an increase of $21.0 million or 508.7%. NewGen gross profit for the year ended December 31, 2017, included less than $0.1 of introductory launch costs and $0.2 million of line rationalization expenses compared to $0.2 million and $0, respectively, for the year ended December 31, 2016. Gross profit as a percentage of net sales increased to 27.5% of net sales for the year ended December 31, 2017, from 23.8% of net sales for the year ended December 31, 2016, primarily as a result of the change in product mix in the segment and Turning Point’s continued focus on margin expansion in the NewGen segment.
Selling, General and Administrative Expenses. For the year ended December 31, 2017, selling, general and administrative expenses increased to $77.9 million from $56.6 million for the year ended December 31, 2016, an increase of $21.2 million or 37.5%, due primarily to acquisitions of VaporBeast and Vapor Shark. Selling, general, and administrative expenses for the year ended December 31, 2017, also included $0.9 million of expenses associated with strategic initiatives, $1.7 million of introductory launch costs, $1.2 million of transaction costs, $0.1 million of line rationalization expenses compared to $0.5 million, $1.4 million, $1.1 million and $0, respectively, for the year ended December 31, 2016. Selling, general and administrative expenses also include $2.6 million of SDI expenses, from its June 1, 2017 acquisition date. These expenses are primarily legal, accounting and other professional fees. Selling, general, and administrative expenses for the year ended December 31, 2016, also included $0.9 million of IPO-related compensation costs.
On January 2, 2018, we completed the acquisition of Interboro Holdings Inc., which operates as Maidstone Insurance. As a result, the following discussion relates to the insurance operations for the period from January 2, 2018 to December 31, 2018. The table and discussion set forth below relate to the results of operations of our Insurance segment:
| | | For the period January 2, 2018 to December 31, 2018 | |
| | | | |
| Insurance premiums earned | | $ | 28,648 | |
| Net investment income | | | 851 | |
| Other income | | | 1,158 | |
| Total revenues | | | 30,657 | |
| | | | | |
| Incurred losses and loss adjustment expenses | | | 25,221 | |
| Other operating expenses | | | 8,631 | |
| Total operating costs and expenses | | | 33,852 | |
| Loss before income taxes | | $ | (3,195 | ) |
Insurance Premiums Earned. For the period from January 2, 2018 to December 31, 2018, $28.6 million of insurance premiums were earned primarily related to auto insurance policies written.
Net Investment Income. For the period from January 2, 2018 to December 31, 2018, we earned net investment income of $0.9 million, comprised primarily of interest, net of investment expenses.
Other Income. We recognized $1.2 million of other income for the period from January 2, 2018 to December 31, 2018, respectively, which included service and takeout fees, installment and late fees collected by Maidstone, and broker fees collected from non-affiliated insurance companies when acting as an agent. Service and takeout fees are in the form of credits for writing business from the state assigned pool. These credits can be used to reduce the amount of business written in the future or sold to third-party insurance companies for them to reduce their exposure to the assigned risk pool.
Incurred losses and loss adjustment expenses. For the period from January 2, 2018 to December 31, 2018, we incurred losses and loss adjustment expenses of $25.2 million. These amounts are based on individual case estimates for reported claims and a factor for incurred but not reported (“IBNR”) claims.
Other operating expenses. We incurred other expenses of $8.6 million for the period from January 2, 2018 to December 31, 2018, respectively, which consisted of acquisition and underwriting expenses, salaries and benefits, depreciation, amortization and other general and administrative expenses.
Liquidity and Capital Resources
The following table summarizes our Consolidated Statements of Cash Flows for the years ended December 31, 2018, 2017 and 2016 (in thousands):
| | | Year Ended December 31, | |
| | | 2018 | | | 2017 | | | 2016 | |
| Net cash flow provided by (used in): | | | | | | | | | |
| Operating activities | | $ | 110 | | | $ | 24,946 | | | $ | 9,128 | |
| Investing activities | | | (30,805 | ) | | | 18,847 | | | | (55,888 | ) |
| Financing activities | | | 31,329 | | | | (27,623 | ) | | | 15,734 | |
| Net increase (decrease) in cash | | $ | 634 | | | $ | 16,170 | | | $ | (31,026 | ) |
Operating activities. Net cash provided by operating activities represents the cash receipts and cash disbursements from all of our activities other than investing activities and financing activities. Changes in cash from operating activities reflect, among other things, the timing of cash collections from customers, payments to suppliers, timing of payments to customers to settle insurance claims and changes in payments related to insurance policy acquisition costs.
Net cash provided by operating activities was $0.1 million for the year ended December 31, 2018 compared to $24.9 million for the year ended December 31, 2017. This $24.8 million decrease in net cash provided by operating activities was primarily the result of the timing of cash collections and cash payments related to our operations, including inventory increases of $20.7 million from pre-tariff inventory buys within Turning Point’s existing operations, an increase in deferred acquisition costs of $2.3 million and a decrease in the reserves for losses and loss adjustment expenses of $3.3 million from Maidstone, which was acquired on January 2, 2018.
Net cash provided by operating activities was $24.9 million for the year ended December 31, 2017 compared to $9.1 million for the year ended December 31, 2016. The $15.8 million increase in net cash provided by operating activities was primarily the result of an increase in Turning Point’s pre-tax income of $12.0 million in 2017 along with Turning Point paying $9.9 million of interest on its PIK Toggle Notes in 2016, which did not recur.
Investing activities. Net cash used in investing activities was $30.8 million for the year ended December 31, 2018 compared to net cash provided by investing activities of $18.8 million for the year ended December 31, 2017. The increase in cash used in investing activities was primarily a result of $16.2 million of cash paid for the IVG, Vapor Supply, Maidstone and Standard Outdoor acquisitions during 2018, net of cash acquired, and $13.9 million of payments for purchases of fixed maturity securities by Maidstone, which was acquired on January 2, 2018. These amounts were partially offset by proceeds of $6.7 million from the sale and maturity of Maidstone’s fixed maturity securities. During 2017, cash flows from investing activities included proceeds of $20.3 million as a result of the reverse acquisition of SDI by Turning Point representing SDI's cash acquired.
Net cash provided by investing activities was $18.8 million for the year ended December 31, 2017 compared to net cash used in investing activities of $55.9 million for the year ended December 31, 2016. During 2017, cash flows from investing activities included proceeds of $20.3 million as a result of the reverse acquisition of SDI by Turning Point. Cash flows used in investing activities during 2016 included $29.1 million put into escrow by Turning Point for the MSA deposit and $23.6 million for the acquisition of VaporBeast, certain brands from Wind River and the land and building in Dresden, Tennessee.
Financing activities. Net cash provided by financing activities was $31.3 million for the year ended December 31, 2018 compared to net cash used in financing activities of $27.6 million for the year ended December 31, 2017. During 2018, net cash provided by financing activities included borrowings by Turning Point against its 2018 Revolving Credit Facility, the borrowing of $15.0 million by SDI under the Crystal Loan and net proceeds of $6.8 million from the issuance of SDI common stock. During 2017, net cash used in financing activities was primarily related to refinancing costs associated with Turning Point’s 2017 Credit Facility.
Net cash used in financing activities was $27.6 million for the year ended December 31, 2017 compared to net cash provided by financing activities of $15.7 million for the year ended December 31, 2016. During 2017, net cash used in financing activities was primarily related to refinancing costs associated with Turning Point’s 2017 Credit Facility, while in 2016, net cash provided by financing activities was primarily related to proceeds from Turning Point’s IPO.
Long-Term Debt
As of December 31, 2018, the Company was in compliance with the financial and restrictive covenants in its existing debt instruments. The following table provides outstanding balances under our debt instruments.
| | | | | | | |
| 2018 First Lien Term Loan | | $ | 154,000 | | | $ | - | |
| 2018 Second Lien Term Loan | | | 40,000 | | | | - | |
| SDI Crystal Term Loan | | | 15,000 | | | | - | |
| Standard Outdoor Promissory Notes | | | 9,950 | | | | - | |
| 2017 First Lien First Out Term Loan | | | - | | | | 105,875 | |
| 2017 First Lien Second Out Term Loan | | | - | | | | 34,738 | |
| 2017 Second Lien Term Loan | | | - | | | | 55,000 | |
| Note payable - IVG | | | 4,000 | | | | - | |
| Note payable - VaporBeast | | | - | | | | 2,000 | |
| Total Notes Payable and Long-Term Debt | | | 222,950 | | | | 197,613 | |
Less deferred finance charges and debt discount | | | (4,903 | ) | | | (3,573 | ) |
| Less current maturities | | | (9,431 | ) | | | (7,850 | ) |
| | | $ | 208,616 | | | $ | 186,190 | |
On March 7, 2018, Turning Point entered into a $250.0 million credit facility consisting of a $160.0 million 2018 First Lien Term Loan with Fifth Third Bank, as administrative agent, and other lenders, and a $50.0 million 2018 Revolving Credit Facility (collectively, the “2018 First Lien Credit Facility”) in addition to a $40.0 million 2018 Second Lien Term Loan (together with the 2018 First Lien Credit Facility, the “2018 Credit Facility”) with Prospect Capital Corporation, as administrative agent, and other lenders. The 2018 Credit Facility retained the $40.0 million accordion feature of the 2017 Credit Facility. Proceeds from the 2018 Credit Facility were used to repay, in full, the 2017 Credit Facility. Turning Point incurred a loss on extinguishment of debt of $2.4 million in the first quarter of 2018 as a result of the refinancing.
The 2018 Credit Facility contains customary events of default including payment defaults, breaches of representations and warranties, covenant defaults, cross-defaults to certain other material indebtedness in excess of specified amounts, certain events of bankruptcy and insolvency, certain ERISA events, judgments in excess of specified amounts, and change in control defaults. The 2018 Credit Facility also contains certain negative covenants customary for facilities of these types including covenants that, subject to exceptions described in the 2018 Credit Facility, restrict Turning Point’s ability: (i) to pledge assets, (ii) to incur additional indebtedness, (iii) to pay dividends, (iv) to make distributions, (v) to sell assets, and (vi) to make investments.
2018 First Lien Credit Facility: The 2018 First Lien Term Loan and the 2018 Revolving Credit Facility bear interest at LIBOR plus a spread of 2.75% to 3.50% based on Turning Point’s senior leverage ratio. The 2018 First Lien Term Loan has quarterly required payments of $2.0 million beginning June 30, 2018, increasing to $3.0 million on June 30, 2020, and increasing to $4.0 million on June 30, 2022. The 2018 First Lien Credit Facility has a maturity date of March 7, 2023. The 2018 First Lien Term Loan is secured by a first priority lien on substantially all of the assets of the borrowers and the guarantors thereunder, including a pledge of Turning Point’s capital stock, other than certain excluded assets (the “Collateral”). The 2018 First Lien Credit Facility contains certain financial covenants including maximum senior leverage ratio of 3.50x with step-downs to 3.00x, a maximum total leverage ratio of 4.50x with step-downs to 4.00x, and a minimum fixed charge coverage ratio of 1.20x. The weighted average interest rate of the 2018 First Lien Term Loan was 5.77% at December 31, 2018. The weighted average interest rate of the 2018 Revolving Credit Facility was 5.79% at December 31, 2018. At December 31, 2018, Turning Point had $26.0 million of borrowings outstanding under the 2018 Revolving Credit Facility. The $24.0 million unused portion of the 2018 Revolving Credit Facility is reduced by a $1.3 million letter of credit with Fifth Third Bank, resulting in $22.7 million of availability under the 2018 Revolving Credit Facility at December 31, 2018.
2018 Second Lien Credit Facility: The 2018 Second Lien Credit Facility bears interest at a rate of LIBOR plus 7.00% and has a maturity date of March 7, 2024. The 2018 Second Lien Term Loan is secured by a second priority interest in the Collateral and is guaranteed by the same entities as the 2018 First Lien Term Loan. The 2018 Second Lien Credit Facility contains certain financial covenants including a maximum senior leverage ratio of 3.75x with step-downs to 3.50x, a maximum total leverage ratio of 4.75x with step-downs to 4.50x, and a minimum fixed charge coverage ratio of 1.10x. The weighted average interest rate of the 2018 Second Lien Term Loan was 9.46% at December 31, 2018.
Note Payable – IVG
In September 2018, Turning Point issued a note payable to IVG’s former shareholders (“IVG Note”). The IVG Note is $4.0 million principal with 6.0% interest compounding annually and matures on March 5, 2020. The IVG Note is subject to customary defaults including defaults for nonpayment, nonperformance, any material breach under the purchase agreement, and bankruptcy or insolvency.
On February 2, 2018, we and our Outdoor advertising subsidiaries (the “Borrowers”) entered into a term loan agreement with Crystal Financial LLC (“Crystal Term Loan”). The Crystal Term Loan provides for an initial term loan of $10.0 million and a commitment to provide additional term loans of up to $15.0 million. Subject to the satisfaction of certain conditions, we may request an additional increase in the commitment of up to $25.0 million. The proceeds were used to finance a portion of the acquisition of certain billboard structures, fund certain fees and expenses, and provide working capital for the Borrowers. Any incremental term loans will be used to finance permitted acquisitions. The Crystal Term Loan bears interest at a rate equal to the three-month “Libor Rate” as published in The Wall Street Journal plus 7.25%. Interest under the Crystal Term Loan agreement is payable monthly and is also subject to an agency fee of $50,000, payable upon execution of the Crystal Term Loan agreement, and annually thereafter. In addition, the Crystal Term Loan was subject to a one-time commitment fee of $350,000, which was paid upon execution of the term loan agreement. The principal balance is payable at maturity, on February 2, 2023. In August 2018, we borrowed an additional $5.0 million under the Crystal Term Loan. This borrowing is subject to the same terms as the initial borrowing.
The obligations of the Borrowers under the Crystal Term Loan agreement are secured by all the assets of the Borrowers, subject to certain exceptions and exclusions as set forth in the Crystal Term Loan agreement and other loan documents.
Standard Outdoor Promissory Notes
On January 18, 2018, as partial consideration for an asset purchase of 83 billboard structures located in Alabama, as well as the ground leases and advertising contracts relating to such billboard structures, we issued a promissory note with a face value of $6.5 million. The promissory note was recorded net of a discount of $0.9 million, representing the difference between the face value and fair value at issuance. A principal payment of $1.0 million on the promissory note is payable January 1 of each year, beginning January 1, 2020 and ending January 1, 2022, with a $3.5 million final principal payment on January 1, 2023. The promissory note has a 5% fixed coupon interest rate and interest is payable quarterly.
On February 20, 2018, as partial consideration for an asset purchase of 86 billboard structures located in Georgia and Florida, as well as the ground leases and advertising contracts relating to such billboard structures, we issued a promissory note with a face value of $3.5 million. The promissory note was recorded net of a discount of $0.3 million, representing the difference between the face value and fair value at issuance. A principal payment of $0.9 million on the promissory note was paid on March 1, 2019, with the remaining principal paid down monthly through March 1, 2022. The promissory note has a 5% fixed coupon interest rate and interest is payable monthly after March 1, 2019.
Distribution Agreements
For a description of our material distribution agreements, see “Business—Distribution and Supply Agreements.”
Master Settlement Agreement
On November 23, 1998, the major U.S. cigarette manufacturers, Philip Morris USA, Inc., Brown & Williamson Tobacco Corporation, Lorillard Tobacco Company and R.J. Reynolds Tobacco Company, entered into the MSA with attorneys general representing states that agreed to settle certain recovery actions (the “Settling States”). In order to be in compliance with the MSA and subsequent states’ statutes, Turning Point was required to fund an escrow account with each of the Settling States based on the number of cigarettes or cigarette equivalents (which is measured by pounds of MYO cigarette smoking tobacco) sold in such state. Funding of the escrow deposit by Turning Point in 2018 was less than $0.1 million in respect of sales of smoking products in 2017. Turning Point estimates the total deposits relating to 2018 sales will be less than $0.1 million. Under current MSA legislation, Turning Point will not be required to make escrow deposits after making deposits for 2017 sales as its last remaining product line subject to MSA legislation, MYO cigarette smoking tobacco, was discontinued in the third quarter of 2017. Each year’s deposit will be released from escrow after 25 years. Turning Point is scheduled to begin receiving payments as our escrow deposits are released from escrow beginning in 2024.
The following table summarizes Turning Point’s escrow deposit balances (in thousands) by sales year as of:
| | | Deposits as of | |
| | | | | | |
| 1999 | | $ | 211 | | | $ | 211 | |
| 2000 | | | 1,017 | | | | 1,017 | |
| 2001 | | | 1,673 | | | | 1,673 | |
| 2002 | | | 2,271 | | | | 2,271 | |
| 2003 | | | 4,249 | | | | 4,249 | |
| 2004 | | | 3,714 | | | | 3,714 | |
| 2005 | | | 4,552 | | | | 4,552 | |
| 2006 | | | 3,847 | | | | 3,847 | |
| 2007 | | | 4,167 | | | | 4,167 | |
| 2008 | | | 3,364 | | | | 3,364 | |
| 2009 | | | 1,619 | | | | 1,626 | |
| 2010 | | | 406 | | | | 406 | |
| 2011 | | | 193 | | | | 193 | |
| 2012 | | | 199 | | | | 199 | |
| 2013 | | | 173 | | | | 173 | |
| 2014 | | | 143 | | | | 143 | |
| 2015 | | | 101 | | | | 101 | |
| 2016 | | | 91 | | | | 81 | |
| 2017 | | | 83 | | | | 70 | |
| Total | | $ | 32,073 | | | $ | 32,057 | |
Off-balance Sheet Arrangements
During 2018, Turning Point executed various forward contracts, none of which met hedge accounting requirements, for the purchase of €14.5 million with maturity dates ranging from March 2018 to January 2019. During 2017, Turning Point executed no forward contracts. During 2016, we executed various forward contracts, none of which met hedge accounting, for the purchase of €5.6 million with maturity dates from January 26, 2017 to July 17, 2017. At December 31, 2018 and 2017, Turning Point had forward contracts for the purchase of €1.5 million and €0 million, respectively. Turning Point had swap contracts for a total notional amount of $70 million at December 31, 2018. The fair values of the swap contracts are based upon quoted market prices and resulted in a liability of $0.9 million as of December 31, 2018. The fair values of the swap contracts are based upon quoted market prices and resulted in a liability of $0.9 million as of December 31, 2018.
Contractual Obligations
The following table summarizes the Company’s contractual obligations at December 31, 2018 (in thousands):
| | | Payments due by period | |
| | | | | | | | | | | | | | | | |
| | | Total | | | Less than 1 year | | | 1-3 years | | | 4-5 years | | | More than 5 years | |
| Long-term debt obligations, including interest | | $ | 284,707 | | | $ | 22,373 | | | $ | 76,265 | | | $ | 145,375 | | | $ | 40,694 | |
| Operating lease obligations | | | 9,071 | | | | 2,462 | | | | 3,549 | | | | 421 | | | | 2,639 | |
| Purchase obligations | | | 37,705 | | | | 37,705 | | | | - | | | | - | | | | - | |
| Net assets acquired | | $ | 331,483 | | | $ | 62,540 | | | $ | 79,814 | | | $ | 145,796 | | | $ | 43,333 | |
Inflation
We believe any effect of inflation at current levels will be minimal. Historically, Turning Point has been able to increase prices at a rate equal to, or greater than, the rate of inflation and believes it will continue to be able to do so for the foreseeable future. In addition, Turning Point has been able to maintain a relatively stable, variable cost structure for our products due, in part, to its successful procurement activities regarding its tobacco products and, in part, to its existing contractual agreement for the purchase of its premium cigarette papers.
| Item 7A. | Quantitative and Qualitative Disclosures About Market Risk |
Foreign Currency Sensitivity
Turning Point’s inventory purchases from Bolloré are denominated in euros. Accordingly, Turning Point has exposure to potentially adverse movements in the euro exchange rate. In addition, Bolloré provides a contractual hedge against catastrophic currency fluctuation in Turning Point’s agreement. Turning Point does not use derivative financial instruments for speculative trading purposes, nor does Turning Point hedge its foreign currency exposure in a manner that offsets the effects of changes in foreign exchange rates.
Turning Point regularly reviews its foreign currency risk and hedging programs and may as part of that review determine at any time to change its hedging policy. During 2018, Turning Point executed various forward contracts, none of which met hedge accounting requirements, for the purchase of €14.5 million with maturity dates ranging from March 2018 to January 2019. At December 31, 2018, Turning Point had forward contracts for the purchase of €1.5 million. A 10% change in the euro to U.S. dollars exchange rate would change pre-tax income by approximately $1.8 million per year. None of our other subsidiaries have significant exposure to foreign exchange risk.
Credit Risk
At December 31, 2018 and 2017, the Company had bank deposits, including Turning Point’s MSA escrows, in excess of federally insured limits of approximately $15.4 million and $20.4 million, respectively. Turning Point has chosen to invest a portion of the MSA escrows in U.S. Government securities including Treasury Notes and Treasury Bonds.
Turning Point sells its products to distributors, retail establishments, and individual consumers (via online sales from 2016 acquisition VaporBeast, 2017 acquisition Vapor Shark, and 2018 acquisitions Vapor Supply and IVG) throughout the U.S. and also have sales of Zig-Zag® premium cigarette papers in Canada. In 2018, 2017, and 2016, Turning Point had no customers that accounted for more than 10% of its net sales. Turning Point performs periodic credit evaluations of its customers and generally does not require collateral on trade receivables. Historically, Turning Point has not experienced significant losses due to customer credit issues.
Maidstone evaluates the creditworthiness of its counterparties, taking into account credit ratings assigned by independent agencies. The credit approval process involves an assessment of factors, including, among others, the counterparty, country and industry credit exposure limits. Collateral may be required, at the discretion of Maidstone, on certain transactions based on the creditworthiness of the counterparty.
Interest Rate Sensitivity
Turning Point has exposure to interest rate volatility principally relating to interest rate changes applicable to loans under its 2018 Credit Facility. As of December 31, 2018, all of Turning Point’s debt with the exception of the IVG Note Payable bears interest at variable rates. However, Turning Point had swap contracts for a total notional amount of $70 million at December 31, 2018. The fair values of the swap contracts are based upon quoted market prices and resulted in a liability of $0.9 million as of December 31, 2018. Turning Point believes that the effect, if any, of reasonably possible near-term changes in interest rates on the consolidated financial position, results of operations or cash flows would not be significant. A 1% change in the interest rate would change pre-tax income by approximately $1.5 million per year.
SDI also has exposure to interest rate volatility beginning in the first quarter of 2018 as a result of the Crystal Term Loan. The Crystal Term Loan bears interest at variable rates based on a rate equal to the three-month Libor Rate plus 7.25%. A 1% increase in the interest rate would change pre-tax income by approximately $0.2 million per year. We believe the effect, if any, of reasonably possible near-term changes in interest rates on our consolidated financial position, results of operations, or cash flows would not be significant.
Maidstone’s primary exposure to market risk is interest rate sensitivity, which is affected by changes in the general level of U.S. interest rates, particularly because its investments are primarily in marketable debt securities. Maidstone’s available-for-sale securities are subject to interest rate risk and will fall in value if market interest rates increase. Due to the short-term duration of our investment portfolio an immediate 10% change in interest rates would not have a material effect on the fair market value of Maidstone’s portfolio.
| Item 8. | Financial Statements and Supplementary Data |
The following consolidated financial statements and supplemental quarterly financial data of the Company and its subsidiaries are included as part of this Form 10-K:
| | Page |
| | |
| Report of Independent Registered Public Accounting Firm | 68 |
| Consolidated Balance Sheets as of December 31, 2018 and 2017 | 69
|
| Consolidated Statements of Operations for each of the years in the three-year period ended December 31, 2018 | 70 |
| Consolidated Statements of Stockholders’ Equity for each of the years in the three-year period ended December 31, 2018 | 72
|
| Consolidated Statements of Cash Flows for each of the years in the three-year period ended December 31, 2018 | 73
|
| Notes to Consolidated Financial Statements | 76
|
Report of Independent Registered Public Accounting Firm
To the Stockholders and the Board of Directors of Standard Diversified Inc.:
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Standard Diversified Inc. and its subsidiaries (the Company) as of December 31, 2018 and 2017, the related consolidated statements of income, comprehensive income, changes in stockholders’ equity (deficit) and cash flows for each of the three years in the period ended December 31, 2018, and the related notes to the consolidated financial statements and Schedule I (collectively, the financial statements). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2018 and 2017, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2018, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ RSM US LLP
We have served as the Company’s auditor since 2006.
Greensboro, North Carolina
March 11, 2019
Standard Diversified Inc. and Subsidiaries
Consolidated Balance Sheets
(dollars in thousands except share data)
| | | | | | | |
| ASSETS | | | | | | |
| Cash and cash equivalents | | $ | 21,201 | | | $ | 18,219 | |
| Fixed maturities available for sale, at fair value; amortized cost $32,474 in 2018 | | | 32,132 | | | | - | |
| Equity securities, at fair value; cost: $794 in 2018 | | | 693 | | | | - | |
| Trade accounts receivable, net of allowances of $42 in 2018 and $17 in 2017 | | | 2,901 | | | | 3,249 | |
| Premiums receivable | | | 5,858 | | | | - | |
| Inventories | | | 91,237 | | | | 63,296 | |
| Other current assets | | | 15,045 | | | | 10,851 | |
| Property, plant and equipment, net | | | 27,741 | | | | 9,172 | |
| Deferred income taxes | | | - | | | | 450 | |
| Deferred financing costs, net | | | 870 | | | | 630 | |
| Intangible assets, net | | | 38,325 | | | | 26,436 | |
| Deferred policy acquisition costs | | | 2,279 | | | | - | |
| Goodwill | | | 146,696 | | | | 134,620 | |
| Master Settlement Agreement (MSA) escrow deposits | | | 30,550 | | | | 30,826 | |
| Other assets | | | 6,415 | | | | 965 | |
| Total assets | | $ | 421,943 | | | $ | 298,714 | |
| | | | | | | | | |
| LIABILITIES AND EQUITY | | | | | | | | |
| Reserves for losses and loss adjustment expenses | | $ | 27,330 | | | $ | - | |
| Unearned premiums | | | 12,707 | | | | - | |
| Advance premiums collected | | | 500 | | | | - | |
| Accounts payable | | | 9,225 | | | | 3,686 | |
| Accrued liabilities | | | 23,883 | | | | 20,014 | |
| Current portion of long-term debt | | | 9,431 | | | | 7,850 | |
| Revolving credit facility | | | 26,000 | | | | 8,000 | |
| Notes payable and long-term debt | | | 208,616 | | | | 186,190 | |
| Deferred income taxes | | | 2,711 | | | | - | |
| Postretirement benefits | | | 3,096 | | | | 3,962 | |
| Asset retirement obligations | | | 2,028 | | | | - | |
| Other long-term liabilities | | | 1,687 | | | | 571 | |
| Total liabilities | | | 327,214 | | | | 230,273 | |
| | | | | | | | | |
| Commitments and contingencies | | | | | | | | |
| | | | | | | | | |
| Equity: | | | | | | | | |
| Preferred stock, $0.01 par value; authorized shares 50,000,000; -0- issued and outstanding shares | | | - | | | | - | |
| Class A common stock, $0.01 par value; authorized shares, 300,000,000; 9,156,293 issued and 9,052,801 outstanding shares at December 31, 2018 and 8,348,373 issued and outstanding at December 31, 2017 | | | 91 | | | | 83 | |
Class B common stock, $0.01 par value; authorized shares, 30,000,000; 7,801,995 and 8,041,525 issued and outstanding shares at December 31, 2018 and December 31, 2017, respectively; convertible into Class A shares on a one-for-one basis | | | 78 | | | | 81 | |
| Additional paid-in capital | | | 81,261 | | | | 70,813 | |
| Class A Treasury stock, 103,492 and 0 common shares at cost at December 31, 2018 and 2017 | | | (1,440 | ) | | | - | |
| Accumulated other comprehensive loss | | | (1,683 | ) | | | (1,558 | ) |
| Accumulated deficit | | | (24,613 | ) | | | (26,982 | ) |
| Total stockholders’ equity | | | 53,694 | | | | 42,437 | |
| Noncontrolling interests | | | 41,035 | | | | 26,004 | |
| Total equity | | | 94,729 | | | | 68,441 | |
| Total liabilities and equity | | $ | 421,943 | | | $ | 298,714 | |
The accompanying notes are an integral part of the consolidated financial statements.
Standard Diversified Inc. and Subsidiaries
Consolidated Statements of Income
(dollars in thousands except share data)
| | | Year Ended December 31, | |
| | | 2018 | | | 2017 | | | 2016 | |
| Revenues: | | | | | | | | | |
| Net sales | | $ | 335,128 | | | $ | 285,801 | | | $ | 206,228 | |
| Insurance premiums earned | | | 28,648 | | | | - | | | | - | |
| Net investment income | | | 851 | | | | - | | | | - | |
| Other income | | | 1,158 | | | | - | | | | - | |
| Total revenues | | | 365,785 | | | | 285,801 | | | | 206,228 | |
| | | | | | | | | | | | | |
| Operating costs and expenses: | | | | | | | | | | | | |
| Cost of sales | | | 192,336 | | | | 160,835 | | | | 105,683 | |
| Selling, general and administrative expenses | | | 99,479 | | | | 77,865 | | | | 56,626 | |
| Incurred losses and loss adjustment expenses | | | 25,221 | | | | - | | | | - | |
| Other operating expenses | | | 8,631 | | | | - | | | | - | |
| Total operating costs and expenses | | | 325,667 | | | | 238,700 | | | | 162,309 | |
| Operating income | | | 40,118 | | | | 47,101 | | | | 43,919 | |
| | | | | | | | | | | | | |
| Interest expense | | | 17,237 | | | | 16,904 | | | | 26,739 | |
| Interest and investment income | | | (736 | ) | | | (517 | ) | | | (886 | ) |
| Loss on extinguishment of debt | | | 2,384 | | | | 6,116 | | | | 2,824 | |
| Net periodic benefit expense, excluding service cost | | | 131 | | | | 180 | | | | 334 | |
| Income before income taxes | | | 21,102 | | | | 24,418 | | | | 14,908 | |
| Income tax expense (benefit) | | | 6,285 | | | | 7,280 | | | | (12,005 | ) |
| Net income | | | 14,817 | | | | 17,138 | | | | 26,913 | |
| Net income attributable to noncontrolling interests | | | (12,436 | ) | | | (6,761 | ) | | | - | |
| Net income attributable to Standard Diversified Inc. | | $ | 2,381 | | | $ | 10,377 | | | $ | 26,913 | |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| Net income attributable to SDI per Class A and Class B Common Share – Basic | | $ | 0.14 | | | $ | 0.49 | | | $ | 1.10 | |
| Net income attributable to SDI per Class A and Class B Common Share – Diluted | | $ | 0.13 | | | $ | 0.48 | | | $ | 1.05 | |
| Weighted Average Class A and Class B Common Shares Outstanding – Basic | | | 16,697,542 | | | | 21,223,884 | | | | 24,549,060 | |
| Weighted Average Class A and Class B Common Shares Outstanding – Diluted | | | 16,747,585 | | | | 21,289,466 | | | | 25,700,615 | |
The accompanying notes are an integral part of the consolidated financial statements.
Standard Diversified Inc. and Subsidiaries
Consolidated Statements of Comprehensive Income
(dollars in thousands)
| | | Year Ended December 31, | |
| | | 2018 | | | 2017 | | | 2016 | |
| | | | | | | | | | |
| Net income | | $ | 14,817 | | | $ | 17,138 | | | $ | 26,913 | |
| | | | | | | | | | | | | |
| Other comprehensive income: | | | | | | | | | | | | |
| Amortization of unrealized pension and postretirement losses, net of tax of $435 in 2018, $543 in 2017 and $0 in 2016 | | | 1,361 | | | | 889 | | | | 413 | |
| Unrealized (loss) gain on investments, net of tax of $31 in 2018, $114 in 2017 and $582 in 2016 | | | (607 | ) | | | 187 | | | | (950 | ) |
| Unrealized loss on interest rate swaps, net of tax of $204 in 2018 | | | (682 | ) | | | - | | | | - | |
Other comprehensive income
| | | 72 | | | | 1,076 | | | | (537 | ) |
Comprehensive income
| | | 14,889 | | | | 18,214 | | | | 26,376 | |
| Amounts attributable to noncontrolling interests | | | (12,645 | ) | | | (6,761 | ) | | | - | |
| Comprehensive income attributable to Standard Diversified Inc. | | $ | 2,244 | | | $ | 11,453 | | | $ | 26,376 | |
The accompanying notes are an integral part of the consolidated financial statements.
Standard Diversified Inc. and Subsidiaries
Consolidated Statement of Equity
(dollars in thousands)
| | | Standard Diversified Inc. Shareholders | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Class A Common
Shares | | | Class B Common
Shares | | | Class A Treasury Shares | | | Additional
Paid-In Capital | | | Accumulated Other Comprehensive Loss | | | Accumulated Deficit | | | Noncontrolling Interests | | | Total | |
| | | | | | | | | | | | | | | | | | | |
| | | Shares | | | Amount | | | Shares | | | Amount | | | Shares | | | Amount | |
| Balance January 1, 2016 | | | 858,964 | | | $ | 9 | | | | 842,698 | | | $ | 9 | | | | (16,266 | ) | | $ | (555 | ) | | $ | 13,237 | | | $ | (3,512 | ) | | $ | (90,800 | ) | | $ | - | | | $ | (81,612 | ) |
| Unrecognized pension and postretirement cost adjustment | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 413 | | | | - | | | | - | | | | 413 | |
| Unrealized loss on investments, net of tax of $582 | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (950 | ) | | | - | | | | - | | | | (950 | ) |
| Turning Point stock compensation expense | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 117 | | | | - | | | | - | | | | - | | | | 117 | |
| Turning Point restricted stock compensation expense | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 50 | | | | - | | | | - | | | | - | | | | 50 | |
| Turning Point member unit compensation expense | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 13 | | | | - | | | | - | | | | - | | | | 13 | |
| Turning Point warrants exercised | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 4 | | | | - | | | | - | | | | - | | | | 4 | |
| Turning Point stock issued in IPO | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 53,635 | | | | - | | | | - | | | | - | | | | 53,635 | |
| Turning Point stock issued in exchange for debt | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 41,293 | | | | - | | | | - | | | | - | | | | 41,293 | |
| Turning Point restricted stock grant, net of forfeitures | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 259 | | | | - | | | | - | | | | - | | | | 259 | |
| Exercise of Turning Point options | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 169 | | | | - | | | | - | | | | - | | | | 169 | |
| Redemption of Turning Point options | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (85 | ) | | | - | | | | - | | | | - | | | | (85 | ) |
| Redemption of Intrepid options by Turning Point | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (326 | ) | | | - | | | | (335 | ) | | | - | | | | (661 | ) |
| Redemption of Intrepid warrants by Turning Point | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (2,750 | ) | | | - | | | | (2,750 | ) | | | - | | | | (5,500 | ) |
| Net income | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 26,913 | | | | - | | | | 26,913 | |
| Balance December 31, 2016 | | | 858,964 | | | $ | 9 | | | | 842,698 | | | $ | 9 | | | | (16,266 | ) | | $ | (555 | ) | | $ | 105,616 | | | $ | (4,049 | ) | | $ | (66,972 | ) | | $ | - | | | $ | 34,058 | |
| Vesting of SDI restricted stock | | | 13,700 | | | | - | | | | 13,700 | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | |
| Issuance of Class A and Class B Common shares to former holders of Turning Point Brands shares in reverse acquisition | | | 7,335,018 | | | | 73 | | | | 7,335,018 | | | | 73 | | | | - | | | | - | | | | 16,771 | | | | - | | | | - | | | | - | | | | 16,917 | |
| Allocation of Turning Point Brands equity to noncontrolling interests as part of reverse acquisition | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (50,234 | ) | | | 1,788 | | | | 29,613 | | | | 18,833 | | | | - | |
| Conversion of Class B common stock into Class A common stock | | | 149,891 | | | | 1 | | | | (149,891 | ) | | | (1 | ) | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | |
| Issuance of Class A common stock in business combination | | | 3,757 | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 39 | | | | - | | | | - | | | | - | | | | 39 | |
| Issuance of Class A common stock for services performed | | | 3,309 | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 34 | | | | - | | | | - | | | | - | | | | 34 | |
| Retirement of Class A treasury shares | | | (16,266 | ) | | | - | | | | - | | | | - | | | | 16,266 | | | | 555 | | | | (555 | ) | | | - | | | | - | | | | - | | | | - | |
| Unrecognized pension and postretirement cost adjustment, net of tax of $543 | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 523 | | | | - | | | | 366 | | | | 889 | |
| Unrealized gain on investments, net of tax of $114 | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 180 | | | | - | | | | 7 | | | | 187 | |
| SDI stock-based compensation | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 249 | | | | - | | | | - | | | | - | | | | 249 | |
| Impact of Turning Point equity transactions on APIC and NCI | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (547 | ) | | | - | | | | - | | | | (140 | ) | | | (687 | ) |
| Turning Point acquisition of noncontrolling interest | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (560 | ) | | | - | | | | - | | | | 560 | | | | - | |
| Turning Point distribution to noncontrolling interest | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (4 | ) | | | (4 | ) |
| Turning Point dividend paid to noncontrolling interests | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (379 | ) | | | (379 | ) |
| Net income | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 10,377 | | | | 6,761 | | | | 17,138 | |
| Balance December 31, 2017 | | | 8,348,373 | | | $ | 83 | | | | 8,041,525 | | | $ | 81 | | | | - | | | $ | - | | | $ | 70,813 | | | $ | (1,558 | ) | | $ | (26,982 | ) | | $ | 26,004 | | | $ | 68,441 | |
| Vesting of SDI restricted stock | | | 50,756 | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (334 | ) | | | - | | | | - | | | | - | | | | (334 | ) |
| Conversion of Class B common stock into Class A common stock | | | 239,530 | | | | 3 | | | | (239,530 | ) | | | (3 | ) | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | |
| Issuance of Class A common stock in asset purchase | | | 22,727 | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 250 | | | | - | | | | - | | | | - | | | | 250 | |
| Issuance of Class A common stock under ATM, net of issuance costs | | | 313,082 | | | | 3 | | | | - | | | | - | | | | - | | | | - | | | | 4,827 | | | | - | | | | - | | | | - | | | | 4,830 | |
| Issuance of Class A common stock in private placement, net of issuance costs | | | 181,825 | | | | 2 | | | | - | | | | - | | | | - | | | | - | | | | 1,978 | | | | - | | | | - | | | | - | | | | 1,980 | |
| Repurchase of SDI common shares | | | - | | | | - | | | | - | | | | - | | | | (103,492 | ) | | | (1,440 | ) | | | - | | | | - | | | | - | | | | - | | | | (1,440 | ) |
| Unrecognized pension and postretirement cost adjustment, net of tax of $435 | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 687 | | | | - | | | | 674 | | | | 1,361 | |
| Unrealized loss on investments, net of tax of $31 | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (479 | ) | | | - | | | | (128 | ) | | | (607 | ) |
| Unrealized loss on interest rate swaps, net of tax of $204 | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (345 | ) | | | - | | | | (337 | ) | | | (682 | ) |
| SDI stock-based compensation | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 893 | | | | - | | | | - | | | | - | | | | 893 | |
| Impact of Turning Point equity transactions on APIC and NCI | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 2,834 | | | | - | | | | - | | | | 3,995 | | | | 6,829 | |
| Impact of adoption of ASU 2018-02 | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 12 | | | | (12 | ) | | | - | | | | - | |
| Turning Point dividend paid to noncontrolling interests | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (1,609 | ) | | | (1,609 | ) |
| Net income | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 2,381 | | | | 12,436 | | | | 14,817 | |
| Balance December 31, 2018 | | | 9,156,293 | | | $ | 91 | | | | 7,801,995 | | | $ | 78 | | | | (103,492 | ) | | $ | (1,440 | ) | | $ | 81,261 | | | $ | (1,683 | ) | | $ | (24,613 | ) | | $ | 41,035 | | | $ | 94,729 | |
The accompanying notes are an integral part of the consolidated financial statements.
Standard Diversified Inc. and Subsidiaries
Consolidated Statements of Cash Flows
(dollars in thousands)
| | | Year Ended December 31, | |
| | | 2018 | | | 2017 | | �� | 2016 | |
| Cash flows from operating activities: | | | | | | | | | |
| Net income | | $ | 14,817 | | | $ | 17,138 | | | $ | 26,913 | |
| Adjustments to reconcile net income to net cash provided by operating activities: | | | | | | | | | | | | |
| Loss on extinguishment of debt | | | 2,384 | | | | 6,116 | | | | 2,824 | |
| Loss on sale of property, plant and equipment | | | - | | | | 150 | | | | - | |
| Depreciation expense | | | 3,355 | | | | 1,642 | | | | 1,227 | |
Amortization of deferred financing costs and debt discount | | | 1,433 | | | | 1,071 | | | | 2,143 | |
| Amortization of other intangible assets | | | 1,281 | | | | 702 | | | | 58 | |
| Interest incurred but not paid on PIK Toggle Notes | | | - | | | | - | | | | 3,422 | |
| Interest incurred but not paid on 7% Senior Notes | | | - | | | | - | | | | 329 | |
| Interest paid on PIK Toggle Notes | | | - | | | | - | | | | (9,893 | ) |
| Reserve of note receivable | | | - | | | | - | | | | 430 | |
| Deferred income taxes | | | 2,565 | | | | 5,181 | | | | (12,719 | ) |
| Stock-based compensation expense | | | 2,152 | | | | 969 | | | | 180 | |
Amortization of bond discount/premium
| | | 74
| | | | -
| | | | -
| |
| Changes in operating assets and liabilities: | | | | | | | | | | | | |
| Accounts receivable | | | 679 | | | | (1,068 | ) | | | 2,072 | |
| Inventories | | | (20,650 | ) | | | 495 | | | | (12,513 | ) |
| Other current assets | | | (4,687 | ) | | | 1,263 | | | | 1,361 | |
| Other assets | | | - | | | | (336 | ) | | | (100 | ) |
| Accounts payable | | | 2,752 | | | | (5,702 | ) | | | 3,631 | |
| Accrued postretirement liabilities | | | (97 | ) | | | (24 | ) | | | (172 | ) |
| Accrued expenses and other | | | (888 | ) | | | (2,651 | ) | | | (65 | ) |
| Premiums receivable | | | 788 | | | | - | | | | - | |
| Deferred policy acquisition costs | | | (2,279 | ) | | | - | | | | - | |
| Reserves for losses and loss adjustment expenses | | | (3,341 | ) | | | - | | | | - | |
| Unearned and advance premiums | | | (228 | ) | | | - | | | | - | |
| Net cash provided by operating activities | |
| 110 | | |
| 24,946 | | |
| 9,128 | |
| | | | | | | | | | | | | |
| Cash flows from investing activities: | | | | | | | | | | | | |
| Cash and cash equivalents acquired in reverse acquisition | | | - | | | | 20,253 | | | | - | |
| Acquisitions, net of cash acquired | | | (16,243 | ) | | | (22 | ) | | | (23,625 | ) |
| Capital expenditures | | | (2,564 | ) | | | (2,021 | ) | | | (3,207 | ) |
| Payments for investments | | | (2,000 | ) | | | (179 | ) | | | - | |
| Proceeds from sale and maturity of fixed maturity securities, available-for-sale | | | 6,746 | | | | - | | | | - | |
| Payments for purchases of fixed maturity securities, available-for-sale | | | (13,910 | ) | | | - | | | | - | |
| Payments for purchases of equity securities | | | (1,593 | ) | | | - | | | | - | |
| Restricted cash, MSA escrow deposits | | | (1,241 | ) | | | 816 | | | | (29,056 | ) |
| Issuance of note receivable | | | (6,500 | ) | | | - | | | | - | |
| Repayment of note receivable | | | 6,500 | | | | -
| | | | -
| |
| Net cash (used in) provided by investing activities | | | (30,805 | ) | | | 18,847 | | | | (55,888 | ) |
Standard Diversified Inc. and Subsidiaries
Consolidated Statements of Cash Flows
(dollars in thousands)
| | | Year Ended December 31, | |
| | | 2018 | | | 2017 | | | 2016 | |
| Cash flows from financing activities: | | | | | | | | | |
Proceeds from 2018 first lien term loan
| | | 160,000 | | | | - | | | | - | |
Payments of 2018 first lien term loan
| | | (6,000 | ) | | | - | | | | - | |
| Proceeds from 2018 second lien term loan | | | 40,000 | | | | - | | | | - | |
| Proceeds from 2018 revolving credit facility | | | 26,000 | | | | - | | | | - | |
Proceeds from borrowings under SDI term loan
| | | 14,039 | | | | - | | | | - | |
| Proceeds from (payments of) 2017 revolving credit facility | | | (8,000 | ) | | | 8,000 | | | | - | |
| Proceeds from (payments of) 2017 first lien term loans, net | | | (140,613 | ) | | | 140,613 | | | | - | |
| Proceeds from (payments of) 2017 second lien term loans, net | | | (55,000 | ) | | | 55,000 | | | | - | |
| Payment of financing costs | | | (3,286 | ) | | | (4,783 | ) | | | (450 | ) |
| Payments of (proceeds from) revolving credit facility, net | | | - | | | | (15,083 | ) | | | 15,016 | |
| Payment of first lien term loan | | | - | | | | (147,362 | ) | | | (4,388 | ) |
| Payment of second lien term loan | | | - | | | | (60,000 | ) | | | (20,000 | ) |
| Payments of Vapor Shark loans | | | - | | | | (1,867 | ) | | | - | |
| Prepaid Turning Point Brands equity issuance costs | | | - | | | | (453 | ) | | | - | |
| Payment of PIK Toggle Notes | | | - | | | | - | | | | (24,107 | ) |
| Payment to terminate acquired capital lease | | | (170 | ) | | | - | | | | - | |
| Redemption of subsidiary options by Turning Point Brands | | | - | | | | - | | | | (661 | ) |
| Redemption of subsidiary warrants by Turning Point Brands | | | - | | | | - | | | | (5,500 | ) |
| Turning Point Brands exercise of stock options | | | 833 | | | | 1,431 | | | | 169 | |
| Turning Point Brands exercise of warrants | | | - | | | | - | | | | 4 | |
| Turning Point Brands redemption of options | | | (623 | ) | | | (1,740 | ) | | | (85 | ) |
| Turning Point Brands surrender of options | | | - | | | | (1,000 | ) | | | - | |
| Proceeds from issuance of SDI stock | | | 6,810 | | | | - | | | | - | |
| Proceeds from issuance of Turning Point Brands stock | | | - | | | | - | | | | 55,736 | |
| Payments of VaporBeast Note Payable | | | (2,000 | ) | | | - | | | | - | |
| Turning Point Brands dividend to noncontrolling interests | | | (1,137 | ) | | | (375 | ) | | | - | |
| Repurchase of SDI common shares | | | (631 | ) | | | - | | | | - | |
| Proceeds from release of restricted funds | | | 1,107 | | | | - | | | | - | |
| Distribution to noncontrolling interest of Turning Point Brands | | | - | | | | (4 | ) | | | - | |
| Net cash provided by (used in) financing activities | | | 31,329 | | | | (27,623 | ) | | | 15,734 | |
| | | | | | | | | | | | | |
| Net increase (decrease) in cash | |
| 634 | | |
| 16,170 | | |
| (31,026 | ) |
| | | | | | | | | | | | | |
| Cash, beginning of period | | | | | | | | | | | | |
| Unrestricted | | | 18,219 | | | | 2,865 | | | | 4,835 | |
| Restricted | | | 4,704 | | | | 3,888 | | | | 32,944 | |
| Total cash at beginning of period | | | 22,923 | | | | 6,753 | | | | 37,779 | |
| | | | | | | | | | | | | |
| Cash, end of period | | | | | | | | | | | | |
| Unrestricted | | | 21,201 | | | | 18,219 | | | | 2,865 | |
| Restricted | | | 2,356 | | | | 4,704 | | | | 3,888 | |
| Total cash at end of period | | $ | 23,557 | | | $ | 22,923 | | | $ | 6,753 | |
Standard Diversified Inc. and Subsidiaries
Consolidated Statements of Cash Flows
(dollars in thousands)
| | | Year Ended December 31, | |
| | | 2018 | | | 2017 | | | 2016 | |
| | | | | | | | | | |
| Supplemental disclosures of cash flow information: | | | | | | | | | |
| Cash paid during the period for interest | | $ | 15,664 | | | $ | 15,828 | | | $ | 34,553 | |
| Cash paid during the period for income taxes, net | | $ | 3,215 | | | $ | 1,811 | | | $ | 623 | |
| | | | | | | | | | | | | |
| Supplemental schedule of noncash investing activities: | | | | | | | | | | | | |
| Conversion of PIK Toggle Notes to equity | | $ | - | | | $ | - | | | $ | 29,014 | |
| Conversion of 7% Senior Notes to equity | | $ | - | | | $ | - | | | $ | 10,074 | |
| Issuance of Turning Point Brands restricted stock | | $ | - | | | $ | - | | | $ | 279 | |
| | | | | | | | | | | | | |
| Supplemental schedule of noncash financing activities: | | | | | | | | | | | | |
| SDI shares withheld on restricted stock vesting to cover income taxes | | $ | 216 | | | $ | - | | | $ | - | |
| Unsettled SDI share repurchases included in accounts payable | | $ | 809 | | | $ | - | | | $ | - | |
| Common stock issued in connection with reverse acquisition | | $ | - | | | $ | 16,917 | | | $ | - | |
Issuance of SDI and Turning Point shares in acquisition | | $ | 5,792 | | | $ | 39 | | | $ | - | |
| Issuance of promissory notes in asset purchases | | $ | 8,810 | | | $ | - | | | $ | - | |
The accompanying notes are an integral part of the consolidated financial statements.
Standard Diversified Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(dollars in thousands, except where designated and per share data)
Note 1. Organization and Description of Business
The accompanying consolidated financial statements include the results of operations of Standard Diversified Inc. (“SDI”), a holding company, and its subsidiaries (collectively, “the Company”). SDI (f/k/a Standard Diversified Opportunities Inc., Special Diversified Opportunities Inc., and Strategic Diagnostics Inc.) was incorporated in the State of Delaware in 1990, and, until 2013, engaged in bio-services and industrial bio-detection (collectively, the “Life Sciences Business”). On July 12, 2013, SDI sold substantially all of its rights, title and interest in substantially all of its non-cash assets related to the Life Sciences Business and became a “shell company,” as such term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended.
On June 1, 2017, SDI consummated a Contribution and Exchange Transaction (the “Contribution and Exchange”) to acquire a 52.1% controlling interest in Turning Point Brands, Inc. (“Turning Point”). The transaction was accounted for as a recapitalization or reverse acquisition. Turning Point was the accounting acquirer for financial reporting purposes, notwithstanding the legal form of the transaction. The primary reason the transaction was treated as a purchase by Turning Point rather than a purchase by SDI was because SDI was a shell company with limited operations and Turning Point’s stockholders gained majority control of the outstanding voting power of the Company’s equity securities through their collective ownership of a majority of the outstanding shares of Company common stock. Consequently, reverse acquisition accounting has been applied to the transaction. Accordingly, the historical financial statements of Turning Point through May 31, 2017 became the Company’s historical financial statements, including the comparative prior periods. These consolidated financial statements include the results of SDI from June 1, 2017, the date the reverse acquisition was consummated. As of December 31, 2018, SDI has a 50.3% ownership interest in Turning Point.
Prior to the consummation of the Contribution and Exchange, SDI amended and restated its certificate of incorporation to provide for, among other things, (i) the reclassification of every 25 shares of its common stock, par value $0.01 per share, into one share of a new class of common stock, par value $0.01 per share, designated as Class A Common Stock (the “Class A Common Stock”) and (ii) the authorization for issuance of an additional class of common stock, par value $0.01 per share, of SDI designated as Class B Common Stock (the “Class B Common Stock”). Prior to the closing of the Contribution and Exchange, SDI declared a dividend of one share of Class B Common Stock for each outstanding share of Class A Common Stock, payable to holders of record of Class A Common Stock on June 2, 2017. The capital structure, including the number and type of shares issued appearing in the consolidated balance sheets for the periods presented, reflects that of the legal parent or accounting acquiree, SDI, including the shares issued to effect the reverse acquisition after the Contribution and Exchange and the capital structure modified by the 1-for-25 exchange ratio of the SDI shares outstanding prior to the consummation of the Contribution and Exchange. There was no change to Turning Point’s historical total stockholders’ equity as a result of the reverse acquisition.
All references in the consolidated financial statements presented herein to the number of shares and per share amounts of common stock have been retroactively restated to reflect the reclassification of common stock, the shares issued in the Contribution and Exchange and the dividend of Class B Common Stock. Refer to Note 3, Acquisitions and Investments, for further information. As a result of the consummation of the Contribution and Exchange, SDI is no longer a shell company.
Note 2. Summary of Significant Accounting Policies
Basis of Presentation and Principles of Consolidation
SDI is now a holding company and its consolidated financial statements include Turning Point and its consolidated subsidiaries. Turning Point is also a holding company which owns North Atlantic Trading Company, Inc. (“NATC”), and its subsidiaries and Turning Point Brands, LLC (“TPLLC”), and its subsidiaries. Except where the context indicates otherwise, references to Turning Point include Turning Point; NATC and its subsidiaries National Tobacco Company, L.P. (“NTC”), National Tobacco Finance, LLC (“NTFLLC”), North Atlantic Operating Company, Inc. (“NAOC”), North Atlantic Cigarette Company, Inc. (“NACC”), and RBJ Sales, Inc. (“RBJ”); and TPLLC and its subsidiaries Intrepid Brands, LLC (“Intrepid”), Vapor Beast, LLC (“VaporBeast,” f/k/a Smoke Free Technologies, Inc.), Vapor Shark, LLC, and its subsidiaries (collectively, “Vapor Shark,” f/k/a The Hand Media), Vapor Acquisitions Company, LLC (“Vapor Supply”), Vapor Finance, LLC (“VFIN”), and International Vapor Group, LLC and its subsidiaries (collectively, “IVG”). On January 15, 2019, Turning Point announced the formation of Nu-X Ventures, LLC (“Nu-X”), a subsidiary of TPLLC.
Turning Point is a leading, independent provider of Other Tobacco Products (“OTP”) in the U.S and was the 6th largest competitor in terms of total OTP consumer units sold during 2018. Turning Point sells a wide range of products across the OTP spectrum; however, it does not sell cigarettes. Turning Point’s portfolio of brands includes some of the most widely recognized names in the OTP industry, such as Zig-Zag®, Beech-Nut®, Stoker’s®, Trophy®, VaporBeast®, Vapor Shark®, and VaporFi®. Turning Point currently ships to approximately 800 distributors with an additional 100 secondary, indirect wholesalers in the U.S. that carry and sell our products.
Pillar General, a wholly-owned subsidiary of the Company, owns 100% of Interboro Holdings which is a holding company and includes the accounts of its wholly-owned subsidiaries (collectively, “Interboro”) which consist of Interboro Management, Inc. (“Interboro Management”), Maidstone, formerly known as AutoOne Insurance Company (“AOIC”) and AIM Insurance Agency Inc. (“AIM”). Maidstone is domiciled in the State of New York and is a property and casualty insurance company which provides automobile insurance and was acquired by the Company on January 2, 2018.
Standard Outdoor LLC, a wholly-owned subsidiary of the Company, and its subsidiaries (collectively, “Standard Outdoor”), consists of Standard Outdoor Southeast I LLC, Standard Outdoor Southeast II LLC and Standard Outdoor Southwest LLC. Standard Outdoor is an out-of-home advertising business with billboard structures located in Texas, Alabama, Georgia and Florida.
The consolidated financial statements include the accounts of the Company, its subsidiaries, all of which are wholly-owned, and the results of Vapor Shark from April 1, 2017, through June 30, 2017. All significant intercompany transactions have been eliminated. Vapor Shark was a variable interest entity (“VIE”) for which Turning Point was considered the primary beneficiary due to an April 2017 management agreement in which Turning Point was granted the right to purchase equity of Vapor Shark. Turning Point did not own Vapor Shark during the second quarter of 2017; however, Vapor Shark’s financial results are included in the Company’s consolidated results as a VIE. On June 30, 2017, Turning Point exercised a warrant to purchase all of the issued and outstanding equity of Vapor Shark. Beginning June 30, 2017, Vapor Shark became a wholly owned subsidiary of Turning Point.
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America (“GAAP”) requires management to make estimates and assumptions that affect the amounts of assets and liabilities, disclosure of contingent assets and liabilities as of the dates of the financial statements, and the reported amounts of revenues and expenses during the reporting periods. Actual results could differ from those estimates.
As a result of the consummation of the Contribution and Exchange, the historical financial statements of Turning Point became the Company’s historical financial statements. Accordingly, the historical financial statements of Turning Point are included in the comparative prior periods. The operating results of SDI are included in these financial statements beginning on June 1, 2017.
Certain prior years’ amounts have been reclassified to conform to the current year’s presentation. The changes did not have an impact on the Company’s consolidated results of operations or cash flows in any of the periods presented.
Noncontrolling Interests
These consolidated financial statements reflect the application of Accounting Standards Codification Topic 810, Consolidations (“ASC 810”) which establishes accounting and reporting standards that require: (i) the ownership interest in subsidiaries held by parties other than the parent to be clearly identified and presented in the consolidated balance sheet within shareholder’s equity, but separate from the parent’s equity; (ii) the amount of consolidated net income attributable to the parent and the noncontrolling interest to be clearly identified and presented on the face of the consolidated statements of income; and (iii) changes in a parent’s ownership interest while the parent retains its controlling financial interest in its subsidiary to be accounted for consistently.
SDI acquired a 52.1% interest in Turning Point on June 1, 2017 through a reverse acquisition as described in Note 1. Amounts pertaining to the noncontrolling ownership interest held by third parties in the financial position and operating results of the Company are reported as noncontrolling interests in the accompanying consolidated financial statements. As of December 31, 2018, SDI has an ownership interest of 50.3% in Turning Point.
Revenue Recognition
Turning Point: Turning Point adopted Accounting Standards Update (“ASU”) 2014-09, Revenue from Contracts with Customers (Topic 606), which supersedes nearly all existing revenue recognition guidance under U.S. GAAP, on January 1, 2018. Turning Point recognizes revenues, net of sales incentives and sales returns, including shipping and handling charges billed to customers, upon delivery of goods to the customer—at which time Turning Point’s performance obligation is satisfied—at an amount that Turning Point expects to be entitled to in exchange for those goods in accordance with the five-step analysis outlined in Topic 606: (i) identify the contract with the customer, (ii) identify the performance obligations in the contract, (iii) determine the transaction price, (iv) allocate the transaction price to the performance obligations, and (v) recognize revenue when (or as) performance obligations are satisfied.
A further requirement of ASU 2014-09 is for entities to disaggregate revenue recognized from contracts with customers into categories that depict how the nature, amount, timing, and uncertainty of revenue and cash flows are affected by economic factors. Turning Point’s management views business performance through segments that closely resemble the performance of major product lines. Thus, the primary, and most useful, disaggregation of Turning Point’s contract revenue for the decision-making purposes is the disaggregation by segment which can be found in Note 23. Segment Information. An additional disaggregation of contract revenue by sales channel can also be found within Note 23. Segment Information.
Standard Outdoor: The Company’s out-of-home advertising revenues are primarily derived from providing advertising space to customers on its physical billboards or other outdoor structures. Standard Outdoor generally (i) owns the physical structures on which it displays advertising copy for customers, (ii) holds the legal permits to display advertising thereon, and (iii) leases the underlying sites. Billboard display revenues are currently recognized under ASC 840, the lease accounting standard, as rental income on a straight-line basis over the customer lease term.
Maidstone: Maidstone recognizes revenues from insurance contracts, including premiums and fees, under the guidance in ASC 944, Financial Services-Insurance Premiums. Maidstone’s premiums, which are recorded at the policy inception, are earned pro rata over the period for which the coverage is provided, generally six months for auto policies. Unearned premiums represent the portion of premiums written that are applicable to the unexpired terms of policies in force. Premiums ceded to other companies pursuant to reinsurance agreements have been reported as a reduction to premiums earned. Take-out fees are received by Maidstone in the form of credits when it writes business from the state assigned pool. These credits can be used by Maidstone to reduce the amount of business it writes from the assigned pool in the future or they can be sold to third-party insurance companies for them to reduce their exposure to the assigned risk pool. Maidstone collects other miscellaneous fees such as installment and late fees. Broker fee income is received from non-affiliated insurance companies for which Maidstone’s management acts as an agent to sell their state mandated obligations for assigned risks. These fees are shown as other income in the consolidated statements of income.
Derivative Instruments
Foreign Currency Forward Contracts: The Company enters into foreign currency forward contracts to hedge a portion of its exposure to changes in foreign currency exchange rates on inventory purchase commitments. The Company accounts for its forward contracts under the provisions of ASC 815, Derivatives and Hedging. Under the Company’s policy, the Company may hedge up to 100% of its anticipated purchases of inventory in the denominated invoice currency over a forward period not to exceed twelve months. The Company may also, from time to time, hedge up to ninety percent of its non-inventory purchases in the denominated invoice currency. Forward contracts that qualify as hedges are adjusted to their fair value through other comprehensive income as determined by market prices on the measurement date, except any hedge ineffectiveness which is recognized currently in income. Gains and losses on these forward contracts are transferred from other comprehensive income into net income as the related inventories are received. Changes in fair value of any contracts that do not qualify for hedge accounting or are not designated as hedges are recognized currently in income.
Interest Rate Swap Agreements: The Company enters into interest rate swap contracts to manage interest rate risk and reduce the volatility of future cash flows. The Company accounts for its interest rate swap contracts under the provisions of ASC 815, Derivatives and Hedging. Swap contracts that qualify as hedges are adjusted to their fair value through other comprehensive income as determined by market prices on the measurement date, except any hedge ineffectiveness which is recognized currently in income. Gains and losses on these swap contracts are transferred from other comprehensive income into net income upon settlement of the derivative position or at maturity of the interest rate swap contract. Changes in fair value of any contracts that do not qualify for hedge accounting or are not designated as hedges are recognized currently in income.
Shipping Costs
The Company records shipping costs incurred as a component of selling, general and administrative expenses. Shipping costs incurred were approximately $15.1 million, $10.4 million and $6.5 million in 2018, 2017 and 2016, respectively.
Research and Development and Quality Assurance Costs
Research and development and quality assurance costs are expensed as incurred. These expenses, classified as selling, general and administrative expenses, were approximately $2.5 million, $2.3 million and $2.0 million in 2018, 2017 and 2016, respectively.
Cash and Cash Equivalents
The Company considers all highly liquid investments that have maturities of three months or less when acquired to be cash equivalents.
Inventories
Inventories are stated at the lower of cost or market. Cost is determined using the last-in, first-out (“LIFO”) method for approximately 49.1% of the inventories and first-in, first-out (“FIFO”) for the remaining inventories. Leaf tobacco is presented in current assets in accordance with standard industry practice, notwithstanding the fact that such tobaccos are carried longer than one year for the purpose of curing.
Property, Plant and Equipment:
Property, plant and equipment are stated at cost less accumulated depreciation and impairment. Depreciation is provided using the straight-line method over the lesser of the estimated useful lives of the assets or the life of the leases for leasehold improvements (4 to 7 years for machinery, equipment and furniture, 10 to 15 years for leasehold improvements, 15 years for billboards and up to 15 years for buildings and building improvements). Expenditures for repairs and maintenance are charged to expense as incurred. The costs of major renewals and improvements are capitalized and depreciated over their estimated useful lives. Upon disposition of fixed assets, the costs and related accumulated depreciation amounts are relieved. Any resulting gain or loss is reflected in operations during the period of disposition.
Long-lived assets are reviewed for impairment when changes in circumstances indicate that the carrying amount of an asset may not be recoverable.
Goodwill and Other Intangible Assets:
The Company follows the provisions of ASC 350, Intangibles – Goodwill and Other in accounting for goodwill and other intangible assets. Goodwill and indefinite-lived intangible assets are reviewed for impairment annually on December 31, or more frequently if certain indicators are present, in accordance with ASC 350-20-35 and ASC 350-30-35, respectively. If the carrying value of the goodwill or indefinite-life intangible asset exceeds its fair value, determined using the discounted cash flows method and the relief-from-royalty method, respectively, the goodwill or intangible asset is considered impaired. The carrying value of the goodwill or indefinite-life intangible asset would then be reduced to fair value. For goodwill, the determination of a reporting unit’s fair value involves, among other things, the Company’s market capitalization and application of the income approach, which includes developing forecasts of future cash flows and determining an appropriate discount rate.
Based on the Company’s annual goodwill impairment testing, the estimated fair values of each of the Turning Point reporting units were substantially in excess of the respective carrying values at December 31, 2018. The Company had no such impairment of goodwill or other intangible assets during the year ended December 31, 2018. Refer to Note 10 of Notes to Consolidated Financial Statements for further details regarding the Company’s goodwill and other intangible assets as of December 31, 2018.
The Company performed a qualitative assessment related to the goodwill at its insurance subsidiary, which was acquired on January 2, 2018. The Company recorded no impairment of goodwill or other intangible assets during the year ended December 31, 2018.
Fair Value
GAAP establishes a framework for measuring fair value. That framework provides a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1) and the lowest priority to unobservable inputs (Level 3).
The three levels of the fair value hierarchy under GAAP are described below:
Level 1 – Inputs to the valuation methodology are unadjusted quoted prices for identical assets or liabilities in active markets at the measurement date.
Level 2 – Inputs to the valuation methodology include: quoted prices for similar assets or liabilities in active markets; quoted prices for identical or similar assets or liabilities in inactive markets; inputs other than quoted prices that are observable for the asset or liability; and inputs derived principally from or corroborated by observable market data by correlation or other means.
Level 3 – Unobservable inputs which reflect management’s best estimate of what market participants would use in pricing the asset or liability at the measurement date.
Retirement Plans
The Company follows the provisions of ASC 715, Compensation – Retirement Benefits in accounting for its retirement plans, which requires an employer to (i) recognize in its statement of financial position the funded status of a benefit plan, measured as the difference between the fair value of plan assets and benefit obligations; (ii) recognize, net of tax, the gains or losses and prior service costs or credits that arise during the period but are not recognized as components of net periodic benefit cost; and (iii) measure defined benefit plan assets and obligations as of the date of the employer’s statement of financial position.
Deferred Financing Costs
Deferred financing costs are amortized over the terms of the related debt obligations using the effective interest method. Unamortized amounts are expensed upon extinguishment of the related borrowings. Deferred financing costs are presented as a direct deduction from the carrying amount of that debt liability except for deferred financing costs relating to Turning Point’s revolving credit facility which are presented as an asset.
Advertising and Promotion
Advertising and promotion costs, including point of sale materials, are expensed as incurred and amounted to $5.6 million, $3.4 million and $3.9 million for the years ending December 31, 2018, 2017 and 2016, respectively.
Stock-Based Compensation
The Company accounts for stock-based compensation using the fair value method, which requires that compensation costs related to employee share-based payment transactions are measured in the financial statements at the fair value on the date of grant and are recognized over the vesting period of the award.
Risks and Uncertainties
Manufacturers and sellers of tobacco products are subject to regulation at the federal, state, and local levels. Such regulations include, among others, labeling requirements, limitations on advertising, and prohibition of sales to minors. The trend in recent years has been toward increased regulation of the tobacco industry. There can be no assurance as to the ultimate content, timing, or effect of any regulation of tobacco products by any federal, state, or local legislative or regulatory body, nor can there be any assurance that any such legislation or regulation would not have a material adverse effect on the Company’s financial position, results of operations, or cash flows.
The tobacco industry has experienced and is experiencing significant product liability litigation. Most tobacco liability lawsuits have been brought against manufacturers and sellers of cigarettes for injuries allegedly caused by smoking or exposure to smoke. However, several lawsuits have been brought against manufacturers and sellers of smokeless products for injuries to health allegedly caused by use of smokeless products. Typically, such claims assert that use of smokeless products is addictive and causes oral cancer. Additionally, several lawsuits have been brought against manufacturers and distributors of NewGen products due to malfunctioning devices. There can be no assurance the Company will not sustain losses in connection with such lawsuits and that such losses will not have a material adverse effect on the Company’s financial position, results of operations, or cash flows.
Master Settlement Agreement (MSA): Forty-six states, certain U.S. territories, and the District of Columbia are parties to the Master Settlement Agreement (“MSA”) and the Smokeless Tobacco Master Settlement Agreement (“STMSA”). To the Company’s knowledge, signatories to the MSA include 49 cigarette manufacturers and/or distributors. The only signatory to the STMSA is US Smokeless Tobacco Company. In the Company’s opinion, the fundamental basis for each agreement is the states’ consents to withdraw all claims for monetary, equitable, and injunctive relief against certain tobacco products manufacturers and others and, in return, the signatories have agreed to certain marketing restrictions and regulations as well as certain payment obligations.
Pursuant to the MSA and subsequent states’ statutes, a “cigarette manufacturer” (which is defined to also include MYO cigarette tobacco) has the option of either becoming a signatory to the MSA or opening, funding, and maintaining an escrow account, with sub-accounts on behalf of each settling state. The STMSA has no similar provisions. The MSA escrow accounts are governed by states’ statutes that expressly give the manufacturers the option of opening, funding, and maintaining an escrow account in lieu of becoming a signatory to the MSA. The statutes require companies who are not signatories to the MSA to deposit, on an annual basis, into qualified banks, escrow funds based on the number of cigarettes or cigarette equivalents, i.e., the pounds of MYO tobacco, sold. The purpose of these statutes is expressly stated to be to eliminate the cost disadvantage the settling manufacturers have as a result of entering into the MSA. Such companies are entitled to direct the investment of the escrowed funds and withdraw any appreciation, but cannot withdraw the principal for twenty-five years from the year of each annual deposit, except to withdraw funds deposited pursuant to an individual state’s escrow statute to pay a final judgment to that state’s plaintiffs in the event of such a final judgment against the company. Either option – becoming an MSA signatory or establishing an escrow account – is permissible.
The Company chose to open and fund an MSA escrow account as its means of compliance. It is management’s opinion, due to the possibility of future federal or state regulations, though none have to date been enacted, that entering into one or both of the settlement agreements or establishing and maintaining an escrow account would not necessarily prevent future regulations from having a material adverse effect on the results of operations, financial position, and cash flows of the Company.
Various states have enacted or proposed complementary legislation intended to curb the activity of certain manufacturers and importers of cigarettes that are selling into MSA states without signing the MSA or who have failed to properly establish and fund a qualifying escrow account. To the best of the Company’s knowledge, no such statute has been enacted which could inadvertently and negatively impact the Company, which has been, and is currently, fully compliant with all applicable laws, regulations, and statutes. However, there can be no assurance that the enactment of any such complementary legislation in the future will not have a material adverse effect on the results of operations, financial position, or cash flows of the Company.
Pursuant to the MSA escrow account statutes, in order to be compliant with the MSA escrow requirements, companies selling products covered by the MSA are required to deposit such funds for each calendar year into a qualifying escrow account by April 15 of the following year. At December 31, 2018, the Company had on deposit approximately $32.1 million, the fair value of which was approximately $30.6 million. Inputs to the valuation methodology of the MSA escrow deposits are unadjusted quoted prices for identical assets or liabilities in active markets at the measurement date. During 2018, less than $0.1 million relating to 2017 sales was deposited into this qualifying escrow account. The investment vehicles available to the Company are specified in the state escrow agreements and are limited to low-risk government securities.
Effective April 1, 2009, the federal excise tax on MYO products was increased from $1.0969 per pound to $24.78 per pound of tobacco. With this significant increase in the federal excise tax, the Company discontinued its generic category of MYO. The Company’s Zig-Zag branded MYO cigarette smoking tobacco line was discontinued in the third quarter of 2017. Thus, pending a change in MSA legislation, the Company has no remaining product lines covered by the MSA and will not be required to make future escrow deposits.
The Company has chosen to invest a portion of the MSA escrow in U.S. Government securities including TIPS, Treasury Notes, and Treasury Bonds. These investments are classified as available-for-sale and carried at fair value. Realized losses are prohibited under the MSA; thus, any investment in an unrealized loss position will be held until the value is recovered, or until maturity. The following shows the fair value of the MSA escrow account as of December 31, 2018:
| | December 31, | |
| | | 2018 | | | 2017 | |
| | | Cost | | | | | | | | | Estimated Fair Value | | | Cost | | | | | | Estimated Fair Value | |
| Cash and cash equivalents | | $ | 2,361 | | | $ | - | | | $ | - | | | $ | 2,361 | | | $ | 3,602 | | | $ | - | | | $ | 3,602 | |
| Fair value level 2: U.S. Governmental agency obligations (unrealized gain position < 12 months) | | | 1,193 | | | | 9 | | | | - | | | | 1,202 | | | | - | | | | - | | | | - | |
| Fair value level 2: U.S. Governmental agency obligations (unrealized loss position < 12 months) | | | 1,000 | | | | - | | | | (3 | ) | | | 997 | | | | 722 | | | | (17 | ) | | | 705 | |
| Fair value level 2: U.S. Governmental agency obligations (unrealized loss position > 12 months) | | | 27,519 | | | | - | | | | (1,529 | ) | | | 25,990 | | | | 27,733 | | | | (1,214 | ) | | | 26,519 | |
| | | $ | 32,073 | | | $ | 9 | | | $ | (1,532 | ) | | $ | 30,550 | | | $ | 32,057 | | | $ | (1,231 | ) | | $ | 30,826 | |
The following schedule shows the maturities of the U.S. Governmental agency obligations:
| | December 31, | |
| | | 2018 | | | 2017 | |
| Less than one year | | $ | 1,499 | | | $ | - | |
| One to five years | | | 13,591 | | | | 7,114 | |
| five to ten years | | | 11,152 | | | | 17,662 | |
| Greater than ten years | | | 3,470 | | | | 3,679 | |
| Total U.S. Governmental agency obligations | | $ | 29,712 | | | $ | 28,455 | |
The following shows the amount of deposits by sales year for the MSA escrow account:
| | | Deposits as of | |
Sales Year | | | | | | |
| 1999 | | $ | 211 | | | $ | 211 | |
| 2000 | | | 1,017 | | | | 1,017 | |
| 2001 | | | 1,673 | | | | 1,673 | |
| 2002 | | | 2,271 | | | | 2,271 | |
| 2003 | | | 4,249 | | | | 4,249 | |
| 2004 | | | 3,714 | | | | 3,714 | |
| 2005 | | | 4,552 | | | | 4,552 | |
| 2006 | | | 3,847 | | | | 3,847 | |
| 2007 | | | 4,167 | | | | 4,167 | |
| 2008 | | | 3,364 | | | | 3,364 | |
| 2009 | | | 1,619 | | | | 1,626 | |
| 2010 | | | 406 | | | | 406 | |
| 2011 | | | 193 | | | | 193 | |
| 2012 | | | 199 | | | | 199 | |
| 2013 | | | 173 | | | | 173 | |
| 2014 | | | 143 | | | | 143 | |
| 2015 | | | 101 | | | | 101 | |
| 2016 | | | 91 | | | | 81 | |
| 2017 | | | 83 | | | | 70 | |
| Total | | $ | 32,073 | | | $ | 32,057 | |
Tobacco products, cigarette papers and cigarette tubes are subject to federal excise taxes. The following table outlines the federal excise tax rate by product category effective as of April 1, 2009:
| | Cigarette and Tobacco Rates effective April 1, 2009 |
| Cigarettes | | $1.0066 per pack |
| Large Cigars | | 52.75% of manufacturer’s price; cap of $0.4026 per cigar |
| Little Cigars | | $1.0066 per pack |
| Pipe Tobacco (including Shisha) | | $2.8311 per pound |
| Chewing Tobacco | | $0.5033 per pound |
| Snuff | | $1.51 per pound |
| RYO/MYO and Cigar Wrappers | | $24.78 per pound |
| Cigarette Papers | | $0.0315 per 50 papers |
| Cigarette Tubes | | $0.063 per 50 tubes |
Any future enactment of increases in federal excise taxes on the Company’s products could have a material adverse effect on the results of operations or financial condition of the Company. The Company is unable to predict the likelihood of passage of future increases in federal excise taxes. As of December 31, 2018, federal excise taxes are not assessed on e-cigarettes and related products.
As of December 31, 2018, California, Delaware, the District of Columbia, Kansas, Louisiana, Minnesota, New Jersey, North Carolina, Pennsylvania, and West Virginia have an excise tax on e-cigarettes. In addition, there are several local taxing jurisdictions with an excise tax on e-cigarettes. Several states have also implemented additional measures on e-cigarettes, such as licensing requirements.
Food and Drug Administration (“FDA”): On June 22, 2009, the Family Smoking Prevention and Tobacco Control Act (“FSPTCA”) authorized the Food and Drug Administration (“FDA”) to immediately regulate the manufacture, sale, and marketing of four categories of tobacco products – cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco. On August 8, 2016, the FDA deeming regulation became effective. The deeming regulation gave the FDA the authority to additionally regulate cigars, pipe tobacco, e-cigarettes, vaporizers, and e-liquids as “deemed” tobacco products under the FSPTCA.
The FDA assesses tobacco product user fees on six classes of regulated tobacco products and computes user fees using a methodology similar to the methodology used by the U.S Department of Agriculture to compute the Tobacco Transition Payment Program (“TTPP,” also known as the “Tobacco Buyout”) assessment. First, the total, annual, congressionally established user fee assessment is allocated among the various classes of tobacco products using the federal excise tax weighted market share of tobacco products subject to regulation. Then, the assessment for each class of tobacco products is divided among individual manufacturers and importers.
Prior to October 1, 2016, these FDA user fees applied only to those products then regulated by the FDA. Effective October 1, 2016, the FDA began additionally applying FDA user fees to newly deemed tobacco products subject to FDA user fees as described above, i.e., cigars and pipe tobacco.
On July 28, 2017, the FDA announced a new direction in regulating tobacco products, including the newly “deemed” markets such as cigars and vapor products. The FDA stated it intends to begin several new rulemaking processes, some of which will outline foundational rules governing the premarket application process for the deemed products, including Substantial Equivalence Applications and Premarket Tobacco Applications. Compliance and related costs could be significant and could increase the costs of operating in our NewGen segment. The original filing deadlines for newly “deemed” products on the market as of August 8, 2016, have been postponed until August 8, 2021, for “combustible” products (e.g., cigar and pipe) and August 8, 2022, for “non-combustible” products (e.g., vapor products). No other filing deadlines were altered. The FDA also acknowledged a “continuum of risk” among tobacco products (i.e., certain tobacco products pose a greater risk to individual and public health than others), that it intends to seek public comment on the role flavors play in attracting youth and the role flavors may play in helping some smokers switch to potentially less harmful forms of nicotine delivery, and that it would be increasing its focus on the regulation of cigarette products. FDA has since initiated rule-making processes in a number of areas, including whether and how to regulate flavored tobacco products, such as cigars and e-cigarettes. Additionally, FDA has taken several enforcement actions against companies it alleges are utilizing inappropriate marketing or selling misbranded products.
Consumer Product Safety Commission (“CPSC”): On July 26, 2016, the CPSC began requiring that e-liquid containers be packaged in child-resistant packaging, as outlined in the Poison Prevention Packaging Act. The Company is not able to predict whether additional packaging requirements will be necessary for our e-liquid products in the future.
Fixed Maturity Securities
Investments in fixed maturity securities including bonds, loan-backed and structured securities are classified as available-for-sale and reported at fair value. Significant changes in prevailing interest rates and other economic conditions may adversely affect the timing and amount of cash flows on fixed income investments, as well as their related fair values. Fixed maturities are recorded on a trade date basis. Amortization of bond premium and accretion of bond discount are calculated using the scientific method. Changes in fair values of these securities, after deferred income tax effects, are reflected as unrealized gains or losses in accumulated other comprehensive income (loss). Realized gains and losses from the sale of investments are calculated as of the trade date in the consolidated statements of operations and comprehensive loss and are based upon the specific identification of securities sold. Investment income consists of interest and is reported net of investment expenses. Prepayment assumptions are considered when determining the amortization of discount or premium for loan-backed and structured securities.
An investment is considered impaired when the fair value of the investment is less than its cost or amortized cost. When an investment is impaired, the Company must make a determination as to whether the impairment is other than temporary (“OTTI”).
With respect to an investment in an impaired fixed maturity security, OTTI occurs if the Company (a) intends to sell the fixed maturity security, (b) more likely than not will be required to sell the fixed maturity security before its anticipated recovery, or (c) it is probable that the Company will be unable to collect all amounts due to the recovery of the entire cost basis of the security. The Company conducts a periodic review to identify and evaluate securities having OTTI, which include the above factors as well as the following: (1) the likelihood of the recoverability of principal and interest for fixed maturity securities (i.e., whether there is a credit loss); (2) the length of time and extent to which the fair value has been less than amortized cost for fixed maturity securities; and (3) the financial condition, near term and long-term prospects for the issuer, including the relevant industry conditions and trends, and implications of rating agency actions and offering prices. If the Company intends to sell the fixed maturity security, or will more likely than not be required to sell the fixed maturity security before the anticipated recovery, a loss in the entire amount of the impairment is reflected in net investment gains (losses) in net income (loss). If the Company determines that it is probable it will be unable to collect all amounts and the Company has no intent to sell the fixed maturity security, a credit loss is recognized in net investment gains (losses) in net income (loss) to the extent that the present value of expected cash flows is less than the amortized cost basis; any difference between fair value and the new amortized cost basis (net of the credit loss) is reflected in other comprehensive income (losses), net of applicable income taxes.
Upon recognizing an OTTI, the new cost basis of the security is the previous amortized cost basis less the OTTI recognized in net investment gains (losses). The new cost basis is not adjusted for any subsequent recoveries in fair value; however, for fixed maturity securities, the difference between the new cost basis and expected cash flows is accreted to net investment gains (losses) over the remaining expected life of the investment.
Equity Securities
Unrealized holding gains and losses on equity securities are recorded in the statements of income. The Company had net unrealized holding losses on equity securities of $0.1 million, which were included in net investment income on the Company’s consolidated statements of income for the year ended December 31, 2018.
Deferred Policy Acquisition Costs (“DAC”)
Policy acquisition costs, which vary with and are directly related to the production of successful new business, are deferred. The costs deferred consist principally of commissions and policy issuance costs and are amortized into expense as the related premiums are earned.
| DAC asset at January 2, 2018 | | $ | - | |
| Deferred expenses | | | 5,097 | |
| Amortized expenses | | | (2,818 | ) |
| DAC asset at December 31, 2018 | | $ | 2,279 | |
The Company, utilizing assumptions for future expected claims, premium rate increases and interest rates, reviews the recoverability of its DAC on a periodic basis. If the Company determines that the future gross profits of its in-force policies are not sufficient to recover its DAC, the Company recognizes a premium deficiency by charging any unamortized DAC to expense to the extent required in order to eliminate the deficiency. If the premium deficiency exceeds the unamortized DAC, then a liability is accrued for the excess deficiency. The Company anticipates investment income as a factor in its premium deficiency reserve calculation.
Premium Receivable
Premiums and agents’ balances in the course of collection are reported at the amount management expects to collect from outstanding balances. Past due amounts are determined based on contractual terms. Maidstone provides an allowance for doubtful accounts based upon review of outstanding receivables and historical collection information Maidstone recorded an allowance for doubtful accounts of less than $0.1 million as of December 31, 2018.
Investment Income Due and Accrued
Investment income consists of interest, which is recognized on an accrual basis. Due and accrued income is not recorded on fixed maturity securities in default and on delinquent fixed maturities where collection of interest is improbable. As of December 31, 2018, no investment income amounts were excluded from the Company balances.
Incurred Losses and Loss Adjustment Expenses
Incurred losses and loss adjustment expenses (“LAE”) are charged to operations as incurred. The liability for losses and LAE is based upon individual case estimates for reported claims and a factor for incurred but not reported (“IBNR”) claims. Losses, LAE and related liabilities are reported net of estimated salvage and subrogation. Inherent in the estimate of ultimate losses and LAE are expected trends in claim severity and frequency and other factors which may vary significantly as claims are settled; however, management believes that its aggregate provision for losses and LAE at December 31, 2018 is reasonable and adequate to meet the ultimate net cost of covered losses, but such provision is necessarily based on estimates and the ultimate net cost may vary significantly from such estimates. As adjustments to these estimates become necessary, such adjustments are reflected in current operations.
Insurance Company Assessments
Assessments from various state insurance departments are incurred by the insurance company in the normal course of business. Assessments based upon premium volumes are accrued during the year while non-premium assessments are expensed in the period they are reported to the insurance company. There were no significant assessments incurred during the year ended December 31, 2018.
Reinsurance
The Company accounts for reinsurance in accordance with the accounting guidance concerning the accounting and reporting for reinsurance of short-duration contracts. Management believes the Company’s reinsurance arrangements qualify for reinsurance accounting. Reinsurance premiums, losses, LAE and commissions are accounted for on a basis consistent with those used in accounting for the original policies issued and the terms of the reinsurance contracts. The Company relies on ceded reinsurance to limit its insurance risk.
Reinstatement premiums for the Company’s insurance operations are recognized at the time a loss event occurs, where coverage limits for the remaining life of the contract are reinstated under pre-defined contract terms. The accrual of reinstatement premiums is based on an estimate of losses and LAE, which reflects management’s judgment.
Amounts recoverable from reinsurers are estimated and recognized in a manner consistent with the claims liabilities arising from reinsured policies and incurred but not reported losses. In entering into reinsurance agreements, management considers a variety of factors including the creditworthiness of reinsurers. In preparing consolidated financial statements, management makes estimates of amounts recoverable from reinsurers, which include consideration of amounts, if any, estimated to be uncollectible. As of December 31, 2018, no amounts were deemed to be uncollectible from reinsurers.
As changes in the estimated ultimate liability for loss and LAE are determined, ceded reinsurance premiums may also change based on the terms of the reinsurance agreements. As adjustments to these estimates become necessary, such adjustments are reflected in current operations.
Asset Retirement Obligations
The Company records obligations associated with the retirement of tangible long-lived assets, such as advertising structures, in the period in which the assets are acquired. The liability is capitalized as part of the related long-lived asset’s carrying amount. Over time, accretion of the liability is recognized as an operating expense and the capitalized costs is depreciated over the expected useful life of the related asset. The Company’s asset retirement obligations relate primarily to the dismantlement and removal of the structure, and site reclamation on leased properties. The Company’s management determined a minimum estimated cost to be incurred per billboard structure based on historical experience with respect to the dismantling of the structures and the reclamation of the sites. The Company will continue to assess the adequacy of this liability on a regular basis.
Income tax policy
The Company records the effects of income taxes under the liability method in which deferred income tax assets and liabilities are recognized based on the difference between the financial and tax basis of assets and liabilities using the enacted tax rates in effect for the years in which the differences are expected to reverse. The Company assesses its ability to realize future benefits of deferred tax assets by determining if they meet the “more likely than not” criteria in ASC 740, Income Taxes. If the Company determines that future benefits do not meet the “more likely than not” criteria, a valuation allowance is recorded.
The Company’s insurance subsidiary is taxed at the Federal corporate level applying special rules applicable to property and casualty insurance companies. The insurance company is generally exempt from corporate income tax under state tax law. In lieu of corporate income tax, the insurance company pays a premium tax based on a percentage of direct annual premiums written in each state. The insurance subsidiary will be included in SDI’s consolidated tax return.
Deferred income taxes are recorded for temporary differences in reporting certain transactions for financial statement and income tax purposes, principally deferred policy acquisition costs, loss and LAE reserves and net operating losses. Income taxes are accounted for using the asset and liability method. Deferred tax assets and liabilities result from temporary differences between the amounts recorded in the financial statements and the tax basis of the Company’s assets and liabilities.
Concentrations of Credit Risk
At December 31, 2018 and 2017, the Company had bank deposits, including MSA escrow accounts, in excess of federally insured limits of approximately $15.4 million and $20.4 million, respectively. During 2016, Turning Point began to invest a portion of its MSA escrow accounts into U.S. Government securities including TIPS, Treasury Notes and Treasury Bonds.
The Company sells its products to distributors, retail establishments and customers throughout the United States and also sells Zig-Zag® premium cigarette papers in Canada. The Company had no customers that accounted for more than 10% of gross, annual sales for 2018, 2017, or 2016. The Company performs periodic credit evaluations of its customers and generally does not require collateral on trade receivables. Historically, the Company has not experienced significant credit losses.
Accounts Receivable
Accounts receivable are recognized at their net realizable value. All accounts receivable are trade related, recorded at the invoiced amount, and do not bear interest. The Company maintains allowances for doubtful accounts receivable for estimated uncollectible invoices resulting from a customer’s inability to pay (bankruptcy, out of business, etc., i.e. “bad debt” which results in write-offs). The activity of allowance for doubtful accounts during 2018 and 2017 is as follows:
| | | 2018 | | | 2017 | |
| Balance at beginning of period | | $ | 17 | | | $ | 35 | |
| Additions to allowance account during period | | | 25 | | | | 46 | |
| Deductions of allowance account during period | | | - | | | | (64 | ) |
| Balance at end of period | | $ | 42 | | | $ | 17 | |
Recent Accounting Pronouncements Adopted
The Company adopted ASU 2014-09, Revenue from Contracts with Customers (Topic 606), which supersedes nearly all existing revenue recognition guidance under U.S. GAAP, in the first quarter of 2018 using the modified retrospective method. This ASU requires the recognition of revenue to depict the transfer of goods to customers at an amount that the Company expects to be entitled to in exchange for those goods in accordance with the following five-step analysis: (i) identify the contract with the customer, (ii) identify the performance obligations in the contract, (iii) determine the transaction price, (iv) allocate the transaction price to the performance obligations, and (v) recognize revenue when (or as) performance obligations are satisfied. Other major provisions include capitalization of certain contract costs, consideration of time value of money in the transaction price, and allowing estimates of variable consideration to be recognized before contingencies are resolved in certain circumstances. The guidance also requires enhanced disclosures regarding the nature, amount, timing, and uncertainty of revenue and cash flows arising from an entity’s contracts with customers. The adoption of this ASU had no effect on the timing or amount of revenue recognition, or on net income.
The Company adopted ASU 2018-02, Income Statement-Reporting Comprehensive Income (Topic 220): Reclassification of Certain Tax Effects from Accumulated Other Comprehensive Income, on January 1, 2018 on a prospective basis. The amendments in this Update allow a reclassification from accumulated other comprehensive income (“AOCI”) to retained earnings for stranded tax effects resulting from the Tax Cuts and Jobs Act (“TCJA”). Consequently, the amendments eliminate the stranded tax effects resulting from the TCJA and will improve the usefulness of information reported to financial statement users. However, because the amendments only relate to the reclassification of the income tax effects of the TCJA, the underlying guidance that requires that the effect of a change in tax laws or rates be included in income from continuing operations is not affected. The amendments in this Update also require certain disclosures about stranded tax effects. The adoption of this ASU resulted in a reclassification of stranded tax effects related to the TCJA from accumulated other comprehensive income to accumulated deficit of less than $0.1 million during the first quarter of 2018.
The Company adopted ASU 2017-07, Compensation—Retirement Benefits (Topic 715): Improving the Presentation of Net Periodic Pension Cost and Net Periodic Postretirement Benefit Cost, in the first quarter of 2018 using the full retrospective method. This ASU requires an entity to report the service cost component in the same line item or items as other compensation costs arising from services rendered by the pertinent employees during the period. The other components of net periodic benefit cost are required to be presented in the income statement separately from the service cost component and outside a subtotal of income from operations. The adoption of this ASU resulted in a reclassification of $0.2 million and $0.3 million from cost of sales and selling, general, and administrative expenses to net periodic benefit (income) expense, excluding service cost, for the years ended December 31, 2017 and 2016, respectively.
The Company adopted ASU 2016-18, Statement of Cash Flows (Topic 230): Restricted Cash, in the first quarter of 2018 using the full retrospective method. The amendments in this ASU require that a statement of cash flows explain the change during the period in the total of cash, cash equivalents, and amounts generally described as restricted cash or restricted cash equivalents. As a result of this ASU the Company’s statements of cash flows include changes in restricted cash, such as changes in the portion of the MSA escrow deposits held in cash.
The Company adopted ASU 2016-01, Financial Instruments (Subtopic 825-10), on January 1, 2018, which provided guidance issued by FASB for the recognition and measurement of financial instruments. The new guidance requires investments in equity securities to be measured at fair value with any changes in valuation reported in net income except for investments that are consolidated or are accounted for under the equity method of accounting. Under prior guidance, the Company reported equity securities, available for sale, at fair value with changes in fair value reported in other comprehensive income. Beginning in 2018, the Company reports equity securities at fair value with changes in fair value reported in the statements of income. The Company had no investments in equity securities as of December 31, 2017, so there was no impact to the consolidated financial statements upon adoption.
Recent Accounting Pronouncements Not Yet Adopted
In February 2016, the FASB issued ASU 2016-02, Leases (Topic 842), which supersedes Topic 840, Leases. ASU 2016-02 requires a lessee to recognize in the statement of financial position a liability to make lease payments (the lease liability) and a right-of-use asset representing its right to use the underlying asset for the lease term. For leases with a term of 12 months or less for which there is not an option to purchase the underlying asset that the lessee is reasonably certain to exercise, a lessee is permitted to make an accounting policy election by class of underlying asset not to recognize lease assets and lease liabilities and should recognize lease expense for such leases generally on a straight-line basis over the lease term. Certain qualitative disclosures along with specific quantitative disclosures will be required, so that users are able to understand more about the nature of an entity’s leasing activities. ASU 2016-02 is effective for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years, with early adoption permitted. In July 2018, the FASB issued ASU 2018-11, Leases (Topic 842): Targeted Improvements. This ASU allows entities to not recast comparative periods in transition to ASC 842 and instead report the comparative periods presented in the period of adoption under ASC 840. The ASU also includes a practical expedient for lessors to not separate the lease and non-lease components of a contract. The amendments in this ASU are effective in the same time-frame as ASU 2016-02 as discussed above. The Company will apply the revised lease rules for its interim and annual reporting periods beginning January 1, 2019, using a modified retrospective approach, including adopting several optional practical expedients. Generally, the Company is the lessee under various agreements for real estate and vehicles that are currently accounted for as operating leases. As a result, existing and newly qualifying operating leases under these new rules will increase reported assets and liabilities. The expected amount of right of use assets and lease liabilities to be recorded upon adoption is less than 5% of total assets.
In June 2016, the FASB issued ASU 2016-13, Financial Instruments-Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments, that changes the impairment model for most financial assets and certain other instruments that are not measured at fair value through net income. The standard will replace today’s “incurred loss” approach with an “expected loss” model for instruments measured at amortized cost and require entities to record allowances for available-for-sale debt securities rather than reduce the carrying amount, as they do today under the other-than-temporary impairment model. It also simplifies the accounting model for purchased credit-impaired debt securities and loans. Entities will apply the standard’s provisions as a cumulative effect adjustment to retained earnings as of the beginning of the first reporting period in which the guidance is effective. The guidance is effective for the Company for interim and annual periods beginning after December 15, 2019. The Company is currently evaluating the effect the adoption of this standard will have on its consolidated financial statements.
In June 2018, the FASB issued ASU 2018-07, Compensation-Stock Compensation (Topic 718): Improvements to Nonemployee Share-Based Payment Accounting, intended to reduce cost and complexity and to improve financial reporting for nonemployee share-based payments. Currently, the accounting requirements for nonemployee and employee share-based payment transactions are significantly different. This ASU expands the scope of Topic 718, Compensation-Stock Compensation (which currently only includes share-based payments to employees) to include share-based payments issued to nonemployees for goods or services. Consequently, the accounting for share-based payments to nonemployees and employees will be substantially aligned. This ASU supersedes Subtopic 505-50, Equity-Based Payments to Nonemployees. The amendments in this ASU are effective for public companies for fiscal years beginning after December 15, 2018, with early adoption permitted. The Company does not expect the adoption of ASU 2018-07 will have a material impact on its consolidated financial statements.
In August 2018, the FASB issued ASU No. 2018-13, Fair Value Measurement (Topic 820): Disclosure Framework-Changes to the Disclosure Requirements for Fair Value Measurement, which modifies certain disclosure requirements on fair value measurements in ASC 820. This ASU is effective for interim and annual periods beginning after December 15, 2019 and early adoption is permitted. The Company is currently evaluating the effect that ASU 2018-13 will have on its consolidated financial statement disclosures.
Note 3. Acquisitions and Investments
Acquisitions by SDI
Maidstone acquisition
On January 2, 2018, the Company acquired all the outstanding capital stock of Interboro for cash consideration of $2.5 million. Under the name Maidstone Insurance Company, Maidstone offers personal automobile insurance, primarily in the state of New York.
The transaction was accounted for as a business combination under the acquisition method of accounting. Accordingly, the tangible and identifiable intangible assets acquired and liabilities assumed were recorded at fair value as of the date of acquisition. During the fourth quarter of 2018, the Company finalized its purchase price allocation. The following table summarizes the fair values of the assets acquired and liabilities assumed at the date of acquisition:
| | | At January 2,2018 as reported | | | Adjustments | | | At January 2,2018 as adjusted | |
| | | (preliminary) | | | | | | (final) | |
| Fixed maturities available for sale | | $ | 25,386 | | | $ | - | | | $ | 25,386 | |
| Cash and cash equivalents | | | 12,795 | | | | - | | | | 12,795 | |
| Investment income due and accrued | | | 203 | | | | - | | | | 203 | |
| Premiums receivable | | | 7,158 | | | | - | | | | 7,158 | |
| Property, plant and equipment | | | 408 | | | | - | | | | 408 | |
| Intangible assets | | | 2,100 | | | | - | | | | 2,100 | |
| Other assets | | | 615 | | | | - | | | | 615 | |
| Reserves for losses and loss adjustment expenses | | | (29,366 | ) | | | (1,306 | ) | | | (30,672 | ) |
| Unearned premiums | | | (12,784 | ) | | | - | | | | (12,784 | ) |
| Advance premium collected | | | (651 | ) | | | - | | | | (651 | ) |
| Deferred tax liability | | | (420 | ) | | | - | | | | (420 | ) |
| Other liabilities | | | (3,230 | ) | | | 835 | | | | (2,395 | ) |
| Total net assets acquired | | | 2,214 | | | | (471 | ) | | | 1,743 | |
| Consideration exchanged | | | 2,500 | | | | - | | | | 2,500 | |
| Goodwill | | $ | 286 | | | $ | 471 | | | $ | 757 | |
Standard Outdoor
On January 18, 2018, the Company, through Standard Outdoor, completed an asset acquisition consisting of 83 billboard structures located in Alabama, as well as the ground leases and advertising contracts relating to such billboard structures for consideration with a fair value of approximately $9.7 million, of which $4.0 million was paid in cash and the remainder is payable under a promissory note with a face value of $6.5 million, net of a fair value discount of $0.9 million. A principal payment of $1.0 million on the promissory note is payable January 1 of each year, beginning January 1, 2020 and ending January 1, 2022, with a $3.5 million final principal payment on January 1, 2023. The promissory note has a 5% fixed interest rate and interest is payable quarterly. The purchase price was primarily attributed to property, plant and equipment consisting of the billboard structures. In conjunction with the asset acquisition, the Company established an asset retirement obligation of $1.0 million.
On February 20, 2018, the Company, through Standard Outdoor, completed an asset acquisition consisting of 86 billboard structures located in Georgia and Florida, as well as the ground leases and advertising contracts relating to such billboard structures for consideration with a fair value of approximately $6.8 million, of which $3.2 million was paid in cash, $0.2 million was paid with the Company’s Class A common shares and the remainder is payable under a promissory note with a face value of $3.5 million, net of a fair value discount of $0.3 million. A principal payment of $0.9 million on the promissory note is payable March 1, 2019, with the remaining principal paid down monthly through March 1, 2022. The promissory note has a 5% fixed interest rate and interest is payable monthly starting March 1, 2019. The purchase price was primarily attributed to property, plant and equipment consisting of the billboard structures. In conjunction with the asset acquisition, the Company established an asset retirement obligation of $1.0 million.
Reverse acquisition of Turning Point
On November 25, 2016, SDI and Standard General Master Fund L.P., P Standard General Ltd. and Standard General Focus Fund L.P. (collectively the “SG Parties”), entered into a Contribution and Exchange Agreement, as amended by the: (1) First Amendment to Contribution and Exchange Agreement, dated January 25, 2017, (2) Second Amendment to Contribution and Exchange Agreement, dated April 5, 2017, and (3) Third Amendment to Contribution and Exchange Agreement, dated May 3, 2017 (as amended, the “Contribution and Exchange Agreement”). Pursuant to the Contribution and Exchange Agreement, the SG Parties agreed to contribute approximately 9,842,373 shares of voting Turning Point Common Stock in exchange for shares of the Company based on an exchange ratio, calculated as of the closing of the Contribution and Exchange, equal to the lesser of (i) the 30-calendar day trailing VWAP of the Turning Point Common Stock divided by the 30-calendar day trailing VWAP of the Common Stock of the Company (as adjusted to reflect the reclassification of the Common Stock of the Company) and (ii) the 30-calendar day trailing VWAP of the Turning Point Common Stock divided by the pro forma book value per share of the Company.
On June 1, 2017, at the consummation of the Contribution and Exchange, the SG Parties contributed to SDI 9,842,373 shares of Turning Point Common Stock, representing a 52.1% ownership interest of Turning Point in exchange for 7,335,018 shares of Class A Common Stock of SDI, based on the exchange ratio described above. Immediately after the consummation of the Contribution and Exchange, SDI distributed a dividend of 7,335,018 shares of Class B Common Stock to the SG Parties. As of December 31, 2018, SDI had an ownership interest of 50.3 % in Turning Point.
The transaction was accounted for as a recapitalization or reverse acquisition. Turning Point was the accounting acquirer and SDI was the accounting acquiree for financial reporting purposes. Accordingly, the historical financial statements of Turning Point became the Company’s historical financial statements. As such, the historical cost bases of assets and liabilities of Turning Point are maintained in the consolidated financial statements of the merged company and the assets and liabilities of SDI are accounted for at fair value. In this case, since the assets of SDI at the acquisition date consist principally of cash and cash equivalents, there was no significant difference between book value and fair value.
Acquisitions by Turning Point
IVG
In September 2018, Turning Point acquired 100% of the equity interest of IVG for total consideration of $23.8 million satisfied through $14.5 million paid in cash, 153,079 shares of common stock with a fair value of $5.3 million, and a $4.0 million note payable to IVG’s shareholders (“IVG Note”) which matures 18 months from the acquisition date. All principal and accrued and unpaid interest under the IVG Note is subject to indemnification obligations of the sellers pursuant to the International Vapor Group Stock Purchase Agreement dated as of September 5, 2018. The arrangement includes an additional $4.5 million of earnouts with both performance-based and service-based conditions payable to former IVG owners who became employees of Turning Point as a result of the acquisition. Such amounts will be considered compensation and are not a component of the IVG purchase price. The portion of earnout payments a recipient will receive will be calculated by reference to certain performance metrics not to exceed a two-year period as specified within the acquisition agreement. Turning Point recorded earnout expense of approximately $1.5 million within selling, general, and administrative expenses in the consolidated statement of income for the year ended December 31, 2018, based on the probability of achieving the performance conditions.
IVG markets and sells a broad array of proprietary and third-party vapor products directly to adult consumers through an online platform under brand names such as VaporFi, South Beach Smoke, and Direct-Vapor. IVG operates company-owned stores under the VaporFi brand and also operates as a franchisor to franchisee-owned stores. The acquisition of IVG adds a significant business-to-consumer distribution platform to Turning Point’s NewGen portfolio. As of December 31, 2018, Turning Point had not completed the accounting for the acquisition. The estimated goodwill recorded is based on the excess consideration transferred over the estimated fair value of the tangible and intangible assets acquired and liabilities assumed and is based on management’s preliminary estimates.
| | | As of December 31, 2018 (preliminary) | |
| Total consideration transferred | | $ | 24,292 | |
| Adjustments to consideration: | | | | |
| Cash aquired, net of debt assumed | | | (221 | ) |
| Working capital | | | (245 | ) |
| Adjusted consideration transferred | | | 23,826 | |
| | | | | |
| Assets acquired: | | | | |
| Working capital (primarily inventory) | | | 3,331 | |
| Fixed assets | | | 1,296 | |
| Intangible assets | | | 7,880 | |
| Net assets acquired | | | 12,507 | |
| | | | | |
| Goodwill | | $ | 11,319 | |
The goodwill of $11.3 million consists of the synergies and scale expected from combining the operations and is currently deductible for tax purposes.
Vapor Supply
On April 30, 2018, Turning Point purchased the assets of Vapor Supply LLC, vaporsupply.com, and some of its affiliates including the Ecig.com domain through its subsidiary Vapor Acquisitions Company, LLC, for total consideration of $4.8 million paid in cash to strengthen its presence within the NewGen segment. Vapor Supply is a business-to-business e-commerce distribution platform servicing independent retail vape shops. Additionally, Vapor Supply manufactures and markets proprietary e-liquids under the DripCo brand and operates company-owned stores. As of December 31, 2018, Turning Point had not completed the accounting for the acquisition of these assets. The following fair values for working capital (primarily inventory), fixed assets, and trade name are based upon management’s preliminary estimates:
| | | Fair Value | |
| Working capital | | $ | 2,500 | |
| Fixed assets | | | 272 | |
| Trade name | | | 2,028 | |
| Total consideration transferred | | $ | 4,800 | |
Vapor Shark
In March 2017, Turning Point entered into a strategic partnership with Vapor Shark in which Turning Point committed to make a deposit up to $2.5 million to Vapor Shark in exchange for a warrant to purchase 100% of the equity interest in Vapor Shark on or before April 15, 2018. In the event Turning Point exercised the warrant, Turning Point granted Vapor Shark’s sole shareholder the option to purchase from Vapor Shark the retail stores it owns effective as of January 1, 2018. In April 2017, Turning Point entered into a management agreement with Vapor Shark whereby Turning Point obtained control of the operations.
As a result of the management agreement, Vapor Shark became a VIE. Turning Point determined that it was the primary beneficiary and consolidated Vapor Shark as of April 1, 2017. Since Vapor Shark is a business, the Company accounted for the consolidation of the VIE as if it were an acquisition and recorded the assets and liabilities at fair value. Turning Point exercised its warrant on June 30, 2017, and obtained 100% ownership of Vapor Shark as of that date for a nominal purchase price. There was no goodwill assigned as a result of the transaction. Turning Point acquired $3.9 million in assets and assumed $3.9 million in liabilities, which included a liability of $0.6 million relating to the option provided to Vapor Shark’s former sole shareholder to purchase the Vapor Shark branded retail stores it owns.
In December 2017, Turning Point offered to pay Vapor Shark’s former sole shareholder $1.5 million in exchange for his option to purchase the company-owned stores. The agreement was finalized in January 2018, and Turning Point paid $1.0 million in February 2018 with the remaining $0.5 million to be paid in 24 monthly installments. As a result of the transaction a $0.9 million charge was recorded, and is included, in selling, general, and administrative expenses in 2017.
Pro Forma Information – Maidstone, IVG and Vapor Supply
The following table presents unaudited pro forma information as if the acquisitions of IVG, Vapor Supply and Maidstone, had occurred on January 1, 2017. The table below has been prepared for comparative purposes only and is not necessarily indicative of the actual results that would have been attained had the acquisition occurred as of the beginning of the periods presented, nor is it indicative of future results. Furthermore, the unaudited proforma information does not reflect management’s estimate of any revenue-enhancing opportunities or anticipated cost savings as a result of the integration and consolidation of the acquisition. Amortization of intangibles, interest on debt, and income tax adjustments are included in the numbers below.
The operating results of IVG and Vapor Supply have been included in these consolidated financial statements since their acquisition dates and include net sales of $23.9 million, loss before income taxes of $0.9 million and net loss of $0.7 million for the year ended December 31, 2018. The operating results of Maidstone have also been included in these consolidated financial statements since its acquisition date on January 2, 2018 and include net revenues of $30.7 million and net loss of $3.2 million for the year ended December 31, 2018.
The following shows pro forma amounts for the years ended December 31, 2018 and 2017. These amounts do not include adjustments for amounts attributable to noncontrolling interests.
| | Unaudited Pro Forma Consolidated For the year ended December 31, | |
| | | 2018 | | | 2017 | |
| Net sales | | $ | 409,072 | | | $ | 396,909 | |
| Income before income taxes | | | 23,200 | | | | 21,221 | |
| Net income | | | 16,497 | | | | 14,451 | |
Investments
In November 2018, Turning Point paid $2.0 million to acquire a minority ownership position (19.99%) in Canadian American Standard Hemp (“CASH”). CASH is headquartered in Warwick, Rhode Island, and manufactures cannabidiol isolate (“CBD”) developed through highly efficient and proprietary processes. The investment in CASH positions Turning Point to participate in the market for hemp-derived products.
In December 2018, Turning Point acquired a minority ownership position in General Wireless Operations, Inc. (d/b/a RadioShack; “RadioShack”) from an affiliate of Standard General LP for $0.4 million. Standard General LP has a controlling interest in Turning Point and the Company and qualifies as a related party. Turning Point will work together with RadioShack on product development and sourcing teams in China. Furthermore, Turning Point purchased $1.1 million of finished goods inventory from RadioShack during 2018, none of which was outstanding at December 31, 2018.
Both investments are presented as assets within the other assets line of the December 31, 2018, Consolidated Balance Sheet.
Note 4. Foreign Exchange Contracts
The Company’s policy is to manage the risks associated with foreign exchange rate movements. The policy allows hedging up to 100% of its anticipated purchases of inventory over a forward period that will not exceed 12 rolling and consecutive months. The Company may, from time to time, hedge currency for non-inventory purchases, e.g., production equipment, not to exceed 90% of the purchase price. During 2018 the Company executed various forward contracts, none of which met hedge accounting requirements, for the purchase of €14.5 million with maturity dates ranging from March 2018 to January 2019. During 2017, the Company executed no forward contracts. At December 31, 2018 and 2017, the Company had forward contracts for the purchase of €1.5 million and €0 million, respectively.
Note 5. Investments
The Company currently classifies all of its investments in fixed maturity debt securities held by Maidstone as available-for-sale and, accordingly, they are carried at estimated fair value. The amortized cost, gross unrealized gains and losses, and fair value of investments in fixed maturity securities at December 31, 2018 are as follows:
| | | December 31, 2018 | |
| | | Amortized Cost | | | Gross Unrealized Gains | | | Gross Unrealized
Losses | | | Fair Value | |
| U.S. Treasury and U.S Government | | $ | 4,338 | | | $ | - | | | $ | (34 | ) | | $ | 4,304 | |
| U.S. Tax-exempt municipal | | | 4,645 | | | | 4 | | | | (25 | ) | | | 4,624 | |
| Corporate | | | 14,858 | | | | 16 | | | | (193 | ) | | | 14,681 | |
| Mortgage and asset-backed securities | | | 8,633 | | | | 10 | | | | (120 | ) | | | 8,523 | |
| Total Fixed Maturity Securities | | $ | 32,474 | | | $ | 30 | | | $ | (372 | ) | | $ | 32,132 | |
Amortized cost and fair value of fixed maturity securities at December 31, 2018 by contractual maturity are shown below. The actual maturities may differ from contractual maturities because certain borrowers have the right to call or prepay obligations with or without call or prepayment penalties.
| | | December 31, 2018 | |
| | | Amortized Cost | | | Fair Value | |
| Due in one year or less | | $ | 748 | | | $ | 745 | |
| Due after one year through five years | | | 13,719 | | | | 13,600 | |
| Due after five years through ten years | | | 9,027 | | | | 8,917 | |
| Due after ten years | | | 347 | | | | 347 | |
| Mortgage and asset-backed securities | | | 8,633 | | | | 8,523 | |
| Total | | $ | 32,474 | | | $ | 32,132 | |
The Company uses the services of its investment manager, which uses a proprietary model for loss assumptions and widely accepted models for prepayment assumptions in valuing mortgage-backed and asset-backed securities with inputs from major third-party data providers. The models combine the effects of interest rates, volatility, and prepayment speeds based on various scenarios (Monte Carlo simulations) with resulting effective analytics (spreads, duration, convexity) and cash flows on a monthly basis. Credit sensitive cash flows are calculated using proprietary models, which estimate future loan defaults in terms of timing and severity. Model assumptions are specific to asset class and collateral types and are regularly evaluated and adjusted where appropriate.
At December 31, 2018, fixed maturity securities that were in an unrealized loss position and the length of time that such securities have been in an unrealized loss position, as measured by their prior 12-month fair values, are as follows:
| | | December 31, 2018 | |
| | | Less Than 12 Months | |
| | | Fair Value | | | Gross Unrealized Losses | |
| Bonds: | | | | | | |
| U.S. Treasury and U.S. Government | | $ | 4,304 | | | $ | (34 | ) |
| U.S. Tax-exempt municipal | | | 4,285 | | | | (25 | ) |
| Corporate bonds | | | 10,306 | | | | (193 | ) |
| Mortgage and asset-backed securities | | | 6,717 | | | | (120 | ) |
| Total Fixed maturities available for sale | | $ | 25,612 | | | $ | (372 | ) |
The Company has evaluated the unrealized losses on the fixed maturity securities and determined that they are not attributable to credit risk factors. For fixed maturity securities, losses in fair value are viewed as temporary if the fixed maturity security can be held to maturity and it is reasonable to assume that the issuer will be able to service the debt, both as to principal and interest. The Company did not recognize OTTI losses in the period from January 2, 2018 to December 31, 2018.
The Company’s equity investments are carried at fair value with changes in fair value recognized in income. For the period from January 2, 2018 to December 31, 2018, the Company recognized total holding losses of $0.1 million.
The components of net investment income for the period from January 2, 2018 to December 31, 2018 are as follows:
| | January 2, 2018 to December 31, 2018 | |
|
| Investment income: | | | |
| Bonds | | $ | 699 | |
| Common stocks | | | 16 | |
| Preferred stocks | | | 18 |
|
| Cash and cash equivalents | | | 138 | |
Other asset investments
| | | 72 | |
| Total investment income | | | 943 | |
| Less: Investment expenses | | | (92 | ) |
| Net investment income | | $ | 851 | |
For the period from January 2, 2018 to December 31, 2018, Maidstone recognized a de minimis amount of realized losses upon settlement or maturity of its fixed maturity debt securities.
The following tables show how Maidstone’s investments are categorized in the fair value hierarchy as of December 31, 2018:
| | | December 31, 2018 | |
| | | Level 1 | | | Level 2 | | | Level 3 | | | Total Fair Value | |
| | | | | | | | | | | | | |
| Common Stock | | $ | 227 | | | $ | - | | | $ | - | | | $ | 227 | |
| Preferred Stocks | | | - | | | | 466 | | | | - | | | | 466 | |
| Total Equities: | | $ | 227 | | | $ | 466 | | | $ | - | | | $ | 693 | |
| Fixed Maturities: | | | | | | | | | | | | | | | | |
| U.S. Treasury and U.S. Government | | $ | 4,304 | | | $ | - | | | $ | - | | | $ | 4,304 | |
| U.S. Tax-exempt municipal | | | - | | | | 4,624 | | | | - | | | | 4,624 | |
| Corporate | | | - | | | | 14,681 | | | | - | | | | 14,681 | |
| Mortgage and asset-backed securities | | | - | | | | 8,523 | | | | - | | | | 8,523 | |
| Total Fixed Maturities | | $ | 4,304 | | | $ | 27,828 | | | $ | - | | | $ | 32,132 | |
There were no transfers between levels during the period from January 2, 2018 to December 31, 2018.
Summary of significant valuation techniques for assets and liabilities measured at fair value on a recurring basis.
Level 1 measurements
Fixed income securities and Equity securities: Valuations based on unadjusted quoted prices in active markets for identical assets that the Company’s pricing sources have the ability to access. Since the valuations are based on quoted prices that are readily and regularly available in an active market, valuation of these securities does not entail a significant amount or degree of judgment.
Level 2 measurements
Fixed income securities and Equity securities: Valuations based upon quoted prices for similar assets in active markets, quoted prices for identical or similar assets in inactive markets; or valuations based on models where the significant inputs are observable (e.g. interest rates, yield curves, prepayment speeds, default rates, loss severities) or can be corroborated by observable market data.
The Company is required to maintain assets on deposit, which primarily consist of cash or fixed maturities, with various regulatory authorities to support its insurance operations. The Company’s insurance subsidiaries maintain assets in trust accounts as collateral for or guarantees for letters of credit to third parties.
The following table details the fair value of the Company’s restricted assets as of December 31, 2018:
| Assets used for collateral or guarantees: | | | |
| Deposits with U.S. Regulatory Authorities | | $ | 2,733 | |
Note 6. Fair Value of Financial Instruments
The following disclosure of the estimated fair value of financial instruments is made in accordance with the requirements of ASC 825, Financial Instruments. The estimated fair value amounts have been determined by the Company using the methods and assumptions described below. However, considerable judgment is required to interpret market data to develop estimates of fair value. Accordingly, the estimates presented herein are not necessarily indicative of the amounts the Company could realize in a current market exchange. The use of different market assumptions and/or estimation methodologies may have a material effect on the estimated fair value amounts.
Cash and Cash Equivalents
The Company has used Level 1 inputs to determine the fair value of its cash equivalents. As of December 31, 2018, and December 31, 2017, cost represented fair value of the Company’s cash and cash equivalents.
Accounts Receivable
The fair value of accounts receivable approximates their carrying value due to their short-term nature.
Revolving Credit Facility
The fair value of Turning Point’s revolving credit facility approximates its carrying value as the interest rate fluctuates with changes in market rates.
Long-Term Debt
With the exception of the IVG Note, the fair value of Turning Point’s long-term debt is estimated based on the quoted market prices for the same or similar issues or on the current rates offered to Turning Point for debt of the same remaining maturities. At December 31, 2018, the $4.0 million carrying value of the IVG Note approximates its fair value due to the proximity of the note’s issuance to December 31, 2018.
As of December 31, 2018, the fair values of the 2018 First Lien Term Loan and the 2018 Second Lien Term Loan approximated $154.0 million and $40.0 million, respectively. As of December 31, 2017, the fair values of the 2017 First Lien Term Loans and the 2017 Second Lien Term Loan approximated $140.6 million and $56.1 million, respectively. See ‘Note 15: Notes Payable and Long-Term Debt’ for details regarding the credit facilities.
The fair values of Standard Outdoor’s promissory notes issued as partial consideration in the January and February 2018 asset acquisitions approximated $9.1 million.
The fair value of SDI’s term loan debt issued in January 2018 and the additional amount issued in August 2018 approximates its carrying value as the interest rate fluctuates with changes in market rates.
Foreign Exchange
At December 31, 2018 and 2017, Turning Point had forward contracts for the purchase of €1.5 million and €0 million, respectively. The fair value of the foreign exchange contracts was based upon the quoted market price that resulted in a loss of approximately $0.1 million for the year ended December 31, 2018. The fair value of the foreign exchange contracts resulted in a liability of approximately $0.1 million as of December 31, 2018.
Turning Point had swap contracts for a total notional amount of $70 million at December 31, 2018. Turning Point had no swap agreements outstanding at December 31, 2017. The fair values of the swap contracts are based upon quoted market prices for similar instruments, thus leading to a level 2 distinction within the fair value hierarchy, and resulted in a liability of $0.9 million as of December 31, 2018.
The components of inventories at December 31 are as follows:
| | | December 31, 2018 | | | December 31, 2017 | |
|
| Raw materials and work in process | | $ | 2,722 | | | $ | 2,545 | |
| Leaf tobacco | | | 34,977 | | | | 30,308 | |
| Finished goods - Smokeless products | | | 6,321 | | | | 5,834 | |
| Finished goods - Smoking products | | | 14,666 | | | | 14,110 | |
| Finished goods - NewGen products | | | 37,194 | | | | 14,532 | |
| Other | | | 738 | | | | 1,290 | |
| | | | 96,618 | | | | 68,619 | |
| LIFO reserve | | | (5,381 | ) | | | (5,323 | ) |
| | | $ | 91,237 | | | $ | 63,296 | |
The following represents the inventory valuation allowance roll-forward, for the years ended December 31:
| | | 2018 | | | 2017 | |
| Balance at beginning of period | | $ | (459 | ) | | $ | (600 | ) |
| Charged to cost and expense | | | (2,132 | ) | | | (197 | ) |
| Deductions for inventory disposed | | | 263 | | | | 533 | |
| Other | | | (176 | ) | | | (195 | ) |
| Balance at end of period | | $ | (2,504 | ) | | $ | (459 | ) |
Note 8. Property, Plant and Equipment
Property, plant and equipment at December 31 consists of:
| | | 2018 | | | 2017 | |
| Land | | $ | 22 | | | $ | 22 | |
| Building and improvements | | | 2,320 | | | | 2,072 | |
| Leasehold improvements | | | 2,101 | | | | 1,873 | |
| Machinery and equipment | | | 13,307 | | | | 12,635 | |
| Advertising structures | | | 17,913 | | | | 329 | |
| Furniture and fixtures | | | 5,453 | | | | 3,821 | |
| | | | 41,116 | | | | 20,752 | |
| Accumulated depreciation | | | (13,375 | ) | | | (11,580 | ) |
| | | $ | 27,741 | | | $ | 9,172 | |
Note 9. Other Current Assets
Other current assets consist of:
| | | December 31, 2018 | | | December 31, 2017 | |
|
| Inventory deposits | | $ | 9,739 | | | $ | 3,797 | |
| Other | | | 5,306 | | | | 7,054 | |
| | | $ | 15,045 | | | $ | 10,851 | |
On May 18, 2018, Turning Point entered into an arrangement with a supplier which manufactures and distributes vapor products whereby the supplier received a $6.5 million loan with a maturity date of May 18, 2019. The note was secured by the supplier’s assets and accrued interest at an annual rate of 15% with quarterly interest payments due to the Company which began in August 2018. In September 2018, the supplier repaid the full outstanding balance of the loan in addition to a $1.0 million early termination fee which was recorded as a reduction to selling, general, and administrative expenses. As a condition to the loan, the Supplier agreed to issue the Turning Point warrants to purchase 7.5% of the ownership interest of the supplier. In connection with the loan repayments Turning Point received $1.0 million, net of expenses, for compensation of the warrants which was recorded as a reduction to selling, general, and administrative expenses.
Note 10. Goodwill and Other Intangible Assets
The following table summarizes goodwill by segment:
| | | Smokeless | | | Smoking | | | New Gen | | | Insurance | | | Total | |
| Balance as of January 1, 2017 | | $ | 32,590 | | | $ | 96,107 | | | $ | 5,693 | | | $ | - | | | $ | 134,390 | |
| Adjustments | | | - | | | | - | | | | 230 | | | | - | | | | 230 | |
| Balance as of December 31, 2017 | | | 32,590 | | | | 96,107 | | | | 5,923 | | | | - | | | | 134,620 | |
| Acquisitions | | | - | | | | - | | | | 11,319 | | | | 757 | | | | 12,076 | |
| Balance as of December 31, 2018 | | $ | 32,590 | | | $ | 96,107 | | | $ | 17,242 | | | $ | 757 | | | $ | 146,696 | |
The following tables summarize information about the Company’s allocation of other intangible assets. Gross carrying amounts of unamortized, indefinite life intangible assets are shown below:
| | | As of December 31, | |
| | | 2018 | | | 2017 | |
| | | Smokeless | | | NewGen | | | Insurance | | | Total | | | Smokeless | | | NewGen | | | Total | |
| Unamortized indefinite life intangible assets: | | | | | | | | | | | | | | | | | | | | | |
| Trade names | | $ | 10,871 | | | $ | 10,786 | | | $ | - | | | $ | 21,657 | | | $ | 10,871 | | | $ | 10,786 | | | $ | 21,657 | |
| State insurance licenses | | | - | | | | - | | | | 2,000 | | | | 2,000 | | | | - | | | | - | | | | - | |
| Formulas | | | 53 | | | | - | | | | - | | | | 53 | | | | 53 | | | | - | | | | 53 | |
| Total | | $ | 10,924 | | | $ | 10,786 | | | $ | 2,000 | | | $ | 23,710 | | | $ | 10,924 | | | $ | 10,786 | | | $ | 21,710 | |
Amortized intangible assets included within the NewGen segment, as well as customer contracts for Standard Outdoor and Trade names for Maidstone, consist of:
| | | As of December 31, | |
| | | 2018 | | | 2017 | |
| | | Gross Carrying Amount | | | Accumulated Amortization | | | Gross Carrying Amount | | | Accumulated Amortization | |
|
| Amortized intangible assets: | | | | | | | | | | | | |
| Customer relationships (useful life of 8-10 years) | | $ | 8,107 | | | $ | 1,713 | | | $ | 5,386 | | | $ | 729 | |
| Trade names (useful life 4-15 years) | | | 7,678 | | | | 233 | | | | - | | | | - | |
| Franchise agreements (useful life of 8 years) | | | 780 | | | | 44 | | | | - | | | | - | |
| Non-compete agreements (useful life of 3.5 years) | | | 100 | | | | 60 | | | | 100 | | | | 31 | |
| Total | | $ | 16,665 | | | $ | 2,050 | | | $ | 5,486 | | | $ | 760 | |
Note 11. Deferred Financing Costs:
Deferred financing costs relating to Turning Point’s revolving credit facility at December 31 consist of:
| | | 2018 | | | 2017 | |
| Deferred financing costs, net of accumulated amortization of $174 and $134, respectively | | $ | 870 | | | $ | 630 | |
Note 12. Accrued Liabilities
Accrued liabilities at December 31 consist of:
| | December 31, | |
| | | 2018 | | | 2017 | |
| Accrued payroll and related items | | $ | 6,063 | | | $ | 5,683 | |
| Customer returns and allowances | | | 2,895 | | | | 2,707 | |
| Other | | | 14,925 | | | | 11,624 | |
| | | $ | 23,883 | | | $ | 20,014 | |
Note 13. Liability for Losses and Loss Adjustment Expenses
Maidstone estimates reserves for both reported and unreported unpaid losses that have occurred on or before the balance sheet date that will need to be paid in the future. Reserves for unpaid losses fall into two categories: case reserves and reserves for claims incurred but not reported, or “IBNR”.
Case reserves are established within the claims department on an individual-case basis for all accidents reported. When a claim is reported, an automatic minimum case reserve is established for that claim type that represents our initial estimate of the losses that will ultimately be paid on the reported claim. The initial estimate for each claim is based upon averages of loss payments for prior closed claims made for that claim type. Claims personnel perform an evaluation of the type of claim involved, the circumstances surrounding each claim and the policy provisions relating to the loss and consequentially adjust the reserves as necessary. As claims mature, management increases or decreases the case reserve estimates as deemed necessary by the claims department based upon additional information received regarding the loss and any other information gathered while reviewing claims.
IBNR is applied as a bulk reserve, which cannot be allocated to particular claims, but are necessary to estimate ultimate losses on reported and unreported claims. Management estimates IBNR reserves by projecting ultimate losses using industry accepted actuarial methods, mentioned below, and then deducting actual loss payments and case reserves from the projected ultimate losses.
Management calculates estimates of ultimate losses by using the following actuarial methods. Management separately calculates the methods using paid loss data and incurred loss data. In the versions of these methods based on incurred loss data, the incurred losses are defined as paid losses plus case reserves. Management also evaluates ultimate losses based on claim type. In the auto industry, claim type is based on coverage; i.e. bodily injury, uninsured motorist, property damage, personal injury protection and physical damage.
| · | Incurred Development Method – The incurred development method is based upon the assumption that the relative change in a given year’s incurred loss estimates from one evaluation point to the next is similar to the relative change in prior years’ reported loss estimates at similar evaluation points. |
| · | Paid Development Method - The paid development method is similar to the incurred development method, simply using paid triangles to calculate development factors. |
| · | Incurred Bornhuetter-Ferguson (“BF”) Method – The Incurred BF Method uses an estimated loss ratio for a particular year, and is weighted against the portion of the year’s claims that have been reported, based on historical incurred loss development patterns. The estimate of required reserves assumes that the remaining unreported portion of a particular year will pay out at a rate consistent with the estimated loss ratio for that year. |
| · | Paid Bornhuetter-Ferguson (“BF”) Method – The Paid BF Method uses an estimated loss ratio for a particular year, and is weighted against the portion of the year’s claims that have been paid, based on historical paid loss development patterns. The estimate of required reserves assumes that the remaining unpaid portion of a particular year will pay out at a rate consistent with the estimated loss ratio for that year. |
Maidstone’s best estimate of required reserves is generally based on an average of the methods above, with appropriate weighting of the various methods based on claim type and year. On an annual basis, the consulting actuary issues a statement of actuarial opinion that documents the actuary’s evaluation of the adequacy of the unpaid loss obligations under the terms of policies in-force.
The following are loss reserve development tables that illustrate the change over time of reserves established for claim and allocated claim adjustment expenses arising from short-duration insurance contracts. Insurance contracts are considered to be short-duration contracts when the contracts are not expected to remain in force for an extended period of time. The Incurred Claim and Allocated Claim Adjustment Expenses tables, reading across, show the cumulative net incurred claim and allocated claim adjustment expenses relating to each accident year at the end of the stated calendar year. Changes in the cumulative amount across time are the result of Maidstone’s expanded awareness of additional facts and circumstances that pertain to the unsettled claims. The Cumulative Paid Claim and Allocated Claim Adjustment Expenses tables, reading across, show the cumulative amount paid for claims in each accident year as of the end of the stated calendar year.
Auto Insurance
$ In thousands (except number of reported claims)
| Auto: Incurred Claims and Allocated Claim Adjustment Expenses, Net of Reinsurance | |
| | |
| | | For the years ended December 31, | | | As of December 31, 2018 | |
| | | Unaudited | | | Audited | |
Accident Year | | 2009 | | | 2010 | | | 2011 | | | 2012 | | | 2013 | | | 2014 | | | 2015 | | | 2016 | | | 2017 | | | 2018 | | | Net IBNR Reserve | | | Reported Claims | |
| 2009 | | $ | 65,149 | | | $ | 73,497 | | | $ | 74,715 | | | $ | 75,881 | | | $ | 76,009 | | | $ | 75,604 | | | $ | 75,513 | | | $ | 75,222 | | | $ | 75,145 | | | $ | 75,184 | | | $ | 31 | | | | 16,072 | |
| 2010 | | | | | | | 54,887 | | | | 57,194 | | | | 56,990 | | | | 57,281 | | | | 57,105 | | | | 56,872 | | | | 56,254 | | | | 56,084 | | | | 56,030 | | | | 43 | | | | 12,355 | |
| 2011 | | | | | | | | | | | 47,570 | | | | 44,500 | | | | 44,184 | | | | 43,752 | | | | 43,548 | | | | 42,908 | | | | 42,817 | | | | 42,830 | | | | 87 | | | | 9,351 | |
| 2012 | | | | | | | | | | | | | | | 26,106 | | | | 25,378 | | | | 25,572 | | | | 25,308 | | | | 25,066 | | | | 24,743 | | | | 24,718 | | | | 16 | | | | 5,251 | |
| 2013 | | | | | | | | | | | | | | | | | | | 15,997 | | | | 15,605 | | | | 15,951 | | | | 15,830 | | | | 15,727 | | | | 15,681 | | | | 68 | | | | 3,454 | |
| 2014 | | | | | | | | | | | | | | | | | | | | | | | 12,270 | | | | 12,282 | | | | 11,973 | | | | 11,931 | | | | 11,929 | | | | 79 | | | | 3,409 | |
| 2015 | | | | | | | | | | | | | | | | | | | | | | | | | | | 15,840 | | | | 15,562 | | | | 15,421 | | | | 15,149 | | | | 192 | | | | 4,754 | |
| 2016 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 30,996 | | | | 32,128 | | | | 32,469 | | | | 760 | | | | 8,291 | |
| 2017 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 23,331 | | | | 25,096 | | | | 2,293 | | | | 7,009 | |
| 2018 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 20,761 | | | | 4,960 | | | | 5,381 | |
| Total | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 319,847 | | | $ | 8,529 | | | | | |
Auto: Cumulative Paid Claims and Allocated Claim Adjustment Expenses, Net of Reinsurance
| | | For the years ended December 31, | |
| | | Unaudited | | | Audited | |
| | | | | | | |
| | 2009 | | | 2010 | | | 2011 | | | 2012 | | | 2013 | | | 2014 | | | 2015 | | | 2016 | | | 2017 | | | 2018 | |
| 2009 | | $ | 33,059 | | | $ | 58,825 | | | $ | 67,177 | | | $ | 71,395 | | | $ | 73,275 | | | $ | 74,253 | | | $ | 74,886 | | | $ | 74,969 | | | $ | 75,055 | | | $ | 75,128 | |
| 2010 | | | | | | | 25,764 | | | | 45,769 | | | | 51,501 | | | | 53,932 | | | | 54,938 | | | | 55,481 | | | | 55,328 | | | | 55,619 | | | | 55,683 | |
| 2011 | | | | | | | | | | | 20,259 | | | | 34,495 | | | | 39,391 | | | | 41,338 | | | | 42,166 | | | | 42,116 | | | | 42,443 | | | | 42,545 | |
| 2012 | | | | | | | | | | | | | | | 12,411 | | | | 19,975 | | | | 22,590 | | | | 23,821 | | | | 23,784 | | | | 24,100 | | | | 24,431 | |
| 2013 | | | | | | | | | | | | | | | | | | | 7,685 | | | | 12,103 | | | | 13,985 | | | | 14,674 | | | | 15,223 | | | | 15,417 | |
| 2014 | | | | | | | | | | | | | | | | | | | | | | | 5,971 | | | | 9,101 | | | | 9,870 | | | | 10,576 | | | | 11,371 | |
| 2015 | | | | | | | | | | | | | | | | | | | | | | | | | | | 8,002 | | | | 8,917 | | | | 10,862 | | | | 13,283 | |
| 2016 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 15,980 | | | | 23,545 | | | | 27,582 | |
| 2017 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 14,477 | | | | 18,922 | |
| 2018 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 11,237 | |
| Total | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 295,599 | |
Auto: Reconciliation of Reserve Balances to Liability for Unpaid Loss and Loss Adjustment Expenses
| | | As of December 31, 2018 | |
|
| | | | |
| Unpaid Loss and Allocated Loss Adjustment Expense, Net of Reinsurance, for years presented | | $ | 24,248 | |
| Unpaid Loss and Loss Adjustment Expense, Net of Reinsurance, for years prior to 2009 | | | 97 | |
| Unpaid Unallocated Loss Adjustment Expense | | | 2,955 | |
| Unpaid Losses and Loss Adjustment Expenses | | $ | 27,300 | |
The following is supplementary information about average historical claims duration as of December 31, 2018.
| Auto: Average Annual Percentage Payout of Incurred Claims by Age, Net of Reinsurance as of December 31, 2018 | |
| (Unaudited) | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Years | | | 1 | | | | 2 | | | | 3 | | | | 4 | | | | 5 | | | | 6 | | | | 7 | | | | 8 | | | | 9 | | | | 10 | |
| | | | 50.0 | % | | | 26.1 | % | | | 10.9 | % | | | 6.5 | % | | | 2.7 | % | | | 0.9 | % | | | 0.7 | % | | | 0.3 | % | | | 0.1 | % | | | 0.1 | % |
Homeowners’ Insurance
$ In thousands (except number of reported claims)
Homeowners’: Incurred claims and Allocated Claim Adjustment Expenses, Net of Reinsurance
| | | For the years ended December 31, | | | As of December 31, 2018 | |
| | | Unaudited | | | Audited | |
Accident Year | | 2014 | | | 2015 | | | 2016 | | | 2017 | | | 2018 | | | Net IBNR Reserves | | | Reported Claims | |
|
| 2014 | | $ | 2 | | | $ | 2 | | | $ | 2 | | | $ | 2 | | | $ | 2 | | | $ | - | | | | 3 | |
| 2015 | | | | | | | 597 | | | | 580 | | | | 580 | | | | 580 | | | | - | | | | 41 | |
| 2016 | | | | | | | | | | | 524 | | | | 523 | | | | 524 | | | | - | | | | 27 | |
| 2017 | | | | | | | | | | | | | | | - | | | | - | | | | - | | | | - | |
| 2018 | | | | | | | | | | | | | | | | | | | 42 | | | | 24 | | | | 6 | |
| Total | | | | | | | | | | | | | | | | | | $ | 1,148 | | | $ | 24 | | | | | |
Homeowners’: Cumulative Paid Claims and Allocated Claim Adjustment Expenses, Net of Reinsurance
| | | For the Years Ended December 31, | |
| | | Unaudited | | | Audited | |
Accident Year | | 2014 | | | 2015 | | | 2016 | | | 2017 | | | 2018 | |
|
| 2014 | | $ | - | | | $ | 1 | | | $ | 2 | | | $ | 2 | | | $ | 2 | |
| 2015 | | | | | | | 304 | | | | 580 | | | | 580 | | | | 580 | |
| 2016 | | | | | | | | | | | 524 | | | | 524 | | | | 524 | |
| 2017 | | | | | | | | | | | | | | | | | | | - | |
| 2018 | | | | | | | | | | | | | | | | | | | 12 | |
| Total | | | | | | | | | | | | | | | | | | $ | 1,118 | |
Homeowners’: Reconciliation of Reserve Balances to Liability for Unpaid Loss and Loss Adjustment Expenses
| | | As of December 31, 2018 | |
| | | | |
| Unpaid Loss and Allocated Loss Adjustment Expense, Net of Reinsurance, for years presented | | $ | 30 | |
| Unpaid Loss and Loss Adjustment Expense, Net of Reinsurance, for years prior to 2009 | | | - | |
| Unpaid Unallocated Loss Adjustment Expense | | | - | |
| Unpaid Losses and Loss Adjustment Expenses | | $ | 30 | |
The following is supplementary information about average historical claims duration as of December 31, 2018.
| Homeowners’ Average Annual Percentage Payout of Incurred Claims by Age, Net of Reinsurance as of December 31, 2018 | |
| (Unaudited) | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Years | | | 1 | | | | 2 | | | | 3 | | | | 4 | | | | 5 | | | | 6 | | | | 7 | | | | 8 | | | | 9 | | | | 10 | |
| | | | 45.3 | % | | | 34.0 | % | | | 0.8 | % | | | 0.0 | % | | | 0.0 | % | | | 0.0 | % | | | 0.0 | % | | | 0.0 | % | | | 0.0 | % | | | 0.0 | % |
The following table summarizes the net outstanding liabilities based on the tables above:
| | | As of December 31, 2018 | |
| Net Outstanding Liabilities | | | |
| Auto | | $ | 24,345 | |
| Homeowners’ | | | 30 | |
| Liabilities for unpaid claims and claims adjustment expenses, net of reinsurance | | | 24,375 | |
| Reinsurance recoverable on unpaid claims | | | | |
| Auto | | | - | |
| Homeowners’ | | | - | |
| Total reinsurance recoverable on unpaid claims | | | - | |
| Unallocated claims adjustment expenses | | | 2,955 | |
| Total gross liability for unpaid claims and claims expenses | | $ | 27,330 | |
Activity in the liability for losses and LAE is summarized as follows:
| | | January 2, 2018 to December 31, 2018 | |
|
| Reserve for losses and LAE at January 2, 2018 | | $ | 30,672 | |
| Provision for claims, net of insurance: | | | | |
| Incurred related to: | | | | |
| Current year | | | 25,223 | |
| Total incurred | | | 25,223 | |
| Deduct payment of claims, net of reinsurance: | | | | |
| Paid related to: | | | | |
| Prior year | | | 14,176 | |
| Current year | | | 14,389 | |
| Total paid | | | 28,565 | |
| Reserve for losses and LAE at December 31, 2018 | | $ | 27,330 | |
The components of the net liability for losses and LAE are as follows:
| | | As of December 31, 2018 | |
| Case basis reserves | | $ | 15,863 | |
| Incurred but not reported reserves | | | 11,467 | |
| Total | | $ | 27,330 | |
On February 1, 2018, Maidstone began to write homeowners insurance. As a result, Maidstone placed three reinsurance contracts: An Excess Multiple Line Reinsurance Contract, Excess Catastrophe Reinsurance Contract and a Property Per Risk Automatic Facultative Reinsurance Contract. The use of these reinsurance agreements provides greater diversification of business and minimizes the maximum net loss potential arising from large risks. These agreements provide for recovery of a portion of losses and loss adjustment expenses from several reinsurers.
In addition, Maidstone offers endorsements for equipment breakdown coverage and identity recovery coverage. The premium and losses related to this coverage are ceded via a 100% quota share reinsurance agreement with an unaffiliated insurance company.
Included in the Consolidated Statements of Operations for the period from January 2, 2018 to December 31, 2018 are $0.1 million of earned premiums in connection with ceded reinsurance, all of which are with non-affiliated companies. Maidstone remains obligated for amounts ceded in the event the reinsurer cannot meet its obligation when they become due.
Maidstone evaluates the financial condition of its reinsurers and monitors concentrations of credit risk arising from similar geographic regions, activities, or economic characteristics of the reinsurance to minimize exposure to significant losses from reinsurance insolvency. At December 31, 2018, management did not believe there was a risk of loss as a result of a concentration of risk in its reinsurance program.
At December 31, 2018, Maidstone had no net unsecured reinsurance recoverable from individual unaffiliated reinsurers, which were equal to or greater than 3% of surplus.
Note 15. Notes Payable and Long-Term Debt
Notes payable and long-term debt at December 31 consist of the following:
| | | December 31, 2018 | | | December 31, 2017 | |
|
| 2018 First Lien Term Loan | | $ | 154,000 | | | $ | - | |
| 2018 Second Lien Term Loan | | | 40,000 | | | | - | |
| SDI Term Loan | | | 15,000 | | | | - | |
| Standard Outdoor Promissory Notes | | | 9,950 | | | | - | |
| 2017 First Lien First Out Term Loan | | | - | | | | 105,875 | |
| 2017 First Lien Second Out Term Loan | | | - | | | | 34,738 | |
| 2017 Second Lien Term Loan | | | - | | | | 55,000 | |
| Note payable - IVG | | | 4,000 | | | | - | |
| Note payable - VaporBeast | | | - | | | | 2,000 | |
| Total Notes Payable and Long-Term Debt | | | 222,950 | | | | 197,613 | |
Less deferred finance charges and debt discount | | | (4,903 | ) | | | (3,573 | ) |
| Less current maturities | | | (9,431 | ) | | | (7,850 | ) |
| | | $ | 208,616 | | | $ | 186,190 | |
2018 Credit Facility
On March 7, 2018, Turning Point entered into a $250 million credit facility consisting of a $160 million 2018 First Lien Term Loan with Fifth Third Bank, as administrative agent, and other lenders, and a $50 million 2018 Revolving Credit Facility (collectively, the “2018 First Lien Credit Facility”) in addition to a $40 million 2018 Second Lien Term Loan (together with the 2018 First Lien Credit Facility, the “2018 Credit Facility”) with Prospect Capital Corporation, as administrative agent, and other lenders. The 2018 Credit Facility retained the $40 million accordion feature of the 2017 Credit Facility. Proceeds from the 2018 Credit Facility were used to repay, in full, the 2017 Credit Facility. Turning Point incurred a loss on extinguishment of debt of $2.4 million in the first quarter of 2018 as a result of the refinancing.
The 2018 Credit Facility contains customary events of default including payment defaults, breaches of representations and warranties, covenant defaults, cross-defaults to certain other material indebtedness in excess of specified amounts, certain events of bankruptcy and insolvency, certain ERISA events, judgments in excess of specified amounts, and change in control defaults. The 2018 Credit Facility also contains certain negative covenants customary for facilities of these types including covenants that, subject to exceptions described in the 2018 Credit Facility, restrict the ability of Turning Point and its subsidiary guarantors: (i) to pledge assets, (ii) to incur additional indebtedness, (iii) to pay dividends, (iv) to make distributions, (v) to sell assets, and (vi) to make investments.
2018 First Lien Credit Facility: The 2018 First Lien Term Loan and the 2018 Revolving Credit Facility bear interest at LIBOR plus a spread of 2.75% to 3.50% based on Turning Point’s senior leverage ratio. The 2018 First Lien Term Loan has quarterly required payments of $2.0 million beginning June 30, 2018, increasing to $3.0 million on June 30, 2020, and increasing to $4.0 million on June 30, 2022. The 2018 First Lien Credit Facility has a maturity date of March 7, 2023. The 2018 First Lien Term Loan is secured by a first priority lien on substantially all of the assets of the borrowers and the guarantors thereunder, including a pledge of Turning Point’s capital stock, other than certain excluded assets (the “Collateral”). The 2018 First Lien Credit Facility contains certain financial covenants including maximum senior leverage ratio of 3.50x with step-downs to 3.00x, a maximum total leverage ratio of 4.50x with step-downs to 4.00x, and a minimum fixed charge coverage ratio of 1.20x. The weighted average interest rate of the 2018 First Lien Term Loan was 5.77% at December 31, 2018. The weighted average interest rate of the 2018 Revolving Credit Facility was 5.79% at December 31, 2018. At December 31, 2018, Turning Point had $26.0 million of borrowings outstanding under the 2018 Revolving Credit Facility. The $24.0 million unused portion of the 2018 Revolving Credit Facility is reduced by $1.3 million letters of credit with Fifth Third Bank, resulting in $22.7 million of availability under the 2018 Revolving Credit Facility at December 31, 2018.
2018 Second Lien Credit Facility: The 2018 Second Lien Credit Facility bears interest at a rate of LIBOR plus 7.00% and has a maturity date of March 7, 2024. The 2018 Second Lien Term Loan is secured by a second priority interest in the Collateral and is guaranteed by the same entities as the 2018 First Lien Term Loan. The 2018 Second Lien Credit Facility contains certain financial covenants including a maximum senior leverage ratio of 3.75x with step-downs to 3.50x, a maximum total leverage ratio of 4.75x with step-downs to 4.50x, and a minimum fixed charge coverage ratio of 1.10x. The weighted average interest rate of the 2018 Second Lien Term Loan was 9.46% at December 31, 2018.
In September 2018, Turning Point issued a note payable to IVG’s former shareholders (“IVG Note”). The IVG Note is $4.0 million principal with 6.0% interest compounding annually and matures on March 5, 2020. The IVG Note is subject to customary defaults including defaults for nonpayment, nonperformance, any material breach under the purchase agreement, and bankruptcy or insolvency.
2017 Credit Facility
On February 17, 2017, Turning Point and NATC, entered into a new $250 million secured credit facility comprised of (i) a First Lien Credit Facility with Fifth Third Bank, as administrative agent, and other lenders (the “2017 First Lien Credit Facility”) and (ii) a Second Lien Credit Facility with Prospect Capital Corporation, as administrative agent, and other lenders (the “2017 Second Lien Credit Facility,” and together with the 2017 First Lien Credit Facility, the “2017 Credit Facility”). Turning Point used the proceeds of the 2017 Credit Facility to repay, in full, Turning Point’s First Lien Term Loan, Second Lien Term Loan, and Revolving Credit Facility and to pay related fees and expenses. As a result of this transaction, Turning Point incurred a loss on extinguishment of debt of $6.1 million during the first quarter of 2017.
The 2017 Credit Facility contained customary events of default including payment defaults, breaches of representations and warranties, covenant defaults, cross-defaults to certain other material indebtedness in excess of specified amounts, certain events of bankruptcy and insolvency, certain ERISA events, judgments in excess of specified amounts, and change in control defaults. The 2017 Credit Facility also contained certain negative covenants customary for facilities of these types including covenants that, subject to exceptions described in the 2017 Credit Facility, restricted the ability of Turning Point and its subsidiary guarantors: (i) to pledge assets, (ii) to incur additional indebtedness, (iii) to pay dividends, (iv) to make distributions, (v) to sell assets, and (vi) to make investments.
2017 First Lien Credit Facility
The 2017 First Lien Credit Facility consisted of: (i) a $50 million revolving credit facility (the “2017 Revolving Credit Facility”), (ii) a $110 million first out term loan facility (the “2017 First Out Term Loan”), and (iii) a $35 million second out term loan facility (the “2017 Second Out Term Loan”), which would have been repaid in full only after repayment in full of the 2017 First Out Term Loan. The 2017 First Lien Credit Facility also included an accordion feature allowing Turning Point to borrow up to an additional $40 million upon the satisfaction of certain conditions, including obtaining commitments from one or more lenders. Borrowings under the 2017 Revolving Credit Facility could have been used for general corporate purposes, including acquisitions.
The 2017 First Out Term Loan and the 2017 Revolving Credit Facility had a maturity date of February 17, 2022, and the 2017 Second Out Term Loan had a maturity date of May 17, 2022. The 2017 First Out Term Loan and the 2017 Revolving Credit Facility bore interest at LIBOR plus a spread of 2.5% to 3.5% based on Turning Point’s senior leverage ratio.
2017 Second Lien Credit Facility
The 2017 Second Lien Credit Facility consisted of a $55 million second lien term loan (the “2017 Second Lien Term Loan”) having a maturity date of August 17, 2022. The 2017 Second Lien Term Loan bore interest at a fixed rate of 11%.
Note Payable – VaporBeast
On November 30, 2016, Turning Point issued a note payable to VaporBeast’s former shareholders (“VaporBeast Note”). The VaporBeast Note was $2.0 million principal with 6% interest compounded monthly and matured on May 30, 2018, at which time it was paid in full.
On February 2, 2018, SDI and its Standard Outdoor advertising subsidiaries (the “Borrowers”) entered into a term loan agreement with Crystal Financial LLC (“Crystal Term Loan”). The Crystal Term Loan provides for an initial term loan of $10.0 million and a commitment to provide additional term loans of up to $15.0 million. Subject to the satisfaction of certain conditions, the Company may request an additional increase in the commitment of up to $25.0 million. The proceeds were used to finance a portion of the acquisition of certain billboard structures, fund certain fees and expenses, and provide working capital for the Borrowers. Any incremental term loans will be used to finance permitted acquisitions. The Crystal Term Loan bears interest at a rate equal to the three-month “Libor Rate” as published in The Wall Street Journal plus 7.25%. Interest under the Crystal Term Loan Agreement is payable monthly and is also subject to an agency fee of $50,000, payable upon execution of the Term Loan Agreement, and annually thereafter. In addition, the Crystal Term Loan was subject to a one-time commitment fee of $350,000, which was paid upon execution of the term loan agreement. The principal balance is payable at maturity, on February 2, 2023. In August 2018, the Company borrowed an additional $5.0 million under the Crystal Term Loan. This borrowing is subject to the same terms as the initial borrowing.
The obligations of the Borrowers under the Term Loan Agreement are secured by all the assets of the Borrowers, subject to certain exceptions and exclusions as set forth in the Term Loan Agreement and other loan documents.
The Term Loan Agreement contains certain affirmative and negative covenants that are binding on the Borrowers, including, but not limited to, restrictions (subject to specified exceptions and qualifications) on the ability of the Borrowers to incur indebtedness, to create liens, to merge or consolidate, to make dispositions, to pay dividends or make distributions, to make investments, to pay any subordinated indebtedness, to enter into certain transactions with affiliates or to make capital expenditures.
In addition, the Term Loan Agreement requires the Borrowers to abide by certain financial covenants. Specifically, the Term Loan Agreement requires that the Borrowers:
| · | Maintain unrestricted cash and cash equivalents of at least $3,000,000 in accounts subject to account control agreements in favor of the Agent at all times (i) prior to March 31, 2019 and (ii) after March 31, 2019 unless the Fixed Charge Coverage Ratio (as defined in the Term Loan Agreement) is greater than or equal to 1.10 to 1.00. |
| · | Maintain a Turning Point Consolidated Total Leverage Ratio (as defined in the Term Loan Agreement) of less than 6.00 to 1.00 prior to December 30, 2018, 5.75 to 1.00 from December 31, 2018 to December 30, 2019, and 5.50 to 1.00 starting December 31, 2019 and thereafter. |
| · | Maintain a Turning Point Consolidated Senior Leverage Ratio (as defined in the Term Loan Agreement) of less than 5.00 to 1.00 prior to December 30, 2018, 4.75 to 1.00 from December 31, 2018 to December 30, 2019, and 4.50 to 1.00 starting December 31, 2019 and thereafter. |
Under the Term Loan Agreement, the Borrowers must also not permit amounts outstanding under the Term Loan Agreement to exceed the sum of (i) Billboard Cash Flow (as defined in the Term Loan Agreement) multiplied by the Applicable BCF Multiple (as defined in the Term Loan Agreement) and (ii) the aggregate value of the shares of common stock of Turning Point pledged by the Registrant to the Agent multiplied by 0.35.
The Term Loan Agreement contains customary events of default (which are in some cases subject to certain exceptions, thresholds, notice requirements and grace periods). The Term Loan Agreement also contains certain representations, warranties and conditions, in each case as set forth in the Term Loan Agreement.
With respect to the maintenance of at least $3.0 million in unrestricted cash and cash equivalents in accounts subject to control agreements in favor of the Agent, the Company has approximately $12.3 million in unrestricted cash and cash equivalents at December 31, 2018 in those accounts.
Interest expense related to the Crystal loan of $1.4 million, including amortization of the discount, was recorded for the year ended December 31, 2018.
On January 18, 2018, as partial consideration for an asset purchase of 83 billboard structures located in Alabama, as well as the ground leases and advertising contracts relating to such billboard structures, the Company issued a promissory note with a face value of $6.5 million. The promissory note was recorded net of a discount of $0.9 million, representing the difference between the face value and fair value at issuance. This discount will be amortized into interest expense using the effective interest rate method over the term of the promissory note. A principal payment of $1.0 million on the promissory note is payable January 1 of each year, beginning January 1, 2020 and ending January 1, 2022, with a $3.5 million final principal payment on January 1, 2023. The promissory note has a 5% fixed coupon interest rate and interest is payable quarterly.
On February 20, 2018, as partial consideration for an asset purchase of 86 billboard structures located in Georgia and Florida, as well as the ground leases and advertising contracts relating to such billboard structures, the Company issued a promissory note with a face value of $3.5 million. The promissory note was recorded net of a discount of $0.3 million, representing the difference between the face value and fair value at issuance. This discount will be amortized into interest expense using the effective interest rate method over the term of the promissory note. A principal payment of $0.9 million on the promissory note is payable March 1, 2019, with the remaining principal paid down monthly through March 1, 2022. The promissory note has a 5% fixed coupon interest rate and interest is payable monthly starting March 1, 2019.
Interest expense related to the Standard Outdoor loans of $0.8 million, including amortization of the discount, was recorded for the year ended December 31, 2018.
The following table summarizes the scheduled principal repayments subsequent to December 31, 2018:
| | | Future Minimum Principal Payments | |
| 2019 | | $ | 9,502 | |
| 2020 | | | 16,839 | |
| 2021 | | | 13,882 | |
| 2022 | | | 16,227 | |
| 2023 | | | 126,500 | |
| thereafter | | | 40,000 | |
| Total | | $ | 222,950 | |
Note 16. Pension and Postretirement Benefit Plans
Turning Point has a defined benefit pension plan. Benefits for hourly employees were based on a stated benefit per year of service, reduced by amounts earned in a previous plan. Benefits for salaried employees were based on years of service and the employees’ final compensation. The defined benefit pension plan is frozen. Turning Point’s policy is to make the minimum amount of contributions that can be deducted for federal income taxes. Turning Point expects to make no contributions to the pension plan in 2019.
Turning Point sponsored a defined benefit postretirement plan that covered hourly employees. This plan provides medical and dental benefits. This plan is contributory with retiree contributions adjusted annually. Turning Point’s policy is to make contributions equal to benefits paid during the year. Turning Point expects to contribute approximately $0.2 million to its postretirement plan in 2019 for the payment of benefits.
The following tables provide a reconciliation of the changes in the plans’ benefit obligations and fair value of assets for the years ended December 31, 2018 and 2017, and a statement of the funded status:
The following tables provides the components of net periodic pension and postretirement benefit costs and total costs for the plans:
| | Pension Benefits | | | Postretirement Benefits | |
|
| | | 2018 | | | 2017 | | | 2018 | | | 2017 | |
| Reconciliation of benefit obligations: | | | | | | | | | | | | |
| Benefit obligation at January 1 | | $ | 17,121 | | | $ | 16,780 | | | $ | 4,217 | | | $ | 4,745 | |
| Service cost | | | 104 | | | | 104 | | | | | | | | - | |
| Interest cost | | | 553 | | | | 649 | | | | 117 | | | | 144 | |
| Actuarial loss (gain) | | | (1,157 | ) | | | 668 | | | | (527 | ) | | | (472 | ) |
| Assumptions | | | - | | | | - | | | | (323 | ) | | | - | |
| Settlement/curtailment | | | (1,866 | ) | | | - | | | | - | | | | - | |
| Benefits paid | | | (1,055 | ) | | | (1,080 | ) | | | (179 | ) | | | (200 | ) |
| Benefit obligation at December 31 | | $ | 13,700 | | | $ | 17,121 | | | $ | 3,305 | | | $ | 4,217 | |
| | | | | | | | | | | | | | | | | |
| Reconciliation of fair value of plan assets: | | | | | | | | | | | | | | | | |
| Fair value of plan assets at January 1 | | $ | 17,517 | | | $ | 16,357 | | | $ | - | | | $ | - | |
| Actual return on plan assets | | | 327 | | | | 2,240 | | | | - | | | | - | |
| Employer contribution | | | - | | | | - | | | | 179 | | | | 200 | |
| Settlement/curtailment | | | (1,866 | ) | | | - | | | | - | | | | - | |
| Benefits paid | | | (1,055 | ) | | | (1,080 | ) | | | (179 | ) | | | (200 | ) |
| Fair value of plan assets at December 31 | | $ | 14,923 | | | $ | 17,517 | | | $ | - | | | $ | - | |
| | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | |
| Funded status: | | | | | | | | | | | | | | | | |
| Funded status at December 31 | | $ | 1,223 | | | $ | 396 | | | $ | (3,305 | ) | | $ | (4,217 | ) |
| Unrecognized net actuarial loss (gain) | | | 2,416 | | | | 3,443 | | | | (1,929 | ) | | | (1,161 | ) |
| Net amount recognized | | $ | 3,639 | | | $ | 3,839 | | | $ | (5,234 | ) | | $ | (5,378 | ) |
Accumulated benefit obligations did not exceed plan assets at December 31, 2018 or 2017 for the Company’s pension plan.
The asset allocation for Turning Point defined benefit plan, by asset category, follows:
| | Target Allocation |
| | Percentage of Plan Assets at December 31, | |
|
|
| | | 2019 | | | 2018 | | | 2017 | |
| Asset category: | | | | | | | | | |
Equity securities (1) | | | 0.0 | % | | | 0.0 | % | | | 51.4 | % |
| Debt securities | | | 100.0 | % | | | 84.8 | % | | | 21.6 | % |
| Cash | | | 0.0 | % | | | 15.2 | % | | | 27.0 | % |
| Total | | | 100.0 | % | | | 100.0 | % | | | 100.0 | % |
| | | | | | | | | | | | | |
| (1) No shares of Turning Point’s common stock were included in equity securities at December 31, 2017 | |
The asset’s or liability’s fair value measurement level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement. Valuation techniques used need to maximize the use of observable inputs and minimize the use of unobservable inputs.
Following is the description of the valuation methodologies used for assets measured at fair value subsequent to initial recognition. These methods may produce a fair value calculation that may not be indicative of net realizable value or reflective of future fair values. Furthermore, while Turning Point believes its valuation methods are appropriate and consistent with other market participants, the use of different methodologies or assumptions to determine the fair value of certain financial instruments could result in a different fair value measurement at the reporting date. There have been no changes in the methodologies used at December 31, 2018 and 2017.
Pooled Separate Accounts: Valued at the net asset value (NAV) of shares held by the plan at year end.
Guaranteed Deposit Account: Valued at contract value, which approximates fair value.
Assets measured at fair value on a recurring basis: The table below presents the balances of the plan’s assets measured at fair value on a recurring basis by level within the fair value hierarchy:
| | | Total | | | Level 1 | | | Level 2 | | | Level 3 | |
| Pooled separate accounts | | $ | 12,658 | | | $ | - | | | $ | 12,658 | | | $ | - | |
| Guaranteed deposit account | | | 2,265 | | | | - | | | | - | | | | 2,265 | |
| Total assets at fair value as of December 31, 2018 | | $ | 14,923 | | | $ | - | | | $ | 12,658 | | | $ | 2,265 | |
| | | | | | | | | | | | | | | | | |
| Pooled separate accounts | | $ | 12,796 | | | $ | - | | | $ | 12,796 | | | $ | - | |
| Guaranteed deposit account | | | 4,721 | | | | - | | | | - | | | | 4,721 | |
| Total assets at fair value as of December 31, 2017 | | $ | 17,517 | | | $ | - | | | $ | 12,796 | | | $ | 4,721 | |
Level 3 Gains and Losses: The table below sets forth a summary of changes in the fair value of the Guaranteed Deposit Account:
| | Guaranteed Deposit Account | |
|
|
| Balance at December 31, 2016 | | $ | 1,966 | |
| Total gains (losses), realized/unrealized | | | | |
| Return on plan assets | | | 64 | |
| Purchases, sales, and settlements, net | | | 2,691 | |
| Balance at December 31, 2017 | | | 4,721 | |
| Total gains (losses), realized/unrealized | | | | |
| Return on plan assets | | | 81 | |
| Purchases, sales, and settlements, net | | | (2,537 | ) |
| Balance at December 31, 2018 | | $ | 2,265 | |
Turning Point’s investment philosophy is to earn a reasonable return without subjecting plan assets to undue risk. Turning Point uses one management firm to manage plan assets, which are invested in equity and debt securities. Turning Point’s investment objective
is to match the duration of the debt securities with the expected payments.
The following table provides the amounts recognized in the consolidated balance sheets as of December 31:
| | Pension Benefits | | | Postretirement Benefits | |
|
| | | 2018 | | | 2017 | | | 2018 | | | 2017 | |
| Prepaid asset | | $ | 1,223 | | | $ | 396 | | | $ | - | | | $ | - | |
| Accrued benefit cost | | | - | | | | - | | | | (3,305 | ) | | | (4,217 | ) |
| Accumulated other comprehensive loss, unrecognized net gain (loss) | | | 2,416 | | | | 3,443 | | | | (1,929 | ) | | | (1,161 | ) |
| | | $ | 3,639 | | | $ | 3,839 | | | $ | (5,234 | ) | | $ | (5,378 | ) |
The amounts in accumulated other comprehensive income that are expected to be recognized in net periodic benefit costs in 2019 are losses of $0.2 million for pension and gains of approximately $0.1 million for postretirement, respectively.
The following table provides the components of net periodic pension and postretirement benefit costs and total costs for the plans for the years ended December 31:
| | Pension Benefits | | | Post-Retirement Benefits | |
|
| | | 2018 | | | 2017 | | | 2016 | | | 2018 | | | 2017 | | | 2016 | |
| Service cost | | $ | 104 | | | $ | 104 | | | $ | 104 | | | $ | - | | | $ | - | | | $ | - | |
| Interest cost | | | 553 | | | | 649 | | | | 699 | | | | 117 | | | | 144 | | | | 173 | |
| Expected return on plan assets | | | (949 | ) | | | (1,024 | ) | | | (1,034 | ) | | | - | | | | - | | | | - | |
| Amortization of (gains) losses | | | 186 | | | | 463 | | | | 493 | | | | (81 | ) | | | (52 | ) | | | (24 | ) |
| Curtailment loss | | | 306 | | | | - | | | | - | | | | - | | | | - | | | | - | |
| Net periodic benefit cost | | $ | 200 | | | $ | 192 | | | $ | 262 | | | $ | 36 | | | $ | 92 | | | $ | 149 | |
Turning Point is required to make assumptions regarding such variables as the expected long-term rate of return on plan assets and the discount rate applied to determine service cost and interest cost. The rate of return on assets used is determined based upon analysis of the plans’ historical performance relative to the overall markets and mix of assets. The assumptions listed below represent management’s review of relevant market conditions and have been adjusted, as appropriate. The weighted average assumptions used in the measurement of Turning Point’s benefit obligation are as follows:
| | Pension Benefits | | | Post-Retirement Benefits | |
|
| | | 2018 | | | 2017 | | | 2018 | | | 2017 | |
| Discount rate | | | 4.00 | % | | | 3.50 | % | | | 4.25 | % | | | 3.25 | % |
The weighted average assumptions used to determine net periodic pension and postretirement costs are as follows:
| | Pension Benefits | | | Post-Retirement Benefits | |
|
| | | 2018 | | | 2017 | | | 2018 | | | 2017 | |
| Discount rate | | | 3.8 | % | | | 4.0 | % | | | 3.3 | % | | | 3.5 | % |
| Expected return on plan assets | | | 6.0 | % | | | 6.5 | % | | | - | | | | - | |
For postretirement benefits measurement purposes, the assumed health care cost trend rate for participants as of December 31, 2018, and going forward, was 5.5%. Assumed health care cost trend rates could have a significant effect on the amounts reported for the postretirement benefit plans. A 1% increase in assumed health care cost trend rates would have the following effects:
| | | 2018 | | | 2017 | | | 2016 | |
| Effect on total of service and interest cost components of net periodic postretirement cost | | $ | 3 | | | $ | 4 | | | $ | 3 | |
|
Effect on the health care component of the accumulated postretirement benefit obligation | | $ | (97 | ) | | $ | (109 | ) | | $ | (78 | ) |
The following benefit payments, which reflect expected future service, as appropriate, are expected to be paid:
Period | | Pension Benefits | | | Postretirement Benefits | |
|
| 2019 | | $ | 1,071 | | | $ | 222 | |
| 2020 | | | 1,051 | | | | 227 | |
| 2021 | | | 1,041 | | | | 231 | |
| 2022 | | | 1,016 | | | | 236 | |
| 2023 | | | 1,005 | | | | 241 | |
| 2024-2028 | | $ | 4,672 | | | $ | 1,233 | |
Turning Point also sponsors a voluntary 401(k) retirement savings plan. Eligible employees may elect to contribute up to 15% of their annual earnings subject to certain limitations. For the 2018 and 2017 Plan Years, Turning Point contributed 4% to those employees contributing 4% or greater. For those employees contributing less than 4%, Turning Point matched the contribution by 100%. Additionally, for all years presented, Turning Point made discretionary contributions of 1% to all employees, regardless of an employee’s contribution level. Turning Point’s contributions to this plan were approximately $1.2 million for 2018, $0.9 million for 2017, and $0.8 million for 2016.
Note 17. Lease Commitments:
The Company leases certain office space and vehicles for varying periods. The following is a schedule of future minimum lease payments for operating leases that had initial or remaining non-cancelable lease terms in excess of one year as of December 31, 2018:
| Year | | Payments | |
| 2019 | | $ | 2,462 | |
| 2020 | | | 1,969 | |
| 2021 | | | 1,019 | |
| 2022 | | | 561 | |
| 2023 | | | 400 | |
| Thereafter | | | 2,660 | |
| Total | | $ | 9,071 | |
The total lease expense included in the consolidated statements of income for the years ended December 31, 2018, 2017, and 2016, was $4.9 million, $2.8 million, and $1.8 million, respectively.
Note 18. Stockholders’ Equity
Common Stock
As described in Note 1, just prior to the Contribution and Exchange, the Company’s issued and outstanding common stock was reclassified such that every 25 shares of common stock became one fully paid and nonassessable share of Class A Common Stock. Any fractional shares were rounded up and an additional share was issued. At the consummation of the Contribution and Exchange, the Company issued 7,335,018 shares of its Class A Common Stock to Turning Point shareholders, in exchange for 9,842,373 shares of Turning Point stock, and 857,714 shares of its Class A Common Stock, in exchange for the Company’s outstanding common stock. The Company also issued 13,700 shares of Class A Common Stock to holders of the Company’s restricted stock, which vested at the time of the Contribution and Exchange. Following the consummation of the Contribution and Exchange, the Company distributed a dividend of one share of Class B Common Stock for each outstanding share of Class A Common Stock, for a total issuance of 8,190,166 shares of Class B Common Stock.
In addition, under the Fifth Amended and Restated Certificate of Incorporation, which became effective at the time of the Contribution and Exchange, the number of authorized shares of the Company’s Common Stock, $0.01 par value per share, was increased from 50,000,000 to 330,000,000, of which 300,000,000 are Class A Common Stock and 30,000,000 are Class B Common Stock. Shares of Class A Common Stock and Class B Common Stock have the same rights and powers, rank equally (including as to dividends and distributions, and upon any liquidation, dissolution or winding up of the Company), share ratably and are identical in all respects and as to all matters. The holders of shares of Class A Common Stock and Class B Common Stock will vote together as a single class on all matters (including the election of directors) submitted to a vote or for the written consent of the stockholders of the Company. Each holder of Class A Common Stock has the right to one vote per share of Class A Common Stock and each holder of Class B Common Stock has the right to ten votes per share of Class B Common Stock. The shares of Class B Common Stock are convertible into shares of Class A Common Stock automatically upon the transfer of such shares of Class B Common Stock, with certain exceptions, or upon the affirmative vote of holders of two-thirds of the then-outstanding shares of Class B Common Stock or voluntarily by the holder of such shares of Class B Common Stock.
The Sixth Amended and Restated Certificate of Incorporation was approved by the Company’s stockholders by partial written consent on July 14, 2017, and in accordance with the rules of the Securities and Exchange Commission and Delaware corporation law regarding approval by partial written consent, became effective when filed with the Secretary of State of the State of Delaware on August 18, 2017.
Preferred Stock
On May 30, 2017, under the Fifth Amended and Restated Certificate of Incorporation, the Company increased the number of authorized shares of the Company’s Preferred Stock, $0.01 par value per share, from 19,664,362 to 50,000,000, all of which is designated as blank check preferred stock. No changes with respect to Preferred Stock were made in the Sixth Amended and Restated Certificate of Incorporation.
Common Stock Repurchase Program
On June 29, 2017, the Company’s Board of Directors authorized a program, effective immediately, to repurchase over a period of twelve months shares of the Company’s Class A Common Stock or Class B Common Stock, par value $0.01 per share, constituting, in the aggregate, up to 5% of the outstanding shares of Common Stock. Shares of the Common Stock may be repurchased in the open market or through negotiated transactions. The program may be terminated or suspended at any time at the discretion of the Company.
The time of purchases and the exact number of shares to be purchased, if any, will depend on market conditions. The repurchase program does not include specific price targets or timetables. The Company intends to finance the purchases using available working capital. The Crystal Term Loan, as described in Note 15. Notes Payable and Long-Term Debt, generally prohibits such repurchases of the Company’s Common Stock.
Repurchases of 103,492 shares of common stock were made pursuant to this program during the year ended December 31, 2018 for a cost of $1.4 million. Approval for these repurchases was received from Crystal. As of December 31, 2018, $0.8 million was included in Accrued liabilities on the Consolidated Balance Sheets for unsettled repurchases. No repurchases were made during the year ended December 31, 2017.
Dividends paid by Turning Point
On November 9, 2017, the Board of Directors of Turning Point approved the initiation of a cash dividend to its shareholders. The initial quarterly dividend was paid on December 15, 2017 to shareholders of record at the close of business on November 27, 2017, with $0.4 million paid to shareholders of Turning Point other than SDI as a result of this dividend.
During the year ended December 31, 2018, Turning Point paid or accrued dividends of $1.6 million to its shareholders other than SDI. The most recent dividend was paid on January 11, 2019 to shareholders of record at the close of business on December 21, 2018
Note 19. Share-Based Compensation
The Company has a stock option plan (the “2000 Plan”) which authorizes the granting of incentive and nonqualified stock options and restricted stock units. Incentive stock options are granted at not less than 100% of fair market value at the date of grant (110% for stockholders owning more than 10% of the Company’s common stock). Nonqualified stock options are granted at not less than 85% of fair market value at the date of grant. A maximum of 8,000,000 shares of common stock are issuable under the 2000 Plan. Certain additional options have been granted outside the 2000 Plan. These options generally follow the provisions of the 2000 Plan. The Company issues new shares to satisfy option exercises and the vesting of restricted stock awards. As of the effective date of the 2018 Plan, described further below, no additional grants will be made under the 2000 Plan.
On June 9, 2017, the Company’s Board of Directors adopted the 2017 Omnibus Equity Compensation Plan (the “2017 Plan”) in order to provide employees of the Company and its subsidiaries, certain consultants and advisors who perform services for the Company or its subsidiaries, and non-employee members of the Board of Directors of the Company with the opportunity to receive grants of incentive stock options, nonqualified stock options, stock appreciation rights, stock awards, stock units, and other stock-based awards. The Board authorized 1,000,000 shares of the Class A Common Stock of the Company to be issued under the Plan. The Plan was approved by the Company’s stockholders by partial written consent on July 14, 2017, and in accordance with the rules of the Securities and Exchange Commission and Delaware corporation law regarding approval by partial written consent, became effective on August 17, 2017. As of December 31, 2018, the Company has 988,930 shares available for grant under the 2017 Plan.
The Company also has an Employee Stock Purchase Plan (the “ESPP”). The ESPP allows eligible full-time employees to purchase shares of common stock at 90 percent of the lower of the fair market value of a share of common stock on the first or last day of the quarter. Eligible employees are provided the opportunity to acquire Company common stock during each quarter. No more than 26,447 shares of common stock may be issued under the ESPP. Such stock may be unissued shares or treasury shares of the Company or may be outstanding shares purchased in the open market or otherwise on behalf of the ESPP. The Company’s ESPP is compensatory and therefore, the Company is required to recognize compensation expense related to the discount from market value of shares sold under the ESPP. The Company issues new shares to satisfy shares purchased under the ESPP.
Including the share-based compensation expense of SDI’s subsidiaries, there was share-based compensation expense of $2.2 million, $1.0 million and $0.2 million recorded for the years ended December 31, 2018, 2017 and 2016 respectively. This expense is a component of selling, general and administrative expense.
No options of SDI were exercised in the years ended December 31, 2018 and 2017.
Information with respect to the adjusted activity of outstanding stock options is summarized as follows:
| |
Number of Shares | | | Price Range | | Weighted Average Remaining Contractual term | |
Balance, January 1, 2018 | | | 7,463 | | | $ | 31.00 | | | $ | 56.25 | | | |
Cancelled | | | (5,000 | ) | | | 31.00 | | | | 56.25 | | | |
Balance, December 31, 2018 | | | 2,463 | | | $ | 31.00 | | | $ | 46.25 | | 1.7 years | |
Vested and exercisable at December 31, 2018 | | | 2,463 | | | $ | 31.00 | | | $ | 46.25 | | 1.7 years | |
The following table provides additional information about the Company’s stock options outstanding and exercisable at December 31, 2018:
| | | | Options Outstanding and exercisable | |
| | | | | | | Weighted Average | |
Range of Exercise Prices | | | Number of Shares | | | Remaining Contractual Life | | Exercise Price | |
|
| $ | 31.00 - $31.25 | | | | 1,400 | | | | 2.3 | | Years | | $ | 31.18 | |
| $ | 45.25 - $46.25 | | | | 1,063 | | | | 0.9 | | Years | |
| 45.63 | |
| $ | 31.00 - $46.25 | | | | 2,463 | | | | 1.7 | | Years | | $ | 37.41 | |
The Company grants restricted stock awards (“RSA”) which is the right to receive shares. The fair value of RSAs is based on the market price for the stock at the date of grant.
The following table summarizes the changes in non-vested RSAs for the year ended December 31, 2018:
| | | Shares | | | Weighted Average Grant Date Fair Value | |
| Non-vested RSAs at January 1, 2018 | | | 119,102 | | | $ | 10.62 | |
| Granted | | | 127,561 | | | | 11.04 | |
| Vested | | | (82,455 | ) | | | 10.70 | |
| Cancelled/Forfeited | | | (37,203 | ) | | | 10.70 | |
| Non-vested RSAs at December 31, 2018 | | | 127,005 | | | $ | 10.96 | |
As of December 31, 2018, there was $1.1 million of total unrecognized stock-based compensation expense, related to restricted stock awards, which will be recognized over the weighted-average remaining vesting period of 1.6 years.
On June 1, 2017, SDI consummated the Contribution and Exchange to acquire a 52.1% controlling interest in Turning Point (see Note 3 above). This acquisition was a reverse acquisition, with Turning Point as the accounting acquirer. Accordingly, the historical financial statements of Turning Point through May 31, 2017 became the Company’s historical financial statements, including the comparative prior periods. These consolidated financial statements include the results of SDI from June 1, 2017, the date the reverse acquisition was consummated. However, SDI’s controlling interest does not meet the ownership threshold to file a consolidated federal tax return with Turning Point. Therefore, the parent company will continue to file a separate federal tax return apart from Turning Point.
The components of income from continuing operations before tax expense for the years ending December 31, 2018, 2017 and 2016 was $21.1 million, $24.4 million and $14.9 million. Income tax expense (benefit) for the years ended December 31 consists of the following components (in thousands):
| | | 2018 | | | 2017 | | | 2016 | |
| | | Current | | | Deferred | | | Total | | | Current | | | Deferred | | | Total | | | Current | | | Deferred | | | Total | |
| Federal | | $ | 2,326 | | | $ | 3,165 | | | $ | 5,491 | | | $ | 329 | | | $ | 4,772 | | | $ | 5,101 | | | $ | (46 | ) | | $ | (12,655 | ) | | $ | (12,701 | ) |
| State and Local | | | 1,394 | | | | (600 | ) | | | 794 | | | | 1,770 | | | | 409 | | | | 2,179 | | | | 760 | | | | (64 | ) | | | 696 | |
| | | $ | 3,720 | | | $ | 2,565 | | | $ | 6,285 | | | $ | 2,099 | | | $ | 5,181 | | | $ | 7,280 | | | $ | 714 | | | $ | (12,719 | ) | | $ | (12,005 | ) |
A reconciliation showing the differences between our effective tax rate and the U.S. Federal statutory tax rate is as follows:
| | | 2018 | | | 2017 | | | 2016 | |
| Pre-tax book income | | | 21.0 | % | | | 35.0 | % | | | 35 | % |
| State taxes, net of federal benefit | | | 4.9 | | | | 8.9 | | | | 4.7 | |
| Permanent differences | | | (5.4 | ) | | | (17.1 | ) | | | 13.2 | |
| Valuation Allowance | | | 9.3 | | | | 3.0 | | | | (133.4 | ) |
| Total effective tax rate | | | 29.8 | % | | | 29.8 | % | | | (80.5 | )% |
Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. On December 22, 2017, H.R. 1, commonly known as the Tax Cuts and Jobs Act (“TCJA”) was signed into law. As a result, the federal corporate income tax rate was reduced from 35% to 21%, effective January 1, 2018. The Company’s 2018 financial results included an SDI-related charge of $0.4 million to income tax expense, offset by a reduction in the valuation allowance of $0.4 million, primarily resulting from re-measuring SDI’s net deferred tax assets to reflect the recently enacted lower tax rate effective January 1, 2018. The rate change also resulted in a re-measurement of the full valuation allowance already established against the deferred tax asset. The permanent differences for the year ended December 31, 2018 are primarily related to income tax benefits of $5.4 million as a result of Turning Point stock option exercises.
The following is a summary of the significant components of the Company’s deferred tax assets and liabilities as of December 31 (in thousands):
| Deferred Tax Assets/(Liabilities) | | 2018 | | | 2017 | |
| | | Assets | | | Liabilities | | | Assets | | | Liabilities | |
| Inventory | | $ | 3,004 | | | $ | - | | | $ | 2,485 | | | $ | (187 | ) |
| Property, plant and equipment | | | - | | | | (1,508 | ) | | | - | | | | (1,134 | ) |
| Goodwill and other intangibles | | | - | | | | (7,822 | ) | | | 14 | | | | (7,397 | ) |
| Accrued pension and postretirement costs | | | 202 | | | | - | | | | 621 | | | | - | |
| Federal NOL | | | 9,949 | | | | - | | | | 8,701 | | | | - | |
| State NOL | | | 6,169 | | | | - | | | | 5,202 | | | | - | |
| AMT credit carryforwards | | | 93 | | | | - | | | | 1,337 | | | | - | |
| R&D credit carryforwards | | | 1,250 | | | | - | | | | 1,188 | | | | - | |
| Unrealized loss on investment | | | 351 | | | | - | | | | 320 | | | | - | |
| Deferred income | | | - | | | | - | | | | - | | | | (486 | ) |
| Other | | | 5,504 | | | | (1,064 | ) | | | 1,683 | | | | (290 | ) |
| Total deferred tax assets | | | 26,522 | | | | (10,394 | ) | | | 21,551 | | | | (9,494 | ) |
| Valuation allowance | | | (18,839 | ) | | | - | | | | (11,607 | ) | | | - | |
Net deferred tax assets (liabilities) | | $ | 7,683 | | | $ | (10,394 | ) | | $ | 9,944 | | | $ | (9,494 | ) |
SDI has recorded a full valuation allowance, as of December 31, 2018, offsetting its U.S. federal and state net deferred tax assets which primarily represent net operating loss carry forwards (“NOLs”). At December 31, 2018, SDI’s management concluded, based upon the evaluation of all available evidence, that it is more likely than not that the U.S. federal and state net deferred tax assets will not be realized. Due to the reverse acquisition transaction with Turning Point, the Company determined that SDI has experienced a “change in control” as defined in Internal Revenue Code Section 382, which will result in an annual limitation on SDI’s utilization of federal and state NOLs in future periods. SDI is currently evaluating the effects of Section 382 on future utilization of federal and state NOLs. Overall, the valuation allowance for deferred tax assets increased during 2018 by $7.0 million. SDI also recorded a loss reserve transition adjustment in 2018 related to changes the TCJA required with respect to the calculation of loss reserve discounting. Pursuant to the provisions of the TCJA, SDI will include the loss reserve transition adjustment in its taxable income over the next eight years. A deferred tax liability for this transition adjustment at December 31, 2018 was recorded in the amount of $0.1 million and is included in other deferred tax liabilities in the above table.
At December 31, 2018, Turning Point had state net operating loss (“NOL”) carryforwards for income tax purposes of approximately $54.2 million, which expire between 2019 and 2037. Turning Point has determined that, at December 31, 2018 and 2017, its ability to realize future benefits of its state NOL carryforwards does not meet the “more likely than not” criteria in ASC 740, Income Taxes. Therefore, a valuation allowance of $2.8 million and $3.1 million has been recorded in each year, respectively.
Under ASC 740, Income Taxes, the effect of income tax law changes on deferred taxes should be recognized as a component of income tax expense related to continuing operations in the period in which the law is enacted. This requirement applies not only to items initially recognized in continuing operations, but also to items initially recognized in other comprehensive income. As a result of the reduction in the U.S. federal statutory income tax rate in 2017, Turning Point recognized $0.2 million of income tax expense for the year ended December 31, 2017.
At December 31, 2018, SDI had U.S. federal net operating loss carryforwards of approximately $48.0 million including those of acquired companies, which will expire as follows (in thousands):
| Year | | Net Operating Loss |
|
| 2022 | | $ | 1,675 | |
| 2024 | | | 1,876 | |
| 2025 | | | 3 | |
| 2026 | | | 1 | |
| 2027 | | | 1 | |
| 2028 | | | 3,492 | |
| 2029 | | | 2,501 | |
| 2030 | | | 1,281 | |
| 2031 | | | 391 | |
| 2033 | | | 6,625 | |
| 2034 | | | 453 | |
| 2035 | | | 2,660 | |
| 2036 | | | 7,911 | |
| 2037 | | | 3,990 | |
| 2038 | | | 9,188 | |
| Indefinite | | | 5,999 | |
| Total | | $ | 48,047 | |
Due to changes from TCJA, current year net operating losses incurred by insurance companies retain their historical treatment of having a 20 year carryforward and 2 year carryback period. All current net operating losses of non-insurance companies have an indefinite carryforward but annual utilization is limited to 80% of taxable income.
The Company has federal research and experimentation credit carryforwards of $1.2 million, net of $0.1 million related to unrecognized tax benefits, as of December 31, 2018, which are set to expire in years 2019 through 2035.
The following table is a reconciliation of the gross unrecognized tax benefits during the years ended December 31 (in thousands):
| | | 2018 | | | 2017 | | | 2016 | |
| Gross unrecognized tax benefits at beginning of year | | $ | 479 | | | $ | 628 | | | $ | 628 | |
| Decrease from re-measurement of enacted rate | | | (105 | ) | | | (149 | ) | | | - | |
| Gross unrecognized tax benefits at end of year | | $ | 374 | | | $ | 479 | | | $ | 628 | |
SDI is subject to U.S. federal income tax, as well as income taxes of multiple state jurisdictions.
SDI recognizes accrued interest expense and penalties related to uncertain tax benefits that have resulted in a refund or reduction of income taxes paid. Unrecognized tax benefits aggregating $0.4 million would reduce already existing net operating loss and tax credit carryforwards and therefore require no accrual for interest or penalty in any of the years 2018, 2017 or 2016. The remaining unrecognized tax benefit of $6 thousand include de minimis interest and penalty where required.
For federal purposes, SDI post-2002 tax years remain open to examination as a result of net operating loss carryforwards. For state purposes, the statute of limitations remains open in a similar manner for states that have generated net operating losses. SDI does not expect that the total amount of unrecognized tax benefits related to positions taken in prior periods will change significantly during the next twelve months.
Turning Point has determined that they did not have any uncertain tax positions requiring recognition as a result of the provisions of ASC 740-10-25. Turning Point’s policy is to recognize interest and penalties accrued on uncertain tax positions as part of interest expense. For the years ended December 31, 2018, 2017, and 2016, no estimated interest or penalties were recognized for the uncertainty of tax positions taken. Turning Point files income tax returns in the U.S. federal jurisdiction and various state jurisdictions. In general, Turning Point is no longer subject to U.S. federal and state tax examinations for years prior to 2015.
The Company is a party from time to time to various proceedings in the ordinary course of business. For a description of the Master Settlement Agreement, to which the company is a party, see “Financial Statements and Supplementary Data - Note 2 Summary of Significant Accounting Policies: Risk and Uncertainties.” Other than the proceedings mentioned below, there is no material litigation, arbitration or governmental proceeding currently pending against the Company or any of its officers or directors in their capacity as such, and the Company and its officers and directors have not been subject to any such proceeding.
Other major tobacco companies are defendants in product liability claims. Turning Point has been a defendant in a number of smokeless tobacco product liability cases in the past. All of those cases have been dismissed with prejudice and Turning Point has no tobacco product liability cases against it. Turning Point is subject to several lawsuits alleging personal injuries resulting from malfunctioning vaporizer devices and batteries and may be subject to claims in the future relating to other NewGen products. Turning Point is still evaluating these claims and the potential defenses to them. For example, Turning Point did not design or manufacture the products at issue; rather, Turning Point was merely the distributor. Nonetheless, there can be no assurance that Turning Point will prevail in these cases, and they could have a material adverse effect on the financial position, results of operations, or cash flows of the Turning Point or the Company.
Turning Point is engaged in discussions and mediation with VMR and Juul, which acquired VMR in 2018. Pursuant to a Distribution and Supply Agreement (“VMR Agreement”), VMR was providing Turning Point with V2 e-cigarettes for exclusive distribution in bricks-and-mortar stores in the United States. Under the terms of the VMR Agreement, in the event of termination following a change in control, the acquirer is required to make a payment to Turning Point under a formula designed to provide Turning Point with a fair share of the value created by Turning Point’s performance under the VMR Agreement. As of December 31, 2018, there is no assurance as to the outcome of this situation. Thus, the impact on Turning Point’s financial position, results of operations, or cash flows are uncertain as of December 31, 2018.
Maidstone is a party to lawsuits arising in the normal course of its business. These lawsuits generally seek to establish liability under insurance policies and occasionally seek punitive damages. In the opinion of the Company’s management, none of the cases, individually or collectively, are likely to result in judgments for amounts, after considering established loss reserves and reinsurance, which would have a material adverse effect on the Company’s financial condition or results of operations.
Maidstone writes primarily personal automobile and homeowners insurance in New York. Maidstone’s financial position, results of operations and cash flows are susceptible to risks as a result of these concentrations. In addition, Maidstone writes a significant amount of business through brokers and a credit risk exists should any of these brokers be unable to fulfill their obligations with respect to the payment of insurance balances.
The creditworthiness of the counterparty is evaluated by Maidstone, taking into account credit ratings assigned by independent agencies. The credit approval process involves an assessment of factors, including, among others, the counterparty, country and industry credit exposure limits. Collateral may be required, at the discretion of the Company, on certain transactions based on the creditworthiness of the counterparty.
Maidstone’s fixed income investment portfolio is managed in accordance with guidelines that have been tailored to meet specific investment strategies, including standard of diversification, which limit the allowable holdings to any single issue. Maidstone reported no investment in excess of 10% of Maidstone’s statutory surplus at December 31, 2018 and 2017, other than investments issued or guaranteed by the United States government or its agencies.
Note 22. Earnings Per Share
The Company has two classes of common stock, Class A and Class B; shares of Class B Common Stock are convertible into shares of Class A Common Stock at any time, on a one-for-one basis. Shares of Class A Common Stock and Class B Common Stock have the same rights and powers, rank equally, share ratably and are identical in all respects and as to all matters, except that (i) each share of Class B Common Stock shall have the right to 10 votes per share and (ii) the shares of Class B Common Stock shall be convertible into shares of Class A Common Stock automatically upon the transfer of such shares of Class B Common Stock, with certain exceptions, or upon the affirmative vote of holders of two-thirds of the then-outstanding shares of Class B Common Stock or voluntarily by the holder of such shares of Class B Common Stock.
Diluted earnings per share is calculated similarly to basic earnings per share, except that the calculation includes the dilutive effect of the assumed exercise of options issuable under the Company’s stock incentive plans and the Company’s unvested restricted stock awards.
Basic net income per share is computed using the weighted-average number of common shares outstanding during the period. Diluted net income per share is computed using the weighted-average number of common shares and the weighted average effect of potentially dilutive securities outstanding during the period. Potentially dilutive securities consist of stock options and restricted stock awards and the dilutive effect of such awards is reflected in diluted earnings per share by application of the treasury stock method. Due to the reverse acquisition, the basic weighted average number of common shares outstanding for the year ended December 31, 2017 have been calculated using Turning Point’s historical weighted average number of common shares outstanding multiplied by the conversion ratio used in the reverse acquisition. For the year ended December 31, 2017, the basic weighted average shares outstanding has been calculated using the number of common shares outstanding of Turning Point from January 1, 2017 through the June 1, 2017 acquisition date multiplied by the exchange ratio used in the transaction and the number of common shares outstanding of the Company from June 1, 2017 through December 31, 2017.
The following tables set forth the computation of basic and diluted net income per share of Class A and Class B common stock (in thousands, except share amounts and per share amounts):
| | | Years Ended December 31, | |
| | | 2018 | | | 2017 | | | 2016 | |
| Basic net income per common share calculation: | | | | | | | | | |
| Net income attributable to SDI | | $ | 2,381 | | | $ | 10,377 | | | $ | 26,913 | |
| | | | | | | | | | | | | |
| Weighted average Class A common shares outstanding – basic | | | 8,767,400 | | | | 10,672,995 | | | | 12,274,530 | |
| Weighted average Class B common shares outstanding – basic | | | 7,930,142 | | | | 10,550,889 | | | | 12,274,530 | |
| Weighted average common shares outstanding – basic | | | 16,697,542 | | | | 21,223,884 | | | | 24,549,060 | |
| Net income attributable to SDI per share of common stock – basic | | $ | 0.14 | | | $ | 0.49 | | | $ | 1.10 | |
| | | Years Ended December 31, | |
| | | 2018 | | | 2017 | | | 2016 | |
| Diluted net income attributable to SDI per common share calculation: | | | | | | | | | |
| Net income attributable to SDI | | $ | 2,381 | | | $ | 10,377 | | | $ | 26,913 | |
| Impact of subsidiary dilutive securities (1) | | | (206 | ) | | | (213 | ) | | | - | |
| Net income attributable to SDI - diluted | | $ | 2,175 | | | $ | 10,164 | | | $ | 26,913 | |
| | | | | | | | | | | | | |
| Weighted average Class A common shares outstanding – basic | | | 8,767,400 | | | | 10,672,995 | | | | 12,274,530 | |
| Weighted average Class B common shares outstanding – basic | | | 7,930,142 | | | | 10,550,889 | | | | 12,274,530 | |
| Dilutive impact of stock options and restricted stock awards | | | 50,043 | | | | 65,582 | | | | 1,151,555 | |
| Weighted average common shares outstanding – diluted | | | 16,747,585 | | | | 21,289,466 | | | | 25,700,615 | |
| Net income attributable to SDI per share of common stock – diluted | | $ | 0.13 | | | $ | 0.48 | | | $ | 1.05 | |
| (1) | The dilutive impact of subsidiary stock-based awards on the Company’s reported net income is recorded as an adjustment to net income for the years ended December 31, 2018 and 2017, for the purposes of calculating income per share. There is no adjustment to the year ended December 31, 2016 because the reverse acquisition of Turning Point by SDI did not occur until June 1, 2017. |
The following outstanding securities at December 31, 2018 have been excluded from the computation of diluted weighted average shares outstanding, as they are anti-dilutive:
| | | December 31, 2018 | |
| Stock options | | | 2,463 | |
Note 23. Segment Information
In accordance with ASC 280, Segment Reporting, the Company has five reportable segments. Three of the Company’s segments are also those of Turning Point: (1) Smokeless products; (2) Smoking products; and (3) NewGen products. The Smokeless products segment (a) manufactures and markets moist snuff and (b) contracts for and markets chewing tobacco products. The Smoking products segment (a) imports and markets cigarette papers, tubes, and related products; (b) imports and markets finished cigars, MYO cigar tobaccos, and cigar wraps; and (c) processes, packages, and markets pipe tobaccos. The NewGen products segment (a) markets e-cigarettes, e-liquids, vaporizers, and other related products and (b) distributes a wide assortment of vaping products to non-traditional retail outlets via VaporBeast and Vapor Shark. Smokeless and Smoking products are distributed primarily through wholesale distributors in the United States while NewGen products are distributed primarily through e-commerce to non-traditional retail outlets in the United States. The Company had no customer that accounted for more than 10% of net sales in 2018, 2017, or 2016.
Beginning in the first quarter of 2018, as a result of the acquisition of an insurance company, the Company has an additional segment, Insurance. The Insurance segment represents the Company’s property and casualty insurance business, operated through Maidstone, a New York domiciled seller of auto and personal lines.
The Company also reports an Other segment, which includes the results of operations of SDI and Standard Outdoor and assets of the consolidated Company not assigned to the five reportable segments, including Turning Point deferred taxes and deferred financing fees for the Revolving Credit Facility. Elimination includes the elimination of intercompany accounts between segments.
Accounting policies of these segments are the same as those of the Company. Corporate costs of Turning Point are not directly charged to its three reportable segments in the ordinary course of operations. The Company evaluates the performance of its segments and allocates resources to them based on operating income. In 2017, Turning Point corporate costs were allocated to the segments based on net sales. Management believes that this allocation does not reflect the operations of the business. Prior periods have been adjusted to conform to current year presentation.
The tables below present financial information about reported segments:
| | | For the year ended December 31, | |
| | | 2018 | | | 2017 | | | 2016 | |
| | | | | | | | | | |
| Revenues | | | | | | | | | |
| Smokeless Products | | $ | 90,031 | | | $ | 84,560 | | | $ | 77,913 | |
| Smoking Products | | | 111,507 | | | | 109,956 | | | | 111,005 | |
| NewGen Products | | | 131,145 | | | | 91,261 | | | | 17,310 | |
| Insurance | | | 30,657 | | | | - | | | | - | |
Other(1) | | | 2,445 | | | | 24 | | | | - | |
| | |
| 365,785 | | |
| 285,801 | | |
| 206,228 | |
| | | | | | | | | | | | | |
| Operating Income | | | | | | | | | | | | |
| Smokeless Products | |
| 28,920 | | |
| 28,005 | | |
| 24,571 | |
| Smoking Products | | | 42,650 | | | | 43,816 | | | | 44,213 | |
| NewGen Products | | | 6,752 | | | | 3,178 | | | | (924 | ) |
| Insurance | | | (3,195 | ) | | | - | | | | - | |
Other(1) | | | (35,009 | ) | | | (27,898 | ) | | | (23,941 | ) |
| | |
| 40,118 | | |
| 47,101 | | |
| 43,919 | |
| | | | | | | | | | | | | |
| Interest expense | | | 17,237 | | | | 16,904 | | | | 26,739 | |
| Interest and investment income | | | (736 | ) | | | (517 | ) | | | (886 | ) |
| Loss on extinguishment of debt | | | 2,384 | | | | 6,116 | | | | 2,824 | |
| Net periodic benefit expense, excluding service cost | | | 131 | | | | 180 | | | | 334 | |
| Income before income taxes | | $ | 21,102 | | | $ | 24,418 | | | $ | 14,908 | |
| | | | | | | | | | | | | |
| Capital Expenditures | | | | | | | | | | | | |
| Smokeless products | | $ | 1,559 | | | $ | 1,928 | | | $ | 2,975 | |
| Smoking products | | | - | | | | - | | | | - | |
| NewGen products | | | 708 | | | | 93 | | | | 232 | |
| Insurance | | | 83 | | | | - | | | | - | |
Other(1) | | | 214 | | | | - | | | | - | |
| | | $ | 2,564 | | | $ | 2,021 | | | $ | 3,207 | |
| Depreciation and amortization | | | | | | | | | | | | |
| Smokeless products | | $ | 1,360 | | | $ | 1,400 | | | $ | 1,227 | |
| Smoking products | | | - | | | | - | | | | - | |
| NewGen Products | | | 1,750 | | | | 928 | | | | 58 | |
| Insurance | | | 214 | | | | - | | | | - | |
Other(1) | | | 1,312 | | | | 16 | | | | - | |
| | | $ | 4,636 | | | $ | 2,344 | | | $ | 1,285 | |
| | | | | | | |
| Assets | | | | | | |
| Smokeless Products | | $ | 99,441 | | | $ | 94,559 | |
| Smoking Products | | | 142,520 | | | | 141,869 | |
| NewGen Products | | | 95,397 | | | | 44,914 | |
| Insurance | | | 52,169 | | | | - | |
Other (1) | | | 32,416 | | | | 17,372 | |
| | | $ | 421,943 | | | $ | 298,714 | |
| (1) | “Other” includes sales, operating income or assets that are not assigned to the other four reportable segments, such as sales, operating income or assets of SDI and Turning Point deferred taxes. All goodwill has been allocated to reportable segments. |
Revenue Disaggregation—Sales Channel
Revenues of the Smokeless and Smoking segments are comprised of sales made to wholesalers while NewGen sales are made to wholesalers, retailers, and ultimate end-customers. NewGen net sales are broken out by sales channel below.
| | | NewGen Segment | |
| | | For the year ended December 31, | |
| | | 2018 | | | 2017 | | | 2016 | |
| | | | | | | | | | |
| Wholesalers | | $ | 8,798 | | | $ | 10,573 | | | $ | 13,009 | |
| Retail Outlets | | | 95,334 | | | | 72,005 | | | | 4,155 | |
| End-customers | | | 26,897 | | | | 8,645 | | | | 146 | |
| Other | | | 116 | | | | 38 | | | | - | |
| | | $ | 131,145 | | | $ | 91,261 | | | $ | 17,310 | |
Net Sales - Domestic and Foreign
The following table shows a breakdown of consolidated net sales between domestic and foreign.
| | | For the year ended December 31, | |
| | | 2018 | | | 2017 | | | 2016 | |
| | | | | | | | | | |
| Domestic | | $ | 350,148 | | | $ | 272,951 | | | $ | 196,348 | |
| Foreign | | | 15,637 | | | | 12,850 | | | | 9,880 | |
| | | $ | 365,785 | | | $ | 285,801 | | | $ | 206,228 | |
Note 24. Related Party Transactions
SDI engaged the services of Pine Hill Group, LLC (“Pine Hill Group”) and Edward J. Sweeney to serve as interim Chief Financial Officer effective May 31, 2017. Mr. Sweeney carries out his role as interim Chief Financial Officer of the Company pursuant to an agreement between the Company and Pine Hill Group. Mr. Sweeney is one of the managing members of Pine Hill Group. The agreement outlines the scope of responsibilities of Pine Hill Group, as well as Mr. Sweeney’s role. These include, but are not limited to, services provided to the Company as interim Chief Financial Officer, controllership services, technical accounting and financial reporting services, and risk, valuation and transaction advisory services. Pine Hill Group is compensated at an hourly rate for performing services pursuant to the agreement. Pine Hill Group is responsible for all payments to Mr. Sweeney. As a result, Mr. Sweeney has received no direct compensation from the Company and the amount of aggregate payments made to Pine Hill Group is based on the amount of work performed on the Company’s behalf by all Pine Hill Group employees. During the years ended December 31, 2018 and 2017, the Company incurred expenses of $1.1 million and $0.6 million, respectively, related to services provided by Pine Hill Group.
Note 25. Statutory Information
Maidstone is subject to insurance laws and regulations in the jurisdictions in which it operates. These regulations include certain restrictions on the amount of dividends or other distributions available to unit holders.
Under the insurance laws of New York State, Maidstone is restricted (on basis of lower of 10% of the company’s statutory surplus at the end of the preceding twelve-month period or 100% of the company’s adjusted net investment income for the prior twelve month period) as to the amount of dividends they may declare or pay in any twelve month period without prior approval of the New York Department of Financial Services (the “NYDFS”). As of December 31, 2018, the maximum amount of dividends that may be paid without approval of the NYDFS is $-0-. Further, under New York State law, the Company may pay cash dividends only from earned surplus on a statutory basis. No dividends were declared or paid in 2018.
The Company’s insurance subsidiary, Maidstone, is subject to certain risk-based capital (“RBC”) requirements as specified by the National Association of Insurance Commissioners. Under such requirements, the amount of capital and surplus maintained by a property and casualty insurance company is to be determined on various risk factors including risk-based capital ratios. As of December 31, 2018, the capital and surplus of Maidstone did not exceed the RBC requirements. Maidstone’s RBC ratio is between 150% and 100% which requires it to submit a corrective action plan. Maidstone is in the process of developing a plan to submit to the NAIC and the NAIC will perform an examination or take regulatory action if deemed necessary. If the amount of capital falls below the RBC minimum requirement, Maidstone may face restrictions with respect to soliciting new business and/or keeping existing business. Similar regulations will apply in states in which Maidstone may operate.
Statutory combined capital and surplus and net loss of Maidstone at December 31, 2018 was as follows (in thousands):
| | | December 31, 2018 | |
| Statutory capital and surplus | | $ | 4,769 | |
| Statutory loss | | $ | (9,559 | ) |
Maidstone files financial statements prepared in accordance with statutory accounting practices prescribed or permitted by insurance regulators. Statutory net income (loss) and statutory surplus, as reported to the insurance regulatory authorities, differ in certain respects from the amounts prepared in accordance with GAAP. The main differences between statutory net income (loss) and GAAP net income (loss) relate to deferred acquisition costs, deferred income taxes, unrealized appreciation or decline in value of investments and non-admitted assets.
Note 26. Selected Quarterly Financial Information (Unaudited):
The following table presents the quarterly operating results:
| | | 1st | | | 2nd | | | 3rd | | | 4th | |
| 2018 | | | | | | | | | | | | |
| Net revenues | | $ | 82,066 | | | $ | 89,270 | | | $ | 91,595 | | | $ | 102,854 | |
| Net income attributable to SDI | | | 521 | (1) | | | 3,528 | | | | 1,367 | | | | (3,035 | ) |
| Basic net income attributable to SDI per share | | $ | 0.03 | | | $ | 0.21 | | | $ | 0.08 | | | $ | (0.18 | ) |
| Diluted net income attributable to SDI per share | | $ | 0.03 | | | $ | 0.20 | | | $ | 0.08 | | | $ | (0.18 | ) |
| | | | | | | | | | | | | | | | | |
| 2017 | | | | | | | | | | | | | | | | |
| Net revenues | | $ | 66,788 | | | $ | 72,086 | | | $ | 73,352 | | | $ | 73,575 | |
| Net income attributable to SDI | | | 1,877 | (2) | | | 4,903 | | | | 2,750 | | | | 847 | |
| Basic net income attributable to SDI per share | | $ | 0.07 | | | $ | 0.20 | | | $ | 0.17 | | | $ | 0.05 | |
| Diluted net income attributable to SDI per share | | $ | 0.07 | | | $ | 0.20 | | | $ | 0.16 | | | $ | 0.05 | |
(1) Includes $1,883 of loss on extinguishment of debt, net of tax of $501
(2) Includes $3,792 of loss on extinguishment of debt, net of tax of $2,324
| Item 9. | Changes in and Disagreements with Accountants on Accounting and Financial Disclosure |
None.
| Item 9A. | Controls and Procedures |
Disclosure Controls and Procedures
As of December 31, 2018, the Company’s management, with participation of the Company’s Chief Executive Officer (“CEO”) and Interim Chief Financial Officer (“CFO”), evaluated the effectiveness of the Company’s disclosure controls and procedures as defined in Exchange Act Rules 13a-15(e) and 15d-15(e). Based on that evaluation, the CEO and CFO concluded that the Company’s disclosure controls and procedures were effective as of December 31, 2018.
Internal Control
Pursuant to Section 404 of the Sarbanes-Oxley Act of 2002, we have included a report that provides management’s assessment of our internal control over financial reporting as part of this Annual Report on Form 10-K for the year ended December 31, 2018. Management’s report is included below under the caption entitled “Management’s Report on Internal Control Over Financial Reporting,” and is incorporated herein by reference. Our independent registered public accounting firm is not yet required to formally attest to the effectiveness of our internal controls over financial reporting and will not be required to do so for as long as we are a non-accelerated filer.
Changes in Internal Controls over Financial Reporting
There were no changes in the Company’s internal controls over financial reporting during the fourth quarter of 2018 that have materially affected, or are reasonably likely to materially affect, the Company’s internal controls over financial reporting.
Management’s Report on Internal Control over Financial Reporting
The consolidated financial statements appearing in this Annual Report have been prepared by the management that is responsible for their preparation, integrity, and fair presentation. The statements have been prepared in accordance with U.S. generally accepted accounting principles, which requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes.
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Securities Exchange Act of 1934, as amended). Our internal control system was designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.
All internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Further, because of changes in conditions, the effectiveness of an internal control system may vary over time.
Under the supervision and with the participation of our management, including our Chief Executive Officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting as of December 31, 2018, based on the framework in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (COSO). Based on that evaluation, our management concluded our internal control over financial reporting was effective based on the criteria described above as of December 31, 2018. In conducting management's evaluation as described above, for Turning Point, IVG was excluded. The operations of IVG excluded from management's assessment of internal control over financial reporting, represent approximately 4.2% of the Company's consolidated revenues and approximately 2.3% of total assets as of December 31, 2018.
Our independent registered public accounting firm is not yet required to formally attest to the effectiveness of our internal controls over financial reporting and will not be required to do so for as long as we are a non-accelerated filer.
| /s/ Ian Estus | | /s/ Edward J. Sweeney |
| Ian Estus | | Edward J. Sweeney |
| Chief Executive Officer | | Interim Chief Financial Officer |
| | | |
| Date: March 11, 2019 | | Date: March 11, 2019 |
| Item 9B. | Other Information |
Not applicable.
PART III
Except as set forth below with respect to our executive officers, information with respect to this item is set forth in our definitive Proxy Statement for the 2019 Annual Meeting of Stockholders, which is to be filed with the Securities and Exchange Commission no later than April 30, 2019 (our “Proxy Statement”), and which is incorporated herein by reference.
Executive Officers
The executive officers of the Company, their positions with the Company, their ages and a brief biography for each, are as follows:
Name | Age | Position |
| Gregory H.A. Baxter | 65 | Executive Chairman and Secretary |
Gregory H.A. Baxter joined the Company as a director in October 2015 and became our Executive Chairman in June 2017. Mr. Baxter has been an independent corporate finance consultant primarily for middle-market corporations and closely held businesses since 2005. Previously from 2003 to 2005, he was Managing Director and Head, Hedge Fund Sales and Marketing at Diaz & Altschul Capital Management, where his primary focus was bringing its investment products to prospective corporate and institutional clients. He was also a member of the Investment Committee. Immediately prior to joining Diaz & Altschul, he was Managing Director and Head of Generalist/Cross-Border Mergers & Acquisitions at SG Cowen Securities Corporation, the U.S. investment bank of French bank, Société Générale from 2000 to 2002. There, he re-established the cross-border effort and worked globally in industries such as food, retail, consumer products, transportation and oil and gas. He was also a member of the SG Cowen Fairness Opinion Review Committee. Prior to SG Cowen he was at Rothschild Inc. for almost six years, from 1994 to 2000, where he specialized in advising on industrial/engineering companies, including automotive, domestic and cross border mergers, acquisitions and divestitures. He was also a founding member of SW Capital, an M&A boutique that specialized in middle-market transactions for Fortune 500 companies. Prior to that, he was a Vice President of Irving Trust Company’s Corporate Financial Counseling Department, providing M&A and other corporate finance advice to the bank’s clients. He sits on the board of Turning Point Brands, Inc. (NYSE: TPB) (“Turning Point”), a leading provider of Other Tobacco Products. Mr. Baxter holds a holds a B.A. from the University of Victoria in Canada and an M.B.A. from the Ivey Business School in London.
| Ian Estus | 44 | President and Chief Executive Officer |
Ian Estus joined the Company as a director in August 2016 and became our President and Chief Executive Officer in June 2017. From May 2014 until July 2016, Mr. Estus was the Managing Director of Investments of HC2 Holdings, Inc. (NYSE: HCHC), a diversified holding company with investments in various industries including manufacturing, marine services, insurance, utilities, telecommunications and life sciences. Prior to joining HC2, Mr. Estus was a Senior Vice President at Five Island Asset Management, a subsidiary of HRG Group, Inc. (NYSE: HRG), from April 2013 to May 2014. Prior to joining Five Island, Mr. Estus spent eleven years at Harbinger Capital Partners LLC, where he served in various capacities as a trader and assisting in management of the portfolio. Prior to joining Harbinger Capital in 2002, Mr. Estus was a Trading Assistant in the Smith Barney Asset Management High Yield Investments Group. Prior to that role, Mr. Estus served as a Fund Accountant in the Mutual Fund Accounting Group of Smith Barney Asset Management.
| Edward J. Sweeney | 49 | Interim Chief Financial Officer |
Mr. Sweeney joined the Company as Interim Chief Financial Officer in May 2017. Mr. Sweeney also currently serves as Managing Director and Chief Operating Officer of Pine Hill Group. Mr. Sweeney has significant experience with Securities and Exchange Commission (“SEC”) filings and regulations, as both a registrant and an advisor for numerous clients, assisting them through all phases of SEC compliance from public offerings, registration statements, interim and annual financial reporting and SEC comment letter resolution. Prior to joining Pine Hill Group, Mr. Sweeney served in varying capacities at Endo Pharmaceuticals Inc., most recently as Vice President, Controller and Chief Accounting Officer, from 2004 to 2011, and in various capacities, including Audit Senior Manager, at Ernst & Young LLP from 1991 to 2004. Mr. Sweeney is a Certified Public Accountant and holds a B.S. in Accounting from Saint Joseph’s University.
| Bradford A. Tobin | 36 | Secretary and General Counsel |
Mr. Tobin joined the Company as Secretary and General Counsel effective of January 16, 2018. Mr. Tobin has over 10 years of legal and operational experience. Immediately prior to joining the Company, Mr. Tobin served as the General Counsel and Senior Vice President of General Wireless Operations Inc. dba RadioShack. Preceding this role, Mr. Tobin served on the distressed debt team at Silver Point Capital, LP. Mr. Tobin holds a Juris Doctor from St. John’s University, School of Law in New York and a B.S. in Economics from the University of Wisconsin-Madison.
| Item 11. | Executive Compensation |
Information with respect to this item will be set forth in our Proxy Statement, and is incorporated herein by reference.
| Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
Information with respect to this item will be set forth in our Proxy Statement, and is incorporated herein by reference.
| Item 13. | Certain Relationships and Related Transactions, and Director Independence |
Information with respect to this item will be set forth in our Proxy Statement, and is incorporated herein by reference.
| Item 14. | Principal Accounting Fees and Services |
Information with respect to this item will be set forth in our Proxy Statement, and is incorporated herein by reference.
PART IV
| Item 15. | Exhibits and Financial Statement Schedules |
(a) See the Consolidated Financial Statements which begin on page 67 of this report.
2. Financial Statement Schedules
Schedule I–Financial information of Registrant as of December 31, 2018 and 2017 and for the year ended December 31, 2018 and the period from June 1, 2017 through December 31, 2017.
Exhibit
Number | Description | Reference |
| Contribution and Exchange Agreement, dated as of November 25, 2016, by and among Special Diversified Opportunities Inc., Standard General Master Fund L.P., P Standard General Ltd. and Standard General Focus Fund L.P. | (1) |
| | | |
| First Amendment to Contribution and Exchange Agreement, dated as of January 25, 2017, by and among Special Diversified Opportunities Inc., Standard General Master Fund L.P., P Standard General Ltd. and Standard General Focus Fund L.P. | (2) |
| | | |
| Second Amendment to Contribution and Exchange Agreement, dated as of April 5, 2017, by and among Special Diversified Opportunities Inc., Standard General Master Fund L.P., P Standard General Ltd. and Standard General Focus Fund L.P. | (3) |
| | | |
| Third Amendment to Contribution and Exchange Agreement, dated as of May 3, 2017, by and among Special Diversified Opportunities Inc., Standard General Master Fund L.P., P Standard General Ltd. and Standard General Focus Fund L.P. | (4) |
| | | |
| Stock Purchase Agreement, dated as of November 23, 2016, between Special Diversified Opportunities Inc. and Interboro LLC | (5) |
| | | |
| Asset Purchase Agreement, dated as of November 4, 2016, between Standard Outdoor Southwest LLC and Metro Outdoor of Austin LLC | (6) |
| | | |
| Stock Purchase Agreement dated as of November 17, 2016, by and among National Tobacco Company, L.P., the Sellers named therein and Smoke Free Technologies, Inc. | (7) |
| International Vapor Group Stock Purchase Agreement dated as of September 5, 2018, between Turning Point Brands, Inc. and International VaporGroup, LLC. | (7) |
| | | |
| Stock Purchase Agreement, dated as of December 10, 2018, among Standard Diversified Inc., WT Holdings, Inc., a Tennessee corporation and Penny Fern Hart, an individual. | (8) |
| | | |
| Sixth Amended and Restated Certificate of Incorporation of the Company | (9) |
| | | |
| Third Amended and Restated Bylaws of the Company | (10) |
| | | |
| Registration Rights Agreement, dated as of June 1, 2017, among the Registrant, Standard General Master Fund L.P., P Standard General Ltd. and Standard General Focus Fund L.P. | (11) |
| | | |
| Registration Rights Agreement, dated as of May 10, 2016, by and among Turning Point Brands, Inc. and the stockholders named therein. | (7) |
| | | |
| 2017 Omnibus Equity Compensation Plan of the Company* | (12) |
| | | |
| 1998 Employee Stock Purchase Plan* | (13) |
| | | |
| Contract Manufacturing, Packaging and Distribution Agreement dated as of September 4, 2008, between National Tobacco Company, L.P. and Swedish Match North America, Inc. | (7) |
| | | |
| Amended and Restated Distribution and License Agreement dated as of November 30, 1992, between Bolloré Technologies, S.A. and North Atlantic Trading Company, Inc., as predecessor to North Atlantic Operating Company, Inc. (U.S.) | (7) |
| | | |
| Amended and Restated Distribution and License Agreement dated as of November 30, 1992, between Bolloré Technologies, S.A. and North Atlantic Trading Company, Inc., as predecessor to North Atlantic Operating Company, Inc. (Canada) | (7) |
| | | |
| Amendment to the Amended and Restated Distribution and License Agreement dated March 31, 1993 between Bolloré Technologies, S.A. and North Atlantic Trading Company, Inc. | (7) |
| | | |
| Amendment to the Amended and Restated Distribution and License Agreements dated June 10, 1996, between Bolloré Technologies, S.A. and North Atlantic Trading Company, Inc. (U.S. & Canada) | (7) |
| | | |
| Amendment to the Amended and Restated Distribution and License Agreement dated September 1996, between Bolloré Technologies, S.A. and North Atlantic Trading Company, Inc. (U.S. & Canada) | (7) |
| | | |
| Restated Amendment to the Amended and Restated Distribution and License Agreement between Bolloré Technologies, S.A. and North Atlantic Operating Company, Inc. dated June 25, 1997 (U.S. & Canada) | (7) |
| | | |
| Amendment to the Amended and Restated Distribution and License Agreement dated October 22, 1997, between Bolloré Technologies, S.A. and North Atlantic Operating Company, Inc. (U.S. & Canada) | (7) |
| | | |
| Amendment to the Amended and Restated Distribution and License Agreement dated June 19, 2002, between Bolloré S.A. and North Atlantic Operating Company, Inc. (U.S. & Canada) | (7) |
| | | |
| Trademark Consent Agreement, dated March 26, 1997, between Bolloré Technologies, S.A. and North Atlantic Trading Company, Inc. | (7) |
| | | |
| Amendment to the Amended and Restated Distribution and License Agreement dated February 28, 2005, between Bolloré S.A. and North Atlantic Operating Company, Inc. (U.S. & Canada) | (7) |
| Amendment to the Amended and Restated Distribution and License Agreement dated April 20, 2006, between Bolloré S.A. and North Atlantic Operating Company, Inc. (U.S. & Canada) | (7) |
| | | |
| Amendment to the Amended and Restated Distribution and License Agreement dated March 10, 2010, between Bolloré S.A. and North Atlantic Operating Company, Inc. (U.S. & Canada) | (7) |
| | | |
| Consent Agreement dated as of April 4, 1997, between Bolloré Technologies, S.A. and North Atlantic Trading Company, Inc. | (7) |
| | | |
| Amendment No. 1 to Consent Agreement dated as of April 9, 1997, between Bolloré Technologies, S.A. and North Atlantic Operating Company, Inc. | (7) |
| | | |
| Amendment No. 2 to Consent Agreement dated as of June 25, 1997, between Bolloré Technologies, S.A. and North Atlantic Operating Company, Inc. | (7) |
| | | |
| Trademark Consent Agreement dated July 31, 2003, among Bolloré Technologies, S.A., North Atlantic Trading Company, Inc. and North Atlantic Operating Company, Inc. | (7) |
| | | |
| Amendment No. 2 to Trademark Consent Agreement dated December 17, 2012, between Bolloré S.A. and North Atlantic Operating Company, Inc. | (7) |
| | | |
| License and Distribution Agreement dated March 19, 2013 between Bolloré S.A. and North Atlantic Operating Company, Inc. | (7) |
| | | |
| Distributors Supply Agreement dated as of April 1, 2013, between National Tobacco Company, L.P. and JJA Distributors, LLC | (7) |
| | | |
| Amendment No. 1 to the Amended and Restated Exchange and Stockholders’ Agreement dated April 28, 2016 | (7) |
| | | |
| First Lien Credit Agreement dated as of February 17, 2017, by and among Turning Point Brands, Inc., Fifth Third Bank, and the lenders party thereto | (7) |
| | | |
| Second Lien Credit Agreement dated as of February 17, 2017, by and among Turning Point Brands, Inc., as the Borrower, Prospect Capital Corporation, as administrative agent, and the lenders party thereto | (7) |
| | | |
| First Lien Guaranty and Security Agreement dated as of February 17, 2017, by and among Turning Point Brands, Inc., Fifth Third Bank, and the lenders party thereto | (7) |
| | | |
| Second Lien Guaranty and Security Agreement dated as of February 17, 2017, by and among Turning Point Brands, Inc., Prospect Capital Corporation, and the lenders party thereto | (7) |
| | | |
| Intercreditor Agreement dated as of February 17, 2017, by and among Turning Point Brands, Inc., the other grantors party thereto, Fifth Third Bank, as first lien collateral agent, and Prospect Capital Corporation, as second lien collateral agent | (7) |
| | | |
| Amended and Restated First Lien Credit Agreement, dated as of March 7, 2018, by and among Turning Point Brands, Inc. and its subsidiaries, as the obligors, Fifth Third Bank, as administrative agent, and the lenders party thereto | (7) |
| | | |
| Amended and Restated Second Lien Credit Agreement, dated as of March 7, 2018, by and among Turning Point Brands, Inc. and its subsidiaries, as obligors, Prospect Capital Corporation, as administrative agent, and the lenders party thereto | (7) |
| | | |
| Omnibus Amendment, Reaffirmation Agreement and Joinder, dated as of March 7, 2018, by and among Turning Point Brands, Inc. and its subsidiaries, as the Grantors, Fifth Third Bank, as administrative agent, and the lenders party thereto | (7) |
| | | |
| Second Lien Omnibus Amendment, Reaffirmation Agreement and Joinder, dated as of March 7, 2018, by and among Turning Point Brands, Inc. and its subsidiaries, as the Grantors, Fifth Third Bank, as administrative agent, and the lenders party thereto | (7) |
| First Amendment to Second Lien Intercreditor Agreement, dated as of March 7, 2018, by and among Turning Point Brands, Inc., and the other grantors party thereto, Fifth Third Bank, as first lien collateral agent, and Prospect Capital Corporation, as second lien collateral agent | (7) |
| | | |
| Form of Installment Note issued to VaporBeast Stockholders on November 30, 2016 | (7) |
| | | |
| Form of 18-Month Note issued to VaporBeast Stockholders on November 30, 2016 | (7) |
| | | |
| Form of Guaranty to VaporBeast Shareholders dated November 17, 2016 | (7) |
| | | |
| Capital on DemandTM Sales Agreement, dated August 10, 2018, by and between Standard Diversified Inc. and JonesTrading Institutional Services LLC | (14) |
| | | |
| Asset Purchase Agreement, dated as of January 18, 2018, by and between Standard Outdoor Southeast I LLC and Quality I/N Signs and Outdoor Advertising, LLC | (10) |
| | | |
| Promissory Note and Security Agreement, dated as of January 18, 2018, by and between Standard Outdoor Southeast I LLC and Quality I/N Signs and Outdoor Advertising, LLC | (10) |
| | | |
| Asset Purchase Agreement, dated as of February 20, 2018, by and between Standard Outdoor Southeast II LLC and Vista Outdoor Corporation | (10) |
| | | |
| Promissory Note and Security Agreement, dated as of February 20, 2018, by and between Standard Outdoor Southeast I LLC and Vista Outdoor Corporation | (10) |
| | | |
| Term Loan Agreement, dated as of February 2, 2018, by and among Standard Diversified Inc., Standard Outdoor LLC, Standard Outdoor Southwest LLC, Standard Outdoor Southeast I LLC, Standard Outdoor Southeast II LLC, Crystal Financial LLC, as administrative agent and collateral agent, and the financial institutions from time to time party thereto | (15) |
| | | |
| Subsidiaries of the Company (filed herewith) | |
| | | |
| Consent of Independent Registered Public Accounting Firm (filed herewith) | |
| | | |
| Certification of the Principal Executive Officer of Standard Diversified Inc. required by Rule 13a-14(a) under the Securities Exchange Act of 1934 (filed herewith) | |
| | | |
| Certification of the Principal Financial Officer of Standard Diversified Inc. required by Rule 13a-14(a) under the Securities Exchange Act of 1934 (filed herewith) | |
| | | |
| Certification of the Principal Executive Officer and Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of Sarbanes-Oxley Act of 2002 (furnished herewith) | |
| | | |
| 101.INS | XBRL Instance Document (filed herewith) | |
| | | |
| 101.SCH | XBRL Taxonomy Extension Scheme Document (filed herewith) | |
| | | |
| 101.CAL | XBRL Taxonomy Extension Calculation Linkbase Document (filed herewith) | |
| | | |
| 101.DEF | XBRL Taxonomy Extension Definition Linkbase Document (filed herewith) | |
| | | |
| 101.LAB | XBRL Taxonomy Extension Label Linkbase Document (filed herewith) | |
| | | |
| 101.PRE | XBRL Taxonomy Extension Presentation Linkbase Document (filed herewith) | |
| (1) | Filed as an exhibit to the Company’s Current Report on Form 8-K filed November 25, 2016 and incorporated by reference herein. |
| (2) | Filed as an exhibit to Amendment No. 1 to the Company’s Registration Statement on Form S-4 (No. 333-215802) filed on January 30, 2017 and incorporated by reference herein. |
| (3) | Filed as an exhibit to the Company’s Current Report on Form 8-K filed April 6, 2017 and incorporated by reference herein. |
| (4) | Filed as an exhibit to Amendment No. 4 to the Company’s Registration Statement on Form S-4 (No. 333-215802) filed on May 5, 2017 and incorporated by reference herein. |
| (5) | Filed as an exhibit to the Company’s Current Report on Form 8-K filed November 25, 2016 and incorporated by reference herein. |
| (6) | Filed as an exhibit to the Company’s Registration Statement on Form S-4 (No. 333-215802) filed on January 30, 2017 and incorporated by reference herein. |
| (7) | Filed as an exhibit to the Annual Report on Form 10-K of Turning Point Brands, Inc. filed on March 8, 2018 and incorporated by reference herein. |
| (8) | Filed as an exhibit to the Company’s Current Report on Form 8-K filed December 10, 2018 and incorporated by reference herein. |
| (9) | Filed as an exhibit to the Company’s Current Report on Form 8-K filed August 10, 2018 and incorporated by reference herein. |
| (10) | Filed as an exhibit to the Company’s Quarterly Report on Form 10-Q filed on May 14, 2018 and incorporated by reference herein. |
| (11) | Filed as an exhibit to the Company’s Current Report on Form 8-K filed on June 5, 2017 and incorporated by reference herein. |
| (12) | Filed as an exhibit to the Company’s Information Statement on Schedule 14C filed on July 28, 2017 and incorporated by reference herein. |
| (13) | Filed as an exhibit to the Company’s Registration Statement on Form S-8 (No. 333- 68107) filed on November 30, 1998 and incorporated by reference herein. |
| (14) | Filed as an exhibit to the Company’s Current Report on Form 8-K filed November 9, 2018 and incorporated by reference herein. |
| (15) | Filed as an exhibit to the Company’s Current Report on Form 8-K filed February 5, 2018 and incorporated by reference herein. |
| * | Management contract or compensatory plan. |
| # | Schedules to the agreement have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company undertakes to furnish supplementally copies of any of the omitted schedules upon request by the SEC. |
| + | Confidential treatment has been granted as to certain portions of this exhibit pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. |
| Item 16. | Form 10-K Summary |
None.
SIGNATURES
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.
| | | STANDARD DIVERSIFIED INC. |
| | | |
| Date: | March 11, 2019 | /s/ Ian Estus |
| | | Ian Estus |
| | | Chief Executive Officer |
| | | |
| Date: | March 11, 2019 | /s/ Edward J. Sweeney |
| | | Edward J. Sweeney |
| | | Interim Chief Financial Officer |
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.
| | | |
| Date: | March 11, 2019 | /s/ Ian Estus |
| | | Ian Estus |
| | | Chief Executive Officer |
| | | |
| Date: | March 11, 2019 | /s/ Edward J. Sweeney |
| | | Edward J. Sweeney |
| | | Interim Chief Financial Officer |
| | | |
| Date: | March 11, 2019 | /s/ Gregory H.A. Baxter |
| | | Gregory H.A. Baxter |
| | | Executive Chairman of the Board of Directors |
| | | |
| Date: | March 11, 2019 | /s/ David M. Wurzer |
| | | David M. Wurzer |
| | | Director |
| | | |
| Date: | March 11, 2019 | /s/ Thomas F. Helms, Jr. |
| | | Thomas F. Helms, Jr. |
| | | Director |
| | | |
| Date: | March 11, 2019 | /s/ David Glazek |
| | | David Glazek |
| | | Director |
| | | |
| Date: | March 11, 2019 | /s/ Arnold Zimmerman |
| | | Arnold Zimmerman |
| | | Director |
SCHEDULE I
Financial Information of Registrant
STANDARD DIVERSIFIED INC (Parent Company Only)
BALANCE SHEETS
(in thousands)
ASSETS
| | | | | | | |
| | | | | | | |
| Cash and cash equivalents | | $ | 12,171 | | | $ | 15,605 | |
| Investments in capital stocks of subsidiaries, at equity | | | 56,762 | | | | 27,393 | |
| Receivables and other assets | | | 955 | | | | 503 | |
| Total Assets | | $ | 69,888 | | | $ | 43,501 | |
LIABILITIES AND SHAREHOLDERS’ EQUITY
| | | December 31, | | | December 31, | |
| | | 2018 | | | 2017 | |
| | | | | | | |
| Current liabilities | | $ | 1,984 | | | $ | 1,064 | |
| Notes payable | | | 14,210 | | | | - | |
| Total liabilities | | | 16,194 | | | | 1,064 | |
| Shareholders’ equity | | | 53,694 | | | | 42,437 | |
| Total liabilities and shareholders’ equity | | $ | 69,888 | | | $ | 43,501 | |
STATEMENTS OF INCOME AND COMPREHENSIVE INCOME
(in thousands)
| | | For the Year ended December 31, 2018 | | | For the period from June 1, 2017 to December 31, 2017 | |
| | | | | | | |
| Equity in income of subsidiaries | | $ | 8,607 | | | $ | 7,906 | |
| Interest and other | | | 34 | | | | 64 | |
| Total | | | 8,641 | | | | 7,970 | |
| | | | | | | | | |
| General and administrative expenses | | | 4,880 | | | | 2,323 | |
| Interest expense | | | 1,380 | | | | - | |
| Total | | | 6,260 | | | | 2,323 | |
| Income before income tax | | | 2,381 | | | | 5,647 | |
| Income tax expense | | | - | | | | - | |
| Net income | | | 2,381 | | | | 5,647 | |
| Equity in other comprehensive income of subsidiaries | | | (137 | ) | | | 762 | |
| Total comprehensive income | | $ | 2,244 | | | $ | 6,409 | |
SCHEDULE I
Financial Information of Registrant
STANDARD DIVERSIFIED INC (Parent Company Only)
STATEMENTS OF CASH FLOWS
(in thousands)
| | | For the Year ended December 31, 2018 | | | For the period from
June 1, 2017 to December 31, 2017 | |
| Operating Activities: | | | | | | |
| Net Income | | $ | 2,381 | | | $ | 5,647 | |
| Dividends received from subsidiary | | | 1,181 | | | | 393 | |
| Stock-based compensation expense | | | 744 | | | | 249 | |
| Amortization of deferred financing costs | | | 170 | | | | - | |
| Adjustments to reconcile net income to net cash provided (used) by operating activities: | | | | | | | | |
| Equity method investees | | | (8,607 | ) | | | (7,906 | ) |
| Changes in operating assets and liabilities, net | | | | | | | | |
| Receivables and other assets | | | 1,093 | | | | (226 | ) |
| Accounts payable and accrued liabilities | | | (719 | ) | | | (2,515 | ) |
| Net cash used in operating activities | | | (3,757 | ) | | | (4,358 | ) |
| | | | | | | | | |
| Investing Activities: | | | | | | | | |
| Investments in and advances to subsidiaries | | | (10,000 | ) | | | - | |
| Acquisitions | | | (9,895 | ) | | | (290 | ) |
| Net cash used in investing activities | | | (19,895 | ) | | | (290 | ) |
| | | | | | | | | |
| Financing Activities: | | | | | | | | |
Proceeds from borrowings under SDI term loan
| | | 14,039 | | | | - | |
| Proceeds from issuance of stock, net of issuance costs | | | 6,810 | | | | - | |
| Repurchase of SDI common shares | | | (631 | ) | | | - | |
| Net cash provided by financing activities | | | 20,218 | | | | - | |
| | | | | | | | | |
| Net decrease in cash | | | (3,434 | ) | | | (4,648 | ) |
| | | | | | | | | |
| Cash, beginning of period | | | | | | | | |
| Unrestriced | | | 15,605 | | | | 20,253 | |
| Restricted | | | - | | | | - | |
| Total cash at beginning of period | | | 15,605 | | | | 20,253 | |
| | | | | | | | | |
| Cash, end of period | | | | | | | | |
| Unrestriced | | | 12,171 | | | | 15,605 | |
| Restricted | | | - | | | | - | |
| Total cash at end of period | | $ | 12,171 | | | $ | 15,605 | |
SCHEDULE I-NOTES TO THE FINANCIAL STATEMENTS (PARENT ONLY)
NOTE 1. BACKGROUND
These parent company-only financial statements have been prepared in accordance with Rule 12-04, Schedule I of Regulation S-X, as the restricted net assets of the subsidiaries of Standard Diversified Inc. (“SDI”) (as defined in Rule 4-08(e)(3) of Regulation S-X) exceed 25% of the consolidated net assets of the Company. The ability of SDI’s operating subsidiaries to pay dividends is restricted by the terms of the borrowings described in Note 15 to the consolidated financial statements.
These parent company financial statements have been prepared using the same accounting principles and policies described in the notes to the consolidated financial statements, with the only exception being that the parent company accounts for its subsidiaries using the equity method. These financial statements should be read in conjunction with the consolidated financial statements and related notes thereto.
On June 1, 2017, SDI consummated a Contribution and Exchange Transaction (the “Contribution and Exchange”) to acquire a 52.1% controlling interest in Turning Point Brands, Inc. (“Turning Point”). The transaction was accounted for as a recapitalization or reverse acquisition. Turning Point was the accounting acquirer for financial reporting purposes, notwithstanding the legal form of the transaction. The primary reason the transaction was treated as a purchase by Turning Point rather than a purchase by SDI was because SDI was a shell company with limited operations and Turning Point’s stockholders gained majority control of the outstanding voting power of the Company’s equity securities through their collective ownership of a majority of the outstanding shares of Company common stock. Consequently, reverse acquisition accounting has been applied to the transaction. Accordingly, the historical financial statements of Turning Point through May 31, 2017 became the Company’s historical financial statements, including the comparative prior periods. These consolidated financial statements include the results of SDI from June 1, 2017, the date the reverse acquisition was consummated. As of December 31, 2018, SDI has a 50.3% ownership interest in Turning Point.
These financial statements include the year ended December 31, 2018 and the period from June 1, 2017 through December 31, 2017, the period in which SDI was a parent company. During these periods, SDI received dividends of $1.1 million and $0.4 million from Turning Point.
