UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-K
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
__ EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2008.
___ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission File No. 1-8129.
____________________________
US 1 INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Indiana 95-3585609
_________________________ __________________________________
(State of Incorporation) I.R.S. Employer Identification No.
336 W. US Hwy 30, Valparaiso, Indiana 46385
__________________________________________ __________
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (219) 476-1300
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
____________________ _________________________________________
Common Stock, no par value None
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned
issuer, as defined in Rule 405 of the Securities Act. Yes___ No_X__
Indicate by check mark if the registrant is not required to file
reports pursuant to section 13 or 15(d) of the Securities Act.
Yes___ No_X__
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and
(2) has been subject to such filing requirements for the past
90 days. Yes_X__ No___
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of registrant's knowledge, in definitive proxy
or information statements incorporated by reference in Part III of this
Form 10-K or any amendment to this Form 10-K. _____
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See definitions of large accelerated filer, an
accelerated filer, and smaller reporting company in Rule 12b-2 of the
Exchange Act. (check one):
Large accelerated filer ___ Accelerated filer ___
Non-accelerated filer ___ Smaller reporting company _X__
(Do not check if a smaller reporting company)
Indicate by check mark whether the registrant is a shell company (as
defined in Rule 12b-2 of the Exchange Act). Yes ___ No _X__
The aggregate market value of the voting stock held by non-affiliates of
the registrant was $10,355,873 (based on the per share closing price on
June 30, 2007, the last business day of the Company's second fiscal
quarter.) For purposes of the forgoing statement, directors and officers
of the registrant have been assumed to be affiliates.
On March 20, 2009, there were 14,243,409 shares of registrant's common
stock outstanding.
TABLE OF CONTENTS
PART I.....................................................................3
Item 1. Business...................................................3
Item 1A.Risk Factors...............................................6
Item 1B.Unresolved Staff Comments..................................8
Item 2. Properties.................................................8
Item 3. Legal Proceedings..........................................9
Item 4. Submission of Matters to a Vote of Security Holders........9
PART II....................................................................
Item 5. Market for Registrant's Common Equity, Related Stockholder
Matters, and Issuer Purchases of Equity Securities........9
Item 6. Selected Financial Data....................................11
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations........................12
Item 7A.Quantitative and Qualitative Disclosures about Market Risk.20
Item 8. Financial Statements and Supplementary Data................21
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure........................39
Item 9A.Controls and Procedures....................................40
Item 9B.Other Information..........................................42
PART III...................................................................43
Item 10.Directors, Executive Officers and Corporate Governance.....43
Item 11.Executive Compensation.....................................44
Item 12.Security Ownership of Certain Beneficial Owners and
Management and Related Stockholder Matters.................46
Item 13.Certain Relationships, Related Transactions, and
Director Independence......................................47
Item 14.Principal Accountant Fees and Services.....................49
PART IV....................................................................49
Item 15.Exhibits and Financial Statement Schedules.................49
SIGNATURES.................................................................51
PART I
Item 1. Business
US 1 Industries, Inc., is a holding company that owns subsidiary
operating companies,most of which are interstate trucking companies operating
in 48 states. For descriptive purposes herein, US 1 Industries, Inc. may
hereinafter be referred to, together with its subsidiaries, as "US 1" or the
"Company". The Company's business consists principally of truckload
operations, for which the Company obtains a significant percentage of its
business through independent agents, who then arrange with independent truckers
to haul the freight to the desired destinations.
US 1 was incorporated in California under the name Transcon Incorporated
on March 3, 1981. In March 1994, the Company changed its name to US 1
Industries, Inc. In February 1995, the Company was merged with an Indiana
corporation for purposes of re-incorporation under the laws of the state of
Indiana. The Company's subsidiaries consist of Antler Transport, Inc., ARL,
LLC (60% owned subsidiary), Blue and Grey Brokerage, Inc., Blue and Grey
Transport, Inc., Bruin Motor Express, LLC, Cam Transport, Inc., Carolina
National Logistics, Inc. (60% owned subsidiary), Carolina National
Transportation, LLC, Five Star Transport, LLC, Freedom Logistics, LLC,
Friendly Transport, LLC, Gulf Line Brokerage, Inc., Gulf Line Transportation,
LLC, Harbor Bridge Intermodal Inc., Keystone Lines, Corp., Keystone Logistics,
Inc., Liberty Transport, Inc., Patriot Logistics, Inc., Risk Insurance
Services, LLC, TC Services, Inc., Thunderbird Logistics, LLC, Thunderbird
Motor Express, LLC, Transport Leasing, Inc., Unity Logistics Services Inc.,
and US1 Logistics, LLC (60% owned subsidiary). Most of these subsidiaries
operate under authority granted by the United States Department of
Transportation (the "DOT") and various state agencies. The Company's
operating subsidiaries generally maintain separate offices, have their own
management teams, officers and directors, and are run independently of the
parent and each other.
Operations
The Company, through its subsidiaries, carries virtually all forms of
freight transported by truck, including specialized trucking services such as
containerized, refrigerated, and flatbed transportation.
The Company, through its subsidiaries, is primarily a non-asset based
business, contracting with independent truckers who generally own the trucks
they drive and independent agents who own the terminals from which they
operate. The Company pays the independent truckers and agents a percentage of
the revenue received from customers for the transportation of goods. The
expenses related to the operation of the trucks are the responsibility of the
independent contractors, and the expenses related to the operation of the
terminals are the responsibility of the agents. Certain subsidiaries of the
Company also subcontract ("broker") freight loads to other unaffiliated
transportation companies. Consequently, short-term fluctuations in operating
activity have less of an impact on the Company's net income than they have on
the net income of truck transportation companies that bear substantially all of
the fixed cost associated with the ownership of the trucks. Like other truck
transportation companies, however, US 1's revenues are affected by
competition, and the state of the economy and its impact on the customers,
and the collections of the Company.
Marketing and Customers
The Company, through its subsidiaries, conducts the majority of its
business through a network of independent agents who are in regular contact
with shippers at the local level. The agents have facilities and personnel
to monitor and coordinate shipments and respond to shippers' needs in a
timely manner.
These agents are typically paid a commission of 6% to 13% of the
Company's revenues from the agents' trucking operations.
During 2008, the Company utilized the services of approximately 141
agents. No agent has accounted for more than 10% of revenue during 2008, 2007
or 2006. The Company shipped freight for approximately 1,000 customers in
2008, none of which accounted for more than 10% of the Company's revenues.
Independent Contractors
The independent contractors (persons who own the trucks) used by the
Company enter into standard equipment operating agreements. The agreements
provide that independent contractors must bear most of the costs of operations,
including drivers' compensation, maintenance costs, fuel costs, collision
insurance, taxes related to the ownership and operation of the vehicle,
licenses, and permits. These independent contractors are paid 71% to 78% of
the charges billed to the customer. The Company requires independent
contractors to maintain their equipment to standards established by the DOT,
and the drivers are subject to qualification and training procedures
established by the DOT. The Company also is required to conduct random drug
testing, enforce hours of service requirements, and monitor maintenance of
vehicles.
Employees
At December 31, 2008, the Company, through its subsidiaries, had
approximately 131 full-time employees. The Company's employees are not
covered by a collective bargaining agreement.
Competition
The trucking industry is highly competitive. The Company competes for
customers primarily with other nationwide carriers, some of which have company-
owned equipment and company drivers, and many of which have greater volume and
financial resources. The Company also competes with private carriage conducted
by existing and potential customers. In addition, the Company competes with
other modes of transportation including rail.
The Company also faces competition for the services of independent
trucking contractors and agents. Agents routinely do business with a number of
carriers on an ongoing basis. The Company has attempted to develop a strong
sales agent network by maintaining a policy of prompt payment for services
rendered and providing advanced computer systems.
Competition is based on several factors such as cost, timely
availability of equipment, and quality of service.
Insurance
US 1's subsidiary trucking companies purchase auto liability insurance
coverage of up to $1 million per occurrence with a $5,000 to $50,000 deductible
for the operation of the trucks. They also buy cargo insurance coverage of up
to $250,000 per occurrence with up to a $50,000 deductible. The companies also
purchase commercial general liability insurance with a $2 million combined
single limit and no deductible. The current insurance market is volatile with
significant rate changes that could adversely affect the cost and availability
of coverage. In addition, the insurance coverage that the companies purchase
may, given the recent trend toward exorbitant jury verdicts, not be sufficient
to cover losses experienced by the companies.
One of the Company's insurance providers, American Inter-Fidelity
Exchange (AIFE), is managed by Lex Venditti, a director of the Company. The
Company has an investment of $0.1 million in AIFE. AIFE provides liability and
cargo insurance to several subsidiaries of the Company as well as other
entities, some of which are related to the Company by common ownership. For
the years ended December 31, 2008, 2007 and 2006, cash paid to AIFE for
insurance premiums and deductibles was approximately $4.9 million, $6.1
million, and $5.4 million, respectively.
The Company exercises no control over the operations of AIFE. As a
result, the Company recorded its investment in AIFE under the cost method of
accounting for each of the three years ended December 31, 2008, 2007, and
2006. Under the cost method, the investment in AIFE is reflected at its
original amount and income is recognized only to the extent of dividends
paid by AIFE. There were no dividends declared by AIFE for the years ended
December 31, 2008, 2007 and 2006. During 2008 and 2007, a subsidiary
insurance agency of US 1 Industries, Inc. recorded commissions of $0.7
million and $0.4 million, respectively from AIFE. These commissions are
recorded as a reduction of insurance expense.
If AIFE incurs a net loss, the loss may be allocated to the various
policyholders based on each policyholder's premium as a percentage of the total
premiums of AIFE for the related period. There was no such loss assessment for
any of the three years ended December 31, 2008, 2007, and 2006. At December
31, 2008, AIFE had a net worth of approximately $11.2 million, part of which
is attributable to other policyholders of AIFE.
In addition, Michael Kibler, the Chief Executive Officer and a director
of the Company, and Harold Antonson, the Chief Financial Officer and a director
of the Company, and Mr. Venditti are the sole shareholders of American Inter-
Fidelity Corporation (AIFC), which serves as the attorney in fact of AIFE. AIFC
is entitled to receive a management fee from AIFE. AIFE incurred management
fees of approximately $0.5 million, $0.5 million and $0.6 million for the years
ended December 31, 2008, 2007, and 2006, respectively. These management fees
are available to be paid as dividends to these officers and directors of the
Company.
Independent Contractor Status
From time to time, various legislative or regulatory proposals are
introduced at the federal or state levels to change the status of independent
contractors' classification to employees for either employment tax purposes
(withholding, social security, Medicare and unemployment taxes) or other
benefit purposes.
Currently, most individuals are classified as employees or independent
contractors for employment tax purposes based on 20 "common-law" factors rather
than any definition in the Internal Revenue Code or the regulations
promulgated thereunder. In addition, under Section 530 of the Revenue Act of
1978, taxpayers that meet certain criteria may treat similarly situated workers
as employees, if they have received a ruling from the Internal Revenue Service
or a court decision affirming their treatment, or if they are following a
long-standing recognized practice.
Although management is unaware of any proposals currently pending to
change the employee/independent contractor classification, the costs associated
with potential changes, if any, in the employee/independent contractor
classification could adversely affect the Company's results of operations if
the Company were unable to reflect them in its fee arrangements with the
independent contractors and agents or in the prices charged to its customers.
Regulation
The Company's trucking subsidiaries, are common and contract motor
carrier regulated by the DOT and various state agencies. Among other things,
this regulation imposes requirements on the Company with regard to the
agreements that it has with owner-operators and the terms of payment to them.
The Company's independent contractor drivers also must comply with the safety
and fitness regulations promulgated by the DOT, including those relating to
drug and alcohol testing and hours of service.
The Company and its subsidiaries are subject to various federal, state,
and local environmental laws and regulations, implemented principally by the
Environmental Protection Agency (EPA) and similar state regulatory agencies,
governing the management of hazardous wastes, other discharge of pollutants
into the air and surface and underground waters, and the disposal of certain
substances. Management believes that its operations are in compliance with
current laws and regulations and does not know of any existing condition
(except as noted in the Environmental Regulation section below) that would
cause compliance with applicable environmental regulations to have a
material effect on the Company's earnings or competitive position.
Environmental Regulation
The Company's subsidiary, TC Services, Inc., owns property in
Phoenix, Arizona that was formerly leased to Transcon Lines as a terminal
facility, where soil contamination problems existed or exist. State
environmental authorities notified the Company of potential soil
contamination from underground storage tanks, and management worked with
the regulatory authorities to implement the required remediation. The
underground storage tanks were removed from the Phoenix facility in
February 1994. The Arizona environmental authorities indicate that the
remedial requirements have been satisfied.
Item 1A. Risk Factors
The Company makes forward-looking statements in this document and in
other materials it files with the SEC or otherwise makes public. In addition,
senior management of the Company might make forward-looking statements
orally to analysts, investors, the media and others. Statements concerning
the Company's future operations, prospects, strategies, financial condition,
future economic performance (including growth and earnings) and demand for
our services, and other statements of the Company's plans, beliefs, or
expectations, are forward-looking statements. In some cases these statements
are identifiable through the use of words such as "anticipate," "believe,"
"estimate," "expect," "intend," "plan," "project," "target," "can," "could,"
"may," "should," "will," "would" and similar expressions. You are
cautioned not to place undue reliance on these forward-looking statements.
The forward-looking statements the Company makes are not guarantees of
future performance and are subject to various assumptions, risks, and other
factors that could cause actual results to differ materially from those
suggested by these forward-looking statements. These factors include, among
others, those set forth in the following paragraphs and in the other
documents that the Company files with the SEC.
The Company expressly disclaims any obligation to update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise, except as required by law.
Factors That May Affect Future Results and/or Forward-Looking Statements
Insurance Limits. The Company currently purchases insurance coverage
for commercial trucking claims with limits of up to $1.0 million per
occurrence. Liability associated with accidents in the trucking industry is
severe (sometimes in excess of $1.0 million) and occurrences are unpredictable.
If a claim for an amount in excess of $1.0 million was successful, it could
have a material adverse effect on US 1 and its subsidiaries, including its
results of operations and financial condition.
Increased severity or frequency of accidents and other claims.
Potential liability associated with accidents in the trucking industry is
severe and occurrences are unpredictable. While the Company generally retains
deductibles of under $0.05 million, a material increase in the frequency or
severity of accidents or cargo claims, or the unfavorable development of
existing claims, could have a material adverse effect through increased
insurance costs on US 1 and its subsidiaries, which would adversely affect its
results of operations and financial condition.
Dependence on third-party insurance companies. The cost of
insurance coverage for commercial trucking varies dramatically, but is
expensive. Further, the ability of US 1 to purchase coverage for losses in
excess of $1.0 million is very limited. AIFE is managed by Lex Venditti, a
director of the Company. AIFE, in turn, retains some of the risk and reinsures
the remainder.
Dependence on independent commission agents. As noted above in Item 1,
"Business," the Company markets its services primarily through independent
commission agents. Currently, the Company has a network of 141 agents. During
2008, 36 of these agents generated revenue for US 1 of at least $1.0 million,
and one agent generated approximately $11.9 million or 7.0% of US 1's total
revenue. The Company competes with motor carriers and other third parties for
the services of these independent agents. US 1's contracts with these agents
typically are terminable upon 30-days notice by either party and do not
restrict the ability of a former agent to compete with US 1 following a
termination. The loss of some of the Company's agents or a significant
decrease in volume generated by these agents could have a materially adverse
effect on US 1, including its results of operations and revenue.
Dependence on third-party owner operators. As noted above in Item 1,
"Business," US 1 does not generally own trucks and relies on owner/operators
who operate as independent contractors and unrelated trucking companies to
transport freight for its customers. US 1 competes with other motor carriers
and third parties for the services of owner/operators. Almost all of the
freight hauled by the Company is by these owner/operators. A significant
decrease in available capacity provided by either of these parties could have
a material adverse effect on US 1, including its results of operations and
revenue.
Dependence on key personnel. The Company is dependent on the services
of its officers, particularly the officers of its subsidiaries. All of these
officers are free to leave the Company and start competing operations. None
have agreed to any covenant not to compete. Given the nature of the
relationship with the agents and owner/operators, as described above, it would
be relatively easy for the Company to lose a substantial amount of business
if one or more of these key people left and set up a competing operation.
This in turn could have a material adverse effect on the Company, including
its results of operations and revenue.
In October 2006, the Company and the general manager of Patriot
Logistics, Inc., a wholly owned subsidiary of the Company, entered into an
agreement under which the Company granted the individual the option to
purchase 100% of the outstanding stock of Patriot for a purchase price equal
to the book value of Patriot. This option terminates in October 2009 or upon
a change in control of the Company. The option is immediately exercisable and
may be exercised in whole (not in part) at anytime prior to October 2009.
The fair value of this option was determined to be deminimis. Patriot
Logistics' revenue was $33.1 million for the year ended December 31, 2008 and
$39.3 million for the year ended December 31, 2007. Patriot Logistics had
pre-tax income of approximately $0.6 million and $0.5 million for the years
ended December 31, 2008 and 2007, respectively.
Disruptions or failures in the Company's computer systems. The
Company's information technology systems used in connection with its
operations are located in South Bend, IN and Valparaiso, IN. US 1 relies,
in the regular course of business, on the proper operation of its information
technology systems to link its network of customers, agents and owner
operators. These systems in turn are dependent on operation of the
Internet. Any significant disruption or failure of these systems could
significantly disrupt the Company's operations and impose significant costs
on the Company.
Status of Owner/Operators. From time to time, various legislative or
regulatory proposals are introduced at the federal or state levels to change
the status of owner/operators' classification to employees (from independent
contractors) for either employment tax purposes (withholding, social security,
Medicare and unemployment taxes) or other benefit purposes. Currently, most
individuals are classified as employees or independent contractors for
employment tax purposes based on 20 "common-law" factors rather than any
definition found in the Internal Revenue Code or the regulations there under.
In addition, under Section 530 of the Revenue Act of 1978, taxpayers that
meet certain criteria may treat similarly situated workers as employees, if
they have received a ruling from the Internal Revenue Service or a court
decision affirming their treatment, or if they are following a long-standing
recognized practice. US 1 and its subsidiaries treat their owner/operators
as independent contractors. The classification of owner/operators as
independent contractors does require significant analysis of the facts
relating to their service to the Company.
Although management is unaware of any proposals currently pending to
change the employee/independent contractor classification, the costs
associated with potential changes, if any, in the employee/independent
contractor classification could adversely affect the Company's results of
operations if the Company were unable to reflect them in its fee arrangements
with the owner/operators and agents or in the prices charged to its customers.
Credit Facility and Economic Financial Environment. Our credit facility
with US Bank contains a number of financial covenants that require us to meet
certain financial ratios and tests. If we fail to comply with the obligations
in the credit agreement, we would be in default under the credit agreement. If
an event of default is not cured or waived, it could result in acceleration of
any outstanding indebtedness under our credit agreement, which could have a
material adverse effect on our business. Additionally, our credit facility
expires in October 2010. If we are unable to extend the credit facility with
US Bank or obtain a new credit facility with a new lender, this inability to
obtain financing could have a material adverse effect on our business. The
recent global financial crisis affecting the banking system and financial
markets and the going concern threats to investment banks and other financial
institutions have resulted in a tightening in the credit markets. There could
be a number of follow-on effects from the global financial crisis and resulting
economic slowdown on our business, including payment delays by customers and/or
customer insolvencies, delays in accessing our current credit facilities or
obtaining new credit facilities on terms we deem commercially reasonable, and
an inability of US Bank to fulfill their funding obligations. Any further
deterioration of economic conditions would likely exacerbate these adverse
effects and could result in a wide-ranging and prolonged impact on general
business conditions, thereby negatively impacting our operations, financial
results and/or liquidity.
Stock Price. The Company's stock price is affected by a number of factors,
including quarterly variations in revenue and operating income, low trading
volume, general economic and market conditions. As a result, the Company's
common stock may experience significant fluctuations in market price.
Item 1B. Unresolved Staff Comments
None.
Item 2. Properties
The Company leases its administrative offices of approximately 7,000
square feet from an independent owner at 336 W. US Hwy 30, Valparaiso, Indiana
for $7,000 monthly. Patriot Logistics, Inc. leases a truck terminal in Fort
Smith, AK of approximately 13,250 square feet on a month-to-month basis for
$2,618 from Fort Smith Property, LLC which is owned by Michael E. Kibler,
the President and Chief Executive Officer and a director of the Company,
Harold E. Antonson, the Chief Financial Officer, Treasurer and a director of
the Company, and Edwis Selph Sr., the terminal manager of Patriot Logistics,
Inc.
In addition, the Company's subsidiaries lease office space and land in
several locations throughout the United States, as summarized below:
Approximate Monthly Lease
Subsidiary City, State Square Feet Rent Expiration
__________ ___________ __________ ________ ___________
ARL Transport, LLC Moon Township,PA 33,920 $18,826 October 14, 2025
ARL Transport, LLC Garland, TX 26,000 6,500 June 30, 2011
ARL Transport, LLC Houston, TX 39,068 13,478 April 30, 2011
ARL Transport, LLC Hebron, OH 1,250 1,250 October 31, 2009
CAM Transport, Inc. Gulfport, MS 1,130 1,400 August 31, 2009
Carolina National Transportation, LLC Mt. Pleasant, SC 6,280 10,085 June 30, 2011
Keystone Logistics, Inc. South Bend, IN 4,400 3,463 month to month
Patriot Logistics, Inc. Atlanta, GA 49,250 1,936 August 31, 2011
Patriot Logistics, Inc. Charlotte, NC 500 2,750 December 31, 2011
Patriot Logistics, Inc. Dallas, TX 5.0 acres 3,800 month to month
Patriot Logistics, Inc. Fontana, CA 4,000 5,775 April 14, 2009
Patriot Logistics, Inc. French Camp, CA 1,000 1,200 month to month
Patriot Logistics, Inc. Ft. Smith, AK 13,250 2,618 month to month
Patriot Logistics, Inc. Houston, TX 33,000 10,500 December 31, 2009
Patriot Logistics, Inc. Irving, TX 1,440 1,659 April 7, 2010
Patriot Logistics, Inc. Jacksonville, FL 1,000 3,745 July 31, 2009
Patriot Logistics, Inc. Kansas City, MO 432 1,500 month to month
Patriot Logistics, Inc. Laredo, TX 400 1,100 month to month
Patriot Logistics, Inc. Memphis, TN 4,500 5,500 July 13, 2011
TC Services, Inc. Valparaiso, IN 7,000 7,000 March 31, 2009
Thunderbird Logistics Houston, TX 1,017 1,475 August 31, 2009
Thunderbird Logistics Terrell, TX 1,700 1,400 month to month
Thunderbird Motor Express Crown Point, IN 1,225 1,120 June 30, 2010
Transport Leasing, Inc. Calhoun, GA 8.4 acres 7,500 month to month
Transport Leasing, Inc. Ft. Smith, AK 850 507 month to month
US1 Logistics, Inc. St. Augustine, FL 1,340 1,841 March 31, 2010
Management believes that the Company's leased properties are adequate
for its current needs and can be retained or replaced at acceptable cost.
Item 3. Legal Proceedings
The Company and its subsidiaries are involved in various litigation
in the normal course of its business. Management intends to vigorously defend
these cases. In the opinion of management, the litigation now pending will not
have a material adverse affect on the consolidated financial statements of the
Company.
Item 4. Submission of Matters to a Vote of Security Holders
On November 26, 2008, the Company held an Annual Meeting of Shareholders
to elect five (5) directors to constitute the Board of Directors and to approve
the reverse/forward/stock split. The nominees for director included
Mr. Harold Antonson, Mr. Brad James, Mr. Michael Kibler, Mr. Robert Scissors,
and Mr. Lex Venditti. All of the nominees were elected as directors for US1
Industries, Inc. and will hold their position until the next Annual Meeting
and until their successors are elected and qualified.
The second proposal that the shareholders were asked to vote on
was to approve and adopt an amendment to US1's Articles of Incorporation to
effect between a one-for-three hundred and one-for-five hundred reverse stock
split of all of the US1 Industries outstanding shares of common stock.
Immediately after the "Reverse Stock Split", the Company wanted a "Forward
Stock Split". This would take all shares less than between three hundred and
five hundred shares of common stock that are owned by a shareholder and convert
the shares into a cash payment in an amount equal to $.87 per share, and
shareholders of a greater amount of shares would receive a cash payment for
their fractional shares. As of March 31, 2009, the Company has not executed
the approved stock split but expects to complete the stock split shortly.
The results of the votes are as follows:
Results of voting - Director nominees
For Withheld
Mr. Antonson 9,618,645 1,035,025
Mr. James 10,624,781 28,889
Mr. Kibler 9,629,845 1,023,825
Mr. Scissors 9,654,245 999,425
Mr. Venditti 9,563,093 1,090,577
Results of voting - Reverse / Forward Split
For Against Abstaining
9,482,049 1,141,046 30,575
Item 5. Market for Registrant's Common Equity, Related Stockholder Matters,
and Issuer Purchases of Equity Securities
Shares of Common Stock of the Company are listed and traded on the
NASD Electronic "bulletin board market" under the symbol "USOO."
As of December 31, 2008, there were approximately 3,036 holders of
record of the Company's Common Stock.
The Company has not paid and, for the foreseeable future, does not
anticipate paying any cash dividends on its Common Stock. The Company's
current credit agreement prohibits the payment of dividends.
Equity Compensation Plan Information
NUMBER OF SECURITIES TO BE WEIGHTED-AVERAGE NUMBER OF SECURITIES
ISSUED UPON EXERCISE OF EXERCISE PRICE OF REMAINING AVAILABLE FOR
PLAN CATEGORY OUTSTANDING OPTIONS, OUTSTANDING OPTIONS FUTURE ISSUANCE UNDER
WARRANTS AND RIGHTS WARRANTS AND RIGHTS EQUITY COMPENSATION PLANS
______________________________________________________________________________________________________________________________
Equity compensation plans approved by security holders:
Stock Option Plans ................................. - - -
Equity compensation plans not approved by security holders:
Stock options issued to employees (1)............... 200,000 $0.80 Not applicable
(1) On December 18, 2008, in conjunction with the acquisition of ARL, the Company granted stock
options to the CEO and CFO of ARL. The Company does not have any other equity compensation
plans or arrangements.
(2) The Company does not currently have any active equity compensation plans or arrangements.
During 2007, the Company purchased 595,248 shares of its common stock for $952,513. These shares
are reflected as treasury stock in the Company's balance sheet and statement of shareholders' equity as of
and for the year ended December 31, 2007 and 2008.
The following table sets forth for the periods indicated the high and low bid prices per share of
the Common Stock as reported from quotations provided by North American Quotations and reflect inter-dealer
prices, without retail mark-up, mark-down, or commission and may not represent actual transactions.
High Low
2007
First Quarter $ 1.97 $ 1.35
Second Quarter 1.98 1.38
Third Quarter 1.90 1.47
Fourth Quarter 2.30 1.55
2008
First Quarter $ 1.85 $ 1.30
Second Quarter 1.59 1.30
Third Quarter 1.39 .84
Fourth Quarter 1.20 .59
Item 6. Selected Financial Data
The selected consolidated financial data presented below have been
derived from the Company's consolidated financial statements. The
consolidated financial statements for the years ended December 31, 2008,
2007 and 2006 have been audited by the Company's registered independent
certified public accountants, whose report on such consolidated financial
statements are included herein under Item 8. The information set forth
below should be read in conjunction with the consolidated financial
statements and notes thereto under Item 8 and "Management's Discussion
and Analysis of Financial Condition and Results of Operations."
(in thousands, except shares and per share data)
Fiscal Year Ended December 31
_______________________________________________________________________________
2008 2007 2006 2005 2004
STATEMENT OF INCOME DATA:
Operating revenues $ 172,675 $ 184,677 $ 190,976 $ 175,625 $ 149,089
Purchased transportation 121,928 132,444 139,149 131,241 111,314
Commissions 21,955 22,406 21,866 17,243 14,294
Other operating costs and expenses 24,614 24,826 24,999 22,659 23,425
Operating income 4,178 5,001 4,962 4,483 56
Interest expense 159 780 790 611 466
Minority interest expense 1,313 1,176 989 35 28
Income before income taxes 2,951 3,221 3,362 4,171 101
Income tax (expense) benefit 107 (368) (260) (54) (86)
Net income 3,058 2,853 3,102 4,117 15
Net income per common share
Basic and Diluted $ 0.21 $ 0.23 $ 0.25 $ 0.34 -
Weighted average shares outstanding:
Basic 14,243,409 12,679,087 12,169,739 12,018,224 11,618,224
Diluted 14,243,409 12,679,087 12,169,739 12,169,739 11,964,174
BALANCE SHEET DATA (at end of year):
Total assets $ 51,004 $ 32,157 $ 32,563 $ 32,290 $ 26,120
Long-term debt, including current
Portion 16,744 2,371 7,271 9,776 8,403
Working capital 8,811 15,272 10,272 9,508 5,145
Shareholder's equity 19,718 16,660 11,385 7,909 3,593
OTHER DATA:
Cash provided by (used in)
operating activities 1,218 7,188 4,071 (1,599) (271)
Cash (used in) provided by
investing activities (2,167) (345) (281) 146 274
Cash provided by (used in)
financing activities 949 (6,843) (3,790) 1,453 (3)
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations
Overview
Purchased transportation represents the amount an independent
contractor is paid to haul freight and is primarily based on a
contractually agreed-upon percentage of revenue generated by the haul
for truck capacity provided by independent contractors. Because the
Company does not generally own its own trucks, purchased transportation
is the largest component of the Company's operating expenses and
increases or decreases in proportion to the revenue generated through
independent contractors. Commissions to agents and brokers are
similarly based on contractually agreed-upon percentages of revenue.
A majority of the Company's insurance expense is based on a
percentage of revenue and, as a result, will increase or decrease with
the Company's revenue. Potential liability associated with accidents
in the trucking industry is severe and occurrences are unpredictable.
A material increase in the frequency or severity of accidents or the
unfavorable development of existing claims could adversely affect
the Company's operating income.
Historically salaries, wages, fringe benefits, and other
operating expenses had been principally non-variable expenses and
remained relatively fixed with slight changes in relationship to revenue.
However, since the Company has added certain operations, which utilize
employees rather than independent agents, these non-variable expenses
may not be directly comparable.
The following table set forth the percentage relationships of expense
items to operating revenue for the periods indicated:
Fiscal Years
2008 2007 2006
Revenue 100.0% 100.0% 100.0%
Operating expense:
Purchased transportation 70.6 71.7 72.9
Agent Commissions 12.7 12.1 11.4
Insurance and claims 2.9 3.2 2.8
Salaries, wages and fringe benefits 6.5 6.1 6.1
Other operating expense 4.9 4.2 4.2
_______ _______ _______
Total operating expenses 97.6 97.3 97.4
_______ _______ _______
Operating income 2.4% 2.7% 2.6%
2008 Compared to 2007
The Company's operating revenues for the 2008 fiscal year were
$173 million, a decrease of $12 million, or 6.5%, from operating revenue
for the 2007 fiscal year. The decrease is attributable to the closing of an
office at one of the Company's subsidiaries and a decrease in load volume from
various larger customers of the Company, which we believe is attributable to
the general slowing economy.
Purchased transportation and commission expense generally increase or
decrease in proportion to the revenue generated through independent
contractors. Many agents negotiate a combined percentage payable for
purchased transportation and commission. Purchased transportation and
commissions in total averaged 83.3% of operating revenue in fiscal 2008
versus 83.8% of operating revenue in fiscal 2007. This is a combined
decrease of 0.5% of operating revenue. Purchased transportation decreased
1.1% of operating revenue in fiscal 2008 compared to the same period of time
in 2007. This decrease was somewhat offset by an increase in commissions of
0.6% of operating revenues for fiscal 2008 compared to fiscal 2007. The mix
between the amounts of purchased transportation paid versus commissions paid
may vary slightly based on agent negotiations with independent owner
operators. In addition, pay on certain types of revenue may be higher than
for other types of revenue. Thus a change in the mix of revenue can cause
some variation in the percent paid out for purchased transportation and
commission. However, in total, commissions and purchased transportation
would typically be expected to remain relatively consistent as a percentage
of revenue. A factor contributing to the decrease in purchased
transportation was the closing of one of the Company's offices that paid
out purchased transportation at a higher rate than is customary. The
increase in commission as a percentage of operating revenue is partially
due to commissions paid to a particular manager for increased profitability
in 2008.
One of the Company's subsidiaries uses employees to staff the terminals
rather than independent sales agents. As a result, this operation has higher
operating expenses relative to revenue than our other operations. This
operation accounted for approximately 19% and 21% of the Company's
consolidated operating revenues in 2008 and 2007, respectively.
Salaries expense is not directly variable with revenue. However,
salaries expense decreased in dollar amount from $11.3 million for the fiscal
year 2007 to $11.2 million for fiscal year 2008. The decrease in salaries
expense is attributable to subsidiaries of the Company that have closed
offices and restructured the work loads in order to cut costs.
Insurance and claims decreased in 2008 to 2.9% of operating revenue
compared to 3.2% of operating revenue for 2007. A majority of the Company's
insurance expense is based on a percentage of revenue and, as a result, will
tend to increase or decrease on a consolidated basis with the Company's
revenue. Potential liability associated with accidents in the trucking
industry is severe and occurrences are unpredictable. A material increase
in the frequency or severity of accidents or the unfavorable development of
existing claims could adversely affect the Company's operating income. The
0.3% decrease in the percentage of operating revenue represented by
insurance and claims between 2008 and 2007 can be attributed to favorable
claims experience for the fiscal year 2008. The Company obtains some of
its auto liability and cargo insurance from AIFE, an affiliated entity
(see Note 6 to consolidated financial statements).
Other operating expenses increased to 4.9% as a percentage of
operating revenue for the fiscal year 2008 compared to 4.2% as a
percentage of operating revenue for fiscal year 2007. While not all
operating expenses are directly variable with revenues, the decreased
revenue can directly impact several components of operating expenses.
During 2008, one of the Company's subsidiaries closed several offices.
As a result of closing these offices, the subsidiary experienced a
decrease in rent expense of approximately $0.3 million, and operating
supplies and expenses, excluding rent, of approximately $0.2 million.
However, the Company incurred additional operating expenses in 2008 in an
effort to become Sarbanes Oxley compliant. While some components of
operating expenses did decrease, such decreases were more than offset by
increases in bad debt expense of approximately $1.1 million, Company wide.
The increased bad debt expense is largely due to the closing of certain
subsidiaries of the Company that carried accounts receivable the Company
deemed uncollectable.
Based on the changes in revenue and expenses discussed above,
operating income decreased $0.8 million from 2007 to 2008. For the year
ended December 31, 2008, the Company had operating income of 2.4% of
operating revenues compared to 2.7% of operating revenues for 2007.
Interest expense decreased $0.6 million from $0.8 million for the year
ended December 31, 2007 to $0.2 million for the year ended December 31, 2008.
This decrease in interest expense is primarily attributable to a decrease in
interest rates on the Company's outstanding borrowings and the conversion of
approximately $4 million of shareholder debt into common stock during September
2007. Prior to the December 18, 2008 loan amendment, the interest rate was
based upon certain financial covenants and ranged from prime to prime less .75%.
Under the amended line of credit agreement, the interest rate is based upon
certain financial covenants and may range from "One Month LIBOR" plus 3.35%
to "One Month LIBOR" plus 4.35%. As of December 31, 2008 the interest rate on
this line of credit was 4.288%.
Other income includes income from rental property, storage and equipment
usage fees. Other income remained consistent at 0.1% of operating revenues for
the years ended December 31, 2008 and 2007.
The Company also recognized minority interest expense of $1.3 million
and $1.2 million relating to the minority shareholders' portion of its
subsidiaries', Carolina National Transportation, LLC and US 1 Logistics, LLC,
net income for the years ended December 31, 2008 and 2007, respectively.
Carolina National Transportation, LLC and US 1 Logistics LLC are each 60%
owned subsidiaries of the Company.
On December 18, 2008, the Company completed its acquisition of
a 60% membership interest (the "Membership Interest") in ARL Transport, LLC
("ARL"). Prior to the completion of the transaction, ARL, acquired
substantially all of the assets of, and assumed certain liabilities of, ARL,
Inc. and Aficionado Transport, Inc. Pursuant to the terms of the Membership
Purchase Agreement by and among the Company, ARL, Inc., Aficionado Transport,
Inc. and Ronald K. Faherty (the "Agreement"), the Company paid approximately
$1.59 million at closing for the Membership Interest. ARL also consolidates a
variable interest entity in which ARL is the primary beneficiary and guarantor
of certain debt of the related entity. ARL has evaluated its contractual and
economic relationships with Stoops Ferry, LLC ("Stoops") in light of FASB
Interpretation No. 46R ("FIN 46R"), and has concluded that Stoops is a
variable interest entity for purposes of FIN 46R. ARL has also concluded that
it is the primary beneficiary of Stoops for purposes of FIN 46R, in that ARL
absorbs a majority of Stoops' expected losses and/or, received a majority of
Stoops' expected residual returns, as a result of contractual or other
financial interests in Stoops. Accordingly, ARL is consolidating the assets,
liabilities, equity and financial results of Stoops in the Company's combined
financial statements. Stoops had total assets of approximately $0.8 million
at December 31, 2008. Total liabilities for Stoops were approximately $1.2
million at December 31, 2008.
Federal and state income tax expense decreased $0.5 million from $0.4
million for the year ended December 31, 2007 to ($0.1 million) for the year
ended December 31, 2008. The Company had net operating loss carry-forwards
of approximately $1.6 million as of December 31, 2008. The Company's
effective tax rate differed from the statutory rate primarily due to a
reduction in the valuation reserve. In fiscal 2009, we expect to recognize
an effective tax rate of approximately 39%.
As a result of the factors outlined above, net income in 2008 was
$3.1 million compared with $2.9 million in 2007.
2007 Compared to 2006
The Company's operating revenues for the 2007 fiscal year were $185
million, a decrease of $6.3 million, or 3.3%, from operating revenue for the
2006 fiscal year. The decrease is attributable to the closing of an office
at one of the Company's subsidiaries and a decrease in load volume from
one of the Company's larger customers.
Purchased transportation and commission expense generally increase or
decrease in proportion to the revenue generated through independent
contractors. Many agents negotiate a combined percentage payable for
purchased transportation and commission. Purchased transportation and
commission expense increase or decrease in proportion to the revenue
generated through independent contractors. Purchased transportation and
commissions in total averaged 83.8% of operating revenue in fiscal 2007
versus 84.3% of operating revenue in fiscal 2006. This is a combined
decrease of 0.5% of operating revenue. Purchased transportation decreased
1.2% of operating revenue in fiscal 2007 compared to the same period of time
in 2006. This decrease was somewhat offset by in increase in commissions
of 0.7% of operating revenues for fiscal 2007 compared to fiscal 2006.
The mix between the amounts of purchased transportation paid versus
commissions paid may vary slightly based on agent negotiations with
independent owner operators. In addition, pay on certain types of revenue
may be higher than for other types of revenue. Thus a change in the mix of
revenue can cause some variation in the percent paid out for purchased
transportation and commission. However, in total, commissions and
purchased transportation would typically be expected to remain relatively
consistent as a percentage of revenue. A factor contributing to the
decrease in purchased transportation was the closing of one of the
Company's offices that paid out purchased transportation at a higher rate
than is customary.
In 2003, the operation known as Patriot Logistics, Inc. began using
employees to staff the terminals rather than independent sales agent. This
operation accounted for approximately 21% and 24% of the Company's
consolidated operating revenues in 2007 and 2006, respectively.
Salaries, wages and fringe benefits remained consistent at 6.1% of
operating revenue for 2007 compared to the same period of time in 2006.
Insurance and claims increased in 2007 to 3.2% of operating revenue
compared to 2.8% of operating revenue for 2006. A majority of the Company's
insurance expense is based on a percentage of revenue and, as a result, will
tend to increase or decrease on a consolidated basis with the Company's
revenue. Potential liability associated with accidents in the trucking
industry is severe and occurrences are unpredictable. A material increase
in the frequency or severity of accidents or the unfavorable development of
existing claims could adversely affect the Company's operating income. The
0.4% increase in the percentage of operating revenue represented by insurance
and claims between 2007 and 2006 can be attributed to the increase of certain
operations' insurance premium rates along with additional claims activity.
The Company obtains some of its auto liability and cargo insurance from
AIFE, an affiliated entity (see Note 6 to consolidated financial statements).
Other operating expenses remained consistent at 4.2% of operating
revenues. While not all operating expenses are directly variable with
revenues, the decreased revenue directly impacts several components of
operating expenses such as bad debt expense.
Based on the changes in revenue and expenses discussed above,
operating income increased $0.04 million from 2006 to 2007. For the year
ended December 31, 2007 the Company had operating income of 2.7% of
operating revenues compared to 2.6% of operating revenues for the same
period of time in 2006.
Interest expense decreased $0.01 million in 2007 compared to 2006.
This decrease in interest expense is primarily attributable to a decrease
in outstanding borrowings. The rate on the Company's loan with US Bank was
based on certain financial covenants and may range from prime to prime less
..75%. At December 31, 2007 the interest rate on this loan was prime less
..75% (6.5%).
Other income includes income from rental property, storage and
equipment usage fees. Other income remained consistent at 0.09% of operating
revenues for the years ended December 31, 2007 and 2006.
The Company also recognized minority interest expense of $1.2 million
and $1.0 million relating to the minority shareholders' portion of its
subsidiaries', Carolina National Transportation, LLC and US1 Logistics, LLC,
net income for the years ended December 31, 2007 and 2006, respectively.
Carolina National Transportation, LLC and US1 Logistics LLC are each 60%
owned subsidiaries of the Company.
Federal and state income tax expense increased $0.1 million from $2.6
million for the year ended December 31, 2006 to $0.4 million for the year ended
December 31, 2007. The Company had net operating loss carry-forwards of
approximately $5.1 million at December 31, 2007. These carry-forwards are
available to offset taxable income in future years and substantially all of
these carry-forwards will expire in the years 2008 through 2010. Approximately
50% of the Company's net operating loss carry-forwards expire in 2008.
As a result of the factors outlined above, net income in 2007 was $2.9
million compared with $3.1 million in 2006.
Critical Accounting Policies and Estimates
US 1's financial statements reflect the selection and application of
accounting policies, which require management to make significant estimates and
assumptions. The Company believes that the evaluation of allowance for doubtful
accounts, the estimates related to contingencies and litigation are the more
critical accounting policies as they involve more significant estimates and
assumptions.
Preparation of the consolidated financial statements in accordance with
accounting principles generally accepted in the United States of America
requires management to make estimates and assumptions affecting the reported
amounts of assets, liabilities, revenues, and expenses and related contingent
liabilities. On an on-going basis, the Company evaluates its estimates,
including those related to revenues, bad debts, income taxes, valuation of
goodwill and intangible assets, contingencies and litigation. The Company bases
its estimates on historical experience and on various other assumptions that
are believed to be reasonable under the circumstances. Actual results may
differ from these estimates under different assumptions or conditions.
The Company records an allowance for doubtful accounts based on (1)
specifically identified amounts that it believes to be un-collectable and (2)
an additional allowance based on certain percentages of its aged receivables,
which are determined based on historical collection experience and (3) our
assessment of the general financial conditions affecting our customer base. At
December 31, 2008, the allowance for doubtful accounts was $1.4 million or
approximately 4.3% of total trade accounts receivable. If actual collections
experience changes, revisions to the Company's allowance may be required. After
reasonable attempts to collect a receivable have failed, the receivable is
written off against the allowance. In addition, US 1 reviews the components of
other receivables, consisting primarily of advances to drivers and agents, and
writes off specifically identified amounts that it believes to be un-
collectable.
Revenue for freight is recognized upon delivery. The Company accounts
for its revenue on a gross basis in accordance with EITF 99-19, "Reporting
Revenues Gross as a Principal Versus Net as an Agent". Amounts payable for
purchased transportation, commissions and insurance are accrued when incurred.
The Company follows the guidance in EITF 99-19 and records revenues at
the gross amount billed to customers because the Company (1) determined it
operates as the primary obligor, (2) typically is responsible for damages to
goods and (3) bears the credit risk.
The Company is involved in various litigation matters in the normal
course of business. Management evaluates the likelihood of a potential loss
from the various litigation matters on a quarterly basis. When it is
probable that a loss will occur from litigation and the amount of the loss
can be reasonably estimated, the loss is recognized in the Company's
financial statements. If a potential loss is not determined to be both
probable and reasonably estimated, but there is at least a reasonable
possibility that a loss may be incurred, the litigation is not recorded
in the Company's financial statements but this litigation is disclosed in
the footnotes of the financial statements.
The Company's subsidiaries carry insurance for auto liability,
property damage, and cargo loss and damage through various programs. The
Company's insurance liabilities are based upon the best information
currently available and are subject to revision in future periods as
additional information becomes available. Management believes it has
adequately provided for insurance claims.
AIFE is managed by Lex Venditti, a director of the Company. The
Company has an investment of $0.13 million in AIFE. AIFE provides auto
liability, property damage, and cargo loss and damage insurance coverage
to several subsidiaries of the Company as well as other entities related
to the Company by common ownership. For the years ended December 31, 2008,
2007 and 2006, cash paid to AIFE for insurance premiums and deductibles
was approximately $4.9 million, $6.1 million, and $5.4 million,
respectively.
The Company exercises no control over the operations of AIFE. As a
result, the Company recorded its investment in AIFE under the cost method
of accounting for each of the three years in the period ended December
31, 2008. Under the cost method, the investment in AIFE is reflected at
its original amount and income is recognized only to the extent of
dividends paid by AIFE. There were no dividends declared by AIFE for the
years ended December 31, 2008, 2007 and 2006.
If AIFE incurs a net loss, the loss may be allocated to the various
policyholders based on each policyholder's premium as a percentage of the total
premiums of AIFE for the related period. There has been no such loss assessment
for each of the three years ending December 31, 2008, 2007, and 2006. At
December 31, 2008, AIFE had net worth of approximately $11.2 million, part of
which is attributable to other policyholders of AIFE.
Deferred income taxes are recognized for the tax consequences of
"temporary differences" by applying enacted statutory rates applicable to
future years to differences between the financial statements carrying amounts
and the tax basis of existing assets and liabilities. The Company establishes
a valuation allowance when it determines it is more likely than not that
future tax benefits related to deferred tax assets will not be realized. The
Company has no valuation allowance as of December 31, 2008 as it is considered
more likely than not that the deferred tax assets will be fully utilized based
on our current expectations of future taxable income. At December 31, 2008,
the Company has a net deferred tax asset of approximately $2.2 million. We
have in the past established valuation allowances. At December 31, 2007, the
Company had a valuation allowance of $1.2 million.
In December 2008, the Company completed the acquisition of a 60%
membership interest in ARL, LLC. As a result of this acquisition, the Company
has intangible assets of approximately $3.7 million and goodwill of
approximately $4.8 million. These are preliminary estimates subject to
finalization upon the Company's completion of the valuation of identifiable
intangible assets. However, the identifiable intangible asset relates
primarily to relationships with established independent agents and is being
amortized over its expected life. The Company is required to continually re-
evaluate this asset for impairment by comparing the undiscounted cash flows
generated by these agent relationships to the carrying value of the related
intangible asset. Should the intangible asset be greater than the non-
discounted cash flows attributable to these agents, an impairment charge
would be recorded for the excess of the carrying value of the intangible
asset over the fair value of these agent relationships. The fair value of
the agent relationships would be calculated based on the present value of
the remaining future cash flows expected to be generated by the related
agents.
Goodwill represents the purchase price in excess of the fair value of
net assets acquired in business combinations. Statement of Financial Accounting
Standards (SFAS) No. 142, "Goodwill and Other Intangible Assets", requires the
Company to assess goodwill for impairment at least annually on October 1 in the
absence of an indicator of possible impairment and immediately upon an
indicator of possible impairment. Goodwill in the amount of $4.8 million was
recorded in December 2008 as a result of the acquisition of ARL. The Company
is not aware of any circumstances that would require immediate impairment of
this new goodwill.
We are required to review goodwill for impairment at least annually or
more frequently if impairment indicators arise. Currently, all goodwill is
related to our 60% subsidiary ARL and this subsidiary is determined to be the
reporting unit at which the goodwill is evaluated for impairment. The
Company's annual impairment assessment date is October 1. As part of the
annual impairment, the Company will estimate the fair value of the reporting
unit. The determination of fair value is subject to various judgmental
assumptions including assumptions about future cash flows and growth rates.
If the ARL reporting unit does not meet our performance expectations, we may
be required to record goodwill impairment charges in the future.
As of December 31, 2008, our net book value (i.e., shareholders'
equity) was approximately $19.7 million, and our market capitalization was
approximately $12.1 million. We believe that, when assessing whether an asset
impairment may exist, the difference between the net book value and market
capitalization as of December 31, 2008 is reasonable when market-based control
premiums are applied and in light of the volatility in the equity markets in
the latter part of 2008.
Liquidity and Capital Resources
During fiscal 2008, the Company's financial position continued to
improve as shareholders' equity increased by approximately $3.0 million from
$16.7 million at December 31, 2007 to $19.7 million at December 31, 2008.
However, working capital decreased from $15.0 million at December 31, 2007 to
$10.0 million at December 31, 2008, as the Company used its line of credit to
fund the acquisition of ARL and to refinance certain liabilities of ARL.
Net cash provided by operating activity decreased $6.0 million
from $7.2 million for the year ended December 31, 2007 to $1.2 million
for the year ended December 31, 2008. Cash provided by operations before
working capital needs generated $6.2 million for the period ended December
31, 2008 compared to $5.2 million for the period ended December 31, 2007.
Working capital needs used cash of $5.0 million during the twelve months
ended December 31, 2008. For the twelve months ended December 31, 2007,
working capital needs provided cash of $2.0 million.
The Company experienced an increase in accounts receivable for the
year ended December 31, 2008. This increase is largely due to the
acquisition of ARL including approximately $9.7 million of accounts
receivable that were acquired, offset by a decrease in load volume and a
slowing economy.
Accounts payable used $6.9 million in cash for the year ended December
31, 2008 compared to providing $2.0 million in cash for 2007. This increase
year over year is attributable to a decrease in trade payables to owner
operators and also paying down the trade payables acquired from ARL. This
decrease is the result of timing as well as decreases in fuel surcharge paid
to the owner operators.
Net cash used in investing activities was $2.2 million for the year
ended December 31, 2008 compared to $0.3 million for the year ended December
31, 2007. Net cash used in investing activities increased primarily due to the
acquisition of ARL.
Net cash (used in) provided by financing activities was ($6.8) million
for the year ended December 31, 2007 compared to $0.95 million for the year
ended December 31, 2008. The bank overdraft provided net cash of $2.3 million
for the year ended December 31, 2008 compared to using net cash of $2.1
million for the year ended December 31, 2007. For the year ended December 31,
2008, net repayments under the lines of credit were $0.3 million, compared to
$2.0 million for 2007. For the year ended December 31, 2008, the Company
distributed $1.0 million to the minority shareholders of the Company's
majority owned subsidiaries, Carolina National Transportation, LLC. and US1
Logistics, LLC compared to $1.8 million for the same period in 2007 to
minority shareholders. In addition, during 2007 the Company utilized $1.0
million to repurchase 595,248 shares of its common stock whereas no such
repurchases were made in 2008.
The Company and its subsidiaries have a $22.0 million line of credit
that matures on October 1, 2010. This line of credit was increased on
December 18, 2008 from $15.0 million to $22.0 million in conjunction with the
ARL acquisition. Advances under this revolving line of credit are limited to
75% of eligible accounts receivable. Unused availability under this line of
credit was $10.7 million at December 31, 2008. Prior to the December 18,
2008 loan amendment, the interest rate was based upon certain financial
covenants and ranged from prime to prime less .75%. Under the amended line
of credit agreement, the Company's interest rate is based upon certain
financial covenants and may range from "one month LIBOR" plus 3.35% to a "one
month LIBOR" plus 4.35%. As of December 31, 2008, the interest rate on
this line of credit was 4.288%. The Company's accounts receivable,
property, and other assets collateralize advances under the agreement.
Borrowings up to $3.0 million are guaranteed by the Chief Executive Officer
and Chief Financial Officer of the Company. At December 31, 2008, the
outstanding borrowings on this line of credit were $11.3 million compared
with $1.6 million outstanding at December 31, 2007.
This line of credit is subject to termination upon various events
of default, including failure to remit timely payments of interest, fees and
principal, any adverse change in the business of the Company or failure to
meet certain financial covenants. Financial covenants include: minimum net
worth requirements, maximum total debt service coverage ratio, and
prohibition of additional indebtedness without prior authorization. At
December 31, 2008 and 2007, the Company was in compliance with these financial
covenants. The balance outstanding under this line of credit agreement is
classified as a current liability at December 31, 2008 and 2007.
Historically the revolving line of credit has been extended prior to
maturity.
On January 15, 2009, the Company and its subsidiaries entered into
a no cost Interest Rate Swap Agreement with U.S. Bank effective February
2, 2009 through February 1, 2012. This agreement is in the notional amount
of $10.0 million from February 2, 2009 through January 31, 2010, then $7.0
million from February 1, 2010 through January 31, 2011, then $4.0 million
from February 1, 2011 to February 1, 2012. The agreement provides for the
Company to pay interest at an annual rate of 1.64% times the notional amount
of the swap agreement, and U.S. Bank pay interest at the LIBOR rate times
the notional amount of the swap. The Company did not enter into this
agreement for speculative purposes.
Environmental Liabilities
Neither the Company nor its subsidiaries is a party to any Super-fund
litigation and does not have any known environmental claims against it. The
Company's subsidiary, TC Services, Inc., owns property in Phoenix, Arizona
that was formerly leased to Transcon Lines as a terminal facility, where
soil contamination problems existed or exist. State environmental authorities
notified the Company of potential soil contamination from underground storage
tanks, and management worked with the regulatory authorities to implement the
required remediation. The underground storage tanks were removed from the
Phoenix facility in February 1994. The Arizona environmental authorities
indicate that the remedial requirements have been satisfied.
Inflation
Changes in freight rates charged by the Company to their customers are
generally reflected in the cost of purchased transportation and commissions
paid by the Company to independent contractors and agents, respectively.
Therefore, management believes that future-operating results of the Company
will be affected primarily by changes in the volume of business. Rising
fuel prices are generally offset by a fuel surcharge the Company passes onto
its customers. However, due to the highly competitive nature of the
truckload motor carrier industry, it is possible that future freight rates,
cost of purchased transportation, as well as fuel prices may fluctuate,
affecting the Company's profitability.
Recently Issued Accounting Standards
Effective January 1, 2007, the Company adopted the provisions of
Financial Standards Accounting Board ("FASB") Interpretation No. 48, Accounting
for Uncertainty in Income Taxes ("FIN 48"). This interpretation clarifies the
accounting for uncertainty in income taxes recognized in an enterprise's
financial statements in accordance with SFAS No. 109 and prescribes a
recognition threshold of more-likely-than-not to be sustained upon examination.
As a result of the implementation of FIN 48, we recognized a $0.6 million
increase in the liability for unrecognized tax benefits related to tax positions
taken in prior periods. This increase was accounted for as an adjustment to
accumulated deficit in accordance with the provisions of this statement.
In December 2007, the FASB issued SFAS No. 141 (revised 2007)
("SFAS 141R"), a revision of SFAS 141, "Business Combinations." SFAS 141R
establishes requirements for the recognition and measurement of acquired
assets, liabilities, goodwill, and non-controlling interests. SFAS 141R also
provides disclosure requirements related to business combinations. SFAS 141R
is effective for fiscal years beginning after December 15, 2008. Should
they occur, the Company will apply SFAS 141R prospectively to business
combinations with an acquisition date on or after the effective date.
In April 2008, the FASB issued FASB Staff Position ("FSP") No. 142-3,
Determination of the Useful life of Intangible Assets ("FSP 142-3").
FSP 142-3 amends the factors that should be considered in developing
assumptions about renewal or extension used in estimating the useful life
of a recognized intangible asset under SFAS No. 142 and expands the
disclosure requirements of SFAS 142. The provisions of FSP 142-3 are
effective for the Company as of January 1, 2009. The provisions of FSP
142-3 for determining the useful life of a recognized intangible asset
shall be applied prospectively to intangible assets recognized as of,
and subsequent to, the effective date. The Company does not expect the
impact of the adoption of FSP 142-3 to have a material effect on its
financial position or results in operations.
In September 2006, the FASB issued SFAS No. 157, "Fair Value
Measurements." SFAS No. 157 defines fair value, establishes a framework
for measuring fair value, and expands disclosures about fair value
measurements. SFAS No. 157 is effective for financial statements issued
for fiscal years beginning after November 15, 2007. In February 2008, the
FASB issued FSP No. 157-2 which delays the effective date of SFAS 157 for
non-financial assets and liabilities which are not measured at fair value
on a recurring basis (at least annually) until fiscal years beginning after
November 15, 2008. The Company has adopted SFAS No. 157 as of January 1,
2008, with the exception of the application of the statement to non-
recurring nonfinancial assets and nonfinancial liabilities. The
implementation of SFAS No. 157 did not have any material impact on its
consolidated financial condition or results of operations.
In December 2007, the FASB issued SFAS No. 160, "Non-Controlling
Interests in Consolidated Financial Statements an amendment of ARB No.
51" ("SFAS 160"). SFAS 160 establishes new standards for the accounting
for and reporting of non-controlling interests (formerly minority
interests) and for the loss of control of partially owned and consolidated
subsidiaries. SFAS 160 does not change the criteria for consolidating a
partially owned entity. SFAS 160 is effective for fiscal years beginning
after December 15, 2008. The provisions of SFAS 160 will be applied
prospectively upon adoption except for the presentation and disclosure
requirements which will be applied retrospectively. The adoption of SFAS
160 will result in changes in the presentation of the Company's
financial position, primarily due to reclassification of minority interest
to a component of shareholders' equity.
Off-Balance Sheet Arrangements
Some of the Company's subsidiaries obtained their auto liability and
cargo insurance from AIFE. For the years ended December 31, 2008, 2007, and
2006, cash paid to AIFE for insurance premiums and deductibles was
approximately $4.9 million, $6.1 million, and $5.4 million, respectively.
If AIFE incurs a net loss, the loss may be allocated to the various
policyholders based on each policyholder's premium as a percentage of the
total premiums of AIFE for the related period. There has been no such loss
assessment for each of the years ended December 31, 2008, 2007, and 2006,
respectively. The Company currently accounts for the majority of the
premium revenue of AIFE. At December 31, 2008, AIFE had net worth of
approximately $11.2 million.
The Company has no other off-balance sheet arrangements that potentially
could be material.
Item 7A. Quantitative and Qualitative Disclosures about Market Risk
Interest Rate Risk
The Company has a revolving line of credit with U.S. Bank which
currently bears interest at the "One Month LIBOR" plus 3.85% (at
December 31, 2008 the interest rate was 4.288%). The interest rate was
based on certain financial covenants. A one percentage point change in the
LIBOR rate would result in approximately $0.1 million in additional expense
annually.
On January 15, 2009, the Company and its subsidiaries entered into a no
cost Interest Rate Swap Agreement with a U.S. Bank effective February 2, 2009
through February 1, 2012. This agreement is in the notional amount of $10.0
million from February 2, 2009 through January 31, 2010, then $7.0 million from
February 1, 2010 through January 31, 2011, then $4.0 million from February 01,
2011 to February 1, 2012. The agreement provided for the Company to pay
interest at an annual rate of 1.64% times the notional amount of the swap
agreement and U.S. Bank pays interest at the LIBOR rate times the notional
amount of the swap. The Company did not enter into this agreement for
speculative purposes.
Item 8. Financial Statements and Supplementary Data
Report of Independent Registered Public Accounting Firm
Board of Directors and Shareholders
US 1 Industries, Inc.
Valparaiso, Indiana
We have audited the accompanying consolidated balance sheets of US 1
Industries, Inc. and Subsidiaries as of December 31, 2008 and 2007 and the
related consolidated statements of income, shareholders' equity, and cash
flows for each of the three years in the period ended December 31, 2008.
In connection with our audits of the financial statements, we have also
audited the financial statement schedule listed in the accompanying index
under Item 15(a)(2). These financial statements and schedule are the
responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements and schedule based on our audits.
We conducted our audits in accordance with the standards of the Public
Company Accounting Oversight Board (United States). Those standards require
that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting the amounts
and disclosures in the financial statements, assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall presentation of the financial statements and
schedule. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of US 1
Industries, Inc. at December 31, 2008 and 2007, and the results of its
operations and its cash flows for each of the three years in the period
ended December 31, 2008, in conformity with accounting principles generally
accepted in the United States of America.
Also, in our opinion, the financial statement schedule, when considered in
relation to the basic consolidated financial statements taken as a whole,
presents fairly, in all material respect, the information set forth therein.
As disclosed in Note 3 to the consolidated financial statements, effective
January 1, 2007, the Company changed its method of accounting for uncertain
tax positions to conform to FIN 48, "Accounting for Uncertainty in Income
Taxes".
We also have audited, in accordance with the standards of the Public Company
Accounting Oversight Board (United States), US 1 Industries, Inc.'s internal
control over financial reporting as of December 31, 2008, based on criteria
established in Internal Control - Integrated Framework issued by the
Committee of Sponsoring Organizations of the Treadway Commission (COSO) and
our report dated Apil 8, 2009 expressed an unqualified opinion
thereon.
/s/ BDO Seidman, LLP
Chicago, Illinois
April 8, 2009
US 1 INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 2008 AND 2007
ASSETS
2008 2007
CURRENT ASSETS:
Accounts receivable-trade, less allowance
for doubtful accounts of $1,360,000 and $1,237,000, respectively $ 30,054,657 $ 24,992,476
Other receivables, including receivables due from affiliated
entities of $964,000 and $357,000, respectively 4,676,388 3,216,146
Prepaid expenses and other current assets 2,214,218 1,147,193
Current deferred income tax asset 1,444,670 717,400
_____________ _____________
Total current assets 38,389,933 30,073,215
Property and Equipment
Land 195,347 195,347
Equipment 2,589,238 1,287,873
Less accumulated depreciation and amortization (833,771) (720,193)
______________ ______________
Net property and equipment 1,950,814 763,027
______________ ______________
Non-current deferred income tax asset 721,243 717,400
Notes receivable - Long Term 1,314,396 457,850
Intangible assets 3,736,000 -
Goodwill 4,756,943 -
Other assets 135,161 145,049
_____________ _____________
TOTAL ASSETS $ 51,004,490 $ 32,156,541
============= =============
<FN>
The accompanying notes are an integral part of the consolidated financial statements.
</FN>
US 1 INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 2008 AND 2007
LIABILITIES AND SHAREHOLDERS' EQUITY
2008 2007
<s>
CURRENT LIABILITIES:
Revolving line of credit $ 11,312,690 $ 1,616,157
Bank overdraft 3,090,613 755,043
Current portion of Capital lease obligation 107,196 -
Current portion of long-term debt 1,372,546 -
Accounts payable 9,987,291 8,724,938
Insurance and claims payable 1,836,391 1,691,674
Other accrued expenses 1,871,800 2,139,387
_____________ ____________
Total current liabilities 29,578,527 14,927,199
_____________ ____________
LONG-TERM DEBT, less current portion 817,277 -
CAPITAL LEASE, LONG-TERM PORTION 44,108 -
MINORITY INTEREST 846,443 569,047
COMMITMENTS AND CONTINGENCIES
SHAREHOLDERS' EQUITY:
Common stock, authorized 20,000,000 shares;
no par value; 14,838,657 shares issued at
both December 31, 2008 and 2007 46,920,288 46,920,288
Treasury stock, 595,248 shares at both
December 31, 2008 and 2007 (952,513) (952,513)
Accumulated deficit (26,249,640) (29,307,480)
______________ _____________
Total shareholders' equity 19,718,135 16,660,295
______________ _____________
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 51,004,490 $ 32,156,541
============== =============
<FN>
The accompanying notes are an integral part of the consolidated financial statements.
</FN>
US 1 INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
YEARS ENDED DECEMBER 31, 2008, 2007, AND 2006
2008 2007 2006
OPERATING REVENUES $ 172,674,648 $ 184,677,131 $ 190,975,659
OPERATING EXPENSES:
Purchased transportation 121,927,791 132,443,631 139,149,362
Commissions 21,955,155 22,406,181 21,865,698
Insurance and claims 5,027,980 5,816,319 5,324,667
Salaries, wages, and other 11,188,362 11,281,281 11,699,451
Other operating expenses 8,397,332 7,728,613 7,974,762
______________ ______________ ______________
Total operating expenses 168,496,620 179,676,025 186,013,940
______________ ______________ ______________
OPERATING INCOME 4,178,028 5,001,106 4,961,719
______________ ______________ ______________
NON OPERATING INCOME (EXPENSE):
Interest income 28,827 5,153 16,927
Interest expense (159,141) (779,539) (790,369)
Other income, net 215,842 170,337 163,138
______________ ______________ ______________
Total non operating income (expense) 85,528 (604,049) (610,304)
NET INCOME BEFORE MINORITY INTEREST
AND INCOME TAXES 4,263,556 4,397,057 4,351,415
Minority interest (1,312,954) (1,175,838) (989,453)
______________ ______________ ______________
NET INCOME BEFORE INCOME TAXES 2,950,602 3,221,219 3,361,962
Income tax benefit (expense) 107,238 (368,237) (260,269)
______________ ______________ ______________
NET INCOME AVAILABLE TO COMMON
SHAREHOLDERS $ 3,057,840 $ 2,852,982 $ 3,101,693
============== ============== ==============
Basic and Diluted Net Income Per Common Share $0.21 $0.23 $0.25
Weighted Average Shares
Outstanding - Basic and Diluted 14,243,409 12,679,087 12,169,739
<FN>
The accompanying notes are an integral part of the consolidated financial statements.
</FN>
US 1 INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 2008, 2007, and 2006
Common Stock Treasury Accumulated
____________ ________ ___________
Shares Amount Shares Amounts Deficit Total
_______ _______ _______ _______ _______ ______
Balance at December 31,
2005 12,018,224 $42,596,639 - $ - $ (34,687,155) $ 7,909,484
Conversion option on
Subordinated debt - 373,649 - - - 373,649
Grant of restricted
common stock 151,515 - - - - -
Net income - - - - 3,101,693 3,101,693
___________________________________________________________________________________________
Balance at December 31,
2006 12,169,739 42,970,288 - - (31,585,462) 11,384,826
Cumulative effect of
adoption of FIN 48 - - - - ( 575,000) (575,000)
Treasury stock repurchase
- - (595,248) (952,513) - (952,513)
Conversion of debt into
equity 2,668,918 3,950,000 - - - 3,950,000
Net income - - - - 2,852,982 2,852,982
____________________________________________________________________________________________
Balance at December 31,
2007 14,838,657 46,920,288 (595,248) (952,513) (29,307,480) 16,660,295
Net income - - - - 3,057,840 3,057,840
____________________________________________________________________________________________
Balance at December 31,
2008 14,838,657 $46,920,288 (595,248) $(952,513) $ (26,249,640) $19,718,135
============================================================================================
<FN>
The accompanying notes are an integral part of the consolidated financial statements.
</FN>
US 1 INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 2008, 2007 AND 2006
2008 2007 2006
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 3,057,840 $ 2,852,982 $ 3,101,693
Adjustments to reconcile net income to
net cash provided by operating activities
Depreciation and amortization 258,758 157,234 134,196
Compensation expense resulting from
assumption of debt of officer owned entity 485,119 - -
Provision for bad debt 1,820,202 696,679 1,085,618
Amortization of discount on convertible note - 312,963 60,686
Minority interest 1,312,954 1,175,838 989,453
Deferred income tax expense (benefit) (731,113) - 152,548
(Gain)loss on disposal of equipment (16,586) (661) 52,599
Changes in operating assets and liabilities
excluding business acquisition:
Accounts receivable-trade 2,805,640 75,107 1,258,201
Other receivables (274,004) (56,506) (221,181)
Notes receivable (407,199) 137,046 (594,896)
Prepaid expenses and other current assets (33,704) (256,513) (718,487)
Accounts payable (6,938,067) 1,991,691 (766,024)
Insurance and claims payable 142,433 183,694 (371,643)
Other accrued expenses (263,900) (81,612) (91,730)
_____________ _____________ _____________
Net cash provided by operating activities 1,218,373 7,187,942 4,071,033
_____________ _____________ _____________
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to equipment (219,040) (369,079) (298,506)
Proceeds from sale of equipment 34,750 24,000 17,329
Other (100,000) - -
Acquisition of ARL (1,882,348) - -
_____________ _____________ ______________
Net cash used in investing activities (2,166,638) (345,079) (281,177)
CASH FLOWS FROM FINANCING ACTIVITIES:
Net repayments under lines of credit (321,352) (2,017,627) (3,572,574)
Change in bank overdraft 2,335,570 (2,106,389) (196,698)
Repayments of shareholder loans - - (20,584)
Capital lease payments (5,396) - -
Principal payments of long term debts (25,000) - -
Repurchase of treasury stock - (952,513) -
Distribution to minority interest holders (1,035,557) (1,766,334) -
_____________ _____________ _____________
Net cash provided by (used in)
financing activities 948,265 (6,842,863) (3,789,856)
_____________ _____________ _____________
NET CHANGE IN CASH - - -
CASH, BEGINNING OF YEAR - - -
_____________ _____________ _____________
CASH, END OF YEAR $ - $ - $ -
SUPPLEMENTAL DISCLOSURE OF CASH FLOW
INFORMATION--
Cash paid during year for interest $ 207,580 $ 427,936 $ 770,125
Cash paid during the year for
income taxes $ 584,912 $ 417,660 $ 132,259
In December 2008, ARL, LLC, a 60% owned subsidiary of the Company
acquired a business from an officer in exchange for the assumption of
approximately $ 0.5 million of debt. As the value of the net assets acquired
was determined to be nominal, the Company recorded a compensation expense of
approximately $0.5 million for the debt assumed in this transaction.
In November 2006, the long-term shareholder debt including accrued
interest of $1.2 million was exchanged for new notes payable with revised
terms, which included a conversion option. In September 2007, the total
notes payable balance of $4.0 million was converted into common stock when
the holders exercised the conversion feature of this debt, and the Company
issued 2.7 million shares of its common stock to the holders.
<FN>
The accompanying notes are an integral part of the consolidated
financial statements.
</FN>
US 1 INDUSTRIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 2008, 2007 AND 2006
1. OPERATIONS
US1 Industries, Inc. (the Company), through its subsidiaries, is
primarily an interstate truckload carrier of general commodities, which uses
independent agents and owner-operators to contract for and haul freight for
its customers in 48 states with a concentration in the Southeastern United
States. No one agent accounted for more than 10% of the Company's operating
revenue for the years ended December 31, 2008, 2007 and 2006. The Company
shipped freight for approximately 1,000 customers in 2008, none of which
accounted for more than 10% of the Company's revenues.
On December 18, 2008, the Company completed its previously announced
acquisition of a 60% membership interest (the "Membership Interest") in ARL
Transport, LLC ("ARL"). Prior to the completion of the transaction, ARL,
acquired substantially all of the assets of, and assumed certain liabilities
of, ARL, Inc. and Aficionado Transport, Inc. Pursuant to the terms of the
Membership Purchase Agreement by and among the Company, ARL, Inc., Aficionado
Transport, Inc. and Ronald K. Faherty (the "Agreement"), the Company paid
approximately $1.59 million at closing for the Membership Interest. ARL
also consolidates a variable interest entity in which ARL is the primary
beneficiary and guarantor of certain debt of the related entity. ARL has
evaluated its contractual and economic relationships with Stoops Ferry, LLC
("Stoops") in light of FASB Interpretation No. 46R ("FIN 46R"), and has
concluded that Stoops is a variable interest entity for purposes of FIN
46R. ARL has also concluded that it is the primary beneficiary of Stoops
for purposes of FIN 46R, in that ARL absorbs a majority of Stoops' expected
losses and/or, received a majority of Stoops' expected residual returns, as
a result of contractual or other financial interests in Stoops. Accordingly,
ARL is consolidating the assets, liabilities, equity and financial results of
Stoops in the Company's combined financial statements. Stoops had total
assets of approximately $0.8 million at December 31, 2008. Total liabilities
for Stoops were approximately $1.2 million at December 31, 2008.
2. RECLASSIFICATIONS
Certain reclassifications have been made to the previously reported
2007 and 2006 financial statements to conform with the 2008 presentation.
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation--The consolidated financial statements
include the accounts of US 1 Industries, Inc. and its majority-owned
subsidiaries. ARL, LLC, a 60% subsidiary of the Company, also consolidates
Stoops Ferry, LLC, a variable interest entity, in accordance with FIN 46R.
All intercompany accounts and transactions have been eliminated.
Fair Value of Financial Instruments--The carrying amount of cash and
cash equivalents, accounts receivable and accounts payable approximate fair
value due to the short-term nature of these instruments. The carrying amount
of outstanding borrowings approximates fair value as a variable interest rate
is charged on the outstanding balance.
Allowance for Doubtful Accounts--The subsidiaries record an allowance
for doubtful accounts based on specifically identified amounts that they
believe to be uncollectible. The Company also records an additional allowance
based on percentages of aged receivables, which are determined based on
historical collections experience and an assessment of the general financial
conditions affecting its customer base. If actual collections experience
changes, revisions to the allowance may be required. After all attempts to
collect a receivable have failed, the receivable is written off against the
allowance.
Revenue Recognition-- Revenue for freight is recognized upon delivery.
The Company accounts for its revenue in accordance with Emerging Issues Task
Force ("EITF") 99-19, "Reporting Revenue Gross as a Principal Versus Net as
an Agent". Amounts payable for purchased transportation, commissions and
insurance are accrued when incurred. The Company follows guidance of EITF
99-19 and records revenues at the gross amount billed to customers because
the Company (1) determined it operates as the primary obligor, (2)
typically is responsible for damages to goods and (3) bears the credit risk.
Fixed Assets--Fixed assets are stated at cost and depreciated using
the straight-line method over the estimated useful lives of the related assets,
which range from three to eight years.
Long-Lived Assets--The Company assesses the realizability of its
long-lived assets including finite lived intangible assets in accordance
with Statement of Financial Accounting Standards ("SFAS") No. 144 "Accounting
for the Impairment or Disposal of Long-Lived Assets". The Company reviews
long-lived assets for impairment when circumstances indicate that the
carrying amount of an asset may not be recoverable based on the undiscounted
future cash flows of the asset. No impairment was necessary as of December
31, 2008, 2007 and 2006,
Goodwill-- Goodwill represents purchase price in excess of the fair
value of net assets acquired in business combinations. SFAS No. 142,
"Goodwill and Other Intangible Assets" (SFAS 142), requires the Company to
assess goodwill for impairment at least annually in the absence of an
indicator of possible impairment and immediately upon an indicator of possible
impairment. Currently, all goodwill is related to our 60% subsidiary ARL and
this subsidiary is determined to be the reporting unit at which the goodwill
is evaluated for impairment. As part of its annual impairment assessment in
October, the Company will estimate the fair value of the reporting unit. If
the carrying value of the reporting unit exceeds the fair value of the
reporting unit, the Company must perform the second step of the goodwill
impairment test. The second step of the goodwill impairment test is
performed to measure the amount of impairment loss, if any, by comparing the
implied fair value of the goodwill with the carrying amount of that goodwill.
If the carrying amount exceeds the implied fair value of the goodwill, an
impairment loss is recognized in an amount equal to that excess. No
impairment was necessary as of December 31, 2008.
Accounting Estimates--The preparation of financial statements in
conformity with generally accepted accounting principles requires management
to make estimates and assumptions that affect the reported amounts of
assets and liabilities and disclosure of contingent assets and liabilities
at the dates of financial statements and the reported amounts of revenues
and expenses during the reporting periods. Actual results could differ from
those estimates.
Income Taxes--Deferred income taxes are recognized for the tax
consequences of "temporary differences" by applying enacted statutory tax
rates applicable to future years to differences between the financial
statement carrying amounts and the tax bases of existing assets. In
addition, the amounts of any future tax benefits are reduced by a valuation
allowance to the extent such benefits are not expected to be fully utilized.
Earnings Per Common Share --The Company computes earnings per share
under SFAS No. 128 "Earnings Per Share." The statement requires presentation
of two amounts, basic and diluted earnings per share. Basic earnings per
share are computed by dividing income available to common stockholders by
the weighted average common shares outstanding. Dilutive earnings per share
would include all dilutive common stock equivalents. There were no dilutive
common stock equivalents December 31, 2008, 2007 or 2006.
Business Segments--SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information" requires public enterprises to report
certain information about reporting segments in financial statements. As
the Company's operating segments exhibit similar economic characteristics
and meet the aggregation criteria of SFAS 131, they are reported in one
segment.
Recent Accounting Pronouncements
Effective January 1, 2007, the Company adopted the provisions of
Financial Standards Accounting Board ("FASB") Interpretation No. 48,
Accounting for Uncertainty in Income Taxes ("FIN 48"). This interpretation
clarifies the accounting for uncertainty in income taxes recognized in an
enterprise's financial statements in accordance with SFAS No. 109
Accounting for Income Taxes, and prescribes a recognition threshold of
more-likely-than-not to be sustained upon examination. As a result of the
implementation of FIN 48, we recognized a $0.6 million increase in the
liability for unrecognized tax benefits related to tax positions taken
in prior periods. This increase was accounted for as an adjustment to
accumulated deficit in accordance with the provisions of this statement.
In December 2007, the FASB issued SFAS No. 141(revised 2007)
("SFAS 141R), a revision of SFAS 141, "Business Combinations." SFAS 141R
establishes requirements for the recognition and measurement of acquired
assets, liabilities, goodwill, and non-controlling interests. SFAS 141R
also provides disclosure requirements related to business combinations.
SFAS 141R is effective for fiscal years beginning after December 15, 2008.
Should they occur, the Company will apply SFAS 141R prospectively to
business combinations with an acquisition date on or after the effective
date.
In April 2008, the FASB issued FASB Staff Position ("FSP") No.
142-3, Determination of the Useful life of Intangible Assets ("FSP 142-3").
FSP 142-3 amends the factors that should be considered in developing
assumptions about renewal or extension used in estimating the useful life
of a recognized intangible asset under SFAS 142, and expands the disclosure
requirements of SFAS 142. The provisions of FSP 142-3 are effective for
the Company as of January 1, 2009. The provisions of FSP 142-3 for
determining the useful life of a recognized intangible asset shall be
applied prospectively to intangible assets recognized as of, and subsequent
to, the effective date. The Company does not expect the impact of the
adoption of FSP 142-3 to have a material effect on its financial position or
results in operations.
In September 2006, the FASB issued SFAS No. 157, Fair Value
Measurements ("SFAS 157"). SFAS 157 defines fair value, establishes a
framework for measuring fair value, and expands disclosures about fair
value measurements. SFAS 157 is effective for financial statements issued
for fiscal years beginning after November 15, 2007. In February 2008, the
FASB issued FSP No. 157-2 which delays the effective date of SFAS 157 for
non-financial assets and liabilities which are not measured at fair value
on a recurring basis (at least annually) until fiscal years beginning after
November 15, 2008. The Company has adopted SFAS 157 as of January 1, 2008,
with the exception of the application of the statement to non-recurring
nonfinancial assets and nonfinancial liabilities. The implementation of
SFAS 157 did not have any material impact on its consolidated financial
condition or results of operations.
In December 2007, the FASB issued SFAS No. 160, "Non-Controlling
Interests in Consolidated Financial Statements an amendment of ARB No. 51"
("SFAS 160"). SFAS 160 establishes new standards for the accounting for
and reporting of non-controlling interests (formerly minority interests)
and for the loss of control of partially owned and consolidated
subsidiaries. SFAS 160 does not change the criteria for consolidating a
partially owned entity. SFAS 160 is effective for fiscal years beginning
after December 15, 2008. The provisions of SFAS 160 will be applied
prospectively upon adoption except for the presentation and disclosure
requirements which will be applied retrospectively. The adoption of
SFAS 160 will result in changes in the presentation of the Company's
financial position, primarily due to reclassification of minority
interest to a component of shareholders' equity.
4. ACQUISITIONS
As described in Note 1, on December 18, 2008, the Company completed
the acquisition of a 60% membership interest in ARL for $1.59 million. In
addition, the prior shareholder of ARL can receive up to an additional $2.9
million in cash if ARL achieves certain revenue and earnings goals through
2012. The assets acquired and liabilities assumed based on a preliminary
allocation are as follows:
<s> <c>
Accounts receivable $9,688,022
Other accounts receivable 1,542,041
Other current assets 1,116,978
Property and equipment 1,245,669
Intangible asset - agent relationships 3,636,000
Goodwill 4,756,943
____________
Total assets acquired 21,985,653
Lines of credit (10,017,885)
Accounts payable and accrued expenses (8,199,016)
Capital lease obligations (156,700)
Long-term debt (1,729,704)
____________
Total liabilities assumed (20,103,305)
Net assets acquired 1,882,348
Less acquisition costs (292,348)
____________
Cash paid for purchase price $1,590,000
============
The Company has assessed the fair values of acquired assets and
assumed liabilities and allocated the purchase price accordingly. For
purposes of the allocation, it has allocated $3.6 million of the ARL
purchase price to agent relationships which is an identifiable intangible
asset with a finite life, currently estimated at 7 years. The amount
allocated to agent relationships is preliminary subject to finalization of
the valuation of this asset expected to occur in the first half of 2009.
Amortization of goodwill and intangible assets related to this acquisition
will be deductible for income tax purposes.
At the date of the acquisition of ARL, the book value attributable
to the minority interest shareholder was a deficit which that shareholder
is not obligated to fund. As a result, the minority interest at the date
of acquisition was valued at zero and the amount allocated to goodwill
was increased by the deficit attributable to the minority interest. As a
result, subsequent net income from ARL attributable to the minority
interest will be credited to goodwill to the extent of the original
deficit attributable to the minority shareholder at the date of
acquisition ($2.6 million).
The results of ARL have been included in the consolidated financial
statements of the Company for the period subsequent to the acquisition.
Unaudited pro forma results of operations for the years ended December 31,
2008 and 2007 for the Company assuming the acquisition of ARL had taken
place on January 1, 2007 are as follows:
Year Ended December 31 2008 2007
__________________________________________________________________________________
Revenue
As Reported $172,674,648 $ 184, 677,131
Pro-forma 238,305,310 245,286,780
Net Income
As Reported 3,057,840 2,852,982
Pro-forma 1,136,961 118,473
Basic & Diluted Earnings Per Share
As Reported 0.21 0.23
Pro-forma 0.08 0.01
5. NOTES RECEIVABLE
The Company makes advances under notes receivable to certain agents
and owner operators in the normal course of its business. These notes bear
interest at rates ranging from 0% to 12.5% with weekly payments ranging from
approximately $125 - $8,333. Maturity on these notes receivable ranges from
April 2009 through June 2011. The balance of these notes was approximately
$2.6 million and $1.0 million at December 31, 2008 and December 31, 2007,
respectively. The current portion of these notes receivable was approximately
$1.5 million and $0.5 million at December 31, 2008 and December 31, 2007,
respectively, and is classified in other receivables. There are 21 notes
outstanding as of December 31, 2008.
6. RELATED PARTY TRANSACTIONS
One of the Company's subsidiaries provides safety, management, and
accounting services to companies controlled by the Chief Executive Officer
and Chief Financial Officer of the Company. These services are priced to
cover the cost of the employees providing the services. Charges related to
those services were approximately $0.06 million, $0.07 million and $0.07
million in 2008, 2007, and 2006, respectively. Accounts receivable due from
entities affiliated through common ownership was $1.0 million and $0.4 million
as of December 31, 2008 and 2007, respectively and are expected to be
collected within the next twelve months.
One of the subsidiaries' insurance providers, American Inter-Fidelity
Exchange ("AIFE"), is managed by Mr. Venditti, a director of the Company and
the Company has an investment of $0.13 million in the provider. AIFE provides
auto liability and cargo insurance to several subsidiaries of the Company as
well as other entities related to the Company by common ownership. For the
years ended December 31, 2008, 2007 and 2006, cash paid to AIFE for insurance
premiums and deductibles was approximately $4.9 million, $6.0 million, and
$5.4 million, respectively.
The subsidiaries exercised no control over the operations of AIFE. As
a result, the Company recorded its investment in AIFE under the cost method
of accounting for each of the three years in the period ended December 31,
2008. Under the cost method, the investment in AIFE is reflected at its
original amount and income is recognized only to the extent of dividends
paid by the investee. There were no dividends declared by AIFE for the years
ended December 31, 2008, 2007 and 2006.
If AIFE incurs a net loss, the loss may be allocated to the various
policyholders based on each policyholder's premium as a percentage of the
total premiums of AIFE for the related period. There has been no such loss
assessment for any of the three years in the period ended December 31, 2008.
The subsidiaries currently account for the majority of the premiums of AIFE.
At December 31, 2008, AIFE had unaudited net worth of approximately
$11.2 million.
For the years ended December 31, 2008, 2007 and 2006, a subsidiary
insurance agency of the Company, recorded commission income of $0.7 million,
$0.4 million and $0.4 million, respectively, related to premiums with AIFE.
This commission income is reflected as a reduction of insurance expense in
the consolidated financial statements of the Company for the years ended
December 31, 2008, 2007 and 2006, respectively.
In addition, Mr. Kibler, the Chief Executive Officer and a director
of the Company, Mr. Antonson, the Chief Financial Officer and a director of
the Company, as well as Mr. Venditti, a director of the Company, are the
sole shareholders of American Inter-Fidelity Corporation ("AIFC"), which
serves as the attorney in fact of AIFE. AIFC is entitled to receive a
management fee from AIFE. AIFE incurred management fees of approximately
$0.5 million, $0.5 million, and $0.6 million for the years ended December
31, 2008, 2007, and 2006, respectively. These management fees are available
to be paid as dividends to these officers and directors of the Company.
In 2008, 2007 and 2006, the Company paid consulting fees of $0.03
million, $0.03 million and $0.02 million, respectively, to Robert Scissors,
one of its directors, relating to insurance services.
The Company had notes payable due to its Chief Executive Officer
and Chief Financial Officer that were converted into 2,668,918 shares of
common stock of the Company in September 2007. (See Note 10).
7. LEASES
Operating Leases
The Company leases its administrative offices in Indiana from an
independent owner under an operating lease expiring on March 31, 2009.
In addition, the Company's subsidiaries lease office space and
land in Mississippi, Pennsylvania, Texas, Tennessee, South Carolina,
Georgia, Missouri, North Carolina, Indiana, California, Arkansas, and
Florida under operating leases ranging from one to four years.
Rent expense under these operating leases was $1.0 million,
$1.3 million, and $1.2 million for the years ended December 31, 2008,
2007, and 2006, respectively.
Future commitments under these operating leases are as follows:
2009 $ 994,826
2010 730,112
2011 445,593
2012 225,912
2013 225,912
_______________
$ 2,622,355
===============
Capital Leases
The Company leases equipment under agreements accounted
for as capital leases. The agreements expire at various dates through
2011 and are collateralized by all equipment under the leases. The net
book value of equipment under capital leases at December 31, 2008 was
approximately $150,000.
Capital Lease obligations - Monthly payments ranging
from $399 to $3,000, including interest ranging from
8.5% to 9.25%, maturing through October 2011 $151,304
Less: Current portion 107,196
_______
44,108
=======
Future minimum capital lease payments as of December 31, 2008 are as
follows:
2009 $ 107,196
2010 40,521
2011 15,732
__________
Total 163,449
Less amount representing interest (12,145)
___________
Present value of payments $ 151,304
8. BANK LINE OF CREDIT
The Company and its subsidiaries have a $22.0 million line of credit
that matures on October 1, 2010. This line of credit was increased on
December 18, 2008 from $15.0 million to $22.0 million in conjunction with
the ARL acquisition. Advances under this revolving line of credit are
limited to 75% of eligible accounts receivable. Unused availability
under this line of credit was $10.7 million at December 31, 2008. Under
the amended line of credit agreement, the Company's interest rate is based
upon certain financial covenants and may range from "One Month LIBOR" plus
3.35% to "One Month LIBOR" plus 4.35%. As of December 31, 2008, the interest
rate on this line of credit was 4.288%. The Company's accounts receivable,
property, and other assets collateralize advances under the agreement.
Borrowings up to $3.0 million are guaranteed by the Chief Executive
Officer and Chief Financial Officer of the Company. At December 31, 2008,
the outstanding borrowings on this line of credit were $11.3 million and
$1.6 million was outstanding at December 31, 2007. The significant increase
in 2008 relates to funding the retirement of $10 million of debt
assumed in the ARL acquisition.
This line of credit is subject to termination upon various events of
default, including failure to remit timely payments of interest, fees and
principal, any adverse change in the business of the Company or failure to
meet certain financial covenants. Financial covenants include: minimum net
worth requirements, maximum total debt service coverage ratio, and
prohibition of additional indebtedness without prior authorization. At
December 31, 2008 and 2007, the Company was in compliance with these financial
covenants. The balance outstanding under this line-of-credit agreement is
classified as a current liability at December 31, 2008 and 2007.
Historically the revolving line of credit has been extended prior to
maturity.
On October 20, 2005, the Company and its subsidiaries entered into
an Interest Rate Swap Agreement with U.S. Bank effective November 1, 2005
through November 1, 2008. This agreement was in the notional amount of
$3.0 million. The agreement capped the interest rate at 7.71% through the
term of the agreement. The fair value of the interest rate swap was minimal
at December 31, 2007 and 2006.
On January 15, 2009, the Company and its subsidiaries entered into
a no cost Interest Rate Swap Agreement with U.S. bank effective February
2, 2009 through February 1, 2012. This agreement is in the notional amount
of $10.0 million from February 2, 2009 through January 31, 2010, then $7.0
million from February 1, 2010 through January 31, 2011, then $4.0 million
from February 1, 2011 to February 1, 2012. The agreement provides for the
Company to pay interest at an annual rate of 1.64% times the notional
amount of the swap agreement, and receive interest at the LIBOR rate times
the notional amount of the swap. The Company did not enter into this
agreement for speculative purposes.
9. LONG TERM DEBT
As a part of the ARL acquisition, notes payable were assumed. All of the
long-term debt is collateralized by the property and equipment associated
with the debt. Long-term debt consists of the following at December 31,
2008:
2008
Maturity Interest Rate Monthly Payment Balance Due
July 2012 8.50% $ 1,584 $ 79,393
September 2009 9.00% 23,000 200,000
September 2010 12.00% 9,414 169,893
May 2011 10.00% 18,900 485,119
March 2010 4.00% 25,000 375,000
March 2011 9.51% 17,897 138,540
March 2012 9.53% 16,272 395,657
November 2012 9.90% 1,319 18,184
February 2008 11.17% 26,518 51,505
February 2010 8.85% 8,281 147,688
Other Notes payable and settlement obligations 128,844
_______________
2,189,823
Less: Current Portion 1,372,546
_______________
$ 817,277
===============
Future minimum payments as of December 31, 2008 are as follows:
2009 $ 1,372,546
2010 631,578
2011 128,205
2012 57,494
_________________
$ 2,189,823
=================
10. CONVERTIBLE SUBORDINATED DEBT
In November 2006, the long-term debt Payable to the Chief Executive
Officer and Chief Financial Officer was exchanged for new notes payable with
revised terms. In addition, the unpaid accrued interest of approximately $1.2
million was rolled into the new notes payable balance. As a result, the
principal balance of the new notes payable net of unamortized discount of
$0.3 million was approximately $3.6 million as of December 31, 2006. These
new notes payable accrued interest at a rate of prime less 1% with interest
payable quarterly. These notes payable also had a conversion feature at the
option of the holder into common stock of the Company at a conversion price
of $1.48 per share. The conversion feature was exercised and the outstanding
balance of this debt was converted into 2.7 million common shares on the
maturity date of September 22, 2007. Interest expense on this related party
debt was $0.2 million and $0.1 million in 2007 and 2006, respectively.
In 2006, based on the guidance under Emerging Issue Task Force
Issue 96-19, "Debtor's Accounting for Modification or Exchange of Debt
Instruments", the Company determined the revision of this debt to be a
modification of the debt. As a result, the fair value of the conversion
option, estimated at $0.4 million, was reflected as a discount on the debt
and accreted as additional interest expense over the term of the
debt.
11. EQUITY TRANSACTIONS
During 2008, the Company had 200,000 outstanding options to
purchase common stock, which have been excluded from the calculation of
diluted earnings per share because the effect would be anti-dilutive.
During the years ended December 31, 2007 and 2006, the Company had
outstanding convertible debt which was converted into 2,668,918 shares
of common stock in September 2007. Prior to conversion, these shares
were excluded from the calculation of diluted earnings per share because
the effect was anti-dilutive.
(a) In December 2008, as part of the acquisition of ARL, the
Company granted two employees a total of 200,000 options to purchase shares
of common stock at an exercise price of $0.80 per share. These options
vest over 4 years. The fair value of these options of $0.1 million was
calculated using a Black Scholes model with the following assumptions:
Dividend yield 0.0%
Risk-free rate 2.7%
Volatility 88%
Expected life (years) 7
The Company has no other options or warrants to purchase common stock
outstanding as of December 31, 2008, 2007 or 2006.
(b) In September 2007, the Company's Chief Executive Officer
and Chief Financial Officer elected to exercise the conversion feature
on certain convertible debt held by these individuals. As a result, the
debt with a principal value of $4.0 million was converted into 2,668,918
shares of the Company's common stock.
(c) During 2007, in an effort to increase the value of the
Company to the outstanding shareholders, the Company purchased
595,248 shares of its common stock for a total of $1.0 million. These
shares are reflected as treasury stock in the Company's
balance sheet and statement of shareholders' equity.
(d) In December 2005, the Company granted 151,515 shares
(75,757 each) of common stock to the Company's Chief Executive Officer
and Chief Financial Officer based on certain earnings criteria. These
shares vested as of January 1, 2006. As a result, the Company incurred
$0.2 million of compensation expense (based on the quoted market price
of the Company's stock on the date of grant) for the year ended
December 31, 2005. The shares were issued during the first quarter of
2006.
12. INCOME TAXES
The composition of income tax expense (benefit) is as follows:
December 31, 2008 2007 2006
____________________________________________________________________________________________________________________________
Current $ 1,806,240 $ 1,683,237 $ 1,337,044
Deferred (722,366) (295,000) 155,904
Benefit from operating loss carry-forward (1,182,365) (1,315,000) (1,076,775)
Adjustment of valuation allowance (8,747) 295,000 (155,904)
___________________ ___________________ __________________
$ (107,238) $ 368,237 $ 260,269
___________________ ___________________ __________________
The following summary reconciles income taxes at the maximum federal statutory rate with the effective rates for 2008,
2007, and 2006:
December 31, 2008 2007 2006
____________________________________________________________________________________________________________________________
Income tax expense at statutory rate $ 1,033,000 $ 1,095,214 $ 1,143,067
State income tax expense, net of federal tax benefit 323,879 292,835 349,881
Adjustment of valuation allowance (1,191,112) (1,019,812) (1,232,679)
True-up of prior year estimates (273,005) - -
__________________ __________________ __________________
$ (107,238) $ 368,237 $ 260,269
__________________ __________________ __________________
The Company and its wholly-owned subsidiaries file a consolidated
federal income tax return. Carolina National, LLC and US1 Logistics, LLC the
Company's 60% owned subsidiaries file separate federal income tax returns.
Deferred income taxes consist of the following:
December 31, 2008 2007
_________________________________________________________________________________
Deferred tax assets
Cumulative basis difference
in 60% owned LLCs $ 460,000 $ 367,000
AMT credit carryforward 355,993 -
Accounts receivable reserves 313,758 389,126
Insurance accruals 193,692 135,090
Net operating losses 552,331 1,734,696
Fixed assets 76,050 -
Intangible assets 185,193 -
Other 28,896 -
_________________________________________________________________________________
Total deferred tax assets 2,165,913 2,625,912
Less valuation reserve - (1,191,112)
_________________________________________________________________________________
Total net deferred tax asset 2,165,913 1,434,800
_________________________________________________________________________________
Less long-term portion (721,243) (717,400)
_________________________________________________________________________________
$ 1,444,670 $ 717,400
=================================
At December 31, 2008 and 2007, the Company has realized a net deferred
tax asset of $2.2 million and $1.4 million respectively, as it is more likely
than not that this amount will be realized as a result of anticipated future
taxable income to be generated by the Company. Due to the then uncertainty of
realization, a valuation allowance was maintained for the remaining deferred
tax asset at December 31, 2007.
The Company has net operating loss carry-forwards of approximately
$1.6 million at December 31, 2008. These carry-forwards are available to
offset taxable income in future years and substantially all of these carry-
forwards will expire in 2010. The Company also has an AMT credit carry
forward of $0.4 million available to reduce future federal income tax. This
credit may be carried forward indefinitely and can be used to reduce the
Company's federal tax liability.
The Company adopted FIN 48 on January 1, 2007, and recorded the
cumulative effect of a change in accounting principle by recording an
increase in the liability for uncertain tax positions of $0.6 million that
was accounted for as a credit to opening retained earnings. The liability
for uncertain tax positions at December 31, 2008 and 2007 and January 1,
2007 totaled $0.5 million, exclusive of interest and penalties of $0.4
million and $0.4 million at December 31, 2008 and 2007, respectively and
$0.4 million at January 1, 2007. This liability is recorded in the
Company's balance sheet in accrued expenses. No uncertain tax position
reserves were reversed or settled during 2008 or 2007. The entire
amount of this consolidated liability for uncertain tax positions would
affect the Company's effective tax rate upon favorable resolution of the
uncertain tax positions. Absent new experience in defending these
uncertain tax positions in the various jurisdictions to which they relate,
the Company cannot currently estimate a range of possible change of the
December 31, 2008 liability over the next twelve months.
The Company files a consolidated U.S. income tax return and tax returns
in various state and local jurisdictions. In the U.S., all tax years from 2004
through the present are subject to tax authority audits. In various states and
local jurisdictions all tax years from 2000 through the present are subject to
tax authority audits.
Interest and penalties related to tax positions taken in the Company's
tax returns are recorded in income tax expense in the consolidated statements
of operations.
13. RETIREMENT PLAN
ARL Transportation, LLC maintains a 401(k) retirement plan,
which covers substantially all employees. Eligibility requires completion of
one year of service and attaining the age of 21. The plan requires the employer
to match 25% of participant contributions up to a maximum of 6% of the
participant's compensation. The total employer contributions amounted to
approximately $500 in 2008.
14. COMMITMENTS AND CONTINGENCIES
Litigation
On November 4, 2005, Terrell C. Coleman and Willie B. Crocker
("Plaintiffs") filed a putative class action complaint (the "Complaint") in the
United State District Court for the Middle District of Florida (the "Court")
in Jacksonville, Florida, against Patriot Logistics, Inc., a wholly owned
subsidiary of the Company("Patriot").
The complaint alleged that certain aspects of Patriot's motor carrier
leases with its independent-contractor owner-operators violate certain federal
leasing regulations, and sought injunctive relief, an unspecified amount of
damages, and attorney's fees. This case was settled for $0.3 million in
December 2006. The settlement also resulted in Patriot's entering into a
new, more detailed independent contractor operating agreement with each of
its owner-operators.
The Company and its subsidiaries are involved in other litigation in
the normal course of its business. Management intends to vigorously defend
these cases. In the opinion of management, the other litigation now pending
will not have a material adverse affect on the consolidated financial
statements of the Company.
Other
In October 2006, the Company and the general manager of Patriot entered
into an agreement under which the Company granted the individual the option to
purchase 100% of the outstanding stock of Patriot for a purchase price equal to
the book value of Patriot. This option to purchase Patriot was extended in 2007
and now terminates in October 2009 or upon a change in control of the Company.
The option is immediately exercisable and maybe exercised in whole (not in
part) at anytime prior to October 2009. The fair value of this option was
determined to be deminimis. Patriot's revenue for the years ended December 31,
2008, 2007 and 2006 was $33.1 million, $39.3 million, and $46.4 million,
respectively. Patriot had pre-tax income (loss) of $0.59 million, $0.50 million
and ($0.28 million) for the years ended December 31, 2008, 2007 and 2006,
respectively.
15. SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)
(In thousands, except per share data)
Net Income
Operating Operating Net Per Share
Revenue Income Income basic & diluted
2008 $ 172,675 $ 4,178 $ 3,058 $ 0.21
___________________________________________________________________________________________________________________
Quarters:
Fourth 39,927 449 582 0.04
Third 46,061 1,485 973 0.07
Second 44,947 1,192 813 0.06
First 41,740 1,052 690 0.05
___________________________________________________________________________________________________________________
2007 $ 184,677 $ 5,001 $ 2,853 $ 0.23
___________________________________________________________________________________________________________________
Quarters:
Fourth 44,478 1,272 579 0.05
Third 46,378 1,278 789 0.06
Second 47,910 1,673 1,114 0.09
First 45,911 778 371 0.03
___________________________________________________________________________________________________________________
US 1 INDUSTRIES, INC.
VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED DECEMBER 31, 2006, 2007, AND 2008
Schedule II
Balance At Charged to Write-Offs
Beginning of Costs and Retirements & Balance At
Year Expenses Recoveries End of Year
Description
Year Ended December 31, 2006
Allowance for Doubtful Accounts
Receivable $ 1,365,000 $ 1,285,000 $ 1,658,000 $ 992,000
Valuation Reserve for Deferred
Taxes $ 7,617,652 $ (1,232,679)(1) $ (4,174,049)(2) $ 2,210,924
Year Ended December 31, 2007
Allowance for Doubtful Accounts
Receivable $ 992,000 $ 697,000 $ 452,000 $ 1,237,000
Valuation Reserve for Deferred
Taxes $ 2,210,924 $ (1,019,812)(1) $ - $ 1,191,112
Year Ended December 31, 2008
Allowance for Doubtful Accounts
Receivable $ 1,237,000 $ 1,820,000 $ 1,697,000 (3) $ 1,360,000
Valuation Reserve for Deferred
Taxes $ 1,191,112 $ (1,191,112)(1) $ - $ -
(1) Includes benefit from utilization of net operating losses and change in deferred taxes.
(2) Amount represents impact of net operating losses which expired unused.
(3) Amount is net of a $169,000 allowance for doubtful accounts related to accounts
receivable acquired in a December 2008 business combination.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
None.
Item 9A CONTROLS AND PROCEDURES
The Company maintains disclosure controls and procedures that are
designed to ensure that information required to be disclosed in the Company's
Exchange Act reports is recorded, processed, summarized and reported within the
time periods specified in the SEC's rules and forms, and that such information
is accumulated and communicated to the Company's management, including its
Chief Executive Officer and Chief Financial Officer, as appropriate, to allow
timely decisions regarding required disclosure. In designing and evaluating
the disclosure controls and procedures, management recognized that any
controls and procedures, no matter how well designed and operated, can provide
only reasonable assurance of achieving the desired control objectives, and
management is required to apply its judgment in evaluating the cost-benefit
relationship of possible controls and procedures.
As required by SEC Rule 13a-15(b), the Company carried out an
evaluation, under the supervision and with the participation of the
Company's management, including the Company's Chief Executive Officer and
the Company's Chief Financial Officer, of the effectiveness of the design
and operation of the Company's disclosure controls and procedures as of the
end of the period covered by this report. Based on the foregoing, the
Company's Chief Executive Officer and Chief Financial Officer concluded
that the Company's disclosure controls and procedures were effective at the
reasonable assurance level.
Management's Annual Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate
internal control over financial reporting for the Company. Internal control
over financial reporting is a process designed to provide reasonable assurance
regarding the reliability of our financial reporting and the preparation of
financial statements for external purposes in accordance with accounting
principles generally accepted in the United States of America. Internal
control over financial reporting includes policies and procedures for
maintaining records that in reasonable detail accurately and fairly reflect
our transactions; providing reasonable assurance that transactions are
recorded as necessary for the preparation of our financial statements;
providing reasonable assurance that receipts and expenditures of the Company
are made in accordance with management authorization; and providing
reasonable assurance that unauthorized acquisition, use or disposition of
Company assets that could have a material effect on our financial
statements would be prevented or detected on a timely basis. Because of
inherent limitations, internal control over financial reporting is not
intended to provide absolute assurance that a misstatement of our financial
statements would be prevented or detected.
Management conducted an evaluation of the effectiveness of our internal
control over financial reporting based on the framework in Internal Control-
Integrated Framework issued by the Committee of Sponsoring Organizations of the
Treadway Commission. Based on this evaluation, management concluded that the
Company's internal control over financial reporting was effective as of
December 31, 2008. Management's assessment of and conclusion on the
effectiveness of internal controls over financial reporting did not include the
controls of ARL,LLC which the Company acquired on December 18, 2008, and whose
financial statements reflect total assets and net revenues of 22% and 1%,
respectively, of the related consolidated balances as of and for the year ended
December 31 2008.
BDO Seidman, LLP, our independent registered public accounting firm has
issued an audit report on our internal control over financial reporting
which is included below.
Changes in Internal Control Over Financial Reporting
There were no changes in our internal control over financial reporting
during the quarter ended December 31, 2008 that have materially affected, or
are reasonably likely to materially affect, our internal control over
financial reporting.
Report of Independent Registered Public Accounting Firm
To the Shareholders and Board of Directors
US 1 Industries, Inc.
Valparaiso, Indiana
We have audited US 1 Industries, Inc's. internal control over financial
reporting as of December 31, 2008, based on criteria established in Internal
Control - Integrated Framework issued by the Committee of Sponsoring
Organizations of the Treadway Commission (the COSO criteria). US 1 Industries,
Inc's management is responsible for maintaining effective internal control over
financial reporting and for its assessment of the effectiveness of internal
control over financial reporting, included in the accompanying Item 9A,
Management's Report on Internal Control Over Financial Reporting. Our
responsibility is to express an opinion on the Company's internal control over
financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we
plan and perform the audit to obtain reasonable assurance about whether
effective internal control over financial reporting was maintained in all
material respects. Our audit included obtaining an understanding of internal
control over financial reporting, assessing the risk that a material weakness
exists, and testing and evaluating the design and operating effectiveness
of internal control based on the assessed risk. Our audit also included
performing such other procedures as we considered necessary in the
circumstances. We believe that our audit provides a reasonable basis for our
opinion.
A company's internal control over financial reporting is a process 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. A company's
internal control over financial reporting includes those policies and
procedures that (1) pertain to the maintenance of records that, in reasonable
detail, accurately and fairly reflect the transactions and dispositions of
the assets of the company; (2) provide reasonable assurance that transactions
are recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles, and that receipts
and expenditures of the company are being made only in accordance with
authorizations of management and directors of the company; and (3) provide
reasonable assurance regarding prevention or timely detection of
unauthorized acquisition, use, or disposition of the company's assets that
could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting
may not prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may
become inadequate because of changes in conditions, or that the degree of
compliance with the policies or procedures may deteriorate.
As indicated in the accompanying Item 9A, Management's Report on Internal
Control over Financial Reporting, management's assessment of and conclusion
on the effectiveness of internal control over financial reporting did not
include the internal controls of ARL, LLC which was acquired on December 18,
2008, and which is included in the consolidated balance sheet of US 1
Industries, Inc. as of December 31, 2008 and the related consolidated
statements of operations, shareholders' equity, cash flows and supplemental
schedule for the year then ended. ARL, LLC constituted 22% of total assets as
of December 31, 2008, and 1% of revenues for the year then ended. Management
did not assess the effectiveness of internal control over financial reporting
of ARL, LLC because of the timing of the acquisition which was completed on
December 18, 2008. Our audit of internal control over financial reporting
of US 1 Industries, Inc. also did not include an evaluation of the internal
control over financial reporting of ARL, LLC.
In our opinion, US 1 Industries, Inc. maintained, in all material respects,
effective internal control over financial reporting as of December 31, 2008,
based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company
Accounting Oversight Board (United States), the consolidated balance sheets of
US 1 Industries, Inc. as of December 31, 2008 and 2007, and the related
consolidated statements of income, shareholders' equity, cash flows and the
supplemental schedule for each of the three years in the period ended December
31, 2008 and our report dated April 8, 2009 expressed an unqualified opinion
thereon.
/s/ BDO Seidman, LLP
______________________
Chicago, Illinois
April 8, 2009
Item 9B. Other Information
None.
PART III
Item 10. Directors, Executive Officers and Corporate Governance
DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The directors and executive officers of the Company as of March 10, 2009
were as follows:
NAME AGE POSITION
Michael E. Kibler 68 President, Chief Executive Officer, and Director
Harold E. Antonson 69 Chief Financial Officer, Treasurer, and Director
Lex Venditti 56 Director
Robert I. Scissors 75 Director
Brad James 53 Director
Name Office and Experience
Michael E. Kibler Mr. Kibler is President and Chief Executive Officer of the Company
and has held these positions since September 13, 1993 and has been
a director since 1993. He also has been President of Enterprise
Truck Lines, Inc., an interstate trucking company engaging in
operations similar to the Company's, since 1972. Mr. Kibler is a
partner of August Investment Partnership and is also a shareholder
of American Inter-Fidelity Corporation, the attorney-in-fact of
AIFE, an entity that provides auto liability and cargo insurance
to the Company.
Harold E. Antonson Mr. Antonson is Chief Financial Officer of the Company, a position
he has held since March 1998. Mr. Antonson is a certified public
accountant. Prior to joining the Company, he was Secretary/
Treasurer of AIFE. Mr. Antonson is also a partner in August
Investment Partnership. Mr. Antonson was elected a director and
Treasurer of the Company in November 1999. Mr. Antonson is also a
shareholder of American Interfidelity Corporation, the attorney-in-
fact of AIFE, an affiliated entity that provides auto liability and
cargo insurance to the Company.
Lex Venditti Mr. Venditti has served as a director of the Company since 1993.
Mr. Venditti is the General Manager of AIFE, an insurance
reciprocal located in Indiana. Mr. Venditti is also a shareholder
of AIFC, the attorney-in-fact of AIFE, an entity that provides auto
liability and cargo insurance to the Company.
Robert Scissors Mr. Scissors has been a Director of the Company since 1993. Mr.
Scissors began his career in the Insurance Industry in 1957. In
1982, Mr. Scissors joined a brokerage firm called Alexander/
Alexander where he worked until retiring in 1992. Mr. Scissors
currently works as an insurance consultant and broker
Brad James Mr. James is the President of Seagate Transportation Services, Inc.
since 1982. Mr. James graduated from Bowling Green University with
a Bachelors Degree in Business Administration. He has been in the
trucking industry since 1977. Mr. James was elected a director of
the Company in 1999.
There are no family relationships between any director or executive officer
of the Company.
Code of Ethics
The Company has adopted a Code of Ethics that applies to Mr. Kibler,
the Chief Executive Officer and Mr. Antonson, the Chief Financial Officer, a
copy of which was filed as Exhibit 14.1 to the Company's 2003 Form 10-K.
Audit Committee and Audit Committee Financial Expert
The Company has an audit committee consisting of Lex Venditti and Robert
Scissors. The Company's Board of Directors has determined that Mr. Venditti is
an "audit committee financial expert" as defined under SEC rules. However,
because of his position as general manager of AIFE and as a shareholder of
American Inter-Fidelity Corporation, Mr. Venditti is not considered an
independent director as defined under Rule 10A-3(b) of the Exchange Act. In
addition, Mr. Scissors receives fees for consulting services provided to the
Company and is also not considered an independent director.
The audit committee is responsible for selecting the Company's
independent auditors and approving the scope, fees and terms of all audit
engagements and permissible non-audit services provided by the independent
auditor, as well as assessing the independence of the Company's independent
auditor from management. The audit committee also assists the Board in
oversight of the Company's financial reporting process and integrity of its
financial statements, and also reviews other matters with respect to the
Company's accounting, auditing and financial reporting practices as it may
find appropriate or may be brought to its attention.
Compliance with Section 16(a) of the Exchange Act
Section 16(a) of the Securities Exchange Act of 1934 requires the
Company's directors, executive officers and persons who own more than 10% of
the outstanding common stock of the Company to file with the Securities and
Exchange Commission reports of changes in ownership of the common stock of the
Company held by such persons. Officers, directors and greater than 10%
shareholders are also required to furnish the Company with copies of all
forms they file under this regulation. There were no late filings during
2008. To the Company's knowledge based solely on a review of the copies of
such reports furnished to the Company, and representations that no other
reports were required, during the year ended December 31, 2008, all
Section 16(a) filing requirements applicable to its officers, directors
and greater than 10% shareholders were complied with.
Director Nomination Procedures
The Company will consider nominations for directors submitted by
shareholders of the Company. Shareholders who wish to make a nomination for
director should send the name and biographical information with respect to such
nominee to the Secretary of the Company along with a certification by such
nominee that he or she will serve as a director of the Company if elected.
There have not been any changes to this process in the past year.
Item 11. Executive Compensation
Overview of Executive Compensation Program
The Company does not have a formalized program for determining executive
compensation. Any executive compensation changes are taken before the Board of
Directors for approval. In general, our executive officers receive
compensation consisting of a salary and on occasion, there have been stock
bonuses issued. Executive officers participate in the same group health
insurance program as the Company's full-time employees. The Company has not
used, nor intends to use an outside consultant in connection with making
compensation decisions.
Objectives of Compensation Program
The Company's compensation of executive officers is intended to
provide requisite compensation to the Chief Executive Officer ("CEO") and the
Chief Financial Officer ("CFO"). Because the CEO and CFO are large
shareholders of the Company, the CEO and CFO should be motivated to act in
the best interest of the Company's shareholders.
Current Executive Officers
The Company currently has two executive officers, Michael Kibler,
our CEO, and Harold Antonson, our CFO.
The following Summary Compensation Table sets forth compensation paid
by the Company during the years ended December 31, 2008, 2007 and 2006 to
Mr. Michael E. Kibler, Chief Executive Officer and Mr. Harold Antonson,
Chief Financial Officer, where applicable. No other executive officer of the
Company earned in excess of $0.1 million.
Summary Compensation Table
Stock All Other
Name and Position Year Salary Awards Compensation Total
Michael Kibler 2008 $ 97,315 - - $ 97,315
Chief Executive Officer
2007 $ 126,593 - - $ 126,593
2006 $ 93,841 - - $ 93,841
Harold Antonson 2008 $ 97,419 - - $ 97,419
Chief Financial Officer
2007 $ 122,460 - - $ 122,460
2006 $ 98,071 - - $ 98,071
Option exercises and option values
No stock options have been issued to Mr. Michael E. Kibler, Chief
Executive Officer or Mr. Harold Antonson, Chief Financial Officer for the years
ended December 31, 2008, 2007 or 2006 and they hold no such options as of
December 31, 2008.
COMPENSATION OF DIRECTORS
Directors who are also employees of the Company receive no additional
compensation for their services as directors. In each of 2008 and 2007, the
Company paid consulting fees of $0.03 million to Robert Scissors, relating to
insurance services. No other compensation was paid to our non-executive board
members during 2008, 2007 or 2006. The Company will reimburse its directors
for travel expenses and other out-of-pocket costs incurred in connection with
the Company's board of directors' meetings. Because the Company has held its
board of directors' meeting via teleconference during the past year, no costs
have been incurred associated with these meetings.
COMPENSATION COMMITTEE
The Company does not have a compensation committee.
The current members of the Board of Directors (Harold Antonson, Brad
James, Michael Kibler, Robert Scissors and Lex Venditti) participated in
deliberation concerning the Company's executive officer compensation, although
the Chief Financial Officer, Harold Antonson and Chief Executive Officer,
Michael Kibler abstain from all votes. There are no compensation committee
interlocks.
Item 12. Security Ownership of Certain Beneficial Owners and Management
and Related Stockholder Matters
Security Ownership of Management
The following table sets forth the number and percentage of shares
of Common Stock that as of March 9, 2009 are deemed to be beneficially owned
by each director of the Company and director nominee, by each executive officer
of the Company and by all directors and executive officers of the Company as
a group.
Number of Shares of
Name and position Common Stock Beneficially
Owned Percentage of Class
Harold E. Antonson
Chief Financial Officer, Treasurer
and Director 5,129,374 (1) 36.0%
Michael E Kibler
Director, President and
Chief Executive Officer 5,009,263 (1) 35.2%
Brad A. James Director 166,981 (2) 1.2%
Robert I. Scissors, Director 64,770 (3) *
Lex L. Venditti Director 217,500 (4) 1.5%
All Directors and Executive Officers 7,998,962 56.2%
* Indicates less than 1% ownership.
(1) Includes shares held by August Investment Partnership, August Investment
Corporation, Eastern Refrigerated Transport, LLC, Enterprise Truck Lines, LLC,
Seagate Transportation Services, Inc., and American Inter-Fidelity Exchange, of
which Messrs. Kibler and Antonson are either directors, partners, or significant
shareholders or otherwise share the voting and dispositive authority with respect
to these shares.
(2) Includes shares held by Seagate Transportation Services, Inc., of which Mr. James
is a director, partner and significant shareholder. or significant shareholder.
(3) Includes 11,770 shares held in the Saundra L. Scissors Trust of which Mr. and Mrs.
Scissors are joint trustees.
(4) Includes shares held by American Inter-Fidelity Exchange, of which Mr. Venditti is
a director and significant shareholder of the attorney-in-fact.
Security Ownership of Certain Beneficial Owners
The following table sets forth the number and percentage of shares
of Common Stock beneficially owned as of March 9, 2009 by any person who is
known to the Company to be the beneficial owner of more than five percent of
the outstanding shares of Common Stock:
Name and Address Number of Shares of Common
of Beneficial Owner Stock Beneficially Owned Percentage of Class
_________________________ __________________________ ___________________
Harold E. Antonson
8400 Louisiana Street
Merrillville, IN 46410 5,129,374 (1) 36.0%
August Investments Partnership
8400 Louisiana Street
Merrillville, IN 46410 1,150,946 8.1%
Michael Kibler
8400 Louisiana Street
Merrillville, IN 46410 5,009,263 (1) 35.2%
(1) Includes shares held by August Investment Partnership, August
Investment Corporation, Eastern Refrigerated Transport, Inc.,
Enterprise Truck Lines, Inc., Seagate Transportation Services,
Inc., and American Inter-Fidelity Exchange, of which Messrs.
Kibler and Antonson are either directors, partners, or significant
shareholders or otherwise share the voting and dispositive
authority with respect to these shares. Also includes 200,000
shares of restricted stock for each.
Item 13. Certain Relationships, Related Transactions, and Director
Independence
One of the Company's subsidiaries provides safety, management,
and accounting services to companies controlled by the Chief Executive
Officer and Chief Financial Officer of the Company. These services are
priced to cover the cost of the employees providing the services. Charges
related to those services were approximately $0.06 million, $0.07 million
and $0.07 million in 2008, 2007, and 2006, respectively. Accounts
receivable due from entities affiliated through common ownership was
$1.0 million and $0.4 million as of December 31, 2008 and 2007,
respectively and are expected to be collected.
One of the subsidiaries' insurance providers, American Inter-Fidelity
Exchange ("AIFE"), is managed by Mr. Venditti, a director of the Company and
the Company has an investment of $0.1 million in the provider. AIFE provides
auto liability and cargo insurance to several subsidiaries of the Company
as well as other entities related to the Company by common ownership. For
the years ended December 31, 2008, 2007 and 2006, cash paid to AIFE for
insurance premiums and deductibles was approximately $4.9 million, $6.1
million, and $5.4 million, respectively.
The subsidiaries exercised no control over the operations of AIFE.
As a result, the Company recorded its investment in AIFE under the cost
method of accounting for each of the three years in the period ended December
31, 2008. Under the cost method, the investment in AIFE is reflected at its
original amount and income is recognized only to the extent of dividends paid
by the investee. There were no dividends declared by AIFE for the years ended
December 31, 2008, 2007 and 2006.
If AIFE incurs a net loss, the loss may be allocated to the various
policyholders based on each policyholder's premium as a percentage of the total
premiums of AIFE for the related period. There has been no such loss assessment
for any of the three years in the period ended December 31, 2008. The
subsidiaries currently account for the majority of the premiums of AIFE. At
December 31, 2008, AIFE had unaudited net worth of approximately $11.2 million.
For the years ended December 31, 2008, 2007 and 2006, a subsidiary
insurance agency of the Company, recorded commission income of $0.7 million,
$0.4 million and $0.4 million related to premiums with AIFE. This commission
income is reflected as a reduction of insurance expense in the consolidated
financial statements of the Company for the years ended December 31, 2008,
2007 and 2006, respectively.
In addition, Mr. Kibler, the Chief Executive Officer and a director
of the Company, Mr. Antonson, the Chief Financial Officer and a director
of the Company, as well as Mr. Venditti, a director of the Company, are the
sole shareholders of American Inter-Fidelity Corporation ("AIFC"), which
serves as the attorney in fact of AIFE. AIFC is entitled to receive a
management fee from AIFE. AIFE incurred management fees of approximately
$0.5 million, $0.5 million, and $0.6 million for the years ended December
31, 2008, 2007, and 2006, respectively. These management fees are
available to be paid as dividends to these officers and directors of
the Company.
In each of 2008, 2007 and 2006, the Company paid consulting fees
of $0.03 million, $0.03 million and $0.02 million, respectively, to Robert
Scissors, one of its directors, relating to insurance services.
The Company had notes payable due to its Chief Executive Officer
and Chief Financial Officer that were converted into 2,668,918 shares of
common stock of the Company in September 2007.
The Company's Board of Directors are advised of all related party
transactions and reviews these transactions as deemed appropriate.
The Company's directors are identified in response to Item 10 above.
The Company considers Messrs. James and Scissors to be independent. In making
this determination, the Company has applied the NASDAQ definition of
independence.
Item 14. Principal Accountant Fees and Services
The following table shows the fees paid or accrued by the Company for
the audit and other services provided by BDO Seidman, LLP
2008 2007
Audit Fees (1) $ 338,630 $ 175,000
Audit-Related Fees (2) $ 134,022 $ 0
Tax Fees (3) $ 0 $ 0
All Other Fees (4) $ 0 $ 0
___________ ___________
Total $ 472,652 $ 175,000
=========== ===========
(1) Audit fees include fees associated with the annual audit of our consolidated financial
statements, audit of internal control over financial reporting, and reviews of our
quarterly reports on Form 10-Q.
(2) Audit-related fees include fees associated with the historical audits and quarterly
reviews in conjunction with the acquisition of ARL.
(3) There were no tax fees.
(4) There were no other services or fees.
The Audit Committee must pre-approve audit-related and non-audit
services not prohibited by law to be performed by the Company's
independent registered public accounting firm.
PART IV
Item 15. Exhibits and Financial Statement Schedules
(a) (1) Financial Statements:
Report of Independent Registered Public Accounting Firm 23
Consolidated Balance Sheets as of December 31, 2008 and 2007 24-25
Consolidated Statements of Income for the years ended
December 31, 2008, 2007, and 2006 26
Consolidated Statements of Shareholders' Equity for the years
ended December 31, 2008, 2007, and 2006 27
Consolidated Statements of Cash Flows for the years ended
December 31, 2008, 2007, and 2006 28-29
Notes to Consolidated Financial Statements 30
(a)(2) Financial Statement Schedules:
Schedule of Valuation and Qualifying Accounts 41
Other schedules are not included because of the absence of the
conditions under which they are required or because the required information
is included in the consolidated financial statements or notes thereto.
(a)(3) List of Exhibits
The following exhibits, numbered in accordance with Item 601 of
Regulation S-K, are filed as part of this report:
Exhibit Articles of Incorporation of the Company
3.1 (incorporated herein by reference to the Company's Proxy Statement of
November 9, 1993)
Exhibit By-Laws of the Company
3.2 (incorporated herein by reference to the Company's Annual Report on Form
10-K for the year ended December 31, 1994)
Exhibit Amended and Restated Loan Agreement with US BANK and Carolina National
10.1 Transportation Inc., Gulfline Transport Inc., Five Star Transport,
Inc., Cam Transport, Inc., Unity Logistic Services, Inc., ERX, Inc.,
Friendly Transport, Inc., Transport Leasing, Inc., Harbor Bridge
Intermodal, Inc., Patriot Logistics, Inc., Liberty Transport, Inc.,
Keystone Lines Corporation, and US 1 Industries, Inc. (incorporated
by reference to the Company's Form 10-Q for the nine months ended
September 30, 2005 filed on November 11, 2005)
Exhibit Amendment to Amended and Restated Loan Agreement with US BANK and
10.2 Carolina National Transportation Inc., Gulfline Transport Inc.,
Five Star Transport, Inc., Cam Transport, Inc., Unity Logistic
Services, Inc., ERX, Inc., Friendly Transport, Inc., Transport
Leasing, Inc., Harbor Bridge Intermodal, Inc., Patriot Logistics,
Inc., Liberty Transport, Inc., Keystone Lines Corporation, and
US 1 Industries, Inc. (incorporated by reference to the Company's
Form 10-Q for the nine Months ended September 30, 2005 filed on
November 11, 2005)
Exhibit Second Amendment to Amended and Restated Loan Agreement with US BANK
10.3 and Carolina National Transportation Inc., Gulfline Transport Inc.,
Five Star Transport, Inc., Cam Transport, Inc., Unity Logistic
Services, Inc., ERX, Inc., Friendly Transport, Inc., Transport
Leasing, Inc., Harbor Bridge Intermodal, Inc., Patriot Logistics,
Inc., Liberty Transport, Inc., Keystone Lines Corporation, and US
1 Industries, Inc. (incorporated by reference to the Company's
Form 10-Q for the nine months ended September 30, 2005 filed on
November 11, 2005)
Exhibit Amendment to Amended and Restated Loan Agreement with US BANK and
10.4 Carolina National Transportation LLC, Gulfline Transport Inc., Five
Star Transport, Inc., Cam Transport, Inc., Unity Logistic Services,
Inc., ERX, Inc., Friendly Transport, Inc., Transport Leasing, Inc.,
Harbor Bridge Intermodal, Inc., Patriot Logistics, Inc., Liberty
Transport, Inc., Keystone Lines Corporation, TC Services, Inc.,
Freedom Logistics, LLC, Thunderbird Logistics, LLC, Thunderbird Motor
Express, LLC, US1 Logistics, LLC, and US 1 Industries, Inc. .
(incorporated by reference to the Company's Form 10-Q for the six
months ended June 30, 2007 filed on August 14, 2007)
Exhibit Amendment to Amended and Restated Loan Agreement with US BANK and Blue
10.5 and Grey Brokerage, Inc., Cam Transport, Inc., Carolina National
Logistics, Inc., Carolina National Transportation, LLC, Five Star
Transport, LLC, Friendly Transport, LLC, Gulf Line Transportation,
LLC, Harbor Bridge Intermodal Inc., Keystone Lines, Corp., Keystone
Logistics, Inc., Liberty Transport, Inc., Patriot Logistics, Inc.,
Risk Insurance Services, LLC, TC Services, Inc., Transport Leasing,
Inc., Unity Logistics Services Inc., and US1 Logistics, LLC.
(incorporated by reference to the Company's Form 10-Q for the six
months ended June 30, 2007 filed on August 14, 2007)
Exhibit Amendment to Amended and Restated Loan Agreement with US BANK and
10.6 Blue and Grey Brokerage, Inc., Cam Transport, Inc., Carolina National
Logistics, Inc., Carolina National Transportation, LLC, Five Star
Transport, LLC, Friendly Transport, LLC, Gulf Line Transportation,
LLC, Harbor Bridge Intermodal Inc., Keystone Lines, Corp., Keystone
Logistics, Inc., Liberty Transport, Inc., Patriot Logistics, Inc.,
Risk Insurance Services, LLC, TC Services, Inc., Thunderbird
Logistics, LLC, Thunderbird Motor Express, LLC, Transport Leasing,
Inc., Unity Logistics Services Inc., and US1 Logistics, LLC.
(incorporated by reference to the Company's Form 8-K announcing
the completion of the Acquisition or Disposition of Assets filed on
December 24, 2008)
Exhibit US 1 Industries, Inc. Code of Ethics (incorporated by reference to the
14.1 Company's Form 10-K for the year ended December 31, 2003 filed on
March 26, 2005
Exhibit Subsidiaries of the Registrant
21.1
Exhibit Rule 13a-14(a)\15d-14a(a) Certifications
31.1
Exhibit Section 1350 Certifications
32.1
SIGNATURES
Pursuant to the requirements of Sections 13 and 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 there unto duly
authorized.
US 1 INDUSTRIES, INC.
By: /s/ Michael E. Kibler
_______________________________________
Michael E. Kibler
President & Chief Executive Officer
Date: April 9, 2009 (Principal Executive Officer)
By: /s/ Harold Antonson
_______________________________________
Harold Antonson
Chief Financial Officer & Treasurer
(Principal Financial & Accounting 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: April 9, 2009 /s/ Michael E. Kibler
___________________________
Michael E. Kibler, Director
Date: April 9, 2009 /s/ Robert I. Scissor
___________________________
Robert I. Scissors, Director
Date: April 9, 2009 /s/ Lex L. Venditti
____________________________
Lex L. Venditti, Director
Date: April 9, 2009 /s/ Brad James
_____________________________
Brad James, Director
Date: April 9, 2009 /s/ Harold Antonson
_____________________________
Harold Antonson, Director