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, 2009.
___ 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 whether the registrant has submitted
electronically and posted on its corporate website, if any, every
Interactive Data File required to be submitted and posted pursuant to
Rule 405 of Regulation S-T during the preceding 12 months (or such
shorter period that the registrant was required to submit and post
such files.
Yes___ No___
Indicate by check mark if disclosure of delinquent filers pursuant
to Item 405 of Regulation S-K is not contained herein, and will not
be contained, to the best of registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III
of this Form 10-K or any amendment to this Form 10-K. ___
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See definitions of large accelerated filer, 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 $12,569,392 (based on the per share closing
price on June 30, 2009, the last business day of the Company's second
fiscal quarter.) For purposes of the forgoing statement, directors,
officers and 10% shareholders 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............................................................4
Item 1. Business.......................................4
Item 1A. Risk Factors..................................7
Item 1B. Unresolved Staff Comments.....................10
Item 2. Properties.....................................10
Item 3. Legal Proceedings..............................11
Item 4. Reserved.......................................11
PART II...........................................................12
Item 5. Market for Registrant's Common Equity, Related
Stockholder Matters, and Issuer Purchases of
Equity Securities..............................12
Item 6. Selected Financial Data........................13
Item 7. Management's Discussion and Analysis of
Financial Condition and Results of Operations..14
Item 7A. Quantitative and Qualitative Diclosures
about Market Risk.............................27
Item 8. Financial Statements and Supplementary
Data...........................................27
Item 9. Changes in and Disagreements with Accountants
on Accounting and Financial Disclosure.........49
Item 9A(T). Controls and Procedures.......................49
Item 9B. Other Information.............................50
PART III..........................................................52
Item 10. Directors, Executive Officers and Corporate
Governance.....................................52
Item 11. Executive Compensation.........................53
Item 12. Security Ownership of Certain Beneficial
Owners and Management and Related
Stockholder Matters............................55
Item 13. Certain Relationships, Related Transactions,
and Director Independence......................56
Item 14. Principal Accountant Fees and Services.........58
PART IV...........................................................59
Item 15. Exhibits and Financial Statement Schedules.....59
SIGNATURES........................................................62
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" and we refer to the subsidiaries that operate the trucking business
as the "Operating Subsidiaries." The Company's business consists principally
of truckload operations, for which the Company, through its subsidiaries,
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, LLC, AFT
Transport, LLC, 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 1 LLC (formerly known
as 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 Operating Subsidiaries carry virtually all forms of freight
transported by truck, including specialized trucking services such as
containerized, refrigerated, and flatbed transportation.
The Operating Subsidiaries conduct 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
Operating Subsidiaries pay 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 Operating Subsidiaries
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 Operating Subsidiaries conduct the majority of this 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 2009, Operating Subsidiaries, utilized the services of
approximately 168 agents. No agent has accounted for more than 10% of
revenue during 2009, 2008 or 2007. The Company, through its subsidiaries,
shipped freight for approximately 1,000 customers in 2009, 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, through its subsidiaries, 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, through its subsidiaries,
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 Operating Subsidiaries
are required to conduct random drug testing, enforce hours of service
requirements, and monitor maintenance of vehicles.
Employees
At December 31, 2009, the Operating Subsidiaries had approximately
89 full-time employees. The Company's employees are not covered by a
collective bargaining agreement.
Competition
The trucking industry is highly competitive. The Operating
Subsidiaries compete 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
Operating Subsidiaries also compete with private carriage conducted by
existing and potential customers. In addition, the Operating
Subsidiaries compete 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
The Operating Companies purchase auto liability insurance
coverage of up to $1.0 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 insurance providers to the Operating Subsidiaries,
American Inter-Fidelity Exchange (AIFE), is managed by Lex Venditti, a
director of the Company. One of the Company's subsidiaries 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, 2009, 2008 and 2007, cash paid to AIFE for insurance
premiums and deductibles was approximately $3.9 million, $4.9 million, and
$6.1 million, respectively.
Neither Operating Subsidiaries exercise 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,
2009, 2008, and 2007. 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, 2009, 2008 and 2007. For the years ended December
31, 2009, 2008 and 2007, a subsidiary insurance agency of the Company,
recorded commission income of $0.7 million, $0.7 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, 2009, 2008 and
2007, 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 was no such loss
assessment for any of the three years ended December 31, 2009, 2008, and 2007.
In addition, Michael Kibler, the Chief Executive Officer and a director
of the Company, 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 for each of the years ended December 31,
2009, 2008, and 2007, 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 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.
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 Operating 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, and its subsidiaries, 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 that
would cause compliance with applicable environmental regulations to have a
material effect on the Company's earnings or competitive position.
Environmental Regulation
Neither the Company nor its subsidiaries have any known environmental
violations against it.
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 Operating Subsidiaries 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's subsidiaries
generally retain deductibles ranging from $5,000 to $50,000 per occurrence, 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 Operating Subsidiaries market their services primarily through
independent commission agents. Currently, they have a network of approximately
168 agents. During 2009, 56 of these agents generated revenue for US 1 of at
least $1.0 million, and no one agent generated more than $10.0 million of
US 1's total revenue. The Operating Subsidiaries compete with motor carriers
and other third parties for the services of these independent agents. The
Operating Subsidiaries contract 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
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," the Operating Subsidiaries do not generally own trucks and rely on
owner/operators who operate as independent contractors and unrelated trucking
companies to transport freight for its customers. Operating Subsidiaries
compete with other motor carriers and third parties for the services of
owner/operators. Almost all of the freight hauled by the Company, through its
subsidiaries, 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 2010 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 2010. The
fair value of this option was determined to be deminimis. Patriot Logistics'
revenue was $26.4 million for the year ended December 31, 2009 and $33.1
million for the year ended December 31, 2008. Patriot Logistics had pre-tax
income of approximately $0.03 million and $0.6 million for the years ended
December 31, 2009 and 2008, 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 and its
subsidiaries rely, 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 and its subsidiaries' 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. The Operating 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 Operating Subsidiaries.
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.
As of December 31, 2009, financial covenants included: maximum total
debt service coverage ratio and prohibition of additional indebtedness
without prior authorization. At December 31, 2009, the Company, and its
subsidiaries, was non-compliant with these covenants. The Company's lender
has issued a waiver of these violations and the Company anticipates that it
will meet its covenant requirements in the future. At December 31, 2008, the
Company, and its subsidiaries were in compliance with these financial covenants.
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 $7,500 monthly. Patriot Logistics, Inc. leases a truck terminal in Fort
Smith, AR 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 Lease
Subsidiary City State Sq. Ft. Monthly Expiration
ARL, LLC Hebron OH 1,250 1,250 10/31/2010
ARL, LLC Moon Township PA 33,920 18,826 10/14/2025
ARL, LLC Garland TX 26,000 6,717 6/30/2011
Cam Transport, Inc. Gulfport MS 1,130 1,442 8/31/2012
Carolina National Transportation, LLC Mt. Pleasant SC 6,280 10,865 6/30/2011
Keystone Logistics South Bend IN 4,451 3,148 month to month
Patriot Logistics, Inc. Atlanta GA 49,250 1,936 8/31/2011
Patriot Logistics, Inc. Charlotte NC 500 2,825 12/31/2011
Patriot Logistics, Inc. Dallas TX 5.0 acres 3,800 month to month
Patriot Logistics, Inc. Ft Smith AR 13,250 2,618 month to month
Patriot Logistics, Inc. Houston TX 33,000 10,500 12/31/2011
Patriot Logistics, Inc. Irving TX 1,440 1,659 4/7/2010
Patriot Logistics, Inc. Jacksonville FL 1,000 2,140 7/31/2010
Patriot Logistics, Inc. Laredo TX 400 1,100 month to month
Patriot Logistics, Inc. Memphis TN 4,500 5,500 7/31/2011
TC Services, Inc Valparaiso IN 7,000 7,500 3/31/2012
Thunderbird Logistics Houston TX 1,017 1,475 month to month
Thunderbird Logistics Terrell TX 1,700 1,400 2/9/2011
Thunderbird Motor Express Crown Point IN 1,225 1,120 6/30/2010
Transport Leasing, Inc Ft. Smith AR 850 507 month to month
US1 Logistics, LLC St Augustine FL 1,340 1,841 3/31/2010
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 certain litigation
matters in the normal course of its business. Management intends to
vigorously defend these cases. In the opinion of management, any negative
outcome from litigation now pending will not have a material adverse affect
on the consolidated financial statements of the Company.
Item 4. Reserved
Part II
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, 2009, there were approximately 3,000 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 Informaiton
PLAN CATEGORY NUMBER OF
NUMBER OF WEIGHTED- SECURITIES
SECURITIES TO BE AVERAGE REMAINING
ISSUED UPON EXERCISE PRICE AVAILABLE FOR
EXERCISE OF OF OUTSTANDING FUTURE ISSUANCE
OUTSTANDING OPTIONS UNDER EQUITY
OPTIONS, WARRANTS WARRANTS AND COMPENSATION
AND RIGHTS RIGHTS 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)............... 300,000 $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, 2008 and 2009.
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.
2009 High Low
_______________ _______ _______
First Quarter $ 0.90 $ 0.66
Second Quarter 1.03 0.64
Third Quarter 0.90 0.71
Fourth Quarter 0.98 0.52
2008
_______________ _______ _______
First Quarter 1.85 1.30
Second Quarter 1.59 1.30
Third Quarter 1.39 0.84
Fourth Quarter 1.20 0.59
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, 2009,
2008, and 2007 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,
____________________________________________________________________________________
2009 2008 2007 2006 2005
STATEMENT OF INCOME DATA:
OPERATING REVENUE $ 179,732 $ 172,675 $ 184,677 $ 190,976 $ 175,625
OPERATING EXPENSES:
Purchased transportation 123,254 121,928 132,444 139,149 131,241
Commissions 26,336 21,955 22,406 21,866 17,243
Other operating costs and expenses (A) 31,442 24,614 24,826 24,999 22,659
OPERATING (LOSS) INCOME (1,299) 4,178 5,001 4,962 4,483
Interest expense 732 159 780 790 611
NET (LOSS) INCOME BEFORE INCOME TAXES (1,738) 4,264 4,397 4,351 4,206
INCOME TAX (EXPENSE) BENEFIT (590) 107 (368) (260) (54)
NET (LOSS) INCOME (2,329) 4,371 4,029 4,091 4,152
Net income attributable to non
controlling interest 257 1,313 1,176 989 35
NET (LOSS) INCOME ATTRIBUTABLE TO
US1 INDUSTRIES, INC. (2,586) 3,058 2,853 3,102 4,117
Basic and Diluted Net (loss) income per
common share $ (0.18) $ 0.21 $ 0.23 $ 0.25 $ 0.34
Weighted average shares outstanding:
Basic 14,243,409 14,243,409 12,679,087 12,169,739 12,018,224
Diluted 14,243,409 14,243,409 12,679,087 12,169,739 12,169,739
BALANCE SHEET DATA (at end of year):
Total assets $ 41,892 $ 51,004 $ 32,157 $ 32,563 $ 33,290
Long-term debt, including current
portion 12,097 16,744 2,371 7,271 9,776
Working capital 9,363 8,811 15,272 10,272 9,508
Total US1 Industries, Inc.
shareholders' equity (B) 17,190 19,718 16,660 11,385 7,909
Noncontrolling interests equity 221 846 569 1,160 170
Total equity 17,411 20,564 17,229 12,545 8,079
OTHER DATA:
Cash provided by (used in) operating activities 5,945 1,218 7,188 4,071 (1,599)
Cash (used in) provided by investing activities (361) (2,167) (345) (281) 146
Cash (used in) provided by financing activities (5,584) 948 (6,843) (3,790) 1,453
(A)- In the fourth quarter of 2009 the Company recorded a non-cash charge
of $3.0 million for the impairment of goodwill related to ARL. The test
as of December 31, 2009 indicated that the book value of ARL exceeded the
fair value of the business.
(B)- On January 1, 2009, we adopted ASC 810 - "Consolidation". As required
by ASC 810 -"Consolidation", prior period results have been recast to
conform with the new pronouncement.
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
Operating Subsidiaries generally do not own their 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, through its
subsidiaries, 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, through its subsidiaries, 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
2009 2008 2007
______ ______ ______
Revenue 100.0% 100.0% 100.0%
Operating expenses:
Purchased transportation 68.6 70.6 71.7
Agent commissions 14.7 12.7 12.1
Insurance and claims 2.7 2.9 3.2
Salaries, wages and fringe benefits 7.1 6.5 6.1
Impairment of Goodwill 1.7 - -
Other operating expenses 6.0 4.9 4.2
______ ______ ______
Total operating expenses 100.8 97.6 97.3
______ ______ ______
Operating (loss) income (0.8%) 2.4% 2.7%
2009 Compared to 2008
The Company's operating revenues for the 2009 fiscal year were
$180 million, an increase of $7.0 million, or 4.1%, from operating revenue
for the 2008 fiscal year. The increase is largely attributable to the
acquisition of ARL in December 2008. The Operating Subsidiaries
experienced a decrease in load volume from various larger customers,
which we believe is attributable to the general slowing economy. This
was offset by an increase in volume from the ARL acquisition. Without
the volume of ARL, the Company incurred approximately a 25% decline in
revenue on a year over year basis. However, in December 2008, the
Company acquired 60% of ARL Transport, which generated revenues of
$50.0 million in 2009. This, in turn, offset the decline in sales.
Purchased transportation and agent 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 remained consistent at 83.3% of
operating revenue in both fiscal 2009 and 2008. Purchased
transportation decreased by 2.0% of operating revenue in fiscal 2009
compared to the same period of time in 2008. This decrease was offset
by in increase in commissions of 2.0% of operating revenues for fiscal
2009 compared to fiscal 2008. 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 percentage 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.
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 the Company's other operations.
This operation accounted for approximately 15% and 19% of the Company's
consolidated operating revenues in 2009 and 2008, respectively.
Salaries expense is not directly variable with revenue. However,
salaries expense increased in dollar amount from $11.2 million for the fiscal
year 2008 to $12.8 million for fiscal year 2009. The increase in salaries
expense is attributable to a $2.1 million increase due to the acquisition of
ARL in December 2008 offset by subsidiaries of the Company that have closed
offices and restructured the work loads in order to cut costs. Salaries
expense is partially fixed and, therefore, as a percentage of revenue, will
increase as revenue decreases.
Insurance and claims decreased in 2009 to 2.7% of operating revenue
compared to 2.9% of operating revenue for 2008. 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
0.2% decrease in the percentage of operating revenue represented by insurance
and claims between 2009 and 2008 can be attributed to favorable claims
experienced for the fiscal year 2009. 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 7.7% as a percentage of
operating revenue for the fiscal year 2009 compared to 4.9% as a percentage
of operating revenue for fiscal year 2008. While not all operating expenses
are directly variable with revenues, the increased revenue can directly impact
several components of operating expenses. In the fourth quarter of 2009, the
Company recorded a non-cash charge of $3.0 million for the impairment of
goodwill related to ARL. The test as of December 31, 2009 indicated that the
book value of ARL exceeded the fair value of the business. The impairment
increased operating expenses by 1.7% of operating revenue. The Company
incurred additional rent expense in 2009 due to the ARL acquisition of
approximately $0.6 million and the start up of a new operation under its
Patriot division of $0.4 million.
Based on the changes in revenue and expenses discussed above, operating
income decreased $5.5 million from 2008 to 2009. For the year ended December
31, 2009, the Company had an operating loss of (0.8%) of operating revenues
compared to income of 2.4% of operating revenues for 2008.
Interest expense increased $0.5 million from $0.2 million for the year
ended December 31, 2008 to $0.7 million for the year ended December 31, 2009.
This increase in interest expense is primarily attributable to an increase in
outstanding borrowings related to the ARL acquisition in December 2008. 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, 2009 the interest rate on this
line of credit was 4.60%.
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, 2009 and 2008.
Federal and state income tax expense increased $0.7 million from
($0.1 million) for the year ended December 31, 2008 to $0.6 million for the
year ended December 31, 2009. The Company had carry-forwards of approximately
$1.2 million as of December 31, 2009. The Company's effective tax rate
differed from the statutory rate primarily due to the impact of state income
taxes and the non-deductible goodwill impairment in 2009 and a reduction in
the valuation reserve related to net operating loss carryforwards in 2008.
Assuming that the Company's business returns to historical levels of
performance in 2010, the Company will be required to commence paying Federal
income tax.
The Company also allocated $0.3 million and $1.3 million of income to
the noncontrolling interest holders relating to their portion of its
subsidiaries', ARL Transport, LLC, Carolina National Transportation, LLC and
US 1 Logistics, LLC, net income for the years ended December 31, 2009 and 2008,
respectively. ARL Transport, LLC, Carolina National Transportation, LLC and
US 1 Logistics LLC are each 60% owned subsidiaries of the Company.
As a result of the factors outlined above, net loss attributed to
US 1 Industries, Inc. in 2009 was ($2.6 million) compared to net income
attributed to US 1 Industries, Inc. of $3.1 million in 2008.
2008 Compared to 2007
The Company's operating revenues for the 2008 fiscal year were $173
million, a decrease of $12.0 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 Operating Subsidiaries and a decrease in load volume from
various larger customers, 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 in 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's subsidiaries obtain some of their 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, through its subsidiaries, 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 4.28%.
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.
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.
The Company also allocated $1.3 million and $1.2 million of income to
the noncontrolling interest holders relating to their 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.
As a result of the factors outlined above, net income attributed to US1
Industries, Inc. in 2008 was $3.1 million compared with $2.9 million in 2007.
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, 2009, the allowance for doubtful accounts was $1.1 million or
approximately 4.1% 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 Emerging Issues Task Force
("EITF") 99-19, "Reporting Revenues Gross as a Principal Versus Net as an
Agent", which was primarily codified into ASC 605. Amounts payable for
purchased transportation, commissions and insurance are accrued when incurred.
The Company, and its subsidiaries, follow guidance of this standard and record
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 and its subsidiaries are involved in litigation in the
normal course of its business. Management intends to vigorously defend these
cases. In the opinion of management, any negative outcome from litigation
now pending will not have a material adverse affect on the consolidated
financial statements of the Company. 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 $0.1 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, 2009, 2008 and 2007, cash
paid to AIFE for insurance premiums and deductibles was approximately $3.9
million, $4.9 million, and $6.1 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, 2009.
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,
2009, 2008 and 2007.
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, 2009, 2008, and
2007.
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 the deferred tax assets will not be
realized. The Company has no valuation allowance as of December 31, 2009 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, 2009 and 2008, the Company has a net deferred tax asset of
approximately $2.1 million and $2.2 million, respectively.
In December 2008, the Company completed the acquisition of a 60%
membership interest in ARL, LLC. As a result of this acquisition, the
Company recorded intangible assets of approximately $3.7 million and
goodwill of approximately $4.8 million. The identifiable intangible asset
relates primarily to relationships with established independent agents and
is being amortized over its expected life of 7 years.
Goodwill represents the purchase price in excess of the fair value
of net assets acquired in business combinations. ASC 350-20, "Goodwill and
Other Intangible Assets", 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% owned 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 December 31st. As part of the annual impairment, the Company estimates
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. We use our internal forecasts, customer
and industry projections of demand and other market information, as well as
the current cost of delivery to estimate future cash flows. 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, 2009, our net book value (i.e., shareholders'
equity) was approximately $17.4 million, and our market capitalization was
approximately $13.7 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, 2009 is reasonable when market-
based control premiums are applied and in light of the volatility in the
economy and equity markets throughout 2009. We do not believe that this
situation suggests the possibilities of additional 2009 impairments.
Liquidity and Capital Resources
During fiscal 2009, the Company's financial position deteriorated
as shareholders' equity decreased by approximately $3.2 million from
$20.6 million at December 31, 2008 to $17.4 million at December 31, 2009.
Net cash provided by operating activity increased $4.7 million
from $1.2 million for the year ended December 31, 2008 to $5.9 million
for the year ended December 31, 2009. Non-working capital provided
$3.5 million for the year ended December 31, 2009 compared to $6.2
million for the year ended December 31, 2008. A decline in net income
of $6.7 million from $4.4 million for the twelve months ended December 31,
2008 to ($2.3) million for the twelve months ended December 31 2009,
primarily resulting from the Company's $3.0 million non-cash charge of
impairment of goodwill.
Working capital items provided cash of $2.5 million during fiscal
2009 compared to using cash of $5.0 million during fiscal 2008. During
fiscal 2008 the Company used its line of credit to fund the payment of
certain liabilities of ARL.
The Company, and its subsidiaries, experienced a decrease in
accounts receivable of $2.4 million for the year ended December 31, 2009.
This decrease is largely due to an overall reduction of volume of business
when considering the impact of the ARL acquisition.
Accounts payable used $0.4 million in cash for the year ended
December 31, 2009. For the year ended December 31, 2008 the Company's
accounts payable used $6.9 million associated with the pay down of ARL
trade payables after its acquisition
Net cash used in investing activities was $0.4 million for the
year ended December 31, 2009 compared to $2.2 million for the year
ended December 31, 2008. Net cash used in investing activities increased
for the year ended December 31, 2008 primarily due to the acquisition of
ARL. The activity for the year ended December 31, 2009 was primarily due
to additions to fixed assets.
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") and has concluded that Stoops is a
variable interest entity. ARL has also concluded that it is the primary
beneficiary of Stoops, 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 and $0.4 million at December 31, 2009. Total
liabilities for Stoops were approximately $1.2 million at December 31,
2008 and $0.9 million at December 31, 2009.
Net cash provided by financing activities was $0.9 million for
the year ended December 31, 2008 compared to $5.6 million used in
financing activities for the year ended December 31, 2009. The bank
overdraft used net cash of $1.5 million for the year ended December
31, 2009 compared to providing net cash of $2.3 million for the year
ended December 31, 2008. For the year ended December 31, 2009, net
repayments under the lines of credit were $1.7 million, compared to
$0.3 million for 2008. For the year ended December 31, 2009, the
Company distributed $0.9 million to the minority shareholders of the
Company's majority owned subsidiaries, Carolina National
Transportation, LLC. and US1 Logistics, LLC compared to $1.0 million
for the same period in 2008 to minority shareholders.
Management believes that cash provided by operations and
availability on credit agreements is sufficient to meet cash flow
requirement for the next twelve months.
The Company and its subsidiaries have a $17.5 million line
of credit that was amended on July 24, 2009. The amendment
included (1) a reduction of the Revolving Line of Credit from $22.0
million to $17.5 million, (2) the imposition of a fee with respect
to the unused portion of the line, (3) a restriction on distributions
to noncontrolling interest holders, (4) temporary replacement of
certain financial covenants, and (5) the addition of a limitation on
current maturities of long term debt other than debt to the Company's
lender. This line of credit matures on October 1, 2010.
Historically the revolving line of credit has been extended prior to
maturity and management anticipates that this will occur in 2010.
Advances under this revolving line of credit are limited to 75% of
eligible accounts receivable. Unused availability under the amended
line of credit was $7.9 million at December 31, 2009. 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, 2009, the interest rate on this line of credit was 4.60%. The
Company's accounts receivable, property, and other assets are
collateral 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, 2009, the outstanding
borrowings on this line of credit were $9.6 million.
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.
As of December 31, 2009, financial covenants include: maximum total
debt service coverage ratio and prohibition of additional
indebtedness without prior authorization. At December 31, 2009,
the Company, and its subsidiaries, was non-compliant with these
covenants. On March 11, 2010, the Company's lender issued a
permanent waiver of these violations and amended the Company's
line of credit. The amendment included (1) limitation on capital
expenditures, (2) an additional restriction on distributions to
noncontrolling shareholders, (3) a reduction in the minimum debt
service ratio covenant, and (4) an increase in the current maturities
of indebtedness limitation. The Company anticipates that it will meet
its covenant requirements in the future. At December 31, 2008, the
Company, and its subsidiaries were in compliance with financial
covenants.
The balance outstanding under this line of credit agreement
is classified as a current liability at December 31, 2009 and 2008.
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. Neither the Company nor its subsidiaries
entered into this agreement for speculative purposes. The fair value of the
interest rate swap was minimal at December 31, 2009.
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.
Inflation
Changes in freight rates charged by the Company, and its subsidiaries,
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, and its subsidiaries, 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
In June 2009, the Financial Accounting Standards Board ("FASB") issued
FAS No. 168, "The FASB Accounting Standards Codification and the Hierarchy of
Generally Accepted Accounting," which was primarily codified into ASC Topic
105 - "Generally Accepted Accounting Standards." This standard represents
the last numbered standard issued by the FASB under the old (pre-Codification)
numbering system, and amends the GAAP hierarchy. On July 1, 2009, FASB
launched FASB's new Codification (i.e. the Accounting Standards Codification
"ASC"). The Codification supersedes existing GAAP for nongovernmental
entities. The Company has revised its financial statement disclosure in
compliance with the new codification system effective with its third quarter
ended September 30, 2009.
In December 2007, the Financial Accounting Standards Board ("FASB")
issued Statement of Financial Accounting Standards ("SFAS") No. 141R, a
revision of SFAS No. 141, "Accounting for Business Combinations," which was
primarily codified into Accounting Standards Codification ("ASC") Topic 805
- - "Business Combinations." The standard establishes requirements for the
recognition and measurement of acquired assets, liabilities, goodwill, and
non-controlling interests. It also provides disclosure requirements related
to business combinations. This guidance is effective for fiscal years
beginning after December 15, 2008. Should any acquisitions occur, the
Company will apply this guidance 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"),
which was primarily codified into ASC Topic 350. This standard 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 ASC 350, and expands the disclosure requirements of ASC 350.
The provisions of this guidance are effective for the Company as of
January 1, 2009. The provisions of this guidance 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 adoption of this staff position did not have a
material impact on the Company's consolidated financial statements.
Effective January 1, 2009, the Company adopted FASB Staff Position
No. 157-2, "Effective Date of FASB Statement No. 157" ("FSP 157-2"), which
was primarily codified into ASC Topic 820, which delayed the effective
date of SFAS No. 157 "Fair Value Measurements" for all non-financial
assets and non-financial liabilities, except for items that are
recognized or disclosed at fair value on a recurring basis such as
reporting units measured at fair value for goodwill impairment,
indefinite-lived intangible assets measured at fair value for impairment
assessment, nonfinancial assets and liabilities initially measured at
fair value in a business combination, or nonfinancial long-lived assets
measured at fair value for impairment assessment. The adoption of this
standard did not have a material impact on the Company's results of
operations or financial condition.
Effective January 1, 2009, the Company adopted Statement of
Financial Accounting Standards ("SFAS") No. 160, "Noncontrolling Interests
in Consolidated Financial Statements," which was primarily codified into
ASC Topic 810 - "Consolidation". ASC 810 establishes accounting and
reporting standards for the noncontrolling interest in a subsidiary and
for the accounting for future ownership changes with respect to those
subsidiaries. This standard defines a noncontrolling interest, previously
called a minority interest, as the portion of equity in a subsidiary not
attributable, directly or indirectly, to a parent. SFAS No. 160 requires,
among other items, that a noncontrolling interest be included in the
consolidated balance sheet within equity separate from the parent's equity;
consolidated net income to be reported at amounts inclusive of both the
parent's and noncontrolling interest's shares and, separately, the amounts
of consolidated net income attributable to the parent and noncontrolling
interest all on the consolidated statements of income; and if a subsidiary
is deconsolidated, any retained noncontrolling equity investment in the
former subsidiary be measured at fair value and a gain or loss be
recognized in net income based on such fair value. The Company applied
the provisions of SFAS No. 160 retrospectively. As a result,
noncontrolling interests of $846,443 were reclassified from the liability
section to equity in the December 31, 2008 balance sheet. Certain
reclassifications have been made to prior period amounts to conform to
the presentation of the current period under SFAS No. 160.
In May 2009, the FASB issued SFAS No. 165, "Subsequent Events,
"which was primarily codified into ASC Topic 855 - "Subsequent Events."
It establishes general standards of accounting and disclosure for events
that occur after the balance sheet date but before the financial statements
are issued. This new standard was effective for interim or annual periods
beginning after June 15, 2009. The adoption did not have an impact on the
Company's consolidated financial position, results of operations or cash
flows.
Effective June 30, 2009, we adopted a new accounting standard
included in ASC 820, Fair Value Measurements and Disclosures, formerly
FASB Staff Position No. 157-4, "Determining Fair Value When The Volume and
Level of Activity For The Asset or Liability Have Significantly Decreased
and Identifying Transactions That are Not Orderly, which provides
additional guidance for estimating fair value in accordance with ASC 820
when the volume and level of activity for the asset or liability have
significantly decreased. This accounting standard also includes guidance on
identifying circumstances that indicate a transaction is not orderly. The
adoption of this standard did not have a material impact on our results of
operations or financial condition.
Effective June 30, 2009, we adopted a new accounting standard
included in ASC 820, formerly FASB Staff Position No. FAS 107-1 and APB
28-1, Interim Disclosures about Fair Value of Financial Instruments, which
requires disclosures about fair value of financial instruments for interim
reporting periods as well as in annual financial statements. The adoption
of this standard did not have a material impact on our results of
operations or financial condition.
In August 2009, the FASB issued Accounting Standards Update
("ASU") No. 2009-05, Fair Value Measurements and Disclosures (Topic 820)
- -Measuring Liabilities at Fair Value, which provides guidance on how to
measure liabilities at fair value in circumstance in which a quoted price
in an active market for the identical liability is not available. This
update is effective for the first reporting period, including interim
periods, beginning after issuance. We have no material liabilities that
are governed by this update but will apply its provisions in the future
as applicable.
In October 2009, the FASB issued ASU No. 2009-17, Consolidations:
Improvements to Financial Reporting by Enterprises Involved with Variable
Interest Entities. It requires reporting entities to evaluate former
qualifying special purpose entities for consolidation, changes the
approach to determining a VIE's primary beneficiary from a quantitative
assessment to a qualitative assessment designed to identify a controlling
financial interest, and increases the frequency of required reassessments
to determine whether a company is the primary beneficiary of a VIE. It
also clarifies, but does not significantly change, the characteristics that
identify a VIE. This ASU also requires additional year-end and interim
disclosures and is effective for fiscal years commencing after November
15, 2009. We are assessing the potential impact of adoption of this
standard.
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, 2009,
2008, and 2007, cash paid to AIFE for insurance premiums and deductibles
was approximately $3.9 million, $4.9 million, and $6.1 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, 2009, 2008,
and 2007, respectively. The Company currently accounts for the majority
of the premium revenue of AIFE.
The Company has no other off-balance sheet arrangements that
potentially could be material.
Contractual Obligations and Commitments
We had the following contractual obligations and commitments for
debt and non-cancelable lease payments:
Total Less than one year 1-3 years 3-5 years More than 5 years
Debt (1) $10,468,252 $10,265,133 $ 182,443 $ 20,676 $ -
Interest on long term debt (2) 490,986 482,868 7,563 555 -
Operating leases 4,463,053 856,141 887,303 451,824 2,267,785
Total (3) $15,422,292 $11,604,142 $1,077,309 $473,055 $2,267,785
(1) Balances include obligations under capital leases
(2) Interest epense assumes the balances of long term debt at the end of the period
and current effective interest rates
(3) We have not committed to any significant current or long term purchase obligations
for our operations and have no other long term liabilities reflected on our
balance sheet under GAAP.
Item 7A. Quantitative and Qualitative Disclosures about Market Risk
Interest Rate Risk
The Company and its subsidiaries have a revolving line of
credit with U.S. Bank which currently bears interest at the "One Month LIBOR"
plus 3.85% (at December 31, 2009 the interest rate was 4.60%). 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 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. Neither the Company nor its subsidiaries
entered into this agreement for speculative purposes. The fair value of the
interest rate swap was minimal at December 31, 2009.
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, 2009 and 2008 and
the related consolidated statements of operations, shareholders' equity,
and cash flows for each of the three years in the period ended December
31, 2009. 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, 2009 and 2008, and the results of its
operations and its cash flows for each of the three years in the period
ended December 31, 2009, 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, 2009, the Company retrospectively changed its
method of accounting for noncontrolling interests in consolidated
financial statements and effective January 1, 2007, the Company changed
its method of accounting for uncertain income tax positions, both in
compliance with new accounting standards.
/s/ BDO Seidman, LLP
Chicago, Illinois
March 15, 2010
US 1 INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 2009 AND 2008
ASSETS
December 31, 2009 December 31, 2008
(as adjusted)
Accounts receivable-trade, less allowances for
doubtful accounts of $1,147,000 and
$1,360,000, respectively $ 26,614,970 $ 30,054,657
Other receivables, including receivables due from
affiliated entities of $861,000 and $964,000,
respectively 4,427,027 4,676,388
Prepaid expenses and other current assets 1,623,808 2,214,218
Current deferred income tax asset 975,178 1,444,670
____________ ____________
Total current assets 33,640,983 38,389,933
FIXED ASSETS:
Land 195,347 195,347
Equipment 2,748,270 2,589,238
Less accumulated depreciation and amortization (1,353,102) (833,771)
____________ ____________
Net property and equipment 1,590,515 1,950,814
____________ ____________
Non-current deferred income tax asset 1,107,575 721,243
Notes receivable - long term 833,651 1,314,395
Intangible assets, net 2,812,672 3,736,000
Goodwill 1,780,639 4,756,943
Other assets 126,461 135,162
____________ ____________
Total Assets $ 41,892,496 $ 51,004,490
============ ============
<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, 2009 AND 2008
LIABILITIES AND SHAREHOLDERS' EQUITY
December 31, 2009 December 31, 2008
(as adjusted)
CURRENT LIABILITIES:
Revolving line of credit $ 9,592,474 $ 11,312,690
Bank overdraft 1,628,383 3,090,613
Current portion of capital lease obligation 30,246 107,196
Current portion of long-term debt 642,413 1,372,546
Accounts payable 9,538,918 9,987,291
Insurance and claims 1,435,924 1,836,391
Other accrued expenses 1,410,098 1,871,800
_____________ _____________
Total current liabilities 24,278,456 29,578,527
_____________ _____________
LONG-TERM DEBT, less current portion 146,878 817,277
CAPITAL LEASE, less current portion 56,241 44,108
SHAREHOLDERS' EQUITY:
Common stock, authorized 20,000,000 shares:
no par value; 14,838,657 shares issued at
December 31, 2009, and December 31, 2008,
respectively 46,978,349 46,920,288
Treasury stock, 595,248 shares at both
December 31, 2009 and December 31, 2008,
respectively (952,513) (952,513)
Accumulated deficit (28,835,952) (26,249,640)
______________ ______________
Total US 1 Industries, Inc. shareholders' equity 17,189,884 19,718,135
Noncontrolling Interests 221,037 846,443
______________ ______________
Total equity 17,410,921 20,564,578
______________ ______________
Total liabilities and shareholders' equity $ 41,892,496 $ 51,004,490
============== ==============
<FN>
The accompanying notes are an integral part of the consolidated financial statements.
</FN>
US 1 INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 31, 2009, 2008, AND 2007
2009 2008 2007
(as adjusted) (as adjusted)
OPERATING REVENUES $179,732,469 $172,674,648 $184,677,131
OPERATING EXPENSES:
Purchased transportation 123,253,896 121,927,791 132,443,631
Commissions 26,335,793 21,955,155 22,406,181
Insurance and claims 4,906,089 5,027,980 5,816,319
Salaries, wages and other 12,839,752 11,188,362 11,281,281
Other operating expenses 10,695,691 8,397,332 7,728,613
Impairment of Goodwill 3,000,000 - -
____________ _____________ _____________
Total operating expenses 181,031,221 168,496,620 179,676,025
OPERATING (LOSS) INCOME (1,298,752) 4,178,028 5,001,106
____________ _____________ _____________
NON-OPERATING INCOME (EXPENSE)
Interest income 79,263 28,827 5,153
Interest expense (732,345) (159,141) (779,539)
Other income (expense) 213,437 215,842 170,337
_____________ ______________ ______________
Total non operating (expense) income (439,645) 85,528 (604,049)
NET (LOSS) INCOME BEFORE INCOME TAXES (1,738,397) 4,263,556 4,397,057
Income tax (expense) benefit (590,429) 107,238 (368,237)
_____________ _____________ ______________
NET (LOSS) INCOME (2,328,826) 4,370,794 4,028,820
Income attributable to noncontrolling interest 257,486 1,312,954 1,175,838
_____________ _____________ ______________
NET (LOSS) INCOME ATTRIBUTABLE TO US 1 INDUSTRIES, INC. $(2,586,312) $ 3,057,840 $ 2,852,982
============= ============= ==============
Basic and Diluted Net (Loss) Income per
Common Share Attributable to
US 1 Industries, Inc. $ (0.18) $ 0.21 $ 0.23
Weighted Average Shares Outstanding
Basic and Diluted 14,243,409 14,243,409 12,679,087
<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, 2009, 2008, and 2007
Common Stock Treasury Accumulated Total Noncontrolling
Shares Amount Shares Amount Deficit US1 Industries, Interests
Inc.
Shareholders'
Equity
Balance at December 31, 2006 (as adjusted) 12,169,739 $42,970,288 - $ - $(31,585,462) $11,384,826 $1,159,542
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 -
Distribution to noncontrolling interests - - - - - - (1,766,333)
Net Income - - - - 2,852,982 2,852,982 1,175,838
____________ ____________ ___________ __________ ___________ _________ _________
Balance at December 31, 2007 (as adjusted) 14,838,657 46,920,288 (595,248) (952,513) (29,307,480) 16,660,295 569,047
Distribution to noncontrolling interests - - - - - - (1,035,558)
Net Income - - - - 3,057,840 3,057,840 1,312,954
____________ ____________ ___________ __________ ___________ __________ _________
Balance at December 31, 2008 (as adjusted) 14,838,657 46,920,288 (595,248) (952,513) (26,249,640) 19,718,135 846,443
Stock compensation expense - 58,061 - - - 58,061 -
Distribution to noncontrolling interests - - - - - - (882,892)
Net (Loss) Income - - - - (2,586,312) (2,586,312) 257,486
____________ ____________ ___________ __________ ____________ __________ _________
Balance at December 31, 2009 14,838,657 $46,978,349 (595,248) $(952,513) $(28,835,952) $17,189,884 $221,037
____________ ____________ ___________ __________ ____________ ___________ _________
<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, 2009, 2008 AND 2007
2009 2008 2007
(as adjusted) (as adjusted)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net (Loss) Income $(2,328,826) $4,370,794 $4,028,820
Adjustments to reconcile net (loss) income to
net cash provided by operating activities
Depreciation and amortization 1,549,878 258,758 157,234
Impairment of goodwill 3,000,000 - -
Compensation expense resulting from
assumption of debt of officer owned entity
- 485,119 -
Provision for bad debts 1,090,240 1,820,202 696,679
Amortization of discount on covertible note - - 312,963
Deferred income tax expense (benefit) 83,160 (731,113) -
Loss (Gain) on disposal of fixed assets 54,174 (16,586) (661)
Stock compensation expense 58,061 - -
Changes in operating assets and liabilities
excluding business acquisition:
Accounts receivable - trade 2,349,447 2,805,640 75,107
Other receivables 242,806 (274,004) (56,506)
Notes receivable 480,744 (407,199) 137,046
Prepaid expenses and other current assets 605,665 (33,704) (256,513)
Accounts payable (378,373) (6,938,067) 1,991,691
Insurance and claims payable (400,467) 142,433 183,694
Other accrued expenses (461,702) (263,900) (81,612)
Net cash provided by (used in) operating ___________ ___________ ___________
activities 5,944,807 1,218,373 7,187,942
___________ ___________ ___________
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to equipment (335,075) (219,040) (369,079)
Proceeds from sales of fixed assets 14,650 34,750 24,000
Other (40,192) (100,000) -
Acquisition of ARL - (1,882,348) -
___________ ___________ ___________
Net cash used in investing activities (360,617) (2,166,638) (345,079)
___________ ___________ ___________
CASH FLOWS FROM FINANCING ACTIVITIES:
Net repayments under the line of credit (1,720,216) (321,352) (2,017,627)
Change in bank overdraft (1,462,230) 2,335,570 (2,106,389)
Capital lease payments (77,584) (5,396) -
Principal payments of long term debts (1,441,268) (25,000) -
Repurchase of treasury stock - - (952,513)
Distributions to noncontrolling interests (882,892) (1,035,557) (1,766,334)
Net cash (used in) provided by financing ___________ ___________ ___________
activities (5,584,190) 948,265 (6,842,863)
___________ ___________ ___________
NET CHANGE IN CASH - - -
CASH, BEGINNING OF YEAR - - -
____________ ___________ ___________
CASH, END OF YEAR $ - $ - $ -
============ =========== ===========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
Cash paid for interest $ 743,805 $ 207,580 $ 427,936
Cash paid for income taxes $ 698,606 $ 584,912 $ 417,660
<FN>
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.
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, 2009, 2008 AND 2007
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. No one agent accounted for more than 10% of the
Company's operating revenue for the years ended December 31, 2009, 2008 and
2007. The Company, through its subsidiaries, shipped freight for
approximately 1,000 customers in 2009, none of which accounted for more than
10% of the Company's revenues.
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") and has concluded
that Stoops is a variable interest entity. ARL has also concluded that it
is the primary beneficiary of Stoops, 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 and $0.4 million at December 31, 2009. Total liabilities
for Stoops were approximately $1.2 million at December 31, 2008 and $0.9
million at December 31, 2009.
2. RECLASSIFICATIONS
Certain reclassifications have been made to the previously reported
2008 and 2007 financial statements to conform to the 2009 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% owned subsidiary of the Company, also
consolidates Stoops Ferry, LLC, a variable interest entity, in accordance
with ASC 810. 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," which was primarily codified into ASC topic 605. Amounts payable for
purchased transportation, commissions and insurance are accrued when incurred.
The Company follows guidance of this standard 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", which was primarily codified
into ASC 810. 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, 2009, 2008 and 2007,
Goodwill-- Goodwill represents the purchase price in excess of the fair
value of net assets acquired in business combinations. ASC 350-20, "Goodwill
and Other Intangible Assets", 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. All
goodwill is related to our 60% owned 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 December 31st.
As part of the annual impairment assessment, the Company estimates 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. We use our internal forecasts, customer and industry
projections of demand and other market information, as well as the current
cost of delivery to estimate future cash flows. If the ARL reporting unit
does not meet our performance expectations, we may be required to record
goodwill impairment charges in the future, in addition to the charges
recorded in 2009.
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", which was primarily codified into
ASC 260. The statement requires presentation of two amounts, basic and
diluted earnings per share. Basic earnings per share are computed by
dividing income attributable to US 1 Industries, Inc.'s 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, 2009, 2008 or 2007.
Business Segments--SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information", which was primarily codified into
ASC 280, 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
In June 2009, the Financial Accounting Standards Board ("FASB")
issued FAS No. 168, "The FASB Accounting Standards Codification and the
Hierarchy of Generally Accepted Accounting," which was primarily codified
into ASC Topic 105 - "Generally Accepted Accounting Standards." This
standard represents the last numbered standard issued by the FASB under
the old (pre-Codification) numbering system, and amends the GAAP hierarchy.
On July 1, 2009, FASB launched FASB's new Codification (i.e. the Accounting
Standards Codification "ASC"). The Codification supersedes existing GAAP
for nongovernmental entities. The Company has revised its financial
statement disclosure in compliance with the new codification system
effective with its third quarter ended September 30, 2009.
In December 2007, the Financial Accounting Standards Board
("FASB") issued Statement of Financial Accounting Standards ("SFAS")
No. 141R, a revision of SFAS No. 141, "Accounting for Business
Combinations," which was primarily codified into Accounting Standards
Codification ("ASC") Topic 805 - "Business Combinations." The standard
establishes requirements for the recognition and measurement of
acquired assets, liabilities, goodwill, and non-controlling interests.
It also provides disclosure requirements related to business combinations.
This guidance is effective for fiscal years beginning after December 15,
2008. Should any acquisitions occur, the Company will apply this
guidance 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"), which was primarily codified into ASC Topic 350. This
standard 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 ASC 350, and expands the
disclosure requirements of ASC 350. The provisions of this guidance
are effective for the Company as of January 1, 2009. The provisions
of this guidance 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 adoption
of this staff position did not have a material impact on the Company's
consolidated financial statements.
Effective January 1, 2009, the Company adopted FASB Staff
Position No. 157-2, "Effective Date of FASB Statement No. 157"
("FSP 157-2"), which was primarily codified into ASC Topic 820,
which delayed the effective date of SFAS No. 157 "Fair Value
Measurements" for all non-financial assets and non-financial
liabilities, except for items that are recognized or disclosed at
fair value on a recurring basis such as reporting units measured at
fair value for goodwill impairment, indefinite-lived intangible
assets measured at fair value for impairment assessment, nonfinancial
assets and liabilities initially measured at fair value in a business
combination, or nonfinancial long-lived assets measured at fair value
for impairment assessment. The adoption of this standard did not
have a material impact on the Company's results of operations or
financial condition.
Effective January 1, 2009, the Company adopted Statement of
Financial Accounting Standards ("SFAS") No. 160, "Noncontrolling
Interests in Consolidated Financial Statements," which was primarily
codified into ASC Topic 810 - "Consolidation". ASC 810 establishes
accounting and reporting standards for the noncontrolling interest
in a subsidiary and for the accounting for future ownership changes
with respect to those subsidiaries. This standard defines a
noncontrolling interest, previously called a minority interest, as
the portion of equity in a subsidiary not attributable, directly or
indirectly, to a parent. SFAS No. 160 requires, among other items,
that a noncontrolling interest be included in the consolidated
balance sheet within equity separate from the parent's equity;
consolidated net income to be reported at amounts inclusive of both
the parent's and noncontrolling interest's shares and, separately,
the amounts of consolidated net income attributable to the parent
and noncontrolling interest all on the consolidated statements of
income; and if a subsidiary is deconsolidated, any retained
noncontrolling equity investment in the former subsidiary be
measured at fair value and a gain or loss be recognized in net
income based on such fair value. The Company applied the provisions
of SFAS No. 160 retrospectively. As a result, noncontrolling
interests of $846,443 were reclassified from the liability
section to equity in the December 31, 2008 balance sheet. Certain
reclassifications have been made to prior period amounts to
conform to the presentation of the current period under SFAS
No. 160.
In May 2009, the FASB issued SFAS No. 165, "Subsequent
Events," which was primarily codified into ASC Topic 855 -
"Subsequent Events." It establishes general standards of accounting
and disclosure for events that occur after the balance sheet date
but before the financial statements are issued. This new standard
was effective for interim or annual periods beginning after
June 15, 2009. The adoption did not have an impact on the
Company's consolidated financial position, results of operations
or cash flows.
Effective June 30, 2009, we adopted a new accounting
standard included in ASC 820, Fair Value Measurements and
Disclosures, formerly FASB Staff Position No. 157-4, "Determining
Fair Value When The Volume and Level of Activity For The Asset or
Liability Have Significantly Decreased and Identifying
Transactions That are Not Orderly, which provides additional
guidance for estimating fair value in accordance with ASC 820 when
the volume and level of activity for the asset or liability have
significantly decreased. This accounting standard also includes
guidance on identifying circumstances that indicate a transaction is
not orderly. The adoption of this standard did not have a material
impact on our results of operations or financial condition.
Effective June 30, 2009, we adopted a new accounting standard
included in ASC 820, formerly FASB Staff Position No. FAS 107-1 and
APB 28-1, Interim Disclosures about Fair Value of Financial
Instruments, which requires disclosures about fair value of financial
instruments for interim reporting periods as well as in annual
financial statements. The adoption of this standard did not have a
material impact on our results of operations or financial condition.
In August 2009, the FASB issued Accounting Standards Update
("ASU") No. 2009-05, Fair Value Measurements and Disclosures (Topic
820)-Measuring Liabilities at Fair Value, which provides guidance on
how to measure liabilities at fair value in circumstance in which a
quoted price in an active market for the identical liability is not
available. This update is effective for the first reporting period,
including interim periods, beginning after issuance. We have no
material liabilities that are governed by this update but will apply
its provisions in the future as applicable.
In October 2009, the FASB issued ASU No. 2009-17,
Consolidations: Improvements to Financial Reporting by Enterprises
Involved with Variable Interest Entities. It requires reporting
entities to evaluate former qualifying special purpose entities for
consolidation, changes the approach to determining a VIE's primary
beneficiary from a quantitative assessment to a qualitative assessment
designed to identify a controlling financial interest, and increases
the frequency of required reassessments to determine whether a company
is the primary beneficiary of a VIE. It also clarifies, but does not
significantly change, the characteristics that identify a VIE. This
ASU also requires additional year-end and interim disclosures and is
effective for fiscal years commencing after November 15, 2009. We are
assessing the potential impact of adoption of this standard.
4. ACQUISITIONS
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 consideration if ARL achieves certain revenue and earnings
goals through 2012. No additional consideration was earned during
2009 and therefore only $2.2 million remains available to be earned.
The acquisition was recorded using the purchase method of accounting,
and on the date of the acquisition, the Company assessed the fair value
of the acquired assets and assumed liabilities and allocated purchase
price accordingly.
The assets acquired and liabilities assumed based on a preliminary
allocation are as follows:
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 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. At the date of the
acquisition of ARL, the book value attributable to the noncontrolling
interest shareholder was a deficit, which the shareholder was not
required to fund. As a result, the noncontrolling interest at the date
of the acquisition was recorded at zero and the amount allocated to
goodwill was increased by the deficit attributable to the noncontrolling
interest. The resulting goodwill recorded on the date of the acquisition
was approximately $4.8 million.
The Company's goodwill is subject to an annual impairment
assessment of its carrying value. Goodwill impairment is deemed to
exist if the net book value of a reporting unit exceeds its estimated
fair value. Fair values of the reporting units is estimated using an
earnings model and a discounted cash flow valuation model. The discounted
cash flow model incorporates the Company's estimates of future cash flows,
future growth rates and management's judgment regarding the applicable
discount rates used to discount those estimated cash flows. The Company
performed its annual impairment assessment as of December 31, 2009 in
accordance with ASC No. 350-20, using the expected present value of
future cash flows and determined that the fair value of its goodwill
was less than the carrying value due to deterioration in the general
business environment. This evaluation has resulted in recognition of a
$3.0 million goodwill impairment charge for the year ended December 31,
2009, leaving a $1.8 million goodwill balance at that date.
The results of ARL have been included in the consolidated
financial statements of the Company for the period subsequent to the
acquisition; the following unaudited pro forma financial information
presents the consolidated operations of the Company as if the
acquisition of ARL had been made on January 1, 2007. The Company
made adjustments primarily for the amortization of intangible assets
and non-controlling interest expense. The unaudited pro forma
financial information is provided for informational purposes only and
does not project the Company's results of operations for any future
period:
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 attributable to US 1 Industries, Inc.
As Reported 3,057,840 2,852,982
Pro-forma 1,136,961 118,473
Basic and Diluted Earning Per Share
attributable to US 1 Industries, Inc.
As Reported 0.21 0.23
Pro-forma 0.08 0.01
In addition, on December 23, 2008, ARL acquired certain other
agent relationships with an ascribed value of $100,000. The value of
these relationships has been included in the carrying value of the ARL
agent relationships.
The carrying value of the ARL agent relationships were as follows:
December 31, 2009 December 31, 2008
Agent relationships $3,736,000 $3,736,000
Accumulated amortization (923,328) -
__________ __________
Intangible assets, net $2,812,672 $3,736,000
Intangible assets amortization expense for 2009 was $923,328.
Estimated annual amortization expense for these intangibles is as follows:
Year ending December 31,
2010 $ 766,642
2011 631,535
2012 551,547
2013 436,366
2014 280,187
Thereafter 146,395
__________
Total $2,812,672
5. NOTES RECEIVABLE
The Company, through its subsidiaries, 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 12.0% with weekly payments ranging from approximately $125 -
$8,333. Maturity on these notes receivable ranges from January 2010
through April 2014. The balance of these notes was approximately
$1.5 million and $2.6 million at December 31, 2009 and December 31,
2008, respectively. The current portion of these notes receivable
was approximately $0.7 million and $1.5 million at December 31,
2009 and December 31, 2008, respectively, and is classified in other
receivables. There are 35 notes outstanding as of December 31, 2009.
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 $0.04 million,
$0.06 million and $0.07 million in 2009, 2008, and 2007, respectively.
Other receivables due from entities affiliated through common
ownership was $0.9 million and $1.0 million as of December 31, 2009
and 2008.
One of the subsidiaries' insurance providers, American Inter-
Fidelity Exchange ("AIFE"), is managed by 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, 2009,
2008 and 2007, cash paid to AIFE for insurance premiums and
deductibles was approximately $3.9 million, $4.9 million, and $6.1
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, 2009. 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, 2009,
2008 and 2007.
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, 2009. The Company's subsidiaries
currently account for the majority of the premiums of AIFE.
For the years ended December 31, 2009, 2008 and 2007, a
subsidiary insurance agency of the Company, recorded commission
income of $0.7 million, $0.7 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, 2009,
2008 and 2007, respectively.
In addition, the Chief Executive Officer and a director of
the Company, the Chief Financial Officer and a director of the
Company, as well as another 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 for each of the years ended December 31,
2009, 2008, and 2007, respectively. These management fees are
available to be paid as dividends to these officers and directors of
the Company.
In 2009, 2008 and 2007, the Company paid consulting fees of
$0.05 million, $0.03 million and $0.03 million, respectively, to two
of its directors, relating to insurance and other 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, 2012.
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 sixteen years.
Rent expense under these operating leases was $2.0 million, $1.0
million, and $1.3 million for the years ended December 31, 2009, 2008,
and 2007, respectively.
Future commitments under these operating leases are as follows:
Future Commitments
2010 $ 856,141
2011 627,679
2012 259,624
2013 225,912
2014 225,912
2015-2025 2,267,785
__________
$4,463,053
Capital Leases
Stoops 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, 2009 was approximately
$11,592.
Future minimum capital lease payments as of December 31, 2009 are as
follows:
Capital Lease obligations -
Monthly payments ranging from $813 to $8,567,
including interest ranging from 6.75% to 15.5%,
maturing through July 2011 $86,487
Less: Current Portion 30,246
________
$56,241
========
Future minimum capital lease payments as of December 31, 2009 are as
follows:
2010 $31,862
2011 57,343
________
Total 89,205
Less amount representing interest (2,718)
________
Present value of payments $86,487
========
8. BANK LINE OF CREDIT
The Company and its subsidiaries have a $17.5 million line of
credit that was amended on July 24, 2009. The amendment included (1) a
reduction of the Revolving Line of Credit from $22.0 million to $17.5
million, (2) the imposition of a fee with respect to the unused portion
of the line, (3) a restriction on distributions to noncontrolling interest
holders, (4) temporary replacement of certain financial covenants, and (5)
the addition of limitation on current maturities of long term debt other
than debt to the Company's lender. This line of credit matures on October
1, 2010. Historically the revolving line of credit has been extended prior
to maturity and management anticipates that this will occur in 2010.
Advances under this revolving line of credit are limited to 75% of eligible
accounts receivable. Unused availability under the amended line of credit
was $7.9 million at December 31, 2009. 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, 2009, the interest rate on this line
of credit was 4.60%. The Company's accounts receivable, property, and other
assets are collateral 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, 2009, the outstanding borrowings on this line
of credit were $9.6 million.
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. As of December 31, 2009, financial
covenants include: maximum total debt service coverage ratio and prohibition
of additional indebtedness without prior authorization. At December 31,
2009, the Company, and its subsidiaries, was non-compliant with these
covenants. On March 11, 2010, the Company's lender issued a permanent waiver
of these violations and amended the Company's line of credit. The amendment
included (1) limitation on capital expenditures, (2) an additional restriction
on distributions to noncontrolling interest holders, (3) a reduction in the
minimum debt service ratio covenant, and (4) an increase in the current
maturities of indebtedness limitation. The Company anticipates that it will
meet its covenant requirements in the future. At December 31, 2008, the
Company, and its subsidiaries were in compliance with financial covenants.
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. The fair value of the interest rate
swap was minimal at December 31, 2009.
9. LONG TERM DEBT
As a part of the ARL acquisition, certain equipment notes payable
were assumed with monthly payments at varying rates and interest at rates
ranging from 3.5%-14.3%. All of the long-term debt is collateralized by
the property and equipment associated with the debt. Of this total debt,
$0.5 million relates to a Variable Interest Entity, "Stoops Ferry", of
which $0.4 million is current. Long-term debt consists of the following
at December 31, 2009:
Future Minimum debt payments as of December 31,2009 are as follows:
2010 $642,413
2011 98,146
2012 28,056
2013 14,220
2014 6,456
_________
$789,291
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 in 2007.
In 2006, based on the guidance under Emerging Issue Task Force Issue
96-19, "Debtor's Accounting for Modification or Exchange of Debt
Instruments", which was primarily codified into ASC 470, 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 and 2009, the Company had 300,000 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 year ended December 31, 2007, 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 300,000 options to purchase shares
of common stock at an exercise price of $0.80 per share. These options
vest over 4 years: however 150,000 options vested early in 2009 due to one
employee's termination. All options expire by December 18, 2018. 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 44.0%
Expected life (years) 7
The fair value is being expensed over the vesting period with
$60,000 recorded in 2009 and the remainder to be recorded through 2012.
The Company has no other options or warrants to purchase common stock
outstanding as of December 31, 2009, 2008 or 2007.
(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.
12. INCOME TAXES
The composition of income tax expense (benefit) is as follows:
December 31, 2009 2008 2007
___________________________________________________________________________________________________
Current $ 507,269 $1,806,240 $1,683,237
Deferred 83,160 (722,366) (295,000)
Benefit from operating loss carry-forward - (1,182,365) (1,315,000)
Adjustment of valuation allowance - (8,747) 295,000
__________ ___________ __________
$ 590,429 ($ 107,238) $ 368,237
__________ ___________ __________
The following summary reconciles income taxes at the maximum federal
statutory rate, based upon (loss) income before income taxes after
deducting income attributable to noncontrolling interests, with the
effective rates for 2009, 2008, and 2007:
December 31, 2009 2008 2007
___________________________________________________________________________________________________
Income tax expense at statutory rate ($ 678,600) $1,033,000 $1,095,214
State income tax expense, net of federal tax benefit 331,226 323,879 292,835
Adjustment of valuation allowance - (1,191,112) (1,019,812)
Non-deductible goodwill impairment 803,760
Permanent differences 134,043 (273,005) -
__________ __________ __________
$ 590,429 ($107,238) $ 368,237
__________ __________ __________
The Company and its wholly-owned subsidiaries file a consolidated
federal income tax return. Carolina National, LLC, ARL, LLC and US1
Logistics, LLC the Company's 60% owned subsidiaries file separate federal
income tax returns.
December 31, 2009 2008
___________________________________________________________________________________
Deferred tax assets
Cumulative basis difference
in 60% owned LLCs $ 580,311 $ 460,000
AMT credit carryforward 349,274 355,993
Accounts receivable reserves 239,687 313,758
Insurance accruals 64,717 193,692
Net operating losses 313,676 552,331
Fixed assets 23,339 76,050
Intangible assets 503,926 185,193
Other 7,823 28,896
___________ ___________
Total deferred tax assets 2,082,753 2,165,913
Less long-term portion (1,107,575) (721,243)
___________ ___________
975,178 1,444,670
=========== ===========
At December 31, 2009 and 2008, the Company has realized a net
deferred tax asset of $2.1 million and $2.2 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
The Company has net operating loss carry-forwards of approximately
$0.9 million at December 31, 2009. 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 $0.3 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, which primarily codified into ASC 740, 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 $0.7 million that was accounted for as a credit to opening
retained earnings. The liability for uncertain tax positions and related
interest and penalties at December 31, 2009 and 2008 totaled $0.7 million.
This liability is recorded in the Company's balance sheet in accrued expenses.
No uncertain tax position reserves were reversed or settled during 2009 or
2008. 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, 2009 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. COMMITMENTS AND CONTINGENCIES
Litigation
The Company and its subsidiaries are involved in certain 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
currently terminates in October 2010 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 2010. The fair value of this option
was determined to be deminimis. Patriot's revenue for the years ended
December 31, 2009, 2008 and 2007 was $26.4 million, $33.1 million, and
$39.3 million, respectively. Patriot had pre-tax income of $0.28 million,
$0.59 million and $0.50 million for the years ended December 31, 2009, 2008
and 2007, respectively.
14. SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)
(In thousands, except per share data)
Operating Operating Net Net
Revenue Income Income Income (Loss)
(Loss) (Loss) per share basic
attributable to and diluted
US 1 Industries, Inc. attributable to
US 1 Industries, Inc.
2009 $179,732 $(1,299) $(2,586) (0.18)
_____________________________________________________________________________________________________
4th 47,309 (1,110) (2,090) (0.15)
3rd 43,193 439 232 0.02
2nd 45,017 213 251 0.02
1st 44,213 (841) (979) (0.07)
2008 $172,675 $4,178 $3,058 0.21
_____________________________________________________________________________________________________
4th 39,927 449 582 0.04
3rd 46,061 1,485 973 0.07
2nd 44,947 1,192 813 0.05
1st 41,740 1,052 690 0.05
US1 INDUSTRIES, INC.
VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED DECEMBER 31, 2007, 2008, AND 2009
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, 2007
Allowance for Doubtful $ 992,000 $ 697,000 $452,000 $1,237,000
Accounts Receivable
Valuation Reserve for Deferred $2,210,924 ($1,019,812) (1) $ - $1,191,112
Taxes
Year Ended December 31, 2008
Allowance for Doubtful $1,237,000 $1,820,000 $1,697,000 (2) $1,360,000
Accounts Receivable
Valuation Reserve for Deferred $1,191,112 ($1,191,112) (1) $ - $ -
Taxes
Year Ended December 31, 2009
Allowance for Doubtful Accounts Receivable $1,360,000 $1,090,000 $1,303,000 $1,147,000
(1) Includes benefit from utilization of net operating losses and change in deferred taxes.
(2) 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(T). Controls and Procedures
The Company and its subsidiaries maintain 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, including the Company's Chief Executive Officer and
the Company's Financial Officer, conducted an evaluation of the
effectiveness of the internal controls over financial reporting based
on the framework in Internal Control - Integrated Framework issued by
the Committee of Sponsoring Organizations of the Treadway Commission.
Management assessed the effectiveness of the Company's internal
control over financial reporting as of December 31, 2009. Based on
management's assessment and those criteria, management believes that
the internal control over financial reporting was effective.
This annual report does not include an attestation report of
the Company's registered public accounting firm regarding internal
control over financial reporting. Management's internal control report
was not subject to attestation by the Corporation's independent
registered public accounting firm pursuant to temporary rules of the
Securities and Exchange Commission that permit the Corporation to
provide only management's report.
Changes in Internal Control Over Financial Reporting
There were no changes in our internal control over financial
reporting during the quarter ended December 31, 2009 that have
materially affected, or are reasonably likely to materially affect,
our internal control over financial reporting.
Item 9B. Other Information
Exhibit 10.8
Seventh Amendment to Amended and Restated Loan Agreement and
Twelfth amendment to Revolving Loan Note with US Bank, US 1
Industries, Inc.
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 share-
holders of a greater amount of shares would receive a cash payment for
their fractional shares. As of March 15, 2010, the Company has not
executed the approved stock split but expects to complete the stock
split shortly. The results of the votes were 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
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 15, 2010 were as follows:
NAME AGE POSITION
___________________ ___ _________
Michael E. Kibler 69 President, Chief Executive Officer, and Director
Harold E. Antonson 70 Chief Financial Officer, Treasurer, and Director
Lex Venditti 57 Director
Robert I. Scissors 76 Director
Brad James 54 Director
Walter Williamson 75 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 I. 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.
Walter Williamson Mr. Williamson became a director of the Company in 2009. Mr. Williamson has been in the trucking
industry since 1955. He was President of Land Container, a trucking company engaging in operations
similar to the Company's, from 1990 to 2008.
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, Robert Scissors and Walter Williamson. 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 2009. 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, 2009, 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 intend 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, 2009, 2008 and 2007 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
Name and Position Year Salary Stock Awards All Other Compensation Total
_________________________________________________________________________________________________________
Michael Kibler
Chief Executive officer 2009 $104,000 $104,000
2008 $ 97,315 - - $ 97,315
2007 $126,593 - - $126,593
_________________________________________________________________________________________________________
Harold Antonson
Chief Financial Officer 2009 $ 96,000 $ 96,000
2008 $ 97,419 - - $ 97,419
2007 $122,460 - - $122,460
_________________________________________________________________________________________________________
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,
2009, 2008 or 2007 and they hold no such options as of
December 31, 2009.
Compensation of Directors
Directors who are also employees of the Company
receive no additional compensation for their services as
directors. In 2009 and 2008, the Company paid consulting
fees of $0.05 million and $0.03 million to two directors of
the Company. No other compensation was paid to our non-
executive board members during 2009, 2008 or 2007. 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.
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,
Lex Venditti and Walter Williamson) 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 15,
2010 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 Common Stock
Name and position Beneficially Owned Perentage 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) (5) 35.2%
Brad A. James Director 166,981 (2) 1.2%
Robert I. Scissors 64,770 (3) *
Lex L. Venditti, Director 217,500 (4) 1.5%
All Directors and Executive Office 7,998,362 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.
(5) Includes shares of 2,676,883 held by the Kibler Family Living Trust of which Mr. Kibler
and Linda Kibler are trustees.
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 5, 2010 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) (3) 35.2%
FMR LLC
82 Devonshire Street
Boston, MA 02109 986,200 (2) 6.9%
(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.
(2) Includes shares held by Fidelity Low-Priced Stock Fund and Fidelity Select Portfolios-
Transportation.
(3) Includes shares of 2,676,883 held by the Kibler Family Living Trust of which Mr. Kibler and
Linda Kibler are trustees.
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 $0.04 million,
$0.06 million and $0.07 million in 2009, 2008, and 2007, respectively.
Other receivables due from entities affiliated through common ownership
were $0.8 million and $1.0 million as of December 31, 2009 and 2008.
One of the Operating 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,
2009, 2008 and 2007, cash paid to AIFE for insurance premiums and
deductibles was approximately $3.9 million, $4.9 million, and $6.1
million, respectively.
The Operating 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, 2009. 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,
2009, 2008 and 2007.
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, 2009. The subsidiaries currently
account for the majority of the premiums of AIFE.
For the years ended December 31, 2009, 2008 and 2007, a
subsidiary insurance agency of the Company, recorded commission
income of $0.7 million, $0.7 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, 2009, 2008
and 2007, 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 for each of
the years ended December 31, 2009, 2008, and 2007, respectively.
These management fees are available to be paid as dividends to these
officers and directors of the Company.
In each of 2009, 2008 and 2007, the Company paid consulting
fees of $0.05 million, $0.03 million and $0.03 million, respectively,
to two of its directors, Robert Scissors and Walter Williamson,
relating to insurance and other 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
2009 2008
_________________________
Audit Fees (1) $245,000 $338,630
Audit-Related Fees (2) $ - $134,022
Tax Fees (3) $ - $ -
All Other Fees (4) $ - $ -
_________________________
Total $245,000 $472,652
(1) Audit fees include fees associated with the annual audit of our consolidated
financial statements, audit of internal control over financial reporting for
2008, 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 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, 2009 and 2008............................................ 24-25
Consolidated Statements of Operations for the years ended December 31, 2009, 2008, and 2007..............26
Consolidated Statements of Shareholders' Equity for the years ended December 31, 2009, 2008, and 2007....27
Consolidated Statements of Cash Flows for the years ended December 31, 2009, 2008, and 2007.............28
Notes to Consolidated Financial Statements ..............................................................30
(a)(2) Financial Statement Schedules:
Schedule of Valuation and Qualifying Accounts............................................................42
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 3.1 Articles of Incorporation of the Company
(incorporated herein by reference to the Company's Proxy Statement of November 9, 1993)
Exhibit 3.2 By-Laws of the Company
(incorporated herein by reference to the Company's Annual Report on Form 10-K for the
year ended December 31, 1994)
Exhibit 10.1 Amended and Restated Loan Agreement with US BANK 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 10.2 Amendment to Amended and Restated Loan Agreement with US BANK 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 10.3 Second Amendment to Amended and Restated Loan Agreement with US BANK
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 10.4 Amendment to Amended and Restated Loan Agreement with US BANK and
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 10.5 Amendment to Amended and Restated Loan Agreement with US BANK and
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., 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 10.6 Amendment to Amended and Restated Loan Agreement with US BANK and
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 10.7 Amendment to Amended and Restated Loan Agreement with US BANK and
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 Sixth Amendment to Amended and
Restated Loan Agreement and Eleventh Amendment to Revolving Loan Note
with US Bank, US1 Industries, Inc. as filed on July 29, 2009)
Exhibit 10.8 Amendment to Amended and Restated Loan Agreement with US BANK and AFT Transport, LLC,
ARL Transport, LLC, 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. as filed with the Company's Form 10-K, this item announces the
Seventh Amendment to Amended and Restated Loan Agreement and Twelfth Amendment to
Revolving Loan Note with US Bank, US1 Industries, Inc. as included in the Company's
Form 10-K for the fiscal year ended December 31, 2009.
Exhibit 14.1 US 1 Industries, Inc. Code of Ethics (incorporated by reference to the Company's Form
10-K for the year ended December 31, 2003 filed on March 26, 2005
Exhibit 21.1 Subsidiaries of the Registrant
Exhibit 31.1 Rule 13a-14(a)\15d-14a(a) Certifications
Exhibit 32.1 Section 1350 Certifications
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.
Date: March 15, 2010 US 1 INDUSTRIES, INC. By: /s/ Michael E. Kibler
_______________________________________
Michael E. Kibler
President & Chief Executive Officer
(Principal Executive Officer)
Date: March 15, 2010 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: March 15, 2010 /s/ Michael E. Kibler
________________________________
Michael E. Kibler, Director
Date: March 15, 2010 /s/ Robert I. Scissor
________________________________
Robert I. Scissors, Director
Date: March 15, 2010 /s/ Lex L. Venditti
________________________________
Lex L. Venditti
Date: March 15, 2010 /s/ Brad James
________________________________
Brad James, Director
Date: March 15, 2010 /s/ Walter Williamson
________________________________
Walter Williamson, Director
Date: March 15, 2010 /s/ Harold Antonson
________________________________
Harold Antonson, Director
Exhibit 10.8
SEVENTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
This Seventh Amendment to Amended and Restated Loan Agreement
("Amendment"), dated as of March 11, 2010 is between GULF LINE
TRANSPORT LLC., an Indiana limited liability company, formerly
known as Gulf Line Transport, Inc. ("Gulf Line"); FIVE STAR
TRANSPORT, LLC., an Indiana limited liability company, formerly
known as Five Star Transport, Inc. ("Five Star"); CAM TRANSPORT,
INC., an Indiana corporation ("CAM"); UNITY LOGISTIC SERVICES INC.,
an Indiana corporation ("Unity"); ERX, INC., an Indiana corporation
("ERX"); FRIENDLY TRANSPORT, LLC, an Indiana limited liability
company, formerly known as Friendly Transport, Inc. ("Friendly");
TRANSPORT LEASING, INC., an Arkansas corporation ("Transport
Leasing"); KEYSTONE LINES, a California corporation ("Keystone
Lines"); HARBOR BRIDGE INTERMODAL, INC., an Indiana corporation
("Harbor"); PATRIOT LOGISTICS, INC., an Indiana corporation
("Patriot"); LIBERTY TRANSPORT, INC., an Indiana corporation
("Liberty"); KEYSTONE LINES CORP., an Indiana corporation, formerly
known as Keystone Lines Corporation ("Keystone"), TC SERVICES,
INC., an Indiana corporation ("TC Services"); KEYSTONE LOGISTICS,
INC., an Indiana corporation ("Keystone Logistics"); CAROLINA
NATIONAL TRANSPORTATION LLC, an Indiana limited liability company
("Carolina National"); CAROLINA NATIONAL LOGISTICS, INC., an
Indiana corporation ("Carolina Logistics"); FREEDOM 1 LLC, an
Indiana limited liability company, formerly known as Freedom
Logistics, LLC ("Freedom"); THUNDERBIRD LOGISTICS, LLC, an
Indiana limited liability company ("Thunderbird Logistics");
THUNDERBIRD MOTOR EXPRESS, LLC, an Indiana limited liability
company ("Thunderbird Motor"); US 1 LOGISTICS, LLC, an Indiana
limited liability company ("US 1 Logistics") US 1 INDUSTRIES,
INC., an Indiana corporation ("Industries"), ARL TRANSPORT LLC,
a Delaware limited liability company ("ARL") and AFT TRANSPORT
LLC, a Delaware limited liability company ("AFT"). (Gulf Line,
Five Star, CAM, Unity, ERX, Friendly, Transport Leasing,
Keystone Lines, Harbor, Patriot, Liberty, Keystone, TC Services,
Keystone Logistics, Carolina National, Carolina Logistics,
Freedom, Thunderbird Logistics, Thunderbird Motor, US 1 Logistics,
Industries, ARL and AFT are hereinafter each referred to each as
a "Borrower Entity", and collectively as the "Borrower"); and U.S.
BANK, a national banking association ("Lender"). Capitalized terms
not defined herein have the meanings ascribed to them in the
Existing Loan Agreement, as that term is defined herein.
PRELIMINARY STATEMENT:
All Borrower Entities have previously entered into an Amended
and Restated Loan Agreement with Lender dated as of March 10,
2005, as amended by (i) that certain Amendment to Amended and
Restated Loan Agreement dated as of May 5, 2005, (ii) that
certain Second Amendment to Amended and Restated Loan Agreement
dated as of September 30, 2005, (iii) that certain Third Amendment
to Amended and Restated Loan Agreement dated July 12, 2007, (iv)
that certain Fourth Amendment to Amended and Restated Loan Agreement
dated March 25, 2008, (v) that certain Fifth Amendment to Amended
and Restated Loan Agreement dated December 18, 2008, and (vi) that
certain Sixth Amendment to Amended and Restated Loan Agreement dated
July 24, 2009 (the Amended and Restated Loan Agreement as so amended,
the "Existing Loan Agreement," and, as amended by this Amendment, the
"Loan Agreement").
Borrower has violated certain financial covenants under the Loan
Agreement, and Lender has agreed to waive the violations in
consideration for the following changes be made to the Loan
Facility:
redefinition of the minimum debt service ratio;
a covenant that the Borrower's current maturities of long
term debt other than debt to the Lender will not exceed
$700,000 as of December 31, 2009, and thereafter.
NOW THEREFORE, it is hereby agreed as follows:
1. All capitalized terms used herein but not defined herein shall
have the same meaning as ascribed to such terms in the Loan Agreement.
2. Lender hereby waives Borrower's violation of Section 7.20 and 7.23
as of December 31, 2009.
3. Section 7.6 of the Loan Agreement is hereby amended and restated
in its entirety to read as follows:
"Capital Expenditures. In any year, make or incur , any Capital
Expenditures in excess of $600,000.
4. Section 7.5 of the Loan Agreement is hereby amended and restated
in its entirety to read as follows:
"Dividends and Distributions. Make any dividends, distributions or
other expenditures with respect to Borrower's capital stock ownership
interests if same would cause a violation of any of the terms or
conditions of this Agreement or make any repurchases of or redemptions
of capital stock or make any other distribution by reduction of capital
without the prior written consent of Lender"
5. Section 7.20 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"Fail to maintain a minimum debt service ratio for US 1 Industries,
Inc. ("Industries") and its subsidiaries (on a consolidated basis) of
1.15:1 based on a rolling four (4) quarter average, to be calculated as
follows: (1) the sum of: (x) Net Income before (i) taxes, (ii) minority
interest expense, (iii) depreciation and (iv) amortization expense, (v)
cash payment of interest, (vi) rent and lease expense (vii) loss
from the sale of assets,and (Vii) any one time non-cash loss approved
by lender less (y) CapEx, taxes paid, distributions made,
gain on the sale of assets and cash dividends paid divided by (2) the
sum of: (i) principal payments over the preceding 12 months on
Indebtedness from Borrowed Money (excluding principal payments on the
Revolving Loan), (ii) cash payment of interest, and (iii) rent and lease
expense. For purposes of this Section 7.20, CapEx shall mean 50% of
depreciation expense for Industries and its subsidiaries (on a
consolidated basis). For the purposes of testing the minimum debt
service ratio, "rent and lease expense" shall mean all amounts payable
to any landlords and lessors by any Borrower Entity for the use of any
real or personal property."
6. Section 7.23 of the existing Loan Agreement is amended and
restated in its entirety to read as follows:
"Permit Borrower's current maturities of Indebtedness for Borrowed
Money other than the Revolving Loan to exceed $700,000 as of December
31, 2009, or at any time thereafter."
7. Except for the violation of 7.20 and 7.23 of the Loan Agreement,
which have been waived by Lender herein, each Borrower Entity
represents and warrants that no Event of Default or Incipient Default
(as defined in the Loan Agreement) exists or will occur as a result of
the execution of and performance under this Amendment and that each of
their representations and warranties set forth in the Loan Instruments
(as the definition of that term is amended by this Amendment) is true
and correct as of the date hereof, except to the extent that any such
representations or warranties speak exclusively to an earlier date.
8. By their execution hereof, Harold Antonson and Michael Kibler
hereby reaffirm their Limited Guaranties of the Revolving Loan and
other obligations under the Loan Agreement and Note
9. Except as expressly amended hereby, the terms and conditions
of the Loan Agreement as originally set forth therein shall remain
in full force and effect.
10. All references to the "Loan Agreement" and other terms
defined in the Existing Loan Agreement shall be deemed to take
account of the Existing Loan Agreement, as amended by this Amendment.
11. Borrower shall reimburse Lender for all of Lender's out-of-
pocket costs related to the transaction contemplated herein,
including, without limitation, public record searches ordered by Lender
or its counsel both prior and subsequent to the closing of the
transactions contemplated herein, as well as legal fees incurred by
Lender in connection with the preparation of documents, due diligence
review or closing regarding the transaction contemplated herein, or
the enforcement of the terms hereof or of any of the Loan Instruments.
12. From time to time, Borrowers shall execute and deliver to Lender
such additional documents as Lender reasonably may require to carry
out the purposes of this Amendment and the Loan Instruments and to
protect Lender's rights hereunder and thereunder, and shall not take
any action inconsistent with the purposes of the Loan Instruments.
13. Except as expressly amended hereby, the terms and conditions
of the Existing Loan Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned Borrowers and Lender have signed
this Amendment to Amended and Restated Loan Agreement as of the date
first above written.
CAROLINA NATIONAL LOGISTICS, INC.
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
GULF LINE TRANSPORT LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
FIVE STAR TRANSPORT, LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
CAM TRANSPORT, INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
UNITY LOGISTIC SERVICES INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
ERX, INC., an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
FRIENDLY TRANSPORT, LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
TRANSPORT LEASING, INC.,
an Arkansas corporation
By: _____________________________
Name: ___________________________
Title: __________________________
HARBOR BRIDGE INTERMODAL, INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
KEYSTONE LINES,
a California corporation
By: _____________________________
Name: ___________________________
Title: __________________________
PATRIOT LOGISTICS, INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
LIBERTY TRANSPORT, INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
KEYSTONE LINES CORP.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
TC SERVICES, INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
KEYSTONE LOGISTICS, INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
CAROLINA NATIONAL TRANSPORTATION LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
FREEDOM 1, LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
THUNDERBIRD LOGISTICS, LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
THUNDERBIRD MOTOR EXPRESS, LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
US 1 LOGISTICS, LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
US 1 INDUSTRIES, INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
ARL TRASPORT LLC,
a Delaware limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
AFT TRANSPORT LLC,
a Delaware limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
_________________________________
Harold Antonson
_________________________________
Michael Kibler
U.S. BANK
a national banking association
By: _____________________________
Name: Ben Coscarart
Title: Vice President