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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
( X ) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended October 31, 2004
----------------------------
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
------------- -------------
Commission file number 1-11601
-------
NATIONAL AUTO CREDIT, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 34-1816760
------------------------------------- ---------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
555 Madison Avenue, 29th Floor, New York, New York 10022
--------------------------------------------------- -----------------
(Address of principal executive offices) (Zip Code)
(212) 644-1400
----------------------------------------------------
(Registrant's telephone number, including area code)
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 is an accelerated filer
(as defined in rule 12b-2 of the Securities and Exchange Act).
Yes ( ) No ( X )
Indicate the number of shares outstanding of each of the issuer's class
of common stock, as of the latest practicable date:
Class Outstanding at December 10, 2004
------------------------------ --------------------------------
Common Stock, $0.05 par value 10,002,614
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
TABLE OF CONTENTS
PAGE
----
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Report of Independent Registered Public Accounting Firm 1
Condensed Consolidated Balance Sheets as of
October 31, 2004 and January 31, 2004 2
Condensed Consolidated Statements of Operations for the
Three Months and Nine Months Ended October 31, 2004 and 2003 3
Condensed Consolidated Statements of Stockholders' Equity and
Comprehensive Income (Loss) for the Nine Months Ended
October 31, 2004 4
Condensed Consolidated Statements of Cash Flows for the
Nine Months Ended October 31, 2004 and 2003 5
Notes to Condensed Consolidated Financial Statements 7
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 20
Item 3. Quantitative and Qualitative Disclosures about
Market Risk 30
Item 4. Controls and Procedures 31
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 32
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 35
Item 6. Exhibits and Reports on Form 8-K 35
Signatures 36
Certifications 37
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
REPORT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
National Auto Credit, Inc. and Subsidiaries
New York, New York
We have reviewed the accompanying condensed consolidated balance sheet
of National Auto Credit, Inc. and subsidiaries as of October 31, 2004, the
related condensed consolidated statements of operations for each of the
three-month and nine-month periods ended October 31, 2004 and 2003; the related
condensed consolidated statement of stockholders' equity and comprehensive loss
for the nine-month period ended October 31, 2004 and the condensed consolidated
statements of cash flows for the nine-month periods ended October 31, 2004 and
2003. The financial statements are the responsibility of the Company's
management.
We conducted our reviews in accordance with standards established by
the Public Company Accounting Oversight Board ("PCAOB"). A review of interim
financial information consists principally of applying analytical procedures to
financial data and making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted in
accordance with auditing standards generally accepted in the United States of
America, the objective of which is the expression of an opinion regarding the
financial statements taken as a whole. Accordingly, we do not express such an
opinion.
Based on our review, we are not aware of any material modifications
that should be made to such condensed consolidated financial statements for them
to be in conformity with accounting principles generally accepted in the United
States of America.
We have previously audited, in accordance with standards established by
the PCAOB, the consolidated balance sheet as of January 31, 2004, and the
related consolidated statements of operations, stockholders' equity and
comprehensive loss, and cash flows for the year then ended (not presented
herein) and in our report dated April 16, 2004, we expressed an unqualified
opinion on those consolidated financial statements. In our opinion, the
information set forth in the accompanying condensed consolidated balance sheet
as of January 31, 2004, is fairly stated, in all material respects, in relation
to the consolidated balance sheet from which it has been derived.
/s/ Grant Thornton LLP
Cleveland, Ohio
December 10, 2004
1
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
October 31, January 31,
2004 2004
------------ -----------
(unaudited)
ASSETS
Cash and cash equivalents $ 475 $ 376
Accounts receivable, net of allowance of
$104 and $75, respectively (Note 1) 2,466 1,979
Income taxes refundable 2,070 2,162
Prepaid expenses 309 293
Other current assets 348 399
------------ -----------
Total current assets 5,668 5,209
Property and equipment, net of accumulated
depreciation of $1,025 and $528, respectively (Note 1) 2,373 2,756
Investment in AFC (Note 3) 7,965 8,549
Goodwill (Notes 1 and 2) 4,920 4,920
Other intangible assets, net of accumulated
amortization of $710 and $284, respectively (Notes 1 and 2) 8,772 9,198
Other assets 274 284
------------ -----------
$ 29,972 $ 30,916
============ ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES
Current maturities of long term obligations (Note 4) $ 2,282 $ 1,339
Accounts payable 1,310 1,238
Self-insurance claims 281 408
Accrued income taxes 327 334
Deferred revenue 1,437 776
Other liabilities 1,289 1,547
------------ -----------
Total current liabilities 6,926 5,642
Long term obligations (Note 4) 8,669 8,969
Convertible promissory note (Note 4) 2,825 2,825
------------ -----------
18,420 17,436
------------ -----------
COMMITMENTS AND CONTINGENCIES (Note 6) - -
STOCKHOLDERS' EQUITY
Preferred stock - -
Common stock - $.05 par value, authorized 40,000,000 shares,
issued 39,949,589 and 39,949,589 shares, respectively 1,997 1,997
Additional paid-in capital 174,454 174,454
Retained deficit (142,402) (139,746)
Deferred compensation (95) (113)
Treasury stock, at cost, 29,946,975 and 30,896,975
shares, respectively (22,402) (23,112)
---------- ------------
Total stockholders' equity 11,552 13,480
---------- ------------
$ 29,972 $ 30,916
========== ============
See accompanying notes to condensed consolidated financial statements.
2
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
Three Months Ended Nine Months Ended
October 31, October 31,
----------------------------- -----------------------------
2004 2003 2004 2003
-------------- ------------- -------------- -------------
Revenues $ 2,999 $ 3,051 $ 8,680 $ 3,932
Cost of revenues 1,846 1,717 5,134 2,290
-------------- ---------- ------------- -------------
Gross profit 1,153 1,334 3,546 1,642
Selling, general and
administrative 1,926 1,605 5,512 3,963
-------------- ---------- ------------- -------------
Loss from operations (773) (271) (1,966) (2,321)
Interest income from investments - 12 - 499
Income from AFC investment 165 111 354 303
Interest expense (221) (171) (565) (187)
-------------- ---------- ------------- -------------
Loss from continuing operations
before income taxes (829) (319) (2,177) (1,706)
Provision for income taxes - - - -
-------------- ---------- ------------- -------------
Loss from continuing operations (829) (319) (2,177) (1,706)
Income (loss) from discontinued
operations, net of tax
- 1 (6) (11)
-------------- ---------- ------------- -------------
Net loss $ (829) $ (318) $ (2,183) $ (1,717)
============== ========== ============= =============
Basic and diluted loss per share
Continuing operations $ (.09) $ (.04) $ (.23) $ (.21)
Discontinued operations - - - -
-------------- ---------- ------------- -------------
Net loss per share $ (.09) $ (.04) $ (.23) $ (.21)
============== ============= ============= =============
Weighted average number
of shares outstanding
Basic and diluted 9,430 8,047 9,370 7,981
============== ============= ============= =============
See accompanying notes to condensed consolidated financial statements.
3
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
AND COMPREHENSIVE LOSS
NINE MONTHS ENDED OCTOBER 31, 2004
(IN THOUSANDS, EXCEPT SHARE DATA)
(UNAUDITED)
Preferred Stock Common Stock
--------------------- ------------------------------- Additional
Par Par Paid-In Retained Treasury
Shares Value Shares Value Capital Deficit Stock
---------- ---------- -------------- -------------- ----------------- ---------------- -------------
Balance at
January 31, 2004 - $ - 39,949,589 $ 1,997 $ 174,454 $ (139,746) $ (23,112)
Net loss (2,183)
Treasury stock sold (473) 710
Deferred compensation
expense ---------- ---------- -------------- -------------- ----------------- ---------------- -------------
Comprehensive income (loss)
Balance at
October 31, 2004 - $ - 39,949,589 $ 1,997 $ 174,454 $ (142,402) $ (22,402)
========== ========== ============== ============== ================= ================ =============
Deferred Comprehensive
Compensation Income
Expense Total (Loss)
-------------- -------------- ----------------
Balance at $ (113) $ 13,480
January 31, 2004
Net loss (2,183) $ (2,183)
Treasury stock sold 237
Deferred compensation
expense 18 18 18
--------------- -------------- ----------------
Comprehensive income (loss) $ (2,165)
================
Balance at
October 31, 2004 $ (95) $ 11,552
=============== ==============
See accompanying notes to condensed consolidated financial statements.
4
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (IN THOUSANDS)
(UNAUDITED)
Nine Months Ended
October 31,
-------------------------------------
2004 2003
------------------- ----------------
Cash flows from operating activities
Net loss $ (2,183) $ (1,717)
Adjustments to reconcile net loss to net cash provided
by (used in) operating activities:
Loss from discontinued operations 6 11
Depreciation and amortization 996 422
Changes in operating assets and liabilities, net of acquisition:
Accounts receivable (487) (393)
Income tax refundable 92 3,507
Accrued income tax (7) (64)
Accounts payable and other liabilities 72 555
Deferred revenue 661 715
Other operating assets and liabilities, net (548) (40)
------------------- ----------------
Net cash provided by (used in) operating (1,398) 2,996
activities
------------------- ----------------
Cash flows from investing activities
Acquisition of OMI net of cash acquired - (97)
Acquisition of The Campus Group net of cash acquired - (3,111)
Proceeds from AFC distributions 937 879
Proceeds from sale of marketable securities - 400
Purchase of property and equipment (187) (193)
------------------- ----------------
Net cash provided by (used in) investing
activities 750 (2,122)
------------------- ----------------
Cash flows from financing activities
Proceeds from issuance of promissory note 1,000 -
Proceeds from sale of treasury stock 237 -
Payments of due to former The Campus Group shareholders - (1,079)
Payments of long term debt (357) (212)
------------------- ----------------
Net cash provided by (used in) financing
activities 880 (1,291)
------------------- ----------------
Increase (decrease) in cash and cash equivalents from
continuing operations 232 (417)
Decrease in cash and cash equivalents from
discontinued operations (133) (84)
Cash and cash equivalents at beginning of period 376 1,873
------------------- ----------------
Cash and cash equivalents at end of period $ 475 $ 1,372
=================== ================
-continued-
5
Nine Months Ended
October 31,
--------------------------------
2004 2003
-------------- -------------
Supplemental disclosures of cash flow information
Interest paid $ 569 $ 27
============== =============
Income taxes paid $ 7 $ 64
============== =============
Stock award to employees pursuant to a plan $ - $ 119
============== =============
Acquisition of The Campus Group:
Non-cash assets acquired $ 17,260
Liabilities assumed (1,484)
-------------
15,776
Promissory notes issued (12,665)
-------------
Cash paid, net of cash acquired $ 3,111
=============
Acquisition of OMI:
Non-cash assets acquired $ 1,597
Liabilities assumed (1,321)
-------------
276
Promissory notes issued (153)
Common stock issued (26)
-------------
Cash paid, net of cash acquired $ 97
=============
See accompanying notes to condensed consolidated financial statements.
6
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - BASIS OF PRESENTATION AND SIGNIFICANT ACCOUNTING POLICIES
General
- -------
The accompanying unaudited condensed consolidated financial
statements include the accounts of National Auto Credit, Inc. and Subsidiaries
("NAC"). NAC consummated a series of acquisitions during the year ended January
31, 2004 transforming its business operations into a multi-dimensional corporate
communications and entertainment company (see Note 2). NAC specializes in the
full-service design, creative development, production, post production editing
and transmission, via broadcast satellite videoconferencing, webcasting and
traditional on-site presentations, of corporate communication, education and
training video and other services for use at corporate events. Additionally,
NAC, through its investment in the Angelika Film Center LLC ("AFC"), operates in
the movie exhibition industry (see Note 3). NAC acquired its investment in AFC
in April 2000.
Prior to Fiscal 2003, NAC's operations were conducted principally
through three operating segments, (i) the e-commerce segment, which was
comprised of ZoomLot Corporation's ("ZoomLot") development of e-commerce
services to facilitate the process by which used car dealerships, lenders and
insurance companies communicate and complete the transactions between them that
are needed to provide used car dealers' customers with financing, insurance and
other services, (ii) the movie exhibition segment, which was comprised of the
activities of AFC and (iii) the automobile financing segment. However, in the
fourth quarter of Fiscal 2002, NAC suspended its ZoomLot operations and
initiated the steps to discontinue both its e-commerce and auto financing
segments as of January 31, 2002.
The financial statements are unaudited, but in the opinion of
management, reflect all adjustments (consisting only of normal recurring
accruals) necessary for a fair presentation of NAC's consolidated financial
position, results of operations, stockholders' equity and comprehensive loss,
and cash flows for the periods presented.
The accompanying unaudited condensed consolidated financial statements
have been prepared in accordance with generally accepted accounting principles
for interim financial statements and with the rules of the Securities and
Exchange Commission applicable to interim financial statements, and therefore do
not include all disclosures that might normally be required for interim
financial statements prepared in accordance with generally accepted accounting
principles. The accompanying unaudited condensed consolidated financial
statements should be read in conjunction with NAC's consolidated financial
statements, including the notes thereto, appearing in NAC's Annual Report on
Form 10-K for the year ended January 31, 2004. The results of operations for the
three months and nine months ended October 31, 2004 are not necessarily
indicative of the operating results for the full year.
The preparation of financial statements and the accompanying notes
thereto, in conformity with generally accepted accounting principles, requires
management to make estimates and assumptions that affect reported amounts of
assets and liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and reported amounts of revenues and
expenses during the respective reporting periods. Actual results could differ
from those estimates. NAC uses a January 31 year-end for financial reporting
purposes. References herein to the fiscal year ended January 31, 2005 shall be
the term "Fiscal 2005" and references to other "Fiscal" years shall mean the
year, which ended on January 31 of the year indicated. The term the "Company" or
"NAC" as used herein refers to National Auto Credit, Inc. together with its
subsidiaries unless the context otherwise requires.
7
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - BASIS OF PRESENTATION AND SIGNIFICANT ACCOUNTING POLICIES - CONTINUED
Discontinued Operations
- -----------------------
Effective December 31, 2001, NAC suspended its ZoomLot operations and
initiated steps to discontinue e-commerce operations. Additionally, as a
consequence of NAC's decision to discontinue its ZoomLot e-commerce operations,
NAC also formally exited the sub-prime used automobile consumer finance business
effective December 31, 2001. As a result of these decisions, both the e-commerce
and automobile finance segments have been classified as discontinued operations
as of January 31, 2002. For the three months ended October 31 2003, NAC
generated income from discontinued operations of $1,000. For the nine months
ended October 31, 2004 and 2003, NAC incurred a loss from discontinued
operations of $6,000 and $11,000, respectively.
Revenues
- --------
NAC recognizes revenue from video production, video editing, meeting
services and broadcast satellite or webcast services when the video is complete
and delivered or all technical services have been rendered. Deposits and other
prepayments are recorded as deferred revenue until revenue is recognized. NAC
does not have licensing or other arrangements that result in additional revenues
following the delivery of the video or a broadcast. Costs accumulated in the
production of the video, meeting services or broadcasts are deferred until the
sale and delivery are complete. Deferred production costs of $348,000 are
reported as other current assets at October 31, 2004.
NAC recognizes revenue from designing and developing websites when the
customer accepts the completed project. Deposits and other prepayments are
recorded as deferred revenue until revenue is recognized. These contracts are
limited to the design and development of websites. Clients have the option to
engage NAC to maintain and upgrade their websites. These contracts are separate
from the website development and design agreements, and the related revenue is
recognized over the term of the contracts, which is generally up to one year.
NAC recognizes revenue from developing and maintaining websites
pursuant to the requirements of Statement of Position No. 97-2, "Software
Revenue Recognition" ("SOP 97-2"), as amended by Statement of Position No. 98-9,
"Software Revenue Recognition with Respect to Certain Arrangements." Under SOP
97-2, revenue attributable to an element in a customer arrangement is recognized
when persuasive evidence of an arrangement exists and delivery has occurred,
provided the fee is fixed or determinable, collectibility is probable and the
arrangement does not require significant customization of the software. If at
the outset of the customer arrangement, NAC determines that the arrangement fee
is not fixed or determinable or that collectibility is not probable, NAC defers
the revenue and recognizes the revenue when the arrangement fee becomes due and
payable or, when collectibility is uncertain, as cash is collected.
8
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - BASIS OF PRESENTATION AND SIGNIFICANT ACCOUNTING POLICIES - CONTINUED
Cost of Revenues
- ----------------
Cost of revenues consists of direct expenses specifically associated
with client service revenues. The cost of revenues includes direct salaries and
benefits, purchased products or services for clients, web hosting, support
services, shipping and delivery costs.
Accounts Receivable
- -------------------
Accounts receivable are recorded at the invoiced amount and do not bear
interest. The allowance for doubtful accounts is NAC's best estimate of the
amount of probable credit losses in NAC's existing accounts receivable. NAC
determines the allowance based on analysis of historical bad debts, client
concentrations, client credit-worthiness and current economic trends. NAC
reviews its allowance for doubtful accounts quarterly. Past-due balances over 90
days and specified other balances are reviewed individually for collectibility.
All other balances are reviewed on an aggregate basis. Account balances are
written off against the allowance after all means of collection have been
exhausted and the potential for recovery is considered remote. NAC does not have
any off-balance sheet credit exposure related to its customers.
Property and Equipment
- ----------------------
Property and equipment are stated at cost. Depreciation, including
depreciation on assets held under capital leases, is computed on the
straight-line method over the estimated useful lives of the assets which range
from eighteen months to ten years. Leasehold improvements are amortized over the
shorter of the lease term or the estimated useful lives of the related
improvements.
Goodwill and Other Intangible Assets
- ------------------------------------
NAC adopted Statement of Financial Accounting Standards No. ("SFAS")
141, "Business Combinations", and SFAS 142,"Goodwill and Other Intangible
Assets", effective February 1, 2002. Under SFAS 142 intangible assets with
indefinite lives, including goodwill, are no longer subject to amortization and
are subject to testing for impairment annually and whenever there is an
impairment indicator.
In its acquisition of The Campus Group, NAC acquired certain intangible
assets including client relationships and lists and a non-competition agreement
with an initial fair value of $9.5 million. The useful lives of these
intangibles are being amortized using the straight-line method over the
estimated useful lives of 17 years and 9 years, respectively. For the three
months and nine months ended October 31, 2004, NAC charged to operations
$142,000 and $426,000, respectively, for the amortization of these intangible
assets.
9
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - BASIS OF PRESENTATION AND SIGNIFICANT ACCOUNTING POLICIES - CONTINUED
Impairment of Long-Lived Assets
- -------------------------------
Effective February 1, 2002, NAC adopted SFAS 144, Accounting for the
Impairment or Disposal of Long-Lived Assets. In accordance with this statement,
NAC reviews the carrying value of its long-lived assets (other than goodwill)
whenever events or changes in circumstances indicate that its carrying amount
may not be recoverable. If indicators of impairment exist, NAC would determine
whether the estimated undiscounted sum of the future cash flows of such assets
is less than its carrying amount. If less, an impairment loss would be
recognized based on the excess of the carrying amount of such assets over their
respective fair values. NAC would determine the fair value by using quoted
market prices, if available, for such assets; or if quoted market prices are not
available, NAC would discount the expected estimated future cash flows.
Reclassifications
- -----------------
Certain Fiscal 2004 amounts have been reclassified to conform with
Fiscal 2005 presentations.
NOTE 2 - ACQUISITIONS
The Campus Group
- ----------------
In July 2003, NAC consummated a Stock Purchase Agreement whereby NAC
acquired all outstanding capital stock of four affiliated companies, Campus
Group Companies, Inc., Audience Response Systems, Inc, Interactive Conferencing
Network, Inc. and Multi-Video Services, Inc., collectively known as The Campus
Group from Mr. Steve Campus and certain family trusts. In exchange for the
acquisition of all of the outstanding capital stock of The Campus Group, NAC (i)
paid $2.8 million at closing from NAC's available cash balances, (ii) issued to
Mr. Campus and certain family trusts promissory notes of $9.9 million, and (iii)
issued to a family trust a convertible promissory note of $2.8 million. The
Campus Group revenues for the years ended December 31, 2002 and 2001 were $10.7
million and $12.7 million, respectively. The Campus Group realized net income of
$1.2 million and $2.3 million for those years, respectively. For financial
reporting purposes, the effective date of the transaction is July 31, 2003.
As part of The Campus Group acquisition, Mr. Campus entered into an
employment agreement under which he has agreed to serve as President of each of
the four acquired companies for an initial term of three years. The term of the
employment agreement will be automatically extended until such time as the
promissory notes and convertible promissory note are retired. Mr. Campus,
subject to certain limitations, will have control over day-to-day operations of
The Campus Group. Under the terms of the employment agreement, Mr. Campus will
be entitled to base compensation of $100,000 per year and a performance bonus
based upon the operating results of the acquired companies.
10
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 2 - ACQUISITIONS - CONTINUED
The components and allocation of the purchase price were as follows
(in thousands):
Amount
------------
Components of purchase price:
Cash paid at closing $ 2,825
Promissory notes issued at closing 9,840
Convertible note issued at closing 2,825
Transaction costs 861
------------
Total purchase price $ 16,351
============
Allocation of purchase price:
Current assets $ 1,758
Property and equipment 2,216
Other intangible assets 9,482
Goodwill arising in the acqusition 4,379
------------
17,835
Accounts payable and accrued expenses (228)
Due to shareholder (1,256)
------------
Net assets acquired $ 16,351
============
OMI
- ---
In April 2003, NAC consummated a Merger Agreement and Plan of
Reorganization whereby NAC acquired all of the outstanding common stock of
ORA/Metro, Inc., now known as OMI Business Communications, Inc. ("OMI"), from
Mr. Dean R. Thompson, sole stockholder of OMI. In exchange for the acquisition
of all of the outstanding common stock of OMI, NAC (i) issued 200,000 shares of
NAC Common Stock, valued at $26,000 (ii) assumed $814,000 in bank debt and
capital lease obligations to financial institutions and (iii) issued a
promissory note payable to Mr. Thompson in the amount of $153,000, payable in
monthly installments of principal and interest over a 36 month period. In
addition to the initial payments, NAC agreed to a contingent payment to Mr.
Thompson of $150,000 based upon OMI's financial performance during the
three-year period ending January 31, 2006. OMI's revenues for the years ended
December 31, 2002 and 2001 were $2.5 million and $3.5 million, respectively. OMI
incurred net losses of $343,000 and $27,000 for those years, respectively. For
financial reporting purposes, the effective date of the merger is April 1, 2003.
As part of the OMI acquisition, OMI entered into a five year employment
agreement with Mr. Thompson under which Mr. Thompson will serve as President of
OMI and, subject to certain limitations, will have control over the day-to-day
operations of OMI. Under the terms of the employment agreement, Mr. Thompson
will be entitled to base compensation of $175,000 per year, a grant of stock
options for up to 200,000 shares of NAC Common Stock and a performance bonus
based upon the operating results of OMI.
11
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 2 - ACQUISITIONS - CONTINUED
The components and allocation of the purchase price were as follows
(in thousands):
Amount
------------
Components of purchase price:
Common stock $ 26
Promissory note 153
Transaction costs 110
------------
Total purchase price $ 289
============
Allocation of purchase price:
Current assets $ 376
Property and equipment 632
Other assets 61
Goodwill arising in the acqusition 541
------------
1,610
Accounts payable and accrued expenses (516)
Debt (805)
------------
Net assets acquired $ 289
============
The following sets forth the pro forma condensed results of operations
of NAC, The Campus Group and OMI for the nine months ended October 31, 2003 as
if the acquisition were consummated on February 1, 2003. Prior to their
acquisition, The Campus Group and OMI used a December 31 year end, and
accordingly the pro forma results have been prepared by combining the historical
results for NAC for the nine month periods ended October 31, with the historical
results of The Campus Group and OMI for the nine month periods ended September
30. These pro forma results have been prepared for illustrative purposes only
and do not purport to be indicative of what would have occurred had the
acquisition been in effect for the periods indicated or the results which may
occur in the future. Pro forma revenues, net loss and loss per share are as
follows:
Nine Months
Ended October 31, 2003
----------------------
Revenues $ 9,028
==================
Net loss from continuing operations $ (1,525)
==================
Loss per share from continuing operations $ (0.19)
==================
12
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 3 - INVESTMENT IN AFC
On April 5, 2000, NAC, through its wholly owned subsidiary National
Cinemas, Inc., acquired a 50% membership interest in AFC. AFC is the owner and
operator of the Angelika Film Center, which is a multiplex cinema and cafe
complex in the Soho District of Manhattan in New York City.
AFC is currently owned 50% by NAC and 50% by Reading International,
Inc. ("Reading"). The articles and bylaws of AFC provide that for all matters
subject to a vote of the members, a majority is required, except that in the
event of a tie vote, the Chairman of Reading shall cast the deciding vote.
NAC uses the equity method to account for its investment in AFC.
NAC's initial investment exceeded its share of AFC's net assets and that portion
of the investment balance is accounted for in a manner similar to goodwill. AFC
uses a December 31 year-end for financial reporting purposes. NAC reports on a
January 31 year-end, and for its fiscal quarters ending April 30, July 31,
October 31 and January 31 records its pro-rata share of AFC's earnings on the
basis of AFC's fiscal quarters ending March 31, June 30, September 30, and
December 31, respectively. For the three months ended October 31, 2004 and 2003,
NAC recorded income of $165,000 and $111,000, respectively, representing its
share of AFC's net income. For the nine months ended October 31, 2004 and 2003,
NAC recorded income of $354,000 and $303,000, respectively, representing its
share of AFC's net income.
Summarized income statement data for AFC for the three months and nine
months ended September 30, 2004, and 2003, respectively, is as follows (in
thousands):
Three Months Ended Nine Months Ended
September 30, September 30,
------------------------ ------------------------
2004 2003 2004 2003
----------- ----------- ---------- ------------
Revenues $ 1,478 $ 1,375 $ 4,045 $ 4,566
Film rental 269 272 772 1,082
Operating costs 639 636 1,849 2,147
Depreciation and amortization 198 214 589 637
General and administrative expenses 42 32 127 94
----------- ----------- ---------- ------------
1,148 1,154 3,337 3,960
----------- ----------- ---------- ------------
Net income $ 330 $ 221 $ 708 $ 606
=========== =========== ========== ============
NAC's proportionate share of net income $ 165 $ 111 $ 354 $ 303
=========== =========== ========== ============
13
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 4 - CURRENT AND LONG TERM OBLIGATIONS
On July 14, 2004, National Auto Credit, Inc. ("NAC") consummated a Loan
and Security Agreement ("Loan Agreement") with a lender and issued a Promissory
Note ("Note") of $1.0 million. The lender, Time Passages Corp., is an
unaffiliated third party lender. The President of Time Passages Corp. was a
former director of NAC who last served on NAC's board in January 2002. Pursuant
to the terms of the Note, (i) the outstanding principal of the Note is due July
13, 2005, (ii) NAC is required to pay interest only, monthly and in arrears,
during the term and (iii) the Note bears interest at twenty percent per annum.
NAC may prepay the Note at anytime and without a prepayment penalty. The Note is
secured by a perfected first priority security interest in and to, and a lien on
and pledge of, NAC's right, title and interest in and to virtually all of NAC's
assets. The lien does not extend to the common stock of The Campus Group and
other permitted liens.
As a consequence of NAC's acquisition of The Campus Group effective
July 31, 2003, NAC issued to Mr. Campus and certain family trusts promissory
notes of $9.9 million and issued to a family trust a convertible promissory note
of $2.8 million. Of the $9.9 million in promissory notes issued by NAC, $6.6
million of the promissory notes ("Base Notes") bear interest at 5% per annum and
are repayable in quarterly installments according to a formula based upon the
future cash flows realized from The Campus Group over a period not to exceed
seven years. The remaining $3.3 million in promissory notes ("Trailing Notes")
issued by NAC bear interest at 5% per annum and are repayable in quarterly
installments, commencing upon the retirement of the Base Notes, according to a
formula based upon the future cash flows realized from The Campus Group over a
period not to exceed three years subsequent to the retirement of the Base Notes.
The $2.8 million convertible promissory note (i) bears interest at 5% per annum,
payable quarterly in cash or accumulating as principal at the election of NAC,
(ii) requires principal payments to commence upon the retirement of the Base
Notes and Trailing Notes and is then repayable in quarterly installments
according to a formula based upon the future cash flows realized from The Campus
Group over a period not to exceed three years and (iii) is convertible at the
option of the holder into shares of NAC common stock at a base conversion price
of $1.50 per share. The holder may not convert the convertible promissory note
into NAC common stock prior to repayment of the Base Notes and Trailing Notes.
The promissory notes are secured by the capital stock of the companies
comprising The Campus Group. At October 31, 2004, NAC has outstanding
obligations under the terms of the Base Notes, Trailing Notes and the
Convertible Notes of $6.1 million, $3.3 million and $2.8 million, respectively.
As a consequence of NAC's acquisition of OMI effective April 1, 2003,
NAC assumed $814,000 in bank debt and capital lease obligations to financial
institutions and issued a promissory note payable to Mr. Thompson in the amount
of $153,000.
During 2001, OMI obtained a $300,000 bank term loan (the "Term Loan")
to finance certain capital expenditures. The Term Loan is payable in monthly
installments of $6,000, comprised of principal and interest, over a five year
term, expiring in July 2006. The Term Loan bears interest at the rate of 8.25%
per annum. The Term Loan is collateralized by substantially all of OMI's assets
and the personal guarantee of Mr. Thompson. In April 2004, as a consequence of a
change in control provision in the Term Loan, the bank has requested accelerated
repayment of the Term Loan. NAC has classified the Term Loan as a component of
current maturities at October 31, 2004. The outstanding balance of the Term Loan
at October 31, 2004 is $111,000.
14
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 4 - CURRENT AND LONG TERM OBLIGATIONS - CONTINUED
On April 25, 2002, OMI obtained a $402,000 loan guaranteed by the U.S.
Small Business Administration (the "SBA Loan") to finance losses incurred as a
result of the September 11, 2001 terrorist attacks in New York City. The SBA
Loan is repayable in monthly installments of $3,309 with the last payment due in
April 2017. The loan bears no interest through May 2004 and at the rate of 4%
per annum thereafter. The SBA Loan is collateralized by substantially all of
OMI's assets and the personal guarantee of Mr. Thompson. Pursuant to the terms
of the Merger Agreement, NAC is seeking to obtain releases of Mr. Thompson's
personal guarantees from each financial institution. The outstanding balance of
the SBA Loan at October 31, 2004 is $388,000.
The promissory note payable to Mr. Thompson is payable in monthly
installments of principal and interest over a 36 month period expiring April
2006. The promissory note bears interest at 5% per annum.
OMI leases computer equipment under several different capital leases
with finance institutions with various payments terms, expiration dates and
imputed annual rates of interest.
The components of long term obligations at October 31, 2004 are as
follows (in thousands):
Amounts
-------
Capital leases $ 34
Term loan 111
SBA loan 388
Promissory note 77
Promissory note 1,000
Base promissory notes 6,066
Trailing promissory notes 3,275
Convertible note payable 2,825
--------
13,776
Less current maturities (2,282)
--------
Long term obligations and
convertible note payable $11,494
========
NAC's current maturities and long term obligations at October 31, 2004
are as follows (in thousands):
Amounts
-------
2005 $ 2,284
2006 1,168
2007 1,199
2008 1,260
2009 1,325
Thereafter 6,543
--------
13,779
less interest due under
capital leases obligations (3)
--------
$13,776
========
The cost and accumulated depreciation for equipment under capital
leases were $335,000 and $177,000, respectively at October 31, 2004.
15
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 5 - SALE OF TREASURY STOCK
In July 2004, NAC initiated a private placement ("NAC Private
Placement") whereby NAC offered for sale up to 1.3 million shares of
unregistered, restricted treasury stock at $0.25 per share. Pursuant to the
terms of the NAC Private Placement, NAC sold an aggregate of 950,000 shares of
its treasury stock at $0.25 per share from which it derived net proceeds of
approximately $237,000. The restricted shares may not be sold or otherwise
transferred without registration under the Securities and Exchange Act of 1933,
as amended, or applicable state securities laws or an exemption therefrom. In
the event that NAC proposes to register any of its securities under the
Securities Act, whether for its own account or for the account of another
shareholder, the treasury stock issued pursuant to the NAC Private Placement
will be included in such registration.
NOTE 6 - COMMITMENTS AND CONTINGENCIES
Shareholder Complaints
- ----------------------
On July 31, 2001, NAC received a derivative complaint (the "Academy
Complaint") filed by Academy Capital Management, Inc. ("Academy"), a shareholder
of NAC, with the Court of Chancery of Delaware (the "Delaware Chancery Court"),
on or about July 31, 2001, against James J. McNamara, John A. Gleason, William
S. Marshall, Henry Y.L. Toh, Donald Jasensky, Peter T. Zackaroff, Mallory
Factor, and Thomas F. Carney, Jr. (the "Director Defendants") and names NAC as a
nominal defendant. The Academy Complaint principally seeks: (i) a declaration
that the Director Defendants breached their fiduciary duties to NAC, (ii) a
judgment voiding an employment agreement with James J. McNamara and rescinding a
stock exchange agreement in which NAC acquired ZoomLot Corporation, (iii) a
judgment voiding the grant of stock options and the award of director fees
allegedly related thereto, (iv) an order directing the Director Defendants to
account for alleged damages sustained and profits obtained by the Director
Defendants as a result of the alleged various acts complained of, (v) the
imposition of a constructive trust over monies or other benefits received by the
Director Defendants and (vi) an award of costs and expenses.
On August 16, 2001, NAC received a complaint (the "Markovich
Complaint") filed by Levy Markovich ("Markovich"), a shareholder of NAC, with
the Delaware Chancery Court on or about August 16, 2001, against James J.
McNamara, John A. Gleason, William S. Marshall, Henry Y. L. Toh, Donald
Jasensky, Peter T. Zackaroff, Mallory Factor, and Thomas F. Carney, Jr. and NAC
as a nominal defendant. The Markovich Complaint principally seeks: (i) a
declaration that the Director Defendants have breached their fiduciary duties to
NAC, (ii) a judgment voiding an employment agreement with James J. McNamara and
rescinding a stock exchange agreement in which NAC acquired ZoomLot Corporation,
(iii) a judgment voiding the grant of options and the award of directors fees
allegedly related thereto, (iv) an order directing the Director Defendants to
account for alleged damages sustained and alleged profits obtained by the
Director Defendants as a result of the alleged various acts complained of, (v)
the imposition of a constructive trust over monies or other benefits received by
the directors, and (vi) an award of costs and expenses.
16
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 6 - COMMITMENTS AND CONTINGENCIES - CONTINUED
On August 31, 2001, NAC received a complaint (the "Harbor Complaint")
filed by Harbor Finance Partners ("Harbor"), a shareholder of NAC, with the
Delaware Chancery Court on or about August 31, 2001, against Thomas F. Carney,
Jr., Mallory Factor, John A. Gleason, Donald Jasensky, William S. Marshall,
James J. McNamara, Henry Y. L. Toh, Peter T. Zackaroff, Ernest C. Garcia, and
ZoomLot Corporation as Defendants and NAC as a nominal defendant. The Harbor
Complaint principally seeks: (i) a judgment requiring the Director Defendants to
promptly schedule an annual meeting of shareholders within thirty (30) days of
the date of the Harbor Complaint; (ii) a judgment declaring that the Director
Defendants breached their fiduciary duties to NAC and wasted its assets; (iii)
an injunction preventing payment of monies and benefits to James J. McNamara
under his employment agreement with NAC and requiring Mr. McNamara to repay the
amounts already paid to him thereunder; (iv) a judgment rescinding the agreement
by NAC to purchase ZoomLot and refunding the amounts it paid; (v) a judgment
rescinding the award of monies and options to the directors on December 15, 2000
and requiring the directors to repay the amounts they received allegedly related
thereto; (vi) a judgment requiring the defendants to indemnify NAC for alleged
losses attributable to their alleged actions; and (vii) a judgment awarding
interest, attorney's fees, and other costs, in an amount to be determined.
On October 12, 2001, NAC received a derivative complaint filed by
Robert Zadra, a shareholder of NAC, with the Supreme Court of the State of New
York on or about October 12, 2001 against James J. McNamara, John A. Gleason,
William S. Marshall, Henry Y. L. Toh, Donald Jasensky, Peter T. Zackaroff,
Mallory Factor, Thomas F. Carney, Jr., and NAC as Defendants. On or about May
29, 2002 the complaint was amended to include class action allegations (the
"Zadra Amended Complaint"). The Zadra Amended Complaint contains allegations
similar to those in the Delaware actions concerning the Board's approval of the
employment agreement with James McNamara, option grants and past and future
compensation to the Director Defendants, and the ZoomLot transaction. The
Amended Complaint seeks (i) a declaration that as a result of approving these
transactions the Director Defendants breached their fiduciary duties to NAC,
(ii) a judgment enjoining defendants from proceeding with or exercising the
option agreements, (iii) rescission of the option grants to defendants, if
exercised, (iv) an order directing the Director Defendants to account for
alleged profits and losses obtained by the Director Defendants as a result of
the alleged various acts complained of, (v) awarding compensatory damages to NAC
and the class, together with prejudgment interest, and (vi) an award of costs
and expenses.
NAC has vigorously defended against each of the respective claims made
in the Academy Complaint, Markovich Complaint, Harbor Complaint and the Zadra
Amended Complaint, as it believes that the claims have no merit. By order of the
Delaware Chancery Court on November 12, 2001, the Academy, Markovich and Harbor
Complaints were consolidated under the title "In re National Auto Credit, Inc.
Shareholders Litigation," Civil Action No. 19028 NC (Delaware Chancery Court)
("Delaware Consolidated Action") and the Academy Complaint was deemed the
operative complaint.
The parties in the New York action thereafter engaged in settlement
negotiations and the parties entered into a stipulation of settlement in
December 2002, proposing to settle all class and derivative claims. In January
2003, the New York Supreme Court entered an order which, among other things,
conditionally certified a class of shareholders for settlement purposes,
approved the form of notice of the proposed settlement, and scheduled a hearing
to approve the settlement. Notice of the proposed settlement was given to the
shareholders of the Company and members of the class as per the court's order in
January and February 2003. Hearings on the proposed settlement were held on May
13, 2003 and October 15, 2003. One of the Plaintiffs in the Delaware
Consolidated Action, and several other shareholders, appeared and objected to
the terms of the settlement, but all of these objections were denied by the New
York Supreme Court, which, after hearing all the evidence, found that the
settlement was fair, reasonable and in the best interests of the Company, the
class and the Company's shareholders, and approved the terms of the proposed
settlement in a written Order and Judgment entered January 8, 2004 ("the January
2004 Order").
17
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 6 - COMMITMENTS AND CONTINGENCIES - CONTINUED
The provisions of the settlement have not been implemented since Objectors have
filed an appeal of the January 2004 Order with the Appellate Division of the New
York Supreme Court, First Division (the "NY Appellate Court"). The NY Appellate
Court scheduled a preliminary conference in September 2004 to review the appeal.
The appeal has been noticed for the January 2005 term of the NY Appellate Court.
Oral argument on the appeal is expected to be heard in February or March 2005
and a decision is expected to be rendered by the NY Appellate Court later in
2005.
A motion to dismiss the Delaware Consolidated Action was filed in 2002
but was denied by the Delaware Chancery Court in January 2003. The Delaware
Chancery Court then stayed further proceedings in the Delaware Consolidated
Action pending issuance of the New York Supreme Court's decision on the
settlement. In January 2004, NAC re-filed a motion to dismiss the Delaware
Consolidated Action, asserting that the New York Supreme Court's January 2004
Order, approving the settlement of the class and derivative action, precluded
further proceedings in Delaware. In a decision rendered in August 2004, the
Delaware Chancery Court determined that because the New York Supreme Court's
January 2004 Order conditioned entry of a final judgment in New York upon the
dismissal of the Consolidated Derivative Action, the January 2004 Order was not
a final judgment for claim preclusion purposes. There has been no subsequent
activity to date in the Consolidated Derivative Action pending the disposition
of the appeal in New York.
No predictions can be made with respect to the outcome of these matters
and, accordingly, no provision for any loss or settlement that may occur has
been recorded in the consolidated financial statement.
Self-Insurance Reserves for Property Damage and Personal Injury Claims.
- -----------------------------------------------------------------------
NAC, under the names Agency Rent-A-Car, Inc. ("ARAC"), Altra Auto
Rental and Automate Auto Rental, previously engaged in the rental of automobiles
on a short-term basis, principally to the insurance replacement market. In
Fiscal 1996, NAC disposed of its rental fleet business through the sale of
certain assets and through certain leases to a national car rental company. All
liabilities related to the discontinued rental business, principally
self-insurance claims, were retained by NAC.
NAC maintained and continues to maintain self-insurance for claims
relating to bodily injury or property damage from accidents involving the
vehicles rented to customers by its discontinued automobile rental operations.
NAC was, when required by either governing state law or the terms of its rental
agreement, self-insured for the first $1.0 million per occurrence, and for
losses in excess of $5.0 million per occurrence, for bodily injury and property
damage resulting from accidents involving its rental vehicles. NAC was also
self-insured, up to certain retained limits, for bodily injury and property
damage resulting from accidents involving NAC vehicles operated by employees
within the scope of their employment. In connection therewith, NAC established
certain reserves in its financial statements for the estimated cost of
satisfying those claims.
NAC was named as defendant in a self-insurance action Darrell Smith and
Aaron Simpson ("Plaintiffs") v. John J. Bennett, ARAC, Country Mutual Insurance
Company and Atlanta Casualty Insurance Company in Cook County (State) Court of
Illinois. This matter arises out of an incident in which an ARAC car renters'
son, while driving the rental vehicle, was involved in a fatal accident and with
serious injuries to Plaintiffs, passengers in the vehicle.
18
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 6 - COMMITMENTS AND CONTINGENCIES - CONTINUED
In November 2003, the plaintiffs reached an agreement to settle with
all parties against whom they had claims. In May 2004, the definitive agreements
were executed and confirmed by the Circuit Court of Cook County dismissing the
Plaintiffs action against NAC with prejudice without any further liability or
cost to NAC.
Because of the uncertainties related to several smaller legal
proceedings involving NAC's former rental operations and self-insurance claims,
it is difficult to project with precision the ultimate effect the adjudication
or settlement of these matters will have on NAC. At October 31, 2004, NAC had
accrued $281,000 to cover all outstanding self-insurance liabilities. As
additional information regarding NAC's potential liabilities becomes available,
NAC will revise the estimates as appropriate.
Other Litigation
- ----------------
In the normal course of its business, NAC is named as defendant in
legal proceedings. It is the policy of NAC to vigorously defend litigation
and/or enter into settlements of claims where management deems appropriate.
19
ITEM 2.
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
GENERAL
National Auto Credit, Inc. ("the Company" or "NAC") began operations in
1969 and was incorporated in Delaware in 1971. NAC consummated a series of
acquisitions during the year ended January 31, 2004 transforming its business
operations into a multi-dimensional corporate communications and entertainment
company. NAC specializes in the full-service design, creative development,
production, post production editing and transmission, via broadcast satellite
videoconferencing, webcasting and traditional on-site presentations, of
corporate communication, education and training video and other services for use
at corporate events. Additionally, NAC, through its investment in the Angelika
Film Center LLC ("AFC"), operates in the movie exhibition industry. NAC acquired
its investment in AFC in April 2000.
CRITICAL ACCOUNTING POLICIES
NAC's consolidated financial statements are prepared in accordance with
generally accepted accounting principles, which require NAC to make estimates
and assumptions. Those estimates and assumptions affect the reported amounts of
assets and liabilities, the disclosure of contingent assets and liabilities, and
the reported revenues and expenses of NAC. Certain accounting policies are
deemed "critical", as they require management's highest degree of judgment,
estimates and assumptions. These accounting estimates and disclosures have been
discussed with the Audit Committee of NAC's Board of Directors. A discussion of
NAC's critical accounting policies, the judgments and uncertainties affecting
their application, and the likelihood that materially different amounts would be
reported under different conditions or using different assumptions are as
follows:
Revenues
NAC recognizes revenue from video production, video editing, meeting
services and broadcast satellite or webcast services when the video is complete
and delivered or all technical services have been rendered. Deposits and other
prepayments are recorded as deferred revenue until revenue is recognized. NAC
does not have licensing or other arrangements that result in additional revenues
following the delivery of the video or a broadcast. Costs accumulated in the
production of the video, meeting services or broadcasts are deferred until the
sale and delivery are complete. Deferred production costs of $348,000 are
reported as other current assets at October 31, 2004.
NAC recognizes revenue from designing and developing websites when the
customer accepts the completed project. Deposits and other prepayments are
recorded as deferred revenue until revenue is recognized. These contracts are
limited to the design and development of websites. Clients have the option to
engage NAC to maintain and upgrade their websites. These contracts are separate
from the website development and design agreements, and the related revenue is
recognized over the term of the contracts, which is generally up to one year.
20
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
NAC recognizes revenue from developing and maintaining websites
pursuant to the requirements of Statement of Position No. 97-2, "Software
Revenue Recognition" ("SOP 97-2"), as amended by Statement of Position No. 98-9,
"Software Revenue Recognition with Respect to Certain Arrangements." Under SOP
97-2, revenue attributable to an element in a customer arrangement is recognized
when persuasive evidence of an arrangement exists and delivery has occurred,
provided the fee is fixed or determinable, collectibility is probable and the
arrangement does not require significant customization of the software. If at
the outset of the customer arrangement, NAC determines that the arrangement fee
is not fixed or determinable or that collectibility is not probable, NAC defers
the revenue and recognizes the revenue when the arrangement fee becomes due and
payable or, when collectibility is uncertain, as cash is collected.
Cost of Revenues
Cost of revenues consists of direct expenses specifically associated
with client service revenues. The cost of revenues includes direct salaries and
benefits, purchased products or services for clients, web hosting, support
services, shipping and delivery costs.
Accounts Receivable
NAC extends credit to clients in the normal course of business. NAC
continuously monitors collections and payments from clients and maintain an
allowance for doubtful accounts based upon historical experience and any
specific client collection issues that have been identified. Since accounts
receivable are concentrated in a relatively few number of clients, a significant
change in the liquidity or financial position of any of these clients could have
a material adverse impact on the collectability of the accounts receivable and
future operating results.
Valuation of Long-lived Assets and Goodwill
NAC reviews long-lived assets for impairment whenever events or changes
in circumstances indicate that the carrying amount of these assets may not be
fully recoverable and it annually assesses whether goodwill has been impaired by
comparing the carrying amount of the goodwill to its fair value. When it is
determined that the carrying amount of long-lived assets or goodwill is
impaired, impairment is measured by comparing an asset's estimated fair value to
its carrying value. The determination of fair value is based on quoted market
prices in active markets, if available, or independent appraisals; sales price
negotiations; or projected future cash flows discounted at a rate determined by
management to be commensurate with our business risk. The estimation of fair
value utilizing discounted forecasted cash flows includes significant judgments
regarding assumptions of revenue, operating and marketing costs; selling and
administrative expenses; interest rates; property and equipment additions and
retirements; and industry competition, general economic and business conditions,
among other factors.
Management has determined that there was no impairment to our long-lived
assets and goodwill on the basis of a review of a discounted cash flow analysis,
which for goodwill is performed at the level of the subsidiaries to which the
goodwill relates. If there is a material change in the assumptions used in the
determination of fair value or a material change in the conditions or
circumstances influencing fair value, NAC could be required to recognize a
material impairment charge.
21
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
Self-Insurance Claims
NAC maintained and continues to maintain self-insurance for claims
relating to bodily injury or property damage from accidents involving the
vehicles rented to customers by its discontinued automobile rental operations.
NAC was, when required by either governing state law or the terms of its rental
agreement, self-insured for the first $1.0 million per occurrence, and for
losses in excess of $5.0 million per occurrence, for bodily injury and property
damage resulting from accidents involving its rental vehicles. NAC was also
self-insured, up to certain retained limits, for bodily injury and property
damage resulting from accidents involving NAC vehicles operated by employees
within the scope of their employment. In connection therewith, NAC established
certain reserves in its financial statements for the estimated cost of
satisfying those claims.
Income Taxes
NAC recognizes deferred tax assets and liabilities based on differences
between the financial statement carrying amounts and the tax basis of assets and
liabilities. Loss carrybacks, reversal of deferred tax liabilities, tax planning
and estimates of future taxable income are considered in assessing the need for
a valuation allowance. At the time it is determined that NAC is unable to
realize deferred tax assets to the extent of the recorded amount, an adjustment
to the deferred tax asset through recording (increasing) a valuation would
decrease income in the period such determination was made.
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS FROM OPERATIONS FOR THE THREE MONTHS ENDED OCTOBER 31, 2004
AS COMPARED TO THE THREE MONTHS ENDED OCTOBER 31, 2003
Revenues: Revenues for the three months ended October 31, 2004 were
$3.0 million and are comprised principally of revenues derived from the OMI and
The Campus Group (collectively the "Acquired Companies") operations. Revenues
for the three months ended October 31, 2003 were $3.1.
For the three months ended October 31, 2004, revenues for The Campus
Group were $2.0 million as compared to revenues of $2.3 million for the three
months ended October 31, 2004. The decrease in revenues of $275,000 for the
three months ended October 31, 2004 as compared to revenues for the three months
ended October 31, 2003 was principally due to fluctuations in the timing of
client events from period-to-period.
22
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
For the three months ended October 31, 2004, revenues for OMI were $1.0
million as compared to revenues of $781,000 for the three months ended October
31, 2003. The increase in revenues of $223,000 for the three months ended
October 31, 2004 as compared to revenues for the three months ended October 31,
2003 was principally due to an increase in the number, scope and value of client
assignments completed from period to period.
Cost of Revenues: Cost of revenues for three months October 31, 2004
were $1.8 million and are comprised principally of cost of revenues derived from
the Acquired Companies operations, (i) The Campus Group cost of revenues of $1.4
million and (ii) OMI cost of revenues of $388,000. The average gross margin for
the three months ended October 31, 2004 was 26.4% and 61.0% for The Campus Group
and OMI, respectively. The average gross margins for The Campus Group declined
from its historical average of between 35% and 40% due to an increase in fixed
production personnel and related costs and a lower project margin for a large
project completed during the period. The average gross margin for OMI for the
three months ended October 31, 2004 were higher than historical levels due
principally to the increased revenues to absorb fixed media production expenses
and related production personnel costs.
Selling, General and Administrative ("SG&A"): For the three months
ended October 31, 2004, SG&A expenses includes SG&A expenses of OMI's operations
("OMI SG&A"), The Campus Group's operations ("Campus SG&A") and NAC's personnel,
occupancy, legal, professional, insurance and other general corporate overhead
costs ("NAC SG&A").
For the three months ended October 31, 2004, SG&A expense was $1.9
million comprised of (i) Campus SG&A of $860,000, (ii) OMI SG&A of $350,000, and
(iii) NAC SG&A of $636,000. SG&A for the Acquired Companies have increased due
to additional personnel and related costs. NAC SG&A for the three months ended
October 31, 2004 was $636,000 as compared to $928,000 for the three months ended
October 31, 2003. The decrease of $292,000 of NAC SG&A for the three months
October 31, 2004 as compared to the three months ended October 31, 2003 was due
principally to decreased legal and consulting costs.
Income from AFC Investment: NAC accounts for its investment in AFC
using the equity method. For the three months ended October 31, 2004 and 2003,
NAC recorded income of $165,000 and $111,000, respectively, representing NAC's
share of AFC's net income for the three months ended September 30, 2004 and
2003, respectively.
23
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
The following sets forth summarized operating results for AFC (in
thousands):
Three Months Ended September 30,
--------------------------------
2004 2003
------------ -------------
Revenues $ 1,478 $ 1,375
Film rental 269 272
Operating costs 639 636
Depreciation and amortization 198 214
General and administrative expenses 42 32
------------ -------------
1,148 1,154
------------ -------------
Net income $ 330 $ 221
============ =============
NAC's proportionate share of net income $ 165 $ 111
============ =============
AFC's revenues increased $103,000 for the three months ended September
30, 2004 as compared to the three months ended September 30, 2003, principally
as a result of the net effects of (i) a 9.3% increase in attendance, (ii) a
decrease of $10,000 in other, concession and cafe revenues and (iii) stable
ticket prices period-to-period. The attendance, and at times the ticket prices,
at AFC will vary depending on audience interest in, and the popularity of the
films it exhibits and other factors. Film rental, as a percentage of revenue,
decreased 1.6% to 18.2% from 19.8% for the three months ended September 30, 2004
and 2003, respectively. Film rental expense generally is a factor of a fixed
percentage rental rate per film multiplied by the number of tickets sold. AFC
experiences fluctuations in film rental expense, as a percentage of revenue,
depending upon the rental rate per film and the popularity of the film.
Operating costs, as a percent of revenue, decreased 3.0% to 43.2% for the three
months ended September 30, 2004 as compared to 46.2% for the three months ended
September 30, 2003 due principally to a decrease in personnel related costs. The
nature of AFC's operating costs tend to generally be more fixed overhead-related
costs and advertising expenses.
Income Taxes: Due to net operating losses and the availability of net
operating loss carryforwards, NAC's effective income tax rate was zero for the
three month periods ended October 31, 2004 and October 31, 2003. NAC has
provided a full valuation allowance against its net operating loss carryforward
and other net deferred tax asset items due to the uncertainty of their future
realization.
RESULTS FROM OPERATIONS FOR THE NINE MONTHS ENDED OCTOBER 31, 2004
AS COMPARED TO THE NINE MONTHS ENDED OCTOBER 31, 2003
Revenues: Revenues for the nine months ended October 31, 2004 were $8.7
million and are comprised principally of revenues derived from the Acquired
Companies operations, (i) OMI revenues of $1.6 million and (ii) The Campus Group
revenues of $7.1 million. Pro forma revenues for the nine months ended October
31, 2003, computed by combining the revenues of NAC with the revenues of the
Acquired Companies prior to their acquisition, were $9.0 million as compared to
revenues of $8.7 million for the nine months ended October 31, 2004.
24
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
For the nine months ended October 31, 2003, pro forma revenues for The
Campus Group were $7.2 million as compared to revenues of $7.1 million for the
nine months ended October 31, 2004. The decrease in revenues of $138,000 for the
nine months ended October 31, 2004 as compared to pro forma revenues for the
nine months ended October 31, 2003 was principally due to fluctuations in the
timing of client events from period-to-period.
For the nine months ended October 31, 2003, pro forma revenues for OMI
were $1.8 million as compared to revenues of $1.6 million for the nine months
ended October 31, 2004. The decrease in revenues of $210,000 for the nine months
ended October 31, 2004 as compared to pro forma revenues for the nine months
ended October 31, 2003 was principally due to a reduction in the number, scope
and value of assignments completed from period to period.
Cost of Revenues: Cost of revenues for nine months October 31, 2004
were $5.1 million and are comprised principally of cost of revenues derived from
the Acquired Companies operations, (i) The Campus Group cost of revenues of $4.2
million and (ii) OMI cost of revenues of $944,000. The average gross margin for
the nine months ended October 31, 2004 was 40.5% and 41.6% for The Campus Group
and OMI, respectively. The average gross margins for The Campus Group are
comparable to the average gross margins at similar revenue levels prior to NAC's
acquisition.
Selling, General and Administrative ("SG&A"): For the nine months ended
October 31, 2004, SG&A expenses includes OMI SG&A, Campus SG&A and NAC SG&A. As
a consequence of the acquisition of OMI effective April 1, 2003 and The Campus
Group effective October 31, 2003, SG&A expenses for the nine months ended
October 31, 2003 includes Campus SG&A for three months, OMI SG&A for seven
months and NAC SG&A for nine months.
For the nine months ended October 31, 2004, SG&A expense was $5.5
million comprised of (i) Campus SG&A of $2.3 million, (ii) OMI SG&A of $870,000,
and (iii) NAC SG&A of $2.4 million. SG&A for the Acquired Companies have
remained comparable to their historical levels prior to NAC's acquisition. NAC
SG&A for the nine months ended October 31, 2004 was $2.4 million as compared to
$2.7 million for the nine months ended October 31, 2003.
Income from AFC Investment: NAC accounts for its investment in AFC
using the equity method. For the nine months ended October 31, 2004 and 2003,
NAC recorded income of $354,000 and $303,000, respectively, representing NAC's
share of AFC's net income for the nine months ended September 30, 2004 and 2003,
respectively.
25
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
The following sets forth summarized operating results for AFC (in
thousands):
Nine Months Ended September 30,
--------------------------------
2004 2003
------------- ------------
Revenues $ 4,045 $ 4,566
Film rental 772 1,082
Operating costs 1,849 2,147
Depreciation and amortization 589 637
General and administrative expenses 127 94
------------- ------------
3,337 3,960
------------- ------------
Net income $ 708 $ 606
============= ============
NAC's proportionate share of net income $ 354 $ 303
============= ============
AFC's revenues decreased $521,000 for the nine months ended September
30, 2004 as compared to the nine months ended September 30, 2003, principally as
a result of (i) a 10.8% decrease in attendance, (ii) a decrease of $124,000 in
other, concession and cafe revenues and (iii) stable ticket prices
period-to-period. The attendance, and at times the ticket prices, at AFC will
vary depending on audience interest in, and the popularity of the films it
exhibits and other factors. Film rental, as a percentage of revenue, decreased
4.6% to 19.1% from 23.7% for the nine months ended September 30, 2004 and 2003,
respectively. Film rental expense generally is a factor of a fixed percentage
rental rate per film multiplied by the number of tickets sold. AFC experiences
fluctuations in film rental expense, as a percentage of revenue, depending upon
the rental rate per film and the popularity of the film. Operating costs, as a
percent of revenue, decreased 1.3% to 45.7% for the nine months ended September
30, 2004 as compared to 47.0% for the nine months ended September 30, 2003 due
principally to a decrease in personnel and related costs. The nature of AFC's
operating costs tend to generally be more fixed overhead-related costs and
advertising expenses.
Income Taxes: Due to net operating losses and the availability of net
operating loss carryforwards, NAC's effective income tax rate was zero for the
nine month periods ended October 31, 2004 and October 31, 2003. NAC has provided
a full valuation allowance against its net operating loss carryforward and other
net deferred tax asset items due to the uncertainty of their future realization.
26
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
LIQUIDITY AND CAPITAL RESOURCES
Throughout the nine months ended October 31, 2004 and as of December
10, 2004, NAC had no external source of financing, and has operated on its
existing cash balances, cash flows from the Acquired Companies and distributions
from its investment in AFC. NAC continues to pursue its plan of examining new
business opportunities, which may be pursued through the investment in, or
acquisition of existing operating businesses or other means. At October 31, 2004
NAC had cash of $475,000 and a $2.1 million income tax refund receivable which
together with any cash flow derived from its investment in AFC and the
operations of the Acquired Companies will be used to pursue such opportunities.
Additionally, NAC will continue to pursue reductions in its operating expenses
and new debt or equity financing (there can be no assurance NAC will obtain such
financing) as means of supplementing the resources available to pursue new
opportunities.
As a consequence of periodic fluctuations in NAC's working capital
needs based upon the timing of collections, periods of increased media
production activity and the pending collection of the income tax refundable, on
July 14, 2004 NAC consummated a Loan and Security Agreement ("Loan Agreement")
with a lender and issued a Promissory Note ("Note") of $1.0 million. The lender,
Time Passages Corp., is an unaffiliated third party lender. The President of
Time Passages Corp. was a former director of NAC who last served on NAC's board
in January 2002. Pursuant to the terms of the Note, (i) the outstanding
principal of the Note is due July 13, 2005, (ii) NAC is required to pay interest
only, monthly and in arrears, during the term and (iii) the Note bears interest
at twenty percent per annum. NAC may prepay the Note at anytime and without a
prepayment penalty. The Note is secured by a perfected first priority security
interest in and to, and a lien on and pledge of, NAC's right, title and interest
in and to virtually all of NAC's assets. The lien does not extend to the common
stock of The Campus Group and other permitted liens.
In July 2004, NAC initiated a private placement ("NAC Private
Placement") whereby NAC offered for sale up to 1.3 million shares of
unregistered, restricted treasury stock at $0.25 per share. Pursuant to the
terms of the NAC Private Placement, NAC sold an aggregate of 950,000 shares of
its treasury stock at $0.25 per share from which it derived net proceeds of
approximately $237,000. The restricted shares may not be sold or otherwise
transferred without registration under the Securities and Exchange Act of 1933,
as amended, or applicable state securities laws or an exemption therefrom. In
the event that NAC proposes to register any of its securities under the
Securities Act, whether for its own account or for the account of another
shareholder, the treasury stock issued pursuant to the NAC Private Placement
will be included in such registration.
As a consequence of NAC's acquisition of The Campus Group effective
July 31, 2003, NAC issued to Mr. Campus and certain family trusts promissory
notes of $9.9 million and issued to a family trust a convertible promissory note
of $2.8 million. Of the $9.9 million in promissory notes issued by NAC, $6.6
million of the promissory notes ("Base Notes") bear interest at 5% per annum and
are repayable in quarterly installments according to a formula based upon the
future cash flows realized from The Campus Group over a period not to exceed
seven years. The remaining $3.3 million in promissory notes ("Trailing Notes")
issued by NAC bear interest at 5% per annum and are repayable in quarterly
installments, commencing upon the retirement of the Base Notes, according to a
formula based upon the future cash flows realized from The Campus Group over a
period not to exceed three years subsequent to the retirement of the Base Notes.
The $2.8 million convertible promissory note (i) bears interest at 5% per annum,
payable quarterly in cash or accumulating as principal at the election of NAC,
(ii) requires
27
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
principal payments to commence upon the retirement of the $9.9 million of Base
Notes and the Trailing Notes and is then repayable in quarterly installments
according to a formula based upon the future cash flows realized from The Campus
Group over a period not to exceed three years and (iii) is convertible at the
option of the holder into shares of NAC common stock at a base conversion price
of $1.50 per share. The holder may not convert the convertible promissory note
into NAC common stock prior to repayment of the Base Notes and the Trailing
Notes. The promissory notes are secured by the capital stock of the companies
comprising The Campus Group. At October 31, 2004, NAC has outstanding
obligations under the terms of the Base Notes, Trailing Notes and the
Convertible Notes of $6.1 million, $3.3 million and $2.8 million, respectively.
As a consequence of NAC's acquisition of OMI effective April 1, 2003,
NAC assumed $814,000 in bank debt and capital lease obligations to financial
institutions and issued a promissory note payable to Mr. Thompson in the amount
of $153,000.
During 2001, OMI obtained a $300,000 bank term loan (the "Term Loan")
to finance certain capital expenditures. The Term Loan is payable in monthly
installments of $6,000, comprised of principal and interest, over a five year
term, expiring in July 2006. The Term Loan bears interest at the rate of 8.25%
per annum. The Term Loan is collateralized by substantially all of OMI's assets
and the personal guarantee of Mr. Thompson. In April 2004, as a consequence of a
change in control provision in the Term Loan, the bank has requested accelerated
repayment of the Term Loan. NAC has classified the Term Loan as a component of
current maturities at October 31, 2004. The outstanding balance of the Term Loan
at October 31, 2004 is $111,000.
On April 25, 2002, OMI obtained a $402,000 loan guaranteed by the U.S.
Small Business Administration (the "SBA Loan") to finance losses incurred as a
result of the September 11, 2001 terrorist attacks in New York City. At October
31, 2004, the remaining balance of the SBA Loan of $388,000 is repayable in
monthly installments of $3,309 with the last payment due in April 2017. The SBA
Loan bears no interest through May 2004 and at the rate of 4% per annum
thereafter.
At October 31, 2004, the $77,000 promissory note payable to Mr.
Thompson is payable in monthly installments of principal and interest over a 36
month period expiring April 2006. The promissory note bears interest at 5% per
annum.
OMI leases computer equipment under several different capital leases
with finance institutions with various payments terms, expiration dates and
imputed annual rates of interest. At October 31, 2004, amounts outstanding under
the capital leases were $34,000.
For the nine months ended October 31, 2004, NAC's cash and cash
equivalents increased $99,000 due to the net effects of (i) cash flows used in
operations of $1.4 million, (ii) capital expenditures of $187,000, (iii) the
repayment of debt of $357,000 offset by (iv) proceeds from the issuance of a
promissory note of $1.0 million and the sale of treasury stock of $237,000, and
(v) proceeds from AFC distributions of $937,000.
28
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
NAC believes that the available cash and cash equivalents totaling
$475,000 at October 31, 2004, the collection of the federal income tax refund of
$2.1 million and any cash distributions from its investment in AFC and cash flow
from the Acquired Companies' operations will be sufficient to pay operating
expenses, existing liabilities, fund existing debt repayments and fund its
activities through the next twelve months as NAC explores new strategic business
alternatives. As discussed in Note 6 of Notes to Condensed Consolidated
Financial Statements, NAC is presently a defendant or nominal defendant in
various derivative shareholder complaints and various litigation matters
relating to NAC's discontinued auto finance and auto rental businesses. Although
NAC intends to vigorously defend each of the claims, no prediction can be made
with respect to their ultimate outcomes. Accordingly, no provision for any loss
or settlement that may occur has been recorded in the consolidated financial
statements. An adverse outcome could have a material adverse effect on NAC's
liquidity, financial condition or results of operations. Additionally, as
previously discussed, NAC's lack of external financing sources may limit its
ability to pursue strategic business alternatives being considered by NAC's
Board of Directors. Such limitations may have an adverse impact on NAC's
financial position, results of operations and liquidity.
OTHER
NAC's exposure to the risks of inflation is generally limited to the
potential impact of inflation on its operating and general and administrative
expenses. To date, inflation has not had a material adverse impact on NAC.
NAC does not utilize futures, options or other derivative financial
instruments.
29
FORWARD-LOOKING STATEMENTS
Some of the information in this report contains forward looking
statements within the meaning of the federal securities laws that relate to
future events or our future financial performance and involve known and unknown
risks, uncertainties and other factors that may cause us or our industry's
actual results, levels of activity, performance or achievements to be materially
different from any future results, levels of activity, performance or
achievements expressed or implied by the forward-looking statements. You should
not rely on forward-looking statements in this report. Forward-looking
statements typically are identified by use of terms such as "anticipate",
"believe", "plan", "expect", "intend", "may", "will", "should", "estimate",
"predict", "potential", "continue" and similar words although some
forward-looking statements are expressed differently. All forward-looking
statements address matters that involve risk and uncertainties, and there are
many important risks, uncertainties and other factors that could cause our
actual results, as well as those of the markets we serve, levels of activity,
performance, achievements and prospects to differ materially from the
forward-looking statements contained in this report. You should also consider
carefully other statements in this report that address additional facts that
could cause our actual results to differ from those set forth in the
forward-looking statements. We undertake no obligation to publicly update or
review any forward-looking statements, whether as a result of new information,
future developments or otherwise.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Like virtually all commercial enterprises, NAC can be exposed to the
risk ("market risk") that the cash flows to be received or paid relating to
certain financial instruments could change as a result of changes in interest
rate, exchange rates, commodity prices, equity prices and other market changes.
NAC does not engage in trading activities and does not utilize interest
rate swaps or other derivative financial instruments or buy or sell foreign
currency, commodity or stock indexed futures or options. Accordingly, NAC is not
exposed to market risk from these sources.
As of October 31, 2004, the interest rates under NAC's short term, long
term and convertible debt are fixed. As a result NAC has limited market risk
associated with market interest rates.
30
ITEM 4. CONTROLS AND PROCEDURES
As of the end of the period covered by this interim report on Form
10-Q, the Chief Executive Officer and the Chief Financial Officer of NAC (the
"Certifying Officers") have conducted evaluations of NAC's disclosure controls
and procedures. As defined under Sections 13a-15(e) and 15d-15(e)) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), the term
"disclosure controls and procedures" means controls and other procedures of an
issuer that are designed to ensure that information required to be disclosed by
the issuer in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported, within the time periods specified
in the Commission's rules and forms. Disclosure controls and procedures include,
without limitation, controls and procedures designed to ensure that information
required to be disclosed by an issuer in the reports that it files or submits
under the Exchange Act is accumulated and communicated to the issuer's
management, including its principal executive officer or officers and principal
financial officer or officers, or persons performing similar functions, as
appropriate to allow timely decisions regarding required disclosure. The
Certifying Officers have reviewed NAC's disclosure controls and procedures and
have concluded that those disclosure controls and procedures were effective as
of the end of our most recent fiscal quarter. In compliance with Section 302 of
the Sarbanes-Oxley Act of 2002, (18 U.S.C. 1350), each of the Certifying
Officers executed an Officer's Certification included in this Quarterly Report
on Form 10-Q.
During our most recent fiscal quarter, there were no changes in our
internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, our internal control over financial
reporting.
31
PART II.
OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Shareholder Complaints
- ----------------------
On July 31, 2001, NAC received a derivative complaint (the "Academy
Complaint") filed by Academy Capital Management, Inc. ("Academy"), a shareholder
of NAC, with the Court of Chancery of Delaware (the "Delaware Chancery Court"),
on or about July 31, 2001, against James J. McNamara, John A. Gleason, William
S. Marshall, Henry Y.L. Toh, Donald Jasensky, Peter T. Zackaroff, Mallory
Factor, and Thomas F. Carney, Jr. (the "Director Defendants") and names NAC as a
nominal defendant. The Academy Complaint principally seeks: (i) a declaration
that the Director Defendants breached their fiduciary duties to NAC, (ii) a
judgment voiding an employment agreement with James J. McNamara and rescinding a
stock exchange agreement in which NAC acquired ZoomLot Corporation, (iii) a
judgment voiding the grant of stock options and the award of director fees
allegedly related thereto, (iv) an order directing the Director Defendants to
account for alleged damages sustained and profits obtained by the Director
Defendants as a result of the alleged various acts complained of, (v) the
imposition of a constructive trust over monies or other benefits received by the
Director Defendants and (vi) an award of costs and expenses.
On August 16, 2001, NAC received a complaint (the "Markovich
Complaint") filed by Levy Markovich ("Markovich"), a shareholder of NAC, with
the Delaware Chancery Court on or about August 16, 2001, against James J.
McNamara, John A. Gleason, William S. Marshall, Henry Y. L. Toh, Donald
Jasensky, Peter T. Zackaroff, Mallory Factor, and Thomas F. Carney, Jr. and NAC
as a nominal defendant. The Markovich Complaint principally seeks: (i) a
declaration that the Director Defendants have breached their fiduciary duties to
NAC, (ii) a judgment voiding an employment agreement with James J. McNamara and
rescinding a stock exchange agreement in which NAC acquired ZoomLot Corporation,
(iii) a judgment voiding the grant of options and the award of directors fees
allegedly related thereto, (iv) an order directing the Director Defendants to
account for alleged damages sustained and alleged profits obtained by the
Director Defendants as a result of the alleged various acts complained of, (v)
the imposition of a constructive trust over monies or other benefits received by
the directors, and (vi) an award of costs and expenses.
On August 31, 2001, NAC received a complaint (the "Harbor Complaint")
filed by Harbor Finance Partners ("Harbor"), a shareholder of NAC, with the
Delaware Chancery Court on or about August 31, 2001, against Thomas F. Carney,
Jr., Mallory Factor, John A. Gleason, Donald Jasensky, William S. Marshall,
James J. McNamara, Henry Y. L. Toh, Peter T. Zackaroff, Ernest C. Garcia, and
ZoomLot Corporation as Defendants and NAC as a nominal defendant. The Harbor
Complaint principally seeks: (i) a judgment requiring the Director Defendants to
promptly schedule an annual meeting of shareholders within thirty (30) days of
the date of the Harbor Complaint; (ii) a judgment declaring that the Director
Defendants breached their fiduciary duties to NAC and wasted its assets; (iii)
an injunction preventing payment of monies and benefits to James J. McNamara
under his employment agreement with NAC and requiring Mr. McNamara to repay the
amounts already paid to him thereunder; (iv) a judgment rescinding the agreement
by NAC to purchase ZoomLot and refunding the amounts it paid; (v) a judgment
rescinding the award of monies and options to the directors on December 15, 2000
and requiring the directors to repay the amounts they received allegedly related
thereto; (vi) a judgment requiring the defendants to indemnify NAC for alleged
losses attributable to their alleged actions; and (vii) a judgment awarding
interest, attorney's fees, and other costs, in an amount to be determined.
32
On October 12, 2001, NAC received a derivative complaint filed by
Robert Zadra, a shareholder of NAC, with the Supreme Court of the State of New
York on or about October 12, 2001 against James J. McNamara, John A. Gleason,
William S. Marshall, Henry Y. L. Toh, Donald Jasensky, Peter T. Zackaroff,
Mallory Factor, Thomas F. Carney, Jr., and NAC as Defendants. On or about May
29, 2002 the complaint was amended to include class action allegations (the
"Zadra Amended Complaint"). The Zadra Amended Complaint contains allegations
similar to those in the Delaware actions concerning the Board's approval of the
employment agreement with James McNamara, option grants and past and future
compensation to the Director Defendants, and the ZoomLot transaction. The
Amended Complaint seeks (i) a declaration that as a result of approving these
transactions the Director Defendants breached their fiduciary duties to NAC,
(ii) a judgment enjoining defendants from proceeding with or exercising the
option agreements, (iii) rescission of the option grants to defendants, if
exercised, (iv) an order directing the Director Defendants to account for
alleged profits and losses obtained by the Director Defendants as a result of
the alleged various acts complained of, (v) awarding compensatory damages to NAC
and the class, together with prejudgment interest, and (vi) an award of costs
and expenses.
NAC has vigorously defended against each of the respective claims made
in the Academy Complaint, Markovich Complaint, Harbor Complaint and the Zadra
Amended Complaint, as it believes that the claims have no merit. By order of the
Delaware Chancery Court on November 12, 2001, the Academy, Markovich and Harbor
Complaints were consolidated under the title "In re National Auto Credit, Inc.
Shareholders Litigation," Civil Action No. 19028 NC (Delaware Chancery Court)
("Delaware Consolidated Action") and the Academy Complaint was deemed the
operative complaint.
The parties in the New York action thereafter engaged in settlement
negotiations and the parties entered into a stipulation of settlement in
December 2002, proposing to settle all class and derivative claims. In January
2003, the New York Supreme Court entered an order which, among other things,
conditionally certified a class of shareholders for settlement purposes,
approved the form of notice of the proposed settlement, and scheduled a hearing
to approve the settlement. Notice of the proposed settlement was given to the
shareholders of the Company and members of the class as per the court's order in
January and February 2003. Hearings on the proposed settlement were held on May
13, 2003 and October 15, 2003. One of the Plaintiffs in the Delaware
Consolidated Action, and several other shareholders, appeared and objected to
the terms of the settlement, but all of these objections were denied by the New
York Supreme Court, which, after hearing all the evidence, found that the
settlement was fair, reasonable and in the best interests of the Company, the
class and the Company's shareholders, and approved the terms of the proposed
settlement in a written Order and Judgment entered January 8, 2004 ("the January
2004 Order"). The provisions of the settlement have not been implemented since
Objectors have filed an appeal of the January 2004 Order with the Appellate
Division of the New York Supreme Court, First Division (the "NY Appellate
Court"). The NY Appellate Court scheduled a preliminary conference in September
2004 to review the appeal. The appeal has been noticed for the January 2005 term
of the NY Appellate Court. Oral argument on the appeal is expected to be heard
in February or March 2005 and a decision is expected to be rendered by the NY
Appellate Court later in 2005.
A motion to dismiss the Delaware Consolidated Action was filed in
2002 but was denied by the Delaware Chancery Court in January 2003. The Delaware
Chancery Court then stayed further proceedings in the Delaware Consolidated
Action pending issuance of the New York Supreme Court's decision on the
settlement. In January 2004, NAC re-filed a motion to dismiss the Delaware
Consolidated Action, asserting that the New York Supreme Court's January 2004
Order, approving the settlement of the class and derivative action, precluded
further proceedings in Delaware. . In a decision rendered in August 2004, the
Delaware Chancery Court determined that because the New York Supreme Court's
January 2004 Order conditioned entry of a final judgment in New York upon the
dismissal of the Consolidated Derivative Action, the January 2004 Order was not
a final judgment for claim preclusion
33
purposes. There has been no subsequent activity to date in the Consolidated
Derivative Action pending the disposition of the appeal in New York.
No predictions can be made with respect to the outcome of these matters
and, accordingly, no provision for any loss or settlement that may occur has
been recorded in the consolidated financial statement.
Self-Insurance Reserves for Property Damage and Personal Injury Claims.
- -----------------------------------------------------------------------
NAC, under the names Agency Rent-A-Car, Inc. ("ARAC"), Altra Auto
Rental and Automate Auto Rental, previously engaged in the rental of automobiles
on a short-term basis, principally to the insurance replacement market. In
Fiscal 1996, NAC disposed of its rental fleet business through the sale of
certain assets and through certain leases to a national car rental company. All
liabilities related to the discontinued rental business, principally
self-insurance claims, were retained by NAC.
NAC maintained and continues to maintain self-insurance for claims
relating to bodily injury or property damage from accidents involving the
vehicles rented to customers by its discontinued automobile rental operations.
NAC was, when required by either governing state law or the terms of its rental
agreement, self-insured for the first $1.0 million per occurrence, and for
losses in excess of $5.0 million per occurrence, for bodily injury and property
damage resulting from accidents involving its rental vehicles. NAC was also
self-insured, up to certain retained limits, for bodily injury and property
damage resulting from accidents involving NAC vehicles operated by employees
within the scope of their employment. In connection therewith, NAC established
certain reserves in its financial statements for the estimated cost of
satisfying those claims.
NAC was named as defendant in a self-insurance action Darrell Smith and
Aaron Simpson ("Plaintiffs") v. John J. Bennett, ARAC, Country Mutual Insurance
Company and Atlanta Casualty Insurance Company in Cook County (State) Court of
Illinois. This matter arises out of an incident in which an ARAC car renters'
son, while driving the rental vehicle, was involved in a fatal accident and with
serious injuries to Plaintiffs, passengers in the vehicle.
In November 2003, the plaintiffs reached an agreement to settle with
all parties against whom they had claims. In May 2004, the definitive agreements
were executed and confirmed by the Circuit Court of Cook County dismissing the
Plaintiffs action against NAC with prejudice without any further liability or
cost to NAC.
Because of the uncertainties related to several smaller legal
proceedings involving NAC's former rental operations and self-insurance claims,
it is difficult to project with precision the ultimate effect the adjudication
or settlement of these matters will have on NAC. At October 31, 2004, NAC had
accrued $281,000 to cover all outstanding self-insurance liabilities. As
additional information regarding NAC's potential liabilities becomes available,
NAC will revise the estimates as appropriate.
Other Litigation
- ----------------
In the normal course of its business, NAC is named as defendant in
legal proceedings. It is the policy of NAC to vigorously defend litigation
and/or enter into settlements of claims where management deems appropriate.
34
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
(a)(b) In August 2004, NAC sold in privately negotiated transactions
("NAC Private Placement") 450,000 shares of its unregistered, restricted
treasury stock at $0.25 per share, from which it derived net proceeds of
approximately $119,000. NAC's securities sold in the NAC Private Placement were
not registered under the Securities Act of 1933, as amended (the "Securities
Act"), and were sold to "accredited investors" (as the term is defined in Rule
501(a) of Regulation D promulgated under the Securities Act) pursuant to Section
4(2), Section 4(6) and/or 3(b) of the Securities Act and on Regulation D
promulgated thereunder, and in reliance on similar exemptions under applicable
state laws. These share issuances were approved by NAC's Board of Directors. The
investors in NAC's securities had access to the kind of information about NAC
that it would provide in a registration statement, were "accredited investors"
as defined in Rule 501(a) of Regulation D promulgated under the Securities Act
and represented to NAC their intentions to acquire NAC's securities for
investment purposes only and not with a view to or for sale in connection with
any distribution thereof. Appropriate legends were affixed to the certificates
representing the securities issued. All of the proceeds from the NAC Private
Placement were used for the working capital purposes. The NAC Private Placement
was a self-underwriting, NAC did not incur underwriting or investment expenses.
(c) The Company did not purchase any equity securities during the three
months ended October 31, 2004.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
A) EXHIBITS
EXHIBIT PAGE
NUMBER TITLE OF EXHIBIT NUMBER
-----------------------------------------------------------------------------------------
31.1 Officer's Certification Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002 (18 U.S.C. 1350) 36
31.2 Officer's Certification Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002 (18 U.S.C. 1350) 37
32.1 Certification of Principal Executive Officer Pursuant to
18 U.S.C. 1350 (Section 906 of the Sarbanes-Oxley Act of 2002) 38
32.2 Certification of Principal Financial Officer Pursuant to
18 U.S.C. 1350 (Section 906 of the Sarbanes-Oxley Act of 2002) 39
B) REPORTS ON FORM 8-K
None
35
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NATIONAL AUTO CREDIT, INC.
Date: December 10, 2004 By: /s/ James J. McNamara
---------------------- --------------------------------------------
James J. McNamara
Chairman of the Board and Chief Executive Officer
(principal executive officer)
By: /s/ Robert V. Cuddihy, Jr.
---------------------------------------------
Robert V. Cuddihy, Jr.
Chief Financial Officer
(principal accounting and financial officer)
36