e424b2
Filed
pursuant to Rule 424(b)(2)
Registration No. 333-156914
INFORMATION STATEMENT/PROSPECTUS
FEBRUARY 9, 2009
4929 West Royal Lane
Irving, Texas 75063
February 9, 2009
To the shareholders of Access Plans USA, Inc.:
The Board of Directors of Access Plans USA, Inc. has approved a merger agreement that will
result in Access Plans USA becoming a wholly-owned subsidiary of Alliance HealthCard, Inc. (OTCBB
trading symbol: ALHC). The Board has determined that it is desirable and in the best interests of
Access Plans USA and its shareholders that Access Plans USA proceed with the merger and that the
terms of the merger are fair to you and our other shareholders.
Before we can complete this merger, the merger agreement must be approved by a majority vote
of our shareholders and the registration of the Alliance HealthCard common stock shares must be
completed. Following completion of that registration, pursuant to shareholder consents, the
holders of a majority of our common stock shares are expected to
approve the merger during March 2009 by execution of shareholder consents and without a meeting of our
shareholders. Let me tell you a few things about Alliance HealthCard and the merger.
Alliance
HealthCard provides product enhancement or membership benefits to financial institutions,
rental purchase dealers, consumer finance companies, retail outlets, employee groups, and
member-based associations. Alliance HealthCard is the largest membership plan provider in the
specialty rent-to-own market space and over the past year has diversified and grown its revenue by
broadening its distribution of membership benefits and medical discount programs through new wholesale
and retail relationships. For the year ended September 30, 2008, Alliance HealthCard generated
revenues of $21 million and recorded $2.7 million of net income. You can find more information on
products and services of Alliance HealthCard beginning on page 31 of the Information
Statement/Prospectus.
We are excited by the opportunities we envision for the combined companies. Anticipated gains
from this merger include:
|
|
Strengthening our sales and marketing organization and providing additional financial support
to fund growth Alliance has a strong sales and marketing management team with an excellent
track record in the membership and discount medical savings market; |
|
|
Leveraging each companys respective markets and provider relationships to generate additional
revenue and earnings growth; |
|
|
|
The opportunity to reduce costs through consolidation of overhead and operational functions; and |
|
|
|
Creating a larger company with the platform and management expertise to generate continued
revenue and earnings growth, along with the opportunity to pursue accretive acquisitions. |
We
expect our shareholders will be issued 6,800,000 Alliance HealthCard common stock shares in
exchange for the outstanding common stock shares of Access Plans USA. For more information on how
the merger consideration will be issued to you and our other shareholders, please see pages 17 thru
30 of the Information Statement/Prospectus.
Our operations will be a part of the combined companies. We expect the merger will return us
to profitability. The summary impact of the pro forma financial statements of the combined
companies show pro-forma equivalent Access Plans USA basic earnings per share of $0.04 for the year ended
September 30, 2008, assuming the merger had occurred on October 1, 2007, in contrast to the actual
$(0.05) loss per share from continuing operations for Access Plans USA for this period (see page 15
of the Information Statement/Prospectus).
Under the Oklahoma General Corporation Act and our bylaws, shareholder action may be taken by
written consent without a meeting of shareholders. The written consent of the holders of a
majority of our outstanding common stock is sufficient under the Oklahoma General Corporation Act
and our bylaws to approve the actions described above. Accordingly, the actions described above
will not be submitted to you and our other shareholders for a vote. This letter is the notice
required by Section 1073 of the Oklahoma General Corporation Act.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY
The Information Statement/Prospectus provides you with detailed information about the proposed
merger. We encourage you to read it carefully.
We are enthusiastic about the pending merger with Alliance HealthCard and the accompanying
opportunities. and thank you for your support of Access Plans USA and our proposed merger with
Alliance HealthCard.
J. French Hill
/s/
J. French Hill
Chairman of the Board of Directors
Neither the Securities and Exchange Commission nor any state securities commission has approved of
the securities to be issued under the Information Statement/Prospectus or determined if the
Information Statement/Prospectus is accurate or adequate. Any representation to the contrary is a
criminal offense.
This
Information Statement/Prospectus was first mailed on or about
February 19, 2009 to Access
Plans USA shareholders as of the record date of February 4, 2009.
REFERENCES TO ADDITIONAL INFORMATION
Each of Alliance HealthCard and Access Plans USA is a small reporting company under the
Securities Exchange Act of 1934, as amended (the Exchange Act). This information
statement/prospectus incorporates by reference important business and financial information about
Alliance HealthCard and Access Plans USA from reports and documents that they have filed with the
United States Securities and Exchange Commission, but are not included in, or delivered with, this
information statement/prospectus. This information is available to you without charge upon your
written or oral request. You can obtain documents related to Alliance HealthCard and Access Plans
USA, respectively that are incorporated in this information statement/prospectus by requesting them
in writing, or by telephone, from:
|
|
|
|
|
ALLIANCE HEALTHCARD, INC.
|
|
ACCESS PLANS USA INC. |
|
900 36TH AVENUE NW, SUITE 105
|
|
4929 WEST ROYAL LANE, SUITE 200 |
|
NORMAN, OKLAHOMA 73072
|
|
IRVING, TEXAS 75063 |
|
ATTN: BRADLEY DENISON
|
|
ATTN: ELISEO RUIZ III |
|
TEL NO.: (405) 579-8525
|
|
TEL NO.: (972) 915-3203 |
See also Where You Can Find More Information, below.
|
WHERE YOU CAN FIND MORE INFORMATION |
Alliance HealthCard and Access Plans USA file annual, quarterly and special reports, proxy and
information statements and other information with the United States Securities and Exchange
Commission (the SEC) under the Securities Exchange Act of 1934, as amended. You may read and copy
this information at, or obtain copies of this information by mail from, the SECs Public Reference
Room, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates on official business days
during the hours of 10 a.m. to 3 p.m. Please call the SEC at 1-800-SEC-0330 for further information
about the public reference room.
The filings of Alliance HealthCard and Access Plans USA with the SEC are also available to the
public from commercial document retrieval services and at the web site maintained by the SEC at
http://www.sec.gov. These filings with the SEC are made through the Electronic Data Gathering,
Analysis and Retrieval (EDGAR) system and are publicly available through the SECs web site. The
registration statement, including all exhibits thereto and amendments thereof, and our reports have
been filed with the Commission through EDGAR. We will provide without charge to each person who
receives this prospectus, upon written or oral request, a copy of any information incorporated by
reference in this prospectus (excluding exhibits to information incorporated by reference unless
such exhibits are themselves specifically incorporated by reference). Such requests should be
directed to Access Plans USA, Inc. at 4929 West Royal Lane, Suite 200, Irving, Texas 75063,
Attention: Corporate Secretary, (telephone: (972) 915-3203).
Alliance HealthCard filed a registration statement on Form S-4, of which this information
statement/prospectus is a part, to register with the SEC the shares of Alliance Healthcare common
stock to be delivered in connection with the merger. This information statement/prospectus is a
part of that registration statement and constitutes a prospectus of Alliance HealthCard, in
addition to being an information statement of Access Plans USA. As allowed by SEC rules, this
information statement/prospectus does not contain all the information you can find in the
registration statement or the exhibits to the registration statement. You may obtain copies of the
Form S-4 (and any amendments to that document) in the manner described above.
This information statement/prospectus incorporates by reference the following documents that
Alliance HealthCard and Access Plans USA have previously filed with the SEC:
|
|
|
Alliance HealthCard SEC Filings |
|
|
(File No. 000-30099) |
|
Period or Filing Date |
Annual Report on Form 10-K
|
|
Fiscal Year Ended September 30, 2008 |
Current Reports on Form 8-K
|
|
Filed on December 30, 2008 and November 18, 2008 |
The description of Alliance
HealthCard as set forth in its
Form 10-SB Registration Statement
|
|
Filed March 24, 2000 |
|
|
|
Access Plans USA SEC Filings |
|
|
(File No. 001-15667) |
|
Period or Filing Date |
Annual Report on Form 10-K
|
|
Fiscal Year Ended December 31, 2007 |
Annual Report on Form 10-K/A
|
|
Fiscal Year Ended December 31, 2007 |
Quarterly Report on Form 10-Q
|
|
Quarter Ended March 31, 2008 |
Quarterly
Report on Form 10-Q/A
|
|
Quarter Ended March 31, 2008 |
Quarterly Report on Form 10-Q
|
|
Quarter Ended June 30, 2008 |
Quarterly Report on Form 10-Q
|
|
Quarter Ended September 30, 2008 |
Current Reports on Form 8-K
|
|
Filed on January 20, 2009, January 5, 2009, December 30,
2008, November 17, 2008, November 14,
2008, August 14, 2008, July 3, 2008,
May 29, 2008, May 16, 2008, and May 9,
2008 |
The description of Access Plans
USA as set forth in its Form 8-A
Registration Statement
|
|
Filed July 31, 2001 |
i
Alliance HealthCard and Access Plans USA are incorporating by reference additional documents
that they file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act between the date of this information statement/ prospectus and the date of the receipt
of this information statement/prospectus by the shareholders of Access Plans USA. The information
incorporated by reference is considered to be part of this information statement/ prospectus,
except for any information that is superseded by information that is included in this information
statement/prospectus.
Alliance HealthCard has supplied all information contained or incorporated by reference in
this information statement/ prospectus relating to Alliance HealthCard, and Access Plans USA has
supplied all information contained or incorporated by reference in this information statement/
prospectus relating to Access Plans USA.
As a result, you should rely only on the information contained or incorporated by reference in
this information statement/ prospectus. We have not authorized anyone to provide you with
information that is different from what is contained in this information statement/prospectus. This
information statement/ prospectus is dated February 9, 2009. You should not assume that the
information contained in this information statement/prospectus is accurate as of any date other
than this date, and neither the mailing of this information statement/prospectus nor the delivery
of shares of Alliance HealthCard common stock in connection with the merger will create any
implication to the contrary.
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
Page |
|
|
|
|
1 |
|
|
|
|
6 |
|
|
|
|
7 |
|
|
|
|
11 |
|
|
|
|
14 |
|
|
|
|
15 |
|
|
|
|
16 |
|
|
|
|
17 |
|
|
|
|
25 |
|
|
|
|
30 |
|
|
|
|
31 |
|
|
|
|
57 |
|
|
|
|
62 |
|
|
|
|
73 |
|
|
|
|
73 |
|
|
|
|
74 |
|
ii
QUESTIONS AND ANSWERS ABOUT THE MERGER
Q: |
|
What is the proposed transaction and what are the reasons for it? |
|
A: |
|
Alliance HealthCard will acquire Access Plans USA by merging a
wholly-owned subsidiary of Alliance HealthCard into Access Plans USA.
As a result of the merger, Access Plans USA will become a wholly-owned
subsidiary of Alliance HealthCard. For shareholders of Access Plans
USA, the merger will allow participation in a larger and more
diversified public company and will provide more resources for Access
Plans USA to expand its business and its market presence. The reasons
Access Plans USA and Alliance HealthCard are proposing the merger are
discussed in more detail later in this information
statement/prospectus. See The Merger Reasons For and Advantages
of the Merger, beginning on page 20. |
|
Q. |
|
What will Access Plans USA shareholders receive in the merger? |
|
A: |
|
Upon completion of the merger, Access Plans USA shareholders will be
entitled to receive up to 6,850,000 shares of Alliance HealthCard
common stock or a 0.337952 partial share of Alliance HealthCard
per share of Access Plans USA. The 6,850,000 shares will be reduced
by one share for each $2.00 of the aggregate net cost, if any,
attributable to the divesture of Access Plans USAs subsidiary, Access
HealthSource. (the intermediate holding company which formerly owned our El
Paso, Texas third-party administration company). The estimated cost
attributable to the divesture of Access Healthsource is $100,000 and
accordingly, we expect that Alliance HealthCard will issue 6,800,000
shares to Access Plans USA shareholders, or a 0.335485 partial share
of Alliance HealthCard per share of Access Plans USA. Alliance
HealthCard will issue only whole shares for any fractional share that
an Access Plans USA shareholder will be entitled to receive based upon
the shareholders aggregate share ownership of Access Plans USA common
stock. |
|
|
|
In addition, Alliance HealthCard will assume employee stock options to
purchase shares of Access Plans USA common stock that are outstanding
and not exercised immediately before the merger. Assumed options will
become exercisable to purchase shares of Alliance HealthCard common
stock and will generally have the same terms and conditions, including
vesting provisions, as were applicable under the Access Plans USA
option plans, except that the number of common shares subject to the
stock options and the exercise price of the stock options will each be
adjusted by the final exchange ratio in the merger. See The Merger
Material Interests of Management Members, page 23 of this information
statement/prospectus. |
|
Q. |
|
Will Access Plans USA shareholders be able to trade the Alliance
HealthCard stock that they receive in the merger? |
|
A: |
|
Yes, the shares of Alliance HealthCard common stock you receive in the
merger will be quoted on the OTC Bulletin Board under the symbol
ALHC. Certain persons who are deemed affiliates of Access Plans USA
will be required to comply with Rule 145 promulgated under the
Securities Act of 1933, as amended, which we refer to as the
Securities Act, if they sell their shares of Alliance HealthCard
common stock received in the merger. |
|
Q. |
|
What are the United States federal income tax consequences to me because of the merger? |
|
A: |
|
It is expected that, for United States federal income tax purposes,
the merger will be treated as a reorganization and the Access Plans
USA shareholders and Alliance HealthCard will not recognize any gain
or loss. However, those Access Plans USA shareholders that exercise
and perfect their appraisal rights will recognize gain or loss equal
to the difference between their adjusted income tax basis in their
shares and the amount received pursuant to their appraisal rights.
See The Merger Federal Income Tax Consequences of the Merger,
beginning on page 24 of this information statement/prospectus. |
|
Q. |
|
When do you expect to complete the merger? |
|
A: |
|
The merger is subject to various conditions described in the merger
agreement. We anticipate that the last of these conditions to be
satisfied will be the execution of the shareholder consents by the
holders of a majority of |
iii
|
|
the outstanding Access Plans USA common stock
described in this information statement/prospectus. Accordingly, we
expect to complete the merger shortly after the majority shareholder
approval is obtained by execution of the shareholder consents, which
is anticipated to occur on April 1, 2009. |
|
Q. |
|
What shareholder approval is required to approve the merger? |
|
A: |
|
We cannot complete the merger unless, among other things, shareholders
owning more than 50% of the shares of Access Plans USA common stock
outstanding and entitled to vote, approve and adopt the merger
agreement and the merger. As of the date of this information
statement/prospectus, nine Access Plans USA shareholders, who
collectively control approximately 55% of Access Plans USAs
outstanding common stock, have advised that they intend to execute
shareholder consents approving and adopting the merger agreement and
the merger. The approval of Alliance HealthCards stockholders is not
required in connection with the merger. |
|
|
|
The distribution of this information statement/prospectus to all
Access Plans USA shareholders provides notice that nine shareholders
who collectively control approximately 55% of the outstanding shares
intend, upon the completion of all the conditions to the merger, to
execute consents that will result in the approval of the merger. See
Summary of the Agreement and Plan of Merger Conditions to the
Merger Shareholder Approval, page 28 of this information
statement/prospectus and The Merger Required Affirmative Vote,
page 25 of this information statement/prospectus. |
|
Q. |
|
What does Access Plans USAs board of directors recommend? |
|
A: |
|
After careful consideration of numerous factors, but without having
obtained a fairness opinion from an independent investment banking
firm, the board of directors unanimously determined that the proposed
merger is desirable and in the best interests of Access Plans USA and
its shareholders, that Access Plans USA proceed with the merger and
that the terms of the merger are believed fair to you, and unanimously
recommends shareholder approval and adoption of the merger agreement
and the merger. |
|
Q. |
|
Am I entitled to rights of appraisal in connection with the merger? |
|
A: |
|
Yes. You are entitled to dissent to the merger and you may exercise
and perfect your rights of appraisal under Oklahoma law. See The
Merger Appraisal Rights beginning on page 21 of this information
statement/ prospectus. |
|
Q. |
|
Are there risks associated with the merger? |
|
A: |
|
Yes. You should consider carefully the risk factors set out in the
section entitled Risk Factors beginning on page 7 of this
information statement/prospectus. |
|
Q. |
|
Where can I find more information about Alliance HealthCard and Access Plans USA? |
|
A: |
|
You can find more information about Alliance HealthCard and Access
Plans USA from reading this information statement/ prospectus and the
various sources described in this information statement/prospectus
under the section entitled Where You Can Find More Information
beginning on page i, above. |
|
Q. |
|
Will a special meeting of shareholders be held? |
|
A: |
|
Neither a special meeting of the Access Plans USA shareholders nor
Alliance HealthCare shareholders is required and will not be held.
Access Plans USA shareholders approval and adoption of the merger
agreement and merger is expected to be obtained by certain
shareholders signing shareholder consents as described in this
information statement/prospectus under the section entitled The
Merger Appraisal Rights beginning on page 21 of this information
statement/ prospectus. |
iv
Q. |
|
Should I send in my Access Plans USA stock certificates now? |
|
A: |
|
No. If Access Plans USA shareholders approve and adopt the merger
agreement and the merger, shortly after the merger is completed,
Alliance HealthCard will send you written instructions, including a
letter of transmittal that will explain how to exchange your Access
Plans USA stock certificates for Alliance HealthCard stock
certificates and cash in elimination of a fractional share. Please do
not send in any Access Plans USA stock certificates until you receive
these written instructions and the letter of transmittal. |
|
Q. |
|
Who can help answer my questions? |
|
A: |
|
If you have any questions about the merger or if you need additional
copies of this information statement/ prospectus, you should contact: |
Access Plans USA, Inc.
4929 West Royal Lane, Suite 200
Irving, Texas 75063
Attention: Eliseo Ruiz III, Corporate Secretary and General Counsel
Telephone: (972) 915-3203
v
SUMMARY
This summary highlights selected information from this information statement/ prospectus and
may not contain all of the information that is important to you. To better understand the merger
and for a more complete description of the legal terms of the merger, you should read carefully
this entire information statement/ prospectus and the other documents to which you have been
referred. See Where You Can Find More Information on page i, above.
This document is known as an information statement/prospectus. Throughout this information
statement/ prospectus the first personal plural pronoun in the nominative case form we and its
objective case form us, its possessive and the intensive case forms our and ourselves and its
reflexive form ourselves refer collectively to Access Plans USA, Inc., its subsidiaries and its
executive officers and directors, unless the context suggests otherwise. Furthermore, throughout
this information statement/prospectus references to Alliance HealthCard are to Alliance HealthCard,
Inc., its subsidiaries and its executive officers and directors, unless the context suggests
otherwise.
Under the Oklahoma General Corporation Act and the Access Plans USA bylaws, shareholder action
may be taken by written consent without a meeting of shareholders. The written consent of the
holders of a majority of our outstanding common stock is sufficient under the Oklahoma General
Corporation Act and our bylaws to approve the actions described above. Accordingly, the actions
described above will not be submitted to you and our other shareholders for a vote.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY
The Companies
On November 13, 2008, we at Access Plans USA entered into an Agreement and Plan of Merger with
Alliance HealthCard, Inc., a Georgia corporation.
Alliance HealthCard, Inc.
900 36th Avenue NW, Suite 105
Norman, Oklahoma 73072
(405) 579-8525
Alliance HealthCard is the largest membership plan provider to dealers in the rental purchase
industry and one of the largest providers of value added membership plans sold in conjunction with
point-of-sale transactions. These membership plans provide discount savings on dining and
entertainment, automotive, legal and financial, as well as insurance programs for leased property,
involuntary unemployment, accidental death and dismemberment, and extended service plans. In
addition, Alliance HealthCard offers discount medical plans focusing on creating, marketing, and
distributing membership savings programs primarily to the underserved markets in the United States.
These plans provide attractive savings in approximately 16 areas of healthcare, including physician
visits, chiropractics, vision, dental, pharmacy, hearing, and patient advocacy, among others.
Alliance HealthCard maintains web-site information at www.alliancehealthcard.com.
Shares of Alliance HealthCard common stock are quoted for trading on OTC Bulletin Board under
the symbol ALHC.
For additional information regarding the business of Alliance HealthCard, please see its
Annual Report on Form 10-K for the year ended September 30, 2008 and other filings of Alliance
HealthCard with the SEC that are incorporated by reference into this information
statement/prospectus. See Where You Can Find More Information on page i, above.
1
Access Plans USA, Inc.
4929 West Royal Lane, Suite 200
Irving, Texas 75063
(866) 578-1665
We at Access Plans USA, Inc. (formerly Precis, Inc.), develop and distribute quality
affordable consumer driven healthcare programs for individuals and families across the nation. Our
products and programs are designed to deal with the rising costs of healthcare. They include health
insurance plans and non-insurance healthcare discount programs that provide solutions for the
millions of Americans who need access to affordable healthcare. We maintain web-site information
at www.accessplansusa.com
Our common stock shares are listed and quoted for trading on NASDAQ Capital Market under the
symbol AUSA.
For additional information regarding our business, please see our filings with the SEC that
are incorporated by reference into this information statement/prospectus. See Where You Can Find
More Information on page i.
The Merger (page 17)
The proposed merger is to be completed pursuant to a merger agreement among Alliance
HealthCard and its wholly-owned subsidiary, Alliance/Access Acquisition Corp, an Oklahoma
corporation, and us. Alliance/Access Acquisition Corp will merge with and into us and we will
become a wholly-owned subsidiary of Alliance HealthCard. A copy of the Agreement and Plan of Merger
is incorporated by reference to our Report on Form 8-K filed with the SEC on November 14, 2008.
See Where You Can Find More Information on page i, above.
The Exchange Ratio; Merger Consideration (page 25)
Upon
completion of the merger, we expect Access Plans USA shareholders
will receive 6,800,000
shares of Alliance HealthCard common stock or a 0.335485 partial share of Alliance HealthCard per
share of Access Plans USA. The 6,800,000 shares comprise the maximum number of shares issuable of
6,850,000 less an estimated 50,000 share reduction arising from the net cost of divesture of Access
Healthsource. The merger agreement provides for a one share reduction for each $2.00 of the
aggregate costs and expenses of the divesture of Access Plans USAs subsidiary, Access
HealthSource, and certain liabilities of Access Plans USA in excess of the divesture proceeds
received by Access Plans USA. The estimated aggregate net cost of divesture is $100,000. Alliance
HealthCard will issue only whole shares for any fractional share that an Access Plans USA
shareholder will be entitled to receive based upon the shareholders aggregate share ownership of
Access Plans USA common stock.
On November 12, 2008, the last trading day before we announced the merger, our common stock
closed at $0.65 per share and the common stock of Alliance HealthCard
closed at $0.70. On February 6,
2009, the closing sale price of our common stock shares was $0.23 and that of Alliance HealthCard
was $0.55.
Access Plans USA Stock Options (page 22)
Upon completion of the merger, Alliance HealthCard will assume the stock options exercisable
for the purchase shares of Access Plans USA common stock that are outstanding and not exercised
immediately before the merger. Assumed options will become exercisable to purchase shares of
Alliance HealthCard common stock and will generally have the same terms and conditions as were
applicable under the Access Plans USA stock option plans, except that the number of common shares
subject to those stock options, and the exercise price of those stock options, will each be
adjusted according to the final exchange ratio in the merger.
Opinion of Financial Advisor (page 21)
In merger transactions, the respective companies in many cases obtain opinions of investment
banking or financial adviser firms. We have not obtained and will not obtain a valuation report
from a financial adviser firm regarding the merger. However, without reliance on an independent
third-party fairness opinion, our board of directors concluded that the consideration to be
received by our shareholders in the merger is reasonable and fair to our
2
shareholders from a financial viewpoint. However, the members of our board of directors are not
experts in the valuation of businesses from a financial viewpoint. See The Merger Lack of
Financial Advisor Opinion beginning on page 21 of this information statement/prospectus.
Appraisal Rights (page 21)
Under Oklahoma law, Access Plans USA shareholders will have the right of appraisal as a result
of the merger. See The Merger Appraisal Rights beginning on page 21 of this information
statement/ prospectus for a description of the appraisal rights.
No Restrictions on the Ability to Resell Shares of Alliance HealthCard Common Stock (page 24)
All shares of Alliance HealthCard common stock received by our shareholders in connection with
the merger will be freely transferable, except for shares of Alliance HealthCard common stock
received by our shareholders who are considered to be affiliates under the Securities Act of 1933
immediately prior to the effective time of the merger. See The Merger Federal Securities Law
Consequences on page 24 of this information statement/prospectus. These persons may sell Alliance
HealthCard common stock they receive in the merger in accordance with the volume and other
limitations prescribed by Rule 145 adopted under the Securities Act and all other legal
requirements.
Federal Income Tax Consequences (page 24)
It is expected that, for United States federal income tax purposes, the merger will be
tax-free and our shareholders who do not exercise and perfect their rights of appraisal will not
recognize any gain or loss. See The Merger Material U.S. Federal Income Tax Consequences of the
Merger on page 24 of this information statement/prospectus.
Conditions to the Merger (page 28)
Completion of the merger depends upon satisfaction of a number of conditions, including:
|
|
|
continuing effectiveness of the registration statement of which this information statement/prospectus is a part; |
|
|
|
|
approval and adoption, by a majority of the Access Plans USA shareholders, of the merger agreement and the
merger; |
|
|
|
|
the absence of legal restraints to completion of the merger; |
|
|
|
|
the receipt of all necessary regulatory or governmental clearances; |
|
|
|
|
the divesture of Access Plans USAs subsidiary, Access HealthSource (the intermediate holding company which
owns our El Paso, Texas third-party administration company), which
was effectively completed on December 30, 2008; |
|
|
|
|
the absence of any material adverse changes in the businesses of Access Plans USA since November 13, 2008; and |
|
|
|
|
that certain third party consents obtained by Access Plans USA continue to be in full effect. |
For further details of all of the closing conditions, see Summary of the Agreement and Plan
of Merger Conditions to the Merger beginning on page 28 of this information
statement/prospectus.
3
Termination of the Merger (page 29)
Either of Alliance HealthCard or Access Plans USA may terminate the merger agreement if:
|
|
|
both parties consent in writing; |
|
|
|
|
the merger is not completed by February 28, 2009 through no fault of the party seeking to
terminate the merger; |
|
|
|
|
our shareholders do not approve and adopt the merger agreement and the merger; |
|
|
|
|
there are legal restraints preventing the merger; |
|
|
|
|
a representation or warranty of the other party in the merger agreement fails to be true
and correct in all material respects; provided that each party has the right to cure this
type of failure and exercises reasonable efforts to cure; or |
|
|
|
|
the other party fails to perform or comply in all material respects with a covenant,
obligation or condition contained in the merger agreement and the failure to cure or
exercise reasonable efforts to cure. |
We may terminate the merger agreement to accept an alternative acquisition proposal if:
|
|
|
our board of directors determines in good faith, after consultation
with independent financial and legal advisors, that the alternative
proposal (i) is reasonably capable of being completed on the terms
proposed and (ii) would result in a transaction more favorable to
our shareholders from a financial point of view than the proposed
merger with Alliance HealthCard; and |
|
|
|
|
we give Alliance HealthCard notice that we intend to enter into an
agreement or letter of intent regarding the alternative acquisition,
in which event we will negotiate with Alliance HealthCard in good
faith until the expiration of such 72 hour period. |
No Solicitation Provisions (page 29)
We have agreed that we will not solicit or encourage the initiation of any inquiries or
proposals regarding any alternative acquisition transactions with third parties. However, we may
respond to unsolicited acquisition proposals if required by the fiduciary duties of our board of
directors, but we must promptly notify Alliance HealthCard if we receive a proposal for any
alternative acquisition transactions. See Summary of the Agreement and Plan of Merger
Termination beginning on page 29 of this information statement/prospectus. The no-solicitation
provisions may have the effect of discouraging persons who might be interested in entering into an
acquisition transaction with us from proposing an alternative acquisition transaction.
Accounting Treatment (page 23)
The merger will be accounted for as a purchase by Alliance HealthCard in accordance with
accounting principles generally accepted in the United States of America.
Recommendation of Access Plan USAs Board of Directors (page 21)
After careful consideration of numerous factors, our board of directors determined that the
proposed merger is desirable and in the best interests of our shareholders, that we proceed with
the merger and that the terms of the merger are fair to you and our other shareholders.
Accordingly, our board of directors unanimously recommended approval and adoption of the merger
agreement and the merger.
4
Shareholder Approval (page 29)
In order to complete the merger, the holders of more than 50% of the outstanding shares of
Access Plans USA common stock must approve and adopt the merger agreement and the merger. Alliance
HealthCard stockholders are not required to approve and adopt the merger agreement or the merger.
As of the date of this information statement/prospectus, the holders
of approximately 55% of our
common stock have advised that they intend to execute shareholder consents approving and adopting
the merger agreement and merger, upon satisfactory completion of the other matters set forth in
The Merger Conditions to the Merger Shareholder Approval, page 29 of this information
statement/prospectus.
Comparison
of Rights of Alliance HealthCard and Access Plans USA Shareholders (page 62)
The rights of Access Plans USA shareholders are governed by Oklahoma law and our amended and
certificate of incorporation and bylaws. The rights of Alliance HealthCard shareholders are
governed by Georgia law and Alliance HealthCards articles of incorporation and its bylaws. For a
summary of material differences between the rights of our shareholders and Alliance HealthCard
shareholders, see Comparison of Rights of Shareholders of Access Plans USA and Shareholders of
Alliance HealthCard and Description of Securities beginning on page 62 of this information
statement/prospectus.
Risk
Factors (page 7)
You and our other shareholders should consider risks related to the merger and other risks
related to Alliance HealthCard. See Risk Factors, beginning on page 7 of this information
statement/prospectus.
5
FORWARD LOOKING INFORMATION
Some statements contained in or incorporated by reference into this information
statement/prospectus are forward-looking statements within the meaning of the United States
Private Securities Litigation Reform Act of 1995. These statements can sometimes be identified by
the use of forward-looking words including anticipate, believe, estimate, expect, intend,
may, will and similar expressions. All forward-looking statements involve risks and
uncertainties. In particular, any statements regarding the timing or benefits of the merger and the
value of the shares of Alliance HealthCard common stock to be received by Access Plans USA
shareholders as consideration for the merger, as well as expectations with respect to future sales
and other results of operations, operating efficiencies and product expansion, are subject to known
and unknown risks, uncertainties and contingencies. Many of these risks, uncertainties and
contingencies are beyond the control of Alliance HealthCard and may cause actual results,
performance or achievements to differ materially from anticipated results, performance or
achievements. Factors that might affect these forward-looking statements include, among other
things:
|
|
the impact of fluctuations in the share price of shares of Alliance HealthCard common stock; |
|
|
overall economic and business conditions; |
|
|
the demand for the products and services of Alliance HealthCard and Access Plans USA; |
|
|
competitive factors in the industries in which Alliance HealthCard and Access Plans USA compete; |
|
|
changes in federal and state governmental regulations; |
|
|
changes in tax requirements (including tax rate changes, new tax laws and revised tax law interpretations); |
|
|
interest rate fluctuations and other capital market conditions; |
|
|
the ability of Alliance HealthCard to achieve anticipated benefits in connection with the acquisition of
Access Plans USA; and |
|
|
the other risk factors described below under the heading Risk Factors. |
Accordingly, you should not place undue reliance on the forward-looking statements contained
in this information statement/prospectus. These forward-looking statements speak only as of the
date on which the statements were made. In evaluating forward-looking statements, you should
consider these risks and uncertainties, together with the other risks described from time to time
in reports and documents filed with the SEC by Alliance HealthCard and Access Plans USA, and you
should not place undue reliance on these statements.
All subsequent written and oral forward-looking statements attributable to Alliance HealthCard
or Access Plans USA or any person acting on its behalf are expressly qualified in their entirety by
the cautionary statements contained or referred to in this section. Neither Alliance HealthCard nor
Access Plans USA assumes any greater obligation to update any of the forward-looking statements to
reflect events or circumstances after the date of this information statement/prospectus than that
imposed by the Exchange Act.
For additional factors that might affect these forward-looking statements with respect to
Alliance HealthCard, see Risk Factors below. For additional factors that might affect these
forward-looking statements with respect to Access Plans USA, see the factors identified under the
heading Item 1A. Risk Factors in its Annual Report on Form 10-K/A for the year ended December 31,
2007 that accompanied our Proxy Statement distributed to our shareholders in December 2008. See
Where You Can Find More Information on page i, above.
6
RISK FACTORS
Without your approval and vote as a Access Plans USA shareholder, we anticipate that the
holders of a majority of our outstanding common stock shares will execute shareholder consents
approving and adopting the merger agreement and the merger, and you and our other shareholders will
become shareholders of Alliance HealthCard and receive common stock shares of Alliance HealthCard
in exchange for the Access Plans USA common stock shares. In addition to reading and considering
the other information we have included or incorporated by reference in this information
statement/prospectus, you should carefully read and consider the following factors in evaluating
the merger and Alliance HealthCard.
Risks Related to the Merger
The expected benefits of the merger may not be realized.
We cannot assure you and our other shareholders that our two companies will be successfully
combined into a single business. If we cannot successfully combine our operations, Alliance
HealthCard may experience a material adverse effect on its business, financial condition or results
of operations. The merger involves combining two companies that have previously operated
separately. The combining of companies much like Alliance HealthCard and us involves a number of
risks, including:
|
|
the diversion of managements attention to the combining of operations; |
|
|
difficulties in the combining of operations and systems, particularly sales and marketing organizations; |
|
|
difficulties in the assimilation and retention of employees; |
|
|
challenges in keeping existing clients and customers and obtaining new clients and customers; and |
|
|
potential adverse short-term effects on operating results. |
Because of difficulties in combining operations, Alliance HealthCard may not be able to realize the
cost savings, revenue growth and other benefits that it hopes to achieve after completion of the
merger. In addition, Alliance HealthCard may be required to spend additional time or capital
resource on integration that would otherwise be spent on the development of its business and
services.
The trading price of Alliance HealthCard common stock may be affected by factors different from
those affecting the price of our common stock; the price of Alliance HealthCard common stock could
decline following the merger.
Upon completion of the merger, holders of our common stock will become holders of Alliance
HealthCard common stock. Alliance HealthCards business differs from ours. Accordingly, Alliance
HealthCards results of operations, as well as the trading price of shares of Alliance HealthCard
common stock, may be affected by factors different from those affecting our results of operations
and the price of our common stock.
Risk Factors Related to Alliance HealthCard
A significant portion of Alliance HealthCards revenues is dependent on one client.
Revenue attributable to one contract totaled $11,557,715, $10,982,394 and $9,843,860, or 55%,
62% and 70% of total revenue for 2008, 2007 and 2006, respectively. Although Alliance HealthCard
has a long-term contract, loss of this one client would have a significant adverse effect on
revenues and profitability of Alliance HealthCard and possibly its ability to negotiate discounts
with vendors.
7
Alliance HealthCard depends on various third-party vendors to supply certain products and services
that are marketed by Alliance HealthCard.
Alliance HealthCard depends on various third-party vendors to supply the products and services
that are marketed by Alliance HealthCard. Many of these third-party vendors are independent
contractors. As a result, the quality of services they provide is not entirely within our control.
If any third-party vendor were to cease operations, or terminate, breach or not renew its contract
with Alliance HealthCard, or suffer interruptions, delays or quality problems, Alliance HealthCard
may not be able to substitute a comparable third-party vendor on a timely basis or on terms
favorable to Alliance HealthCard. With respect to the insurance programs offered by Alliance
HealthCard, it is dependent on the insurance carriers that underwrite the insurance to obtain
appropriate regulatory approvals. If Alliance HealthCard were required to use an alternative
insurance carrier, this may materially increase the time required to bring an insurance related
product to market. Because Alliance HealthCard is generally obligated to continue providing its
products and services to its customers even if Alliance HealthCard were to lose a third-party
vendor, any disruption in Alliance HealthCards product offerings could harm its reputation and
result in customer dissatisfaction. Replacing existing third-party vendors with more expensive
third-party vendors could increase Alliance HealthCards costs and reduce its profitability.
Alliance HealthCard faces competition for clients to market its programs as well as competitive
offerings of consumer benefit programs.
There is significant competition for clients and members in Alliance HealthCards industry.
Alliance HealthCard offers programs that provide products and services similar to or directly in
competition with products and services offered by its competitors as well as the providers of those
products and services through other channels of distribution.
Alliance HealthCard provides no assurance that its competitors will not provide benefit
programs comparable or superior to Alliance HealthCards programs at lower membership prices or
adapt more quickly to evolving industry trends or changing industry requirements. Increased
competition may result in price reductions, reduced gross margins, and loss of market share, any of
which could adversely affect Alliance HealthCards business, financial condition and results of
operations. There is no assurance that Alliance HealthCard will be able to compete effectively with
its current and future competitors.
Alliance HealthCard has many competitors and may not be able to compete effectively which may lead
to a lack of revenues and discontinuance of its operations.
Alliance HealthCard competes with numerous well-established companies that design and
implement membership programs and other healthcare programs. Some of its competitors may be
companies that have programs that are functionally similar or superior to Alliance HealthCards
programs. Most of these competitors possess substantially greater financial, marketing, personnel
and other resources than Alliance HealthCard. Furthermore, these competitors may have more
established reputations relating to their programs and the products offered.
Due to competitive market forces, Alliance HealthCard may experience price reductions, reduced
gross profit margins and loss of market share in the future, any of which would result in decreases
in sales and revenues. These decreases in revenues would adversely affect Alliance HealthCards
business and results of operations and could lead to discontinuance of operations. There can be no
assurance that:
|
|
Alliance HealthCard will be able to compete successfully; |
|
|
Alliance HealthCards competitors will not develop programs that render Alliance HealthCards programs less marketable or
even obsolete; or |
|
|
Alliance HealthCard will be able to successfully enhance Alliance HealthCards programs when necessary. |
Government regulation may adversely affect or limit the operations of Alliance HealthCard.
8
Most of the discount medical programs offered by Alliance HealthCard are sold without the need
for an insurance license by any federal, state or local regulatory licensing agency or commission.
In comparison, companies that provide insurance benefits and operate healthcare management
organizations and preferred provider organizations are regulated by state licensing agencies and
commissions. These regulations extensively cover operations, including scope of benefits, rate
formula, delivery systems, utilization review procedures, quality assurance, enrollment
requirements, claim payments, marketing and advertising. Several states have enacted laws and
regulations overseeing discount medical plans. Alliance HealthCard does not know the full extent of
these regulations and additional states may also impose regulation. Alliance HealthCards need to
comply with these regulations may adversely affect or limit its future operations. The cost of
complying with these laws and regulations has and will likely continue to have a material effect on
the results of operations and financial position of Alliance HealthCard.
Government regulation of insurance and healthcare coverage and health plans is a changing area
of law and varies from state to state. Although Alliance HealthCard is not an insurance company,
the insurance companies from which Alliance HealthCard obtains its products and financial services
are subject to various federal and state regulations applicable to their operations. These
insurance companies must comply with constantly evolving regulations and make changes occasionally
to services, products, structure or operations in accordance with the requirements of those
regulations. Alliance HealthCard may also be limited in how Alliance HealthCard markets and
distributes its products and financial services as a result of these laws and regulations.
Alliance HealthCard may have exposure and liability relating to non-compliance with insurance
portability and accountability Act of 1996 and the cost of compliance could be material.
In April 2003, privacy regulations were promulgated by The Department of Health and Human
Services pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
HIPAA imposes extensive restrictions on the use and disclosure of individually identifiable health
information by certain entities. Also as part of HIPAA, the Department of Health and Human Services
has regulations standardizing electronic transactions between health plans, providers and
clearinghouses. Healthcare plans, providers and claims administrators are required to conform their
electronic and data processing systems to HIPAA electronic transaction requirements. While Alliance
HealthCard believes it is currently compliant with these regulations, Alliance HealthCard cannot be
certain of the extent to which the enforcement or interpretation of these regulations will affect
its business. Alliance HealthCards continuing compliance with these regulations, therefore, may
have a significant impact on its business operations and may be a material cost in the event
Alliance HealthCard is subject to these regulations. Sanctions for failing to comply with standards
issued pursuant to HIPAA include criminal and civil sanctions.
The failure to comply with federal and state regulation could result in enforcement action and
imposition of penalties, required modifications of Alliance HealthCards operations and negative
publicity.
Alliance HealthCards operation are regulated by federal and state laws and regulations
administered by various state agencies. These laws and regulations cover the areas of insurance,
discount medical plans, associations, and extended service. Compliance with all of the applicable
regulations and laws is uncertain because of the evolving interpretations of existing laws and
regulations, and the enactment of new laws and regulations. Accordingly, there is the risk that
Alliance HealthCards operations could be found to not comply with applicable laws and regulations
that could:
|
|
result in enforcement action and imposition of penalty, |
|
|
require modification of our operations or programs, |
|
|
result in negative publicity. |
Any of these consequences could have a material adverse effect on our results of operations as well
as our financial condition.
9
The goodwill and other intangible asset resulting from Alliance HealthCards merger-acquisition of
Access Plans USA as well as its prior acquisitions may become impaired and require a write-down and
the recognition of an impairment expense that may be substantial.
In connection with Alliance HealthCards merger-acquisition of BMS Holding Company, Alliance
HealthCard recorded goodwill and other intangible assets that had an aggregate asset value of
$4,243,035 at September 30, 2008. Furthermore, upon completion of Alliance HealthCards
merger-acquisition of us, Alliance HealthCard anticipates that it will record additional goodwill
and intangible assets. If the merger had been completed as of September 30, 2008, the estimated
additional goodwill and intangible asset that would be recorded is $4,116,000, to give a total of
$8,359,035 as of that date (see Unaudited Pro Forma Condensed Combining Financial Statements,
below). In the event that this balance is determined to be impaired for any reason, Alliance
HealthCard will be required to write-down or reduce the value of the goodwill and intangible asset
and recognize an impairment expense. The impairment expense may be substantial in amount and, in
such case, adversely affect the results of Alliance HealthCards operations for the applicable
period and may negatively affect the market value of the Alliance HealthCard common stock.
Our failure to protect private data could subject Alliance HealthCare to penalties, damage our
reputation, cause us to be in breach of contracts and cause us to expend capital on other resources
to protect against future security breaches.
Certain of Alliance HealthCards services are based upon the collection, distribution and
protection of sensitive private data. Alliance HealthCards contracts with certain clients place a
duty on Alliance HealthCard to protect certain confidential information and to comply with certain
provisions of privacy laws including the Gramm-Leach-Bliley Act. Unauthorized users might access
that data and human error or technological failures might cause the wrongful dissemination of that
data. If Alliance HealthCard experiences a security breach, the integrity of certain of its
services may be affected and the breach could violate certain of its client agreements. Alliance
HealthCard has incurred, and may incur in the future, significant costs to protect against the
threat of a security breach. Alliance HealthCard may also incur significant costs to alleviate
problems that may be caused by future breaches. Any breach or perceived breach could subject
Alliance HealthCard to government fines or sanctions, legal claims from clients or customers under
that govern the security non-public personal information. There is no assurance that Alliance
HealthCard would prevail in any related litigation. Moreover, any public perception that Alliance
HealthCard has engaged in the unauthorized release of, or have failed to adequately protect,
private information could adversely affect its ability to attract and retain members and
end-customers. In addition, unauthorized third parties might alter information in Alliance
HealthCards databases that would adversely affect both its ability to market Alliance HealthCards
services and the credibility of its information.
Alliance HealthCard is dependent on certain executive officers and directors.
Alliance HealthCard operations currently depend on the continued efforts of its executive
officers, particularly Danny C. Wright, its Chairman and Chief Executive Officer, Brett Wimberley,
its President and Chief Operating Officer, and Susan Matthews, its Executive Vice President of
Sales and Marketing. Alliance HealthCard also is highly dependent on the quality and efforts of
its staff to provide services and to attract and retain clients and customers. Competition for
qualified management and professional employees is currently intense. Alliance HealthCards
business could be materially and adversely affected if its executive officers unexpectedly become
unable or decide not to continue in their present positions, or if other employees and staff fail
to continue with Alliance HealthCard and it is unable to attract and retain qualified replacements.
Following the merger, Alliance HealthCard officers and directors will continue to have control.
After the merger, Alliance HealthCards officers and directors are expected to control
approximately 73% of Alliance HealthCards outstanding common stock shares and effectively will be
able to control most matters requiring approval by shareholders, including the election of
directors.
10
It is anticipated that dividends on the Alliance HealthCard common stock shares will not be
declared.
Alliance HealthCard does not anticipate paying any dividends on its common stock shares in the
foreseeable future.
Risk Factors Related to Access Plans USA
Certain risk factors are attendant to our business and operations. See Item 1A. Risk Factors
in the Annual Report on Form 10-K/A for the year ended December 31, 2007 of Access Plans USA that
is incorporated by reference in this information statement/prospectus together with the liquidity
discussion appearing in Part I, Item 2 (Managements Discussion and Analysis) of the Quarterly
Report on Form 10-Q for the nine month period ended September 30, 2008. See Where You Can Find
More Information on page i. These risks are relevant if Access Plans USA were to continue business
as usual without giving effect to the proposed merger and also if the merger occurs and Access
Plans USA becomes a material part of the business and operations of Alliance HealthCard.
SUMMARY FINANCIAL INFORMATION OF
ALLIANCE HEALTHCARD AND ACCESS PLANS USA
The following information is being provided to assist in analyzing the financial aspects of
the merger.
Alliance HealthCard
The summary selected consolidated historical financial information presented for Alliance
HealthCard for the years ended September 30, 2008 and 2007 was derived from Alliance HealthCards
audited consolidated financial statements appearing elsewhere in this information
statement/prospectus. This information should be read in conjunction with the historical
financial statements and related notes contained in this information statement/prospectus and in
the annual, quarterly and other reports filed by Alliance HealthCard with the SEC that are
incorporated by reference in this information statement/prospectus. See Where You Can Find More
Information on page i, above.
The unaudited pro forma data for the year ended September 30, 2008 were prepared as though the
proposed merger with Alliance HealthCard occurred on October 1, 2007.
Access Plans USA
The following summary selected consolidated historical financial data should be read in
conjunction with our consolidated financial statements for the years ended December 31, 2007, 2006
and 2005 and related notes thereto appearing elsewhere in this information statement/prospectus and
our condensed consolidated financial statements for the nine month periods ended September 30, 2008
and 2007 and related notes thereto appearing elsewhere in this information statement/prospectus.
See Where You Can Find More Information on page i, above. The statements of operations data for
the years ended December 31, 2007, 2006 and 2005 and the balance sheet data as of December 31, 2007
and 2006 are derived from our audited consolidated financial statements. The statement of
operations data for the nine months ended September 30, 2008 and 2007, and the balance sheet data
as of September 30, 2008, are derived from the unaudited interim consolidated financial statements
and the related notes to those consolidated financial statements. The summary selected consolidated
historical financial data provided below is not necessarily indicative of our future results of
operations or financial performance.
11
Summary Selected Consolidated Historical Financial Information of Alliance HealthCard
(dollars in thousands, except per share data)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Year Ended September 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
Net revenues |
|
$ |
20,913 |
|
|
$ |
17,609 |
|
|
$ |
14,157 |
|
Direct costs |
|
|
11,113 |
|
|
|
11,542 |
|
|
|
10,048 |
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
9,800 |
|
|
|
6,067 |
|
|
|
4,109 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Marketing and sales expenses |
|
|
1,252 |
|
|
|
917 |
|
|
|
694 |
|
Depreciation and amortization expense |
|
|
551 |
|
|
|
344 |
|
|
|
41 |
|
General and administrative expenses |
|
|
3,115 |
|
|
|
2,877 |
|
|
|
1,190 |
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
4,918 |
|
|
|
4,138 |
|
|
|
1,925 |
|
|
|
|
|
|
|
|
|
|
|
Operating income |
|
|
4,882 |
|
|
|
1,929 |
|
|
|
2,184 |
|
|
|
|
|
|
|
|
|
|
|
Other income (expense): |
|
|
|
|
|
|
|
|
|
|
|
|
Other income |
|
|
164 |
|
|
|
71 |
|
|
|
80 |
|
Other expense, net |
|
|
(149 |
) |
|
|
(149 |
) |
|
|
(13 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
15 |
|
|
|
(78 |
) |
|
|
67 |
|
|
|
|
|
|
|
|
|
|
|
Net income before income taxes |
|
|
4,897 |
|
|
|
1,851 |
|
|
|
2,251 |
|
|
|
|
|
|
|
|
|
|
|
Provision for income taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
Current |
|
|
2,140 |
|
|
|
589 |
|
|
|
|
|
Deferred tax (benefit) |
|
|
49 |
|
|
|
(134 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total provision for income taxes |
|
|
2,189 |
|
|
|
455 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
|
2,708 |
|
|
|
1,396 |
|
|
|
2,251 |
|
Less dividends and distributions |
|
|
|
|
|
|
(8,243 |
) |
|
|
1,130 |
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) available for common stock |
|
$ |
2,708 |
|
|
$ |
(6,847 |
) |
|
$ |
1,121 |
|
|
|
|
|
|
|
|
|
|
|
Per share data: |
|
|
|
|
|
|
|
|
|
|
|
|
Basic income (loss) |
|
$ |
0.18 |
|
|
$ |
(0.47 |
) |
|
$ |
0.11 |
|
|
|
|
|
|
|
|
|
|
|
Diluted income (loss) |
|
$ |
0.18 |
|
|
$ |
(0.47 |
) |
|
$ |
0.11 |
|
|
|
|
|
|
|
|
|
|
|
Basic weighted average shares outstanding |
|
|
14,798 |
|
|
|
14,549 |
|
|
|
10,000 |
|
|
|
|
|
|
|
|
|
|
|
Diluted weighted average shares outstanding |
|
|
15,263 |
|
|
|
14,549 |
|
|
|
10,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash Flows Data: |
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities |
|
$ |
3,321 |
|
|
$ |
2,042 |
|
|
$ |
2,487 |
|
Net cash provided by (used in) investing activities |
|
|
(237 |
) |
|
|
985 |
|
|
|
(523 |
) |
Net cash used in financing activities |
|
|
(2,346 |
) |
|
|
(2,693 |
) |
|
|
(1,130 |
) |
|
|
|
|
|
|
|
|
|
|
Total change in cash |
|
$ |
738 |
|
|
$ |
334 |
|
|
$ |
834 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance Sheet Data: |
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
3,013 |
|
|
$ |
2,274 |
|
|
$ |
1,940 |
|
Restricted cash |
|
$ |
157 |
|
|
$ |
|
|
|
$ |
|
|
Current assets |
|
$ |
5,688 |
|
|
$ |
4,698 |
|
|
$ |
3,504 |
|
Working capital (deficit) |
|
$ |
(631 |
) |
|
$ |
(1,901 |
) |
|
$ |
1,293 |
|
Total assets |
|
$ |
10,524 |
|
|
$ |
10,232 |
|
|
$ |
4,362 |
|
Current liabilities |
|
$ |
6,319 |
|
|
$ |
6,599 |
|
|
$ |
2,211 |
|
Total liabilities |
|
$ |
7,251 |
|
|
$ |
9,799 |
|
|
$ |
2,211 |
|
Stockholders equity |
|
$ |
3,273 |
|
|
$ |
433 |
|
|
$ |
2,151 |
|
Total liabilities and stockholders equity |
|
$ |
10,524 |
|
|
$ |
10,232 |
|
|
$ |
4,362 |
|
12
Summary Selected Consolidated Historical Financial Information of Access Plans USA, Inc.
(dollars in thousands, except per share data)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For The Nine Months |
|
|
|
|
|
|
Ended September 30, |
|
|
For The Year Ended December 31, |
|
|
|
2008 |
|
|
2007 |
|
|
2007 |
|
|
2006 |
|
|
2005 |
|
Statement of Operations Data: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product and service revenues |
|
$ |
26,857 |
|
|
$ |
20,279 |
|
|
$ |
28,972 |
|
|
$ |
14,525 |
|
|
$ |
21,301 |
|
Direct costs |
|
|
18,834 |
|
|
|
13,211 |
|
|
|
19,080 |
|
|
|
7,015 |
|
|
|
10,449 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross margin |
|
|
8,023 |
|
|
|
7,068 |
|
|
|
9,892 |
|
|
|
7,510 |
|
|
|
10,852 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Personnel costs, including benefits |
|
|
4,752 |
|
|
|
3,875 |
|
|
|
5,383 |
|
|
|
4,475 |
|
|
|
6,701 |
|
Other sales, general and administrative |
|
|
3,446 |
|
|
|
4,293 |
|
|
|
5,548 |
|
|
|
4,181 |
|
|
|
4,491 |
|
Depreciation and amortization |
|
|
761 |
|
|
|
554 |
|
|
|
809 |
|
|
|
669 |
|
|
|
1,461 |
|
Restructuring and severance charges |
|
|
164 |
|
|
|
696 |
|
|
|
696 |
|
|
|
269 |
|
|
|
94 |
|
Goodwill impairment charges |
|
|
|
|
|
|
3,978 |
|
|
|
3,978 |
|
|
|
2,800 |
|
|
|
12,900 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
9,123 |
|
|
|
13,396 |
|
|
|
16,414 |
|
|
|
12,394 |
|
|
|
25,647 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating loss |
|
|
(1,100 |
) |
|
|
(6,328 |
) |
|
|
(6,522 |
) |
|
|
(4,884 |
) |
|
|
(14,795 |
) |
Other income (expense)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income (expense), net |
|
|
27 |
|
|
|
71 |
|
|
|
79 |
|
|
|
241 |
|
|
|
49 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations before
income taxes |
|
|
(1,073 |
) |
|
|
(6,257 |
) |
|
|
(6,443 |
) |
|
|
(4,643 |
) |
|
|
(14,746 |
) |
Provision for income tax expense (benefit) |
|
|
39 |
|
|
|
(460 |
) |
|
|
(656 |
) |
|
|
14 |
|
|
|
47 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations |
|
|
(1,112 |
) |
|
|
(5,797 |
) |
|
|
(5,787 |
) |
|
|
(4,657 |
) |
|
|
(14,793 |
) |
Income (loss) from discontinued
operations, net |
|
|
(1,085 |
) |
|
|
(7,743 |
) |
|
|
(7,368 |
) |
|
|
(3,067 |
) |
|
|
1,422 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(2,197 |
) |
|
$ |
(13,540 |
) |
|
$ |
(13,155 |
) |
|
$ |
(7,724 |
) |
|
$ |
(13,371 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted net income (loss) per share: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
$ |
(0.06 |
) |
|
$ |
(0.31 |
) |
|
$ |
(0.30 |
) |
|
$ |
(0.35 |
) |
|
$ |
(1.19 |
) |
Discontinued operations |
|
|
(0.05 |
) |
|
|
(0.42 |
) |
|
|
(0.39 |
) |
|
|
(0.22 |
) |
|
|
0.11 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
(0.11 |
) |
|
$ |
(0.73 |
) |
|
$ |
(0.69 |
) |
|
$ |
(0.57 |
) |
|
$ |
(1.08 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares
outstanding, basic and diluted (in 000) |
|
|
20,269 |
|
|
|
18,551 |
|
|
|
18,984 |
|
|
|
13,487 |
|
|
|
12,433 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash Flow Data: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operating activities |
|
$ |
(1,085 |
) |
|
$ |
136 |
|
|
$ |
513 |
|
|
$ |
(447 |
) |
|
$ |
(284 |
) |
Discontinued operating activities |
|
|
(592 |
) |
|
|
553 |
|
|
|
922 |
|
|
|
1,172 |
|
|
|
798 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating activities |
|
|
(1,677 |
) |
|
|
689 |
|
|
|
1,435 |
|
|
|
725 |
|
|
|
514 |
|
Investing activity-continuing operations |
|
|
100 |
|
|
|
297 |
|
|
|
(594 |
) |
|
|
(2,973 |
) |
|
|
(586 |
) |
Investing activity-discontinued
operations |
|
|
|
|
|
|
23 |
|
|
|
(23 |
) |
|
|
(290 |
) |
|
|
(1,236 |
) |
Financing activity |
|
|
92 |
|
|
|
(735 |
) |
|
|
(1,339 |
) |
|
|
(241 |
) |
|
|
(964 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total change in unrestricted cash |
|
$ |
(1,485 |
) |
|
$ |
274 |
|
|
$ |
(521 |
) |
|
$ |
(2,779 |
) |
|
$ |
(2,272 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13
Summary Selected Consolidated Historical Financial Information of Access Plans USA, Inc.
(dollars in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30, |
|
December 31, |
|
|
2008 |
|
2007 |
|
2006 |
Balance Sheet Data: |
|
|
|
|
|
|
|
|
|
|
|
|
Unrestricted cash and equivalents |
|
$ |
1,226 |
|
|
$ |
2,711 |
|
|
$ |
3,432 |
|
Restricted short-term investments |
|
$ |
858 |
|
|
$ |
1,231 |
|
|
$ |
1,420 |
|
Current assets |
|
$ |
9,660 |
|
|
$ |
10,614 |
|
|
$ |
6,800 |
|
Working capital (deficit): |
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
$ |
1,086 |
|
|
$ |
1,492 |
|
|
$ |
3,872 |
|
Discontinued operations |
|
$ |
(191 |
) |
|
$ |
(417 |
) |
|
$ |
124 |
|
Total assets |
|
$ |
18,700 |
|
|
$ |
20,818 |
|
|
$ |
16,244 |
|
Current liabilities |
|
$ |
8,765 |
|
|
$ |
9,539 |
|
|
$ |
2,804 |
|
Total liabilities |
|
$ |
9,629 |
|
|
$ |
9,562 |
|
|
$ |
2,852 |
|
Total liabilities and
stockholders equity |
|
$ |
18,700 |
|
|
$ |
20,818 |
|
|
$ |
16,244 |
|
SELECTED UNAUDITED PRO FORMA CONDENSED COMBINING FINANCIAL INFORMATION
The following selected unaudited pro forma condensed combining financial information has been
derived from and should be read together with the unaudited pro forma condensed combining financial
statements and related notes (see Unaudited Pro Forma Condensed Combining Financial Statements,
below). The information for the year ended September 30, 2008 is based on the historical
consolidated statements of operations of Alliance HealthCard and our historical consolidated
statements of operations. The pro forma balance sheet information as of September 30, 2008 is
presented as though the merger occurred on the date of the balance sheet. The pro forma statement
of operations for the fiscal year ended on September 30, 2008 is based on the historical statements
of operations of Alliance HealthCard and ours as if the merger had occurred on October 1, 2007.
This information is for illustrative purposes only. We and Alliance HealthCard may have performed
differently had we been combined for the period presented. The selected unaudited pro forma
condensed combining financial information is not necessarily indicative of the historical results
that would have occurred had we and Alliance HealthCard been combined for the period presented, or
the future results that we on a combined basis will experience after completion of the merger.
|
|
|
|
|
|
|
Year Ended |
|
|
|
September 30, |
|
|
|
2008 |
|
Statement of
Operations Data (dollars in thousands, except per share data): |
|
|
|
|
Total revenue |
|
$ |
56,463 |
|
Direct costs |
|
|
35,816 |
|
|
|
|
|
Gross margin |
|
|
20,647 |
|
Operating expenses |
|
|
17,059 |
|
|
|
|
|
Operating income (loss) |
|
|
3,588 |
|
Other income (expense), net |
|
|
50 |
|
|
|
|
|
Income (loss) from continuing operations before income taxes |
|
|
3,638 |
|
Income tax expense (benefit) |
|
|
1,382 |
|
|
|
|
|
Net income (loss) from continuing operations |
|
|
2,256 |
|
Less dividends |
|
|
|
|
|
|
|
|
Net income (loss) available to common shareholders |
|
$ |
2,256 |
|
|
|
|
|
Diluted earnings (loss) per share from continuing operations |
|
$ |
0.10 |
|
|
|
|
|
Weighted average number of diluted common shares outstanding |
|
|
22,463 |
|
|
|
|
|
14
|
|
|
|
|
|
|
September 30, |
|
|
2008 |
Balance
Sheet Data (dollars in thousands): |
|
|
|
|
Cash and cash equivalents |
|
$ |
5,234 |
|
Current assets |
|
$ |
15,285 |
|
Working capital |
|
$ |
345 |
|
Total assets |
|
$ |
24,769 |
|
Current liabilities |
|
$ |
14,940 |
|
Total liabilities |
|
$ |
16,736 |
|
Stockholders equity |
|
$ |
8,033 |
|
Total liabilities and stockholders equity |
|
$ |
24,769 |
|
COMPARATIVE PER SHARE INFORMATION
The following table presents:
|
|
Historical income from our continuing operations per share and book value per share data for
Alliance HealthCard and us; |
|
|
Unaudited pro forma combined per share data of Alliance HealthCard and us for the year ended
September 30, 2008, as if the merger had occurred on October 1, 2007; and |
|
|
Our unaudited pro forma equivalent per share data. |
The pro forma combined data as of September 30, 2008 is based on our and Alliance HealthCards
individual historical balance sheets and statements of operations, as if the proposed merger had
occurred as of September 30, 2008 and October 1, 2007, respectively. Our individual historical
statements of operations for the year ended September 30, 2008 include the three months ended
December 31, 2007 and the nine months ended September 30, 2008 and exclude the results of our
discontinued operations (comprising the result of Access HealthSource and ACP Agency). The
consideration assumed issued in connection with Alliance HealthCards proposed merger-acquisition
of us is 6,800,000 shares of Alliance HealthCard common stock, although the actual shares issued
most likely will increase, but not materially, resulting from elimination of fractional shares. See
General Terms of the Merger, below.
Our equivalent pro forma data shows the effect of the merger from the perspective of an owner
of Access Plans USA common stock shares. The data was calculated by multiplying the Alliance
HealthCard and Access Plans USA pro forma combined data by an assumed
exchange ratio of 0.335485.
This exchange ratio was calculated by dividing the estimated 6,800,000 Alliance HealthCard common
stock shares to be issued to our shareholders in connection with the merger by the 20,269,145
outstanding Access Plans USA common stock shares.
15
We and Alliance HealthCard did not pay any cash dividends during the year ended September 30,
2008.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Access Plans USA |
|
Alliance |
|
|
|
|
|
|
|
|
(Excluding |
|
HealthCard |
|
Access Plans |
|
|
|
|
|
|
Discontinued |
|
Unaudited |
|
USA |
|
|
Alliance |
|
Operations) |
|
Pro Forma |
|
Equivalent |
|
|
HealthCard |
|
Unaudited Pro |
|
Combined |
|
Unaudited Pro |
|
|
Per Share |
|
Forma Share |
|
Per Share |
|
Forma Per |
|
|
Data |
|
Data |
|
Data(1) |
|
Share Data(2) |
At or for the year end September 30, 2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations per
share of common stock: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic |
|
$ |
0.18 |
|
|
$ |
(0.05 |
) |
|
$ |
0.10 |
|
|
$ |
0.04 |
|
Diluted |
|
$ |
0.18 |
|
|
$ |
(0.05 |
) |
|
$ |
0.10 |
|
|
$ |
0.03 |
|
Net book value per share of common
stock(3) |
|
$ |
0.22 |
|
|
$ |
0.45 |
|
|
$ |
0.38 |
|
|
$ |
0.12 |
|
|
|
|
(1) |
|
The Alliance HealthCard and Access Plans USA unaudited pro forma combined per share data are
based on Access Plans USA shareholders receiving 0.335485 shares of Alliance HealthCard for
each share of Access Plans USA common stock held. |
|
(2) |
|
Calculated by multiplying the unaudited pro forma combined per share data by 0.335485. |
|
(3) |
|
Book value per share of common stock is computed by dividing stockholders equity by the
number of shares of common stock outstanding as of September 30, 2008. Pro forma book value
per share is computed by dividing pro forma shareholders equity by the pro forma number of
common stock shares outstanding as of September 30, 2008, of 21,597,000. |
The pro forma combined per share data does not purport to represent Alliance HealthCards
financial position or results of operations that would actually been achieved had the merger
occurred on October 1, 2007, or to project Alliance HealthCards financial position or results of
operations for any future date or period. This data should be read in conjunction with the
Unaudited Pro Forma Condensed Combining Financial Statements included elsewhere in this information
statement/prospectus and the separate historical financial statements and notes relating to those
financial statements of Alliance HealthCard included and incorporated by reference in this
information statement/prospectus by reference as well as ours that are included and incorporated by
reference in this information statement/prospectus.
COMPARATIVE MARKET VALUE INFORMATION
The following table presents:
|
|
the closing prices per share and aggregate market value of shares of our and Alliance
HealthCards common stock on The NASDAQ Capital Market and OTC Bulletin Board, respectively,
on November 12, 2008, the last trading day prior to the public announcement of the proposed
merger, and on
February 6, 2009, the last trading day prior to the date of this information
statement/prospectus; and |
|
|
the value of our and Alliance HealthCards common stock that an Access Plans USA shareholder
would have received for one Access Plans USA share and the value of the Alliance HealthCard
common stock that all Access Plans USA shareholders, in total, would have received for all
Access Plans USA outstanding shares, assuming the merger had occurred on those dates and
applying the exchange ratio of 0.335485. |
16
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alliance HealthCard |
|
Access Plans USA |
|
Access Plans USA |
|
|
Historical |
|
Historical |
|
Equivalent |
On November 12, 2008 |
|
|
|
|
|
|
|
|
|
|
|
|
Closing price per share of common stock |
|
$ |
0.70 |
|
|
$ |
0.65 |
|
|
$ |
0.23 |
|
Market value of common stock(1) |
|
$ |
10,357,734 |
|
|
$ |
13,174,944 |
|
|
$ |
4,760,000 |
|
On
February 6, 2009 |
|
|
|
|
|
|
|
|
|
|
|
|
Closing price per share of common stock |
|
$ |
0.55 |
|
|
$ |
0.23 |
|
|
$ |
0.18 |
|
Market value of common stock(2) |
|
$ |
8,138,220 |
|
|
$ |
4,661,903 |
|
|
$ |
3,740,000 |
|
|
|
|
(1) |
|
Market value based on 14,796,763 shares of Alliance HealthCard common stock and 20,269,145
shares of Access Plans USA common stock outstanding as of November 12, 2008, excluding shares
held in treasury or by subsidiaries. |
|
(2) |
|
Market value based on 14,796,763 shares of Alliance HealthCard common stock and 20,269,145
shares of Access Plans USA common stock outstanding as of
February 6, 2009, excluding shares
held in treasury or by subsidiaries. |
THE MERGER
Background of the Merger
We as well as Alliance HealthCard are involved in the discount medical industry, offering
discount medical plans to the public directly and through affiliated retailers. Alliance
HealthCard as part of its strategic plan has sought to supplement its organic growth through
strategic acquisitions in the membership, discount medical and insurance industries that will
strengthen and complement its operations. Consistent with Alliance HealthCards interest in
expanding its market share and diversifying horizontally, its executives have sought out business
combinations with other companies involved in the industries in which it conducts its business.
Early in 2008, Alliance HealthCards Chief Executive Officer, Danny Wright, and President and Chief
Operating Officer, Brett Wimberley identified us as a company that could potentially be a good
merger partner.
We and Alliance HealthCard were familiar with each other before merger discussions began in
the spring of 2008. Benefit Marketing Solutions, founded by Danny Wright and Brett Wimberley, and
currently a subsidiary of Alliance HealthCard, purchased substantially all of the assets of
Foresight, Inc, a former subsidiary of AUSA in 2005. Foresight had been in the business of
offering membership benefits similar to those offered by Alliance HealthCard. We had purchased
Foresight, of which Mr. Wright was a founder, in 2000. While there was no remaining material
relationship between us and Alliance HealthCard when merger discussions began, the management teams
and some of our and their directors were familiar with each other.
At its meeting on March 26, 2008, our board of directors discussed the possibility of pursuing
a strategic relationship or merger with another company. Our directors, Interim Chief Executive
Officer, Ian Stuart, Chief Financial Officer, Bob Bintliff, Vice President and General Counsel,
Eliseo Ruiz, and outside counsel Michael Dunn participated in that meeting. Mr. Stuart presented a
report on prospects and discussed, with the board, the possibility that a strategic relationship or
merger might be in the best interest of our shareholders considering the scale of operations and
the costs of being a public company.
Also in March of 2008, John Simonelli, an independent Director of Alliance HealthCard
contacted Russell Cleveland, one of our directors, regarding the establishment of a strategic
business relationship with or merger with Alliance HealthCard. In March 2008 Mr. Cleveland
expressed an interest in starting discussions of an acquisition or establishing strategic business
relationship.
On April 11, 2008, Messrs. Cleveland, Stuart and Ruiz met with Messrs. Simonelli, Wright and
Wimberley and discussed a possible strategic relationship or merger of the companies. A mutual
nondisclosure agreement was signed providing for the sharing of confidential information.
Telephone discussions continued between Messrs. Stuart and Wimberley, and on April 15, 2008, Mr.
Stuart visited with Messrs. Wright and Wimberley at the Alliance HealthCard offices in Norman,
Oklahoma. After these initial meetings, Alliance HealthCard presented us with potential terms for
the purchase of our Consumer Plans Divisions assets.
Alliance HealthCard reviewed the status of the discussions at its May 13, 2008 board of
directors meeting and agreed that it would be beneficial to continue discussions with us. All of
the board members and Alliance HealthCards
17
corporate secretary, Bradley Denison, were present. An offer to purchase our Consumer Plans
Division was formulated and communicated to our management. Our management, in consultation with
Mr. Cleveland and J. French Hill, both members of our executive committee, determined that
proposed terms of the purchase offer were at the time not sufficient and neither in our best
interest nor our shareholders. The proposed terms were not accepted.
The discussions were temporarily suspended until we completed our June 30, 2008 unaudited
financials statements. In July 2008 discussion between the two companies resumed with Ian Stuart
visiting Alliance HealthCards Norman, Oklahoma offices on July 28 to review financials, including
pro-forma income statements.
On August 5, 2008, Messrs. Wright and Wimberley and Susan Matthews, Alliance HealthCards
Executive Vice President for Sales and Marketing, visited with Messrs. Stuart and Ruiz at our
offices in Irving, Texas. Messrs. Stuart and Wimberley then continued, by telephone, discussions
of a possible merger, reviewing each companys financial results and operations, and the expected
savings that could be realized by a merger of the companies.
At its August 13, 2008 meeting, the Alliance HealthCard board discussed the status of the
discussions between us and Alliance HealthCard and expressed their interests in continuing the
discussions. The board discussed the strategic reasons for either an asset purchase or a merger
and the financial and operational implications of those options.
At its meeting on August 14, 2008, our board of directors considered possible changes in our
strategic direction. Mr. Stuart reported on potential options for an asset sale or merger. Each
option was considered in detail, as well as a valuation discussion of our Consumer Plan and
Insurance Marketing divisions, along with pro forma adjustments of the year-to-date results, taking
into account potential value to an acquirer. A discussion of potential suitors/strategic partners
followed. Our board discussed other potential strategic opportunities, including acquisition of
an existing profitable business in a related or unrelated business. The board asked management to
enter into discussions with possible interested parties and brokers or others that may be of
assistance in finding a strategic partner or acquirer.
During a telephonic meeting on September 16, 2008, our board of directors again addressed our
strategic direction. Mr. Stuart and Mr. Cleveland then discussed at length the status of
discussions regarding potential strategic opportunities and merger opportunities with the various
parties that had been included in Mr. Stuarts report at the August 14 meeting.
On September 24, 2008 Mr. Wimberley presented a proposed term sheet to the Alliance HealthCard
board of directors and discussed that term sheet with the board on a conference call on September
25. All of Alliance HealthCards board members and its secretary, Bradley Denison, were present.
The board of directors discussed and informally approved going forward with an offer consistent
with the term sheet subject to final approval by the board.
On September 19, Mr. Wimberley met with Mr. Hill, Chairman of our board and our Audit
Committee and on September 26, we received the proposed terms of the merger from Alliance
HealthCard.
Between September 26 and October 7, Messrs. Stuart and Cleveland engaged in additional
discussions with Messrs. Wright and Wimberley regarding the proposed merger, including the merger
consideration. The merger consideration discussed was based on our and Alliance HealthCards
current and anticipated adjusted earnings before interest, taxes, depreciation and amortization and
the potential efficiencies to be gained from the merger.
On October 7, 2008, Alliance HealthCard presented a revised merger proposal to us. On October
8, 2008, our board of directors met again by teleconference to discuss strategic alternatives
available to us. Mr. Stuart reported on the various detail discussions that had taken place with
third parties, other than Alliance HealthCard, that had expressed an interest in pursuing a merger
with us. He discussed each alternative transaction in detail and discussed the reasons why none of
the alternative transactions were as favorable to us and our shareholders as compared to the merger
proposal of Alliance HealthCard.
Mr. Stuart then presented Alliance HealthCards revised merger proposal. The board discussed
in detail the terms of the offer, the operations of Alliance HealthCard, the preliminary pro forma
financials of the combined companies, and the expected operations and strategies. Our board also
discussed the relative values of the stock of each of the companies and our working capital needs
should we choose to remain as a stand-alone company. A lengthy discussion and question and answer
session followed, including a discussion of the challenges faced by us in any
18
attempt to raise additional working capital. Our board concluded that a merger with Alliance
HealthCard was in the best interest of our shareholders. Our board agreed to accept the proposed
terms of the merger with Alliance HealthCard, including the issuance of approximately 7,250,000
shares of Alliance HealthCards common stock. Management was directed to complete its
investigation of the operations and financial position of Alliance HealthCard with all due
diligence and to begin preparations to enter into a definitive agreement upon the completion of the
due diligence investigation.
We notified Alliance HealthCard of our acceptance with slight modification of the proposed
merger terms.
On October 21 and 22, Messrs. Wright, Wimberley, Denison, Rita McKeown and other
representatives of Alliance HealthCard met at our offices to conduct preliminary due diligence. On
October 28, Messrs. Stuart and Ruiz conducted due diligence at the offices of Alliance HealthCard
in Norman, Oklahoma.
Michael Dunn has served as our and Alliance HealthCards outside counsel. Both companies
agreed to waive the conflict of interest and to allow Mr. Dunn to prepare the definitive documents
for the sake of efficiency, because of his familiarity with both companies and his work on merger
transactions for both companies. Access Plans USA also engaged independent counsel to review the
definitive agreements.
On October 31, 2008, at a regularly scheduled board meeting, Alliance HealthCards board was
presented with the proposed definitive merger agreement and a presentation on the pro forma
financials. Alliance HealthCards board unanimously approved the merger agreement and the merger
on the general terms set forth in the definitive agreement, as presented, and authorized Messrs.
Wright and Wimberley to negotiate the final terms.
Our board of directors met again on November 10, 2008. Messrs. Stuart and Ruiz reported on
the due diligence investigation. The latest draft of the definitive merger agreement was discussed
in detail as well as the valuation of the companies and the expected cost savings that would result
from the merger as projected and assumed in the pro forma financial summary reviewed by the board.
Our board discussed in detail again the operations of Alliance HealthCard, including the associated
operating risks. Our board also discussed the effect of the merger on our employees and the costs
that would be incurred in terminating some of our personnel and staff. Our board again concluded
that the merger would be in our best interest and that of our shareholders, and unanimously
approved entering into the merger agreement.
During
January 2009, various discussions were held by Messrs. Stuart
and Wimberley regarding
|
|
our declining unrestricted cash balances, |
|
|
|
the impact of the delay, relative to prior expectations, in
filing of the S-4 Registration Statement of which this information
statement/prospectus is a part with the United States Securities and
Exchange Commission on January 20, 2009, |
|
|
|
the resulting probability of being unable to close the merger
by February 28, 2009 through no failure or fault of either
Alliance HealthCard or us, and |
|
|
|
our progress toward preparing for the integration of our
operations into those of Alliance HealthCard. |
These matters were discussed at length during the February 2,
2009 Alliance HealthCard board meeting. Subsequent to that meeting,
Mr. Wimberley presented to Mr. Stuart a proposed amendment
to the merger agreement whereby Alliance HealthCard would, in
exchange for a 400,000 reduction in the number of Alliance HealthCard
shares that would be issued to Access Plans USA shareholders at
closing of the merger,
|
|
extend the termination date of the merger agreement to
April 1, 2009,
|
|
|
|
provide a line of credit facility, secured by our restricted
deposits of up to $300,000 through to the proposed revised merger
termination date of April 2, 2009, and |
|
|
|
enter into a service agreement whereby Alliance HealthCard
would allow various members of its management team to assist us with
the management of our sales and operational functions prior to the
closing of the merger.
|
On
February 4, 2009 Mr. Stuart reviewed the Alliance
HealthCards proposal with Messrs. Hill and Cleveland, the two
other members of the Access Plans executive committee, and obtained
their approval of Alliance HealthCards proposal, including the
proposed revisions to the merger agreement. Subsequently,
Mr. Stuart discussed the proposed revisions with all of the
other members of our board of directors and secured the unanimous
approval of Alliance HealthCards proposal and the proposed amendment
of the merger agreement.
In
connection with the approval and adoption of the merger agreement and
the merger and the subsequent amendment, our and
Alliance HealthCards boards of directors reviewed our and Alliance HealthCards audited and
unaudited financial and other information, financial projections, and other information and data.
It was represented that the financial projections had been reasonably prepared on a basis
reflecting the best currently available estimates and judgments of management as to the future
operation and financial performance of the respective companies. In addition, our executive
officers and consultants compared the financial and other data of Alliance HealthCard with publicly
held companies engaged in businesses similar to that of Alliance HealthCard and reported the
findings to our board. However, there were no companies or transactions analyzed that were
directly comparable to us, Alliance HealthCard or the merger. Accordingly, the analysis was not
mathematical, but instead it involved considerations and business judgments concerning differences
in the financial and operating characteristics of the companies and other factors that could affect
the public trading values of the companies or company to which Alliance HealthCard were compared.
The
terms of the merger, as amended, were negotiated, with consideration of the factors mentioned above, by
our and Alliance HealthCards management and representatives. Most members of our board of
directors are not experienced in investment banking and the valuation of companies. We and
Alliance HealthCard have not and will not obtain an independent appraisal or valuation of us or
Alliance HealthCard or the combined companies. Instead, the boards and their directors relied on
their business judgments and business experience and the respective market values of our and
Alliance HealthCards common stock shares. We and Alliance HealthCard and our and its directors
and executive officers provide no assurance that the common stock shares of Alliance HealthCard to
be issued and delivered to you and our other shareholders in connection with the merger will have
an aggregate value greater or less than the our value from a financial point of view.
The
definitive merger agreement was executed on November 13, 2008
and the amendment to that agreement was executed on February 9,
2009.
19
Reasons For and Advantages of the Merger
Our board of directors believe that the merger is desirable and in our best interests and our
shareholders. Accordingly, at the special meeting of our board held on November 10, 2008 at which
the merger was considered and voted upon, the board of directors unanimously approved the merger
agreement. Additionally, unanimous board of director consent to the
amendment to the merger agreement was secured by February 9,
2009. Our board of directors identified a number of benefits for our shareholders that could
result from the merger. Subject to the risks of the Alliance HealthCard business, these potential
benefits of the merger include:
|
|
you and our other shareholders will own an interest in a larger and more diversified company; |
|
|
other sources of revenues and distribution channels for our products and services will be
provided; |
|
|
our success and potential profitability will be further diversified and less dependent upon
our non-insurance discount medical plans and insurance product sales and services; |
|
|
we expect to obtain a significantly greater rate of return on our capital resources and
discontinuance of operating losses and consequently increased shareholder value and common
stock share appreciation potential in the long term; |
|
|
potentially the access to additional capital resources required to further our business plan
and strategies compared to our existing and potential inability to obtain those capital
resources; |
|
|
our management, with certain exceptions, will have significant responsibilities and remain
active within the combined company, which should facilitate our integration with Alliance
HealthCard; |
|
|
we believe that the combining of our operations with those of Alliance HealthCard will assist
in the growth of our consumer healthcare savings programs and insurance products and services
through utilization of Alliance HealthCards marketing distribution channels; |
|
|
we expect to achieve synergies and possible cost savings from the combined product and
services development, marketing and sales, and administrative areas of the combined companies
following the merger; and |
|
|
as illustrated by the pro forma earnings per share amounts as compared to our historical per
share amounts, we expect to achieve profitability and earnings. |
Our expected or anticipated effects of the merger are forward-looking and there is no
assurance that they will be realized. You should review the Risk Factors section of this
information statement/prospectus and familiarize yourself with Alliance HealthCard by reading the
information incorporated in and provided elsewhere in this information statement/prospectus. See
Where You Can Find More Information on page i, above .
Disadvantages of the Merger
Immediately following completion of the merger,
|
|
you and our other shareholders will only own approximately
31.5% of the outstanding common
stock shares of Alliance HealthCard and there is expected to be further concentration of
voting control (approximately 70%) in the combined companys executive officers and directors; |
|
|
you and our other shareholders on a per common stock share basis will incur net book value
dilution of $0.33 (from $0.45 to $0.12) based upon our pro forma balance sheet as of September
30, 2008; and |
|
|
you and our other shareholders will be subject to risks of the business of Alliance
HealthCard, many of which are not within its control (see Risk Factors, above). |
|
|
|
Our board of directors considered a number of potential negative factors that included: |
20
|
|
the possibility that the merger might not be consummated and the effect of a public
announcement of a termination of the merger on: |
|
|
|
our revenues, operating results and stock price; and |
|
|
|
|
the potential disruption of our business that might result from employee and
customer uncertainty and lack of focus following announcement of the merger; |
|
|
the risk that Alliance HealthCard may fail to meet projected growth rates and that Alliance
HealthCards stock price might decline substantially prior to or subsequent to closing of the
merger; |
|
|
the risk that the announcement of the merger could result in decisions by our customers to
cancel or delay purchases of products or services or those of Alliance HealthCard; |
|
|
the risk associated with attempting to integrate our operations, products and services with
those of Alliance HealthCard, including the risk that the benefits sought to be achieved by
the merger will not be achieved; |
|
|
although our board of directors did not believe that any competing offer would be
forthcoming, the risks associated with agreeing to a break-up fee of $362,500 payable to
Alliance HealthCard under certain circumstances and the potential effect of the termination
fee in discouraging competing offers to acquire us; |
|
|
the delisting of our common stock shares by The NASDAQ Capital Market; and |
|
|
other risks described under the caption Risk Factors. |
Recommendation of Our Board of Directors
Our Board of Directors unanimously approved the merger.
Lack of Financial Advisory Opinion
In transactions similar to the merger, the respective companies in some circumstances obtain
opinions of investment banking or financial adviser firms. These opinions relate to the fairness to
the respective shareholders of the consideration to be received in the merger from a financial
point of view. We have not obtained and will not seek an opinion from an investment banking or
financial adviser firm regarding the fairness of the merger with Alliance HealthCard. Our board of
directors concluded that the cost of a fairness opinion was unwarranted based upon the advantages
our board of directors believes the merger offers.
Without an independent third-party fairness opinion, our board of directors concluded that the
consideration to be received by our shareholders in the merger is fair from a financial point of
view to you and our other shareholders. However, the members of our board of directors are not
experienced in investment banking and the valuation of companies. Consequently, we provide no
assurance that an independent third party experienced in investment banking would similarly
conclude that the consideration for this merger is fair from a financial point of view to our
shareholders, or the Alliance HealthCard common stock to be issued and delivered to our
shareholders will have an aggregate value greater or lesser than the value of our common stock
shares from a financial point of view.
Appraisal Rights
The
Merger will be completed and become effective on April 1, 2009.
You and our other shareholders will have rights of appraisal
under the Oklahoma General Corporation Act to receive cash for your Access Plans USA shares if the
merger is completed. To do this, the following procedures summarized below must be followed.
The following is a summary of the principal steps that must be taken to perfect appraisal
rights under Section 1091 of the Oklahoma General Corporation Act (Section 1091). Because this
is a summary, it does not contain all the information that may be important to you if you elect to
exercise appraisal rights. You should read the full text of Section 1091, a copy of which is
attached as Appendix A to this information statement/prospectus.
21
If you dissent from the merger and demand and perfect appraisal rights under Section 1091, and
if the merger becomes effective, your Access Plans USA shares will not be converted into Alliance
HealthCard common stock. Instead, you will have the right to receive the fair value of your
Access Plans USA shares as determined by an Oklahoma county district court (the Oklahoma Court).
You should review this discussion and Section 1091 carefully if you wish to exercise appraisal
rights, or wish to preserve the right to do so, because failure to comply with the required
procedures will result in loss of such rights. If you are considering dissenting, you should
consult your legal advisor. If your shares of Access Plans USA common stock are held of record in
the name of another person and you desire to perfect appraisal rights, you must act promptly to
cause the shareholder of record to follow the steps summarized below. Shares of our common stock
with respect to which the shareholders of record properly exercise appraisal rights are referred to
as Dissenting Shares. To exercise appraisal rights, a shareholder (i) must file with us, on or
before April 11, 2009 or a later date of which we will provide notice. If the shareholder
dissents and demand appraisal rights, the shareholder must do so as to all of the Access Plans USA
common stock shares held of record by the shareholder (the Dissenting Shares).
Within 120 days after the effective time of the merger, we or any shareholder that has
complied with Section 1091 and is otherwise entitled to appraisal rights, may (i) file a petition
in the Oklahoma Court demanding a determination of the value of all Dissenting Shares and (ii) upon
written request, receive from us a statement setting forth the aggregate number of our common stock
shares as to which demands for appraisal have been received and the aggregate number of holders of
those shares. We do not intend to file that petition. Upon the filing of a petition pursuant to
Section 1091 by a shareholder, a copy must be served on us.
If a petition for an appraisal is timely filed, the Oklahoma Court must determine the holders
of Dissenting Shares entitled to appraisal rights and the fair value of the Dissenting Shares.
In determining the fair value, the Oklahoma Court may consider all relevant factors, exclusive of
any element of value arising from the accomplishment or expectation of the merger, together with a
fair rate of interest, if any to be paid upon the amount determined to be the fair value.
If you demand an appraisal under Section 1091, you will not, after the effective time, be
entitled to vote the shares subject to the demand for any purpose or to receive dividends or other
distributions on the shares except dividends or other distributions, if any, payable to
shareholders of record as of a date before the effective date of the merger.
If you demand appraisal and subsequently withdraw your demand or lose your right to appraisal,
your share of Access Plans USA common stock will be converted into shares of Alliance HealthCard
common stock in accordance with the merger agreement. You will lose your right to appraisal (i) if
you fail to file a written demand for appraisal on or before April 11, 2009 or a later date of
which we will provide notice, (ii) if no petition for appraisal is filed within 120 days after the
effective time or (iii) if you withdraw your demand for appraisal within 60 days after the
effective time.
Management Changes
Upon completion of the merger, the number of directors serving on Alliance HealthCards board
of directors will be seven. Our directors, J. French Hill and Russell Cleveland, will become
members of the board of directors of Alliance HealthCard, and our other board members, Kent H.
Webb, Nicholas J. Zaffiris, Kenneth S. George and Andrew A. Boemi will resign as members of our
board of directors. Robert D. Garces and Thomas W. Kiser will resign from Alliance HealthCards
board of directors. Eliseo Ruiz III will resign as our Executive Vice President and General Counsel
and Secretary. Each of Messrs. Hill and Cleveland will serve on Alliance HealthCards board until
the 2010 annual shareholders meeting of Alliance HealthCard and until his successor is elected or
his resignation or death.
22
Material Interests of Management Members
As of the date of this information statement/prospectus, each of our officers and directors
owned the number and percent of our outstanding common stock shares and held stock options
exercisable for the purchase of our common stock shares (Option Shares) set forth opposite their
names as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of |
|
Ownership |
|
Option |
Name |
|
Executive Officer Position |
|
Shares |
|
Percent(1) |
|
Shares |
Ian R. Stuart |
|
President,
Interim Chief Executive Officer and Chief
Financial Officer |
|
|
889,556 |
|
|
|
4.39 |
% |
|
|
|
|
Michael K. Owens(2) |
|
President of Americas Health Care/Rx Plan Agency, Inc. |
|
|
144,837 |
|
|
|
.71 |
% |
|
|
|
|
Eliseo Ruiz III |
|
Executive Vice President and General Counsel and Secretary
|
|
|
4,283 |
|
|
|
.02 |
% |
|
|
212,500 |
|
Scott Treadway |
|
Vice President of Operations |
|
|
11,000 |
|
|
|
.05 |
% |
|
|
120,000 |
|
Nancy L. Zalud |
|
Vice President of Marketing and Communications |
|
|
69,169 |
|
|
|
.34 |
% |
|
|
|
|
J. French Hill |
|
Chairman of the Board of Directors |
|
|
7,000 |
|
|
|
.03 |
% |
|
|
80,000 |
|
Nicholas J. Zaffiris |
|
Director |
|
|
|
|
|
|
|
% |
|
|
55,000 |
|
Russell Cleveland(3) |
|
Director |
|
|
|
|
|
|
|
% |
|
|
25,000 |
|
Kent H. Webb |
|
Director and Medical Director |
|
|
125,219 |
|
|
|
.62 |
% |
|
|
91,500 |
|
Kenneth S. George |
|
Director |
|
|
3,000 |
|
|
|
.01 |
% |
|
|
55,000 |
|
Andrew A. Boemi |
|
Director |
|
|
80,769 |
|
|
|
.40 |
% |
|
|
25,000 |
|
|
|
|
(1) |
|
The percentage shown was rounded to the nearest one-tenth of 1.0%, based upon 20,269,145
shares of common stock being outstanding on the date of this information statement/prospectus. |
|
(2) |
|
Mr. Owens is the trustee of the Peter W. Nauert Revocable Trust that owns 5,533,482 common
stock shares, representing 27.30% of our outstanding common stock shares. |
|
(3) |
|
Mr. Cleveland controls RENN Capital Group, Inc. that manages US Special Opportunities Trust
PLC that owns 801,813 common stock shares, Renaissance Capital Growth & Income Fund III, Inc.
that owns 890,500 common stock shares, Premier RENN US Emerging Growth Fund Limited that owns
1,200,900 common stock shares, and Renaissance US Growth Investment Trust PLC that owns
1,562,145 common stock shares. The total of 4,455,358 shares represents 21.98% of our
outstanding common stock options. |
Upon completion of the merger, our executive officers and directors will exchange their common
stock shares for Alliance HealthCard common stock shares in the same fashion that our other
shareholders will. The stock options held by our executive officers and directors will become
exercisable for the purchase of Alliance HealthCard common stock shares as provided in their
respective stock option agreement and under our stock option plans. Our board of directors was
fully aware of the interests of our directors and executive officers and took their interests into
account in approving the merger agreement.
Accounting Treatment of the Merger
For accounting purposes, we will be considered to have been purchased by Alliance HealthCard.
On a pro forma basis, assuming the issuance of 6,800,000 shares, the purchase price paid by
Alliance HealthCard will be approximately $4,870,000 for accounting purposes. On a pro-forma basis
as of September 30, 2008 this is estimated to result in the
recording of an additional $4,116,000
of goodwill and other intangible assets. This pro forma purchase price is the aggregate sum of
|
|
$4,760,000 representing the value of the 6,800,000 shares of Alliance HealthCard common
stock to be delivered at closing of the merger valued at $0.70 per share, the closing sale
price of the Alliance HealthCard common stock on November 13, 2008, the date of the public
announcement of the terms of the merger; and |
23
|
|
the costs of the merger-acquisition which are estimated to be $110,000. |
The recorded goodwill will be not be amortized, but will be subject to at least annual evaluation
for impairment, and in the event the goodwill becomes impaired, it will be partially or fully
written off. The intangible assets will be amortized over the estimated life of each intangible
asset, subject to acceleration of amortization in the event it is determined that the value of the
intangible assets is less than their unamortized values.
Federal Income Tax Consequences of the Merger
The following discussion is a summary of the material U.S. federal income tax consequences to
us, our shareholders and Alliance HealthCard of the merger. The following discussion is based on
the Internal Revenue Code of 1986, as amended (the Code), treasury regulations promulgated under
the Code, administrative rulings and pronouncements and judicial decisions as of the date of this
information statement/prospectus, all of which are subject to change, possibly with retroactive
effect.
The discussion below is for general information only and does not address the effects of any
state, local or foreign tax laws as they may relate to the merger. In addition, the discussion
below assumes you hold shares of our common stock as a capital asset. However, the tax treatment
may vary depending upon your particular situation. Certain taxpayers, including insurance
companies, tax-exempt organizations, financial institutions and broker-dealers may be subject to
special rules not discussed below.
In the opinion of our counsel, Dunn Swan & Cunningham, consummation of the merger will
constitute reorganization within the meaning of Section 368 of the Code. This opinion will be based
on facts existing at the time the merger becomes effective and on the representations, warranties
and covenants as to factual matters contained in the merger agreement. The conclusions reached in
the opinion could be jeopardized if the representations, warranties or covenants are incorrect in
certain material respects. We and Alliance HealthCard are unaware of any facts or circumstances
which would cause any of the representations, warranties and covenants made in the merger agreement
to be untrue or incorrect in any material respect. The opinion of counsel is not binding on the
Internal Revenue Service or the courts.
Based on the opinions discussed above, the material U.S. federal income tax consequences that
will result from the merger are as follows:
|
|
you and the other holders of our common stock shares will not recognize any income, gain or
loss upon completion of this merger and |
|
|
no income, gain or loss will be recognized by us or Alliance HealthCard as a result of the
merger. |
The foregoing discussion is only a summary and may not be a complete analysis or listing of
all potential tax effects that could be relevant to your particular tax circumstances. You are
urged to consult your own tax advisor concerning the federal, state and local and any foreign tax
consequences of the merger to you.
Federal Securities Law Consequences
All shares of common stock to be received by you and our other shareholders have been
registered under the Securities Act of 1933, as amended (the Securities Act) and will be freely
transferable. The shares received by you and other shareholders, with the exception of those shares
received by our affiliates, may be resold without restriction under the Securities Act. A person
who may be deemed to be our affiliate generally includes an individual or entity that controls, is
controlled by, or is under common control with, the person and may include certain officers and
directors of the person as well as principal shareholders of the person.
24
Regulatory Approvals
Other than obtaining the SECs effectiveness of the registration statement of which this
information statement/prospectus is a part, there are no regulatory approvals required to be
obtained by Alliance HealthCard or us prior to or subsequent to consummation of the merger.
Required Affirmative Vote
The affirmative vote of at least a majority of our outstanding common stock shares is required
for approval of our merger with Alliance HealthCard. We anticipate that, on or after the 22nd day
following distribution of this information statement/prospectus certain of our affiliates holding a
majority of our outstanding common stock shares will execute stockholder consents approving and
adopting the merger and merger agreement.
As of the date of this information statement/prospectus Ian R. Stuart, The Peter W. Nauert
Revocable Trust, Michael K. Owens, US Special Opportunities Trust PLC, Renaissance Capital Growth &
Income Fund III, Inc., Premier RENN US Emerging Growth Fund Limited, Renaissance US Growth
Investment Trust PLC, Andrew A. Boemi, and Kent H. Webb, own of record a total of 11,229,221 shares
of our outstanding common stock, representing more than 55% of our outstanding common stock shares.
If the holders of less than a majority of our outstanding common stock shares execute
stockholder consents approving and adopting of the merger agreement and merger, we will be required
to call a shareholders meeting for consideration of the merger.
SUMMARY OF THE AGREEMENT AND PLAN OF MERGER
The following description summarizes all of the material terms of the Agreement and Plan of
Merger, as amended. For full information, you should read the Agreement and Plan of Merger, a copy of which is
included as Appendix A to this information statement/prospectus.
General Terms of the Merger
The Merger. Alliance HealthCards wholly-owned subsidiary, Access/Alliance Acquisition Corp.
will merge with and into us. As a result of the merger, we will become a wholly-owned subsidiary of
Alliance HealthCard, the separate corporate existence of Access/Alliance Acquisition Corp. will
cease and we will continue as the surviving corporation as a wholly-owned subsidiary of Alliance
HealthCard.
Effective Time. As promptly as practicable (and in any event within two business days) after
the satisfaction or waiver of the conditions set forth in the merger agreement, we will complete
the merger by filing certificate of merger with the Secretary of State of Oklahoma. The time of
filing the certificate of merger will be the effective time of the merger.
Exchange of Access Plans Capital Stock for Alliance HealthCard Common Stock. Upon completion
of the merger, for each share of our common stock owned just before the merger, you and our other
shareholders will be entitled to receive, in the aggregate, up to
6,850,000 shares of Alliance
HealthCard common stock or a 0.337952 partial share of Alliance HealthCard common stock, subject to
a reduction adjustment for the net cost arising from divesture of our subsidiary, Access
HealthSource, Inc. (the Access HealthSource Divesture).
The 6,850,000 shares of Alliance
HealthCard common stock will be reduced by one share for each $2.00 of
|
|
the sum of the cash expenditures paid or to be incurred by us and Access HealthSource,
inclusive of any amounts paid or payable by Access HealthSource to Tenet Hospitals Limited
pursuant to the Compromise Settlement Agreement, Release of All Claims and Indemnity Agreement
related to Statement of Claim (the Tenet Liability), directly associated with the sale or
disposition of Access HealthSource that in the aggregate exceed |
|
|
the proceeds received by us in conjunction with the sale or disposition of Access
HealthSource. |
25
Effective December 31, 2008 we sold Access HealthSource to a third-party and incurred an estimated
$100,000 net cost in connection with the execution of the Access HealthSource Divesture.
Accordingly, we expect that the number of Alliance HealthCard common stock shares issuable pursuant
to the merger agreement will be 7,200,000 and the merger exchange ratio will be 0.3552197.
The fraction of one share of Alliance HealthCard common stock into which each of our common
stock shares will be converted is referred to as the Exchange Ratio. In the event you or any of
our other shareholders will be entitled to receive a fractional share in exchange for the aggregate
number of Access Plans USA common stock shares owned , the fractional share will be rounded to the
next whole share. The Alliance HealthCard common stock shares issued in elimination of fractional
shares will increase the number of shares to be issued by Alliance HealthCard.
Representations and Warranties
The merger agreement contains various representations and warranties made by us and Alliance
HealthCard. These relate, among other things, to the following matters (which, in certain cases,
are subject to specified exceptions):
|
|
|
Corporate Status The organization, good standing, qualification and capitalization
are as described in the merger agreement, and except as stated, there are no commitments
by us or Alliance HealthCard to issue any additional capital stock; |
|
|
|
|
Approvals and Filings There are no governmental or regulatory approvals or filings
required to complete the merger, or needed to prevent the termination of governmental or
regulatory licenses or permits where the effect of such termination could reasonably be
expected to have a material adverse effect on our or Alliance HealthCards business,
assets or financial condition (referred to below as a material adverse effect); |
|
|
|
|
Absence of Conflict The merger will not conflict with organizational documents, laws
or agreements to which any party is subject, and the only consents required for the
completion of the merger are as set forth except for those which might not reasonably be
expected to have a material adverse effect; |
|
|
|
|
Accuracy of Financial Statements Certain financial statements delivered to the other
party have been prepared fairly and in accordance with generally accepted accounting
principles and there are no undisclosed liabilities that could reasonably be expected to
have a material adverse effect; |
|
|
|
|
Conduct of Business Since June 30, 2008 and until completion of the merger, we and
Alliance HealthCard have conducted business in the ordinary course and there has been an
absence of certain changes or events, including the occurrence of a material adverse
effect; and |
|
|
|
|
Other Matters The merger agreement also includes representations and warranties
dealing with employee relations, benefit plans, title to properties owned by us or
Alliance HealthCard, compliance with laws, the absence of litigation that could reasonably
be expected to have a material adverse effect (except as otherwise noted), intellectual
property rights, contracts, the validity and standing of any required permits and
authorizations, compliance with environmental laws, maintenance of books and records,
customers, and relationships and transactions with affiliates. |
Conduct of Business Pending Completion of the Merger
The merger agreement contains various covenants and agreements made by us and Alliance
HealthCard. Those relate, among other things, to the following matters (which, in certain cases,
are subject to specified exceptions):
|
|
|
Conduct of Business by Alliance HealthCard and Us Prior to the effective time, we
and Alliance HealthCard will conduct business only in the ordinary course of business and
in a manner consistent with past practice. Except for the sale of Access HealthSource, we
and Alliance HealthCard will use reasonable commercial efforts to preserve substantially
intact our or its business organization, to keep available the services of our or its
present officers, employees and consultants and to preserve our or its present
relationships with customers, suppliers and |
26
|
|
|
other persons with which we or Alliance HealthCard has significant business relations. Except
as contemplated by the merger agreement: |
|
|
|
Amendments We and Alliance HealthCard will not amend our or its certificate of
incorporation or bylaws; |
|
|
|
|
Changes in Capital Structure or Assets There will be no change in the capital
structure, including issuing or repurchasing stock, or the sale, pledge or other
disposition of assets, declaration or payment of any dividend or distribution, or
amendment of the terms of any of securities by us or Alliance HealthCard, other than
the issuance of common stock shares in accordance with the terms of outstanding stock
options; |
|
|
|
|
Issuance of Indebtedness; Capital Expenditures or Acquisitions Without the
others consent, we or Alliance HealthCard will not acquire any other business or
incur any additional indebtedness or, except in the ordinary course of business and
consistent with past practice, incur or guarantee or otherwise become responsible for
any material indebtedness or make any capital expenditures or purchase any fixed
assets in excess of set amounts; |
|
|
|
|
Employment Matters We or Alliance HealthCard will not change any compensation
arrangements or make any promises to pay any bonus or extra compensation to any
director, officer, employee, salesman or agent, increase any employee benefits, or
make any commitment to adopt an additional employee benefit plan; |
|
|
|
|
Material Change or Election We or Alliance HealthCard will not make any material
change to accounting policies or procedures, or make any material tax election
inconsistent with past practice, or settle or compromise any material tax liability or
agree to an extension of a statute of limitations; |
|
|
|
|
Satisfaction of Claims or Liabilities We or Alliance HealthCard will not pay,
discharge or satisfy any claims, liabilities or obligations other than in the ordinary
course of business and consistent with past practices; and |
|
|
|
|
Other Actions We or Alliance HealthCard will not take or agree to take any of
the above actions, or any other actions which would make any representation or
warranty in the Agreement and Plan of Merger untrue or incorrect, or prevent us or
Alliance HealthCard from performing any covenant under the merger agreement. |
Additional Agreements
|
|
|
Access to Information; Confidentiality Upon reasonable notice and subject to any
other agreement by which it is bound, we or Alliance HealthCard will afford the other
reasonable access to our or its properties, books, contracts, commitments and records
and will furnish promptly to the other all information concerning our or its business,
properties and personnel as the other may reasonably requested. |
|
|
|
|
Consents; Approvals We and Alliance HealthCard have agreed to use reasonable
best efforts to obtain all consents, waivers, approvals, authorizations or orders, and
to make all required filings, necessary to complete the merger. |
|
|
|
|
Indemnification Unless required by law, the indemnification provisions of our
certificate of incorporation will not be amended, repealed or modified for a period of
three years from the effective time in any manner that would adversely affect the
rights of the individuals who, at the effective time, serve as our directors or
officers. |
|
|
|
|
Notification of Certain Matters We and Alliance HealthCard agreed to give the
other prompt notice of any event that is likely to cause any of our or its
representations or warranties in the merger agreement to be materially untrue or
inaccurate, or of any failure by us or it materially to comply with any covenant,
condition or agreement in the merger agreement. |
27
|
|
|
Further Action We and Alliance HealthCard will use all commercially reasonable
efforts to consummate as promptly as practicable the transactions contemplated by the
merger agreement, to obtain in a timely manner all necessary waivers, consents and
approvals and to effect all necessary registrations and filings, and otherwise to
satisfy or cause to be satisfied all conditions precedent to our or its obligations
under the merger agreement. |
|
|
|
|
Registration of Certain Affiliate Owned Shares As soon as practicable after the
effective time, Alliance HealthCard has agreed to use its best efforts to register the
Alliance HealthCard common stock shares received by The Peter W. Nauert Revocable
Trust (the Nauert Shares) under the Securities Act pursuant to a registration
statement on Form S-3 (or any successor or other appropriate form). Alliance
HealthCard has also agreed to maintain effectiveness of the registration statement
until the Nauert Shares qualify for resale pursuant to Rule 144 or 145 promulgated
under the Securities Act. The costs and expenses of the registration of the Nauert
Shares will be paid by The Peter W. Nauert Revocable Trust. |
Conditions to the Merger
Conditions to Obligation of Each Party to Effect the Merger. Our obligations and those of
Alliance HealthCard to complete the merger are subject to the satisfaction, at or prior to the
effective time, of various conditions. We believe that all conditions of completing the merger will
be timely satisfied and accordingly there is no material uncertainty that all conditions of the
merger will be satisfied. These conditions include the following:
|
|
|
Representations and Warranties The representations and warranties contained in the
merger agreement must be true and correct in all respects on and as of the effective time,
except where the failure to be true and correct could not reasonably be expected to have a
material adverse effect; |
|
|
|
|
Agreements and Covenants All agreements and covenants contained in the merger
agreement must have performed or complied with in all material respects on and as of the
effective time; |
|
|
|
|
Consents and Approvals All material required consents, waivers, approvals,
authorizations or orders must be obtained, and all required filings must have been made,
except where the failure to do so would not reasonably be expected to have a material
adverse effect on us or Alliance HealthCard; |
|
|
|
|
Governmental Actions There must not be any pending or threatened action, proceeding
or inquiry by any governmental authority or administrative agency, or any other legal
restraint, preventing or seeking to prevent Alliance HealthCard from exercising all
material rights and privileges pertaining to its ownership of us or its ownership or
operation of our business or assets, or compelling or seeking to compel it to dispose of
or hold separate all or any material portion of its business or assets, as a result of the
merger; |
|
|
|
|
Illegality There must not be any statute, rule, regulation or order which makes the
consummation of the merger illegal; |
|
|
|
|
Opinion of Counsel We and Alliance HealthCard shall have received the written
opinion of Dunn Swan & Cunningham, in form reasonably satisfactory to us and Alliance
HealthCard, as to customary corporate and legal matters relating to us, Alliance
HealthCard and Access/Alliance Acquisition Corp, the merger agreement and the transaction
contemplated in that agreement. |
|
|
|
|
Tax Opinion We and Alliance HealthCard shall have received a written opinion of
Dunn Swan & Cunningham, in form and substance reasonably satisfactory to us and it to the
effect that the merger will constitute a reorganization within the meaning of Section 368
of the Internal Revenue Code. We and Alliance HealthCard agreed to make all
representations and covenants reasonably requested by Dunn Swan & Cunningham in connection
with the rendering of that opinion. |
|
|
|
|
Effectiveness of the Registration Statement The registration statement of which this
information statement/prospectus is included shall have been declared effective by the
United States Securities and Exchange |
28
|
|
|
Commission (the SEC). No stop order suspending the effectiveness of the registration
statement shall have been issued by the SEC and no proceedings for that purpose and no
similar proceeding in respect of this information statement/prospectus shall have been
initiated or threatened by the SEC. |
|
|
|
|
Shareholder Approval We shall have obtained the approval of the merger agreement
and the transactions contemplated in the merger agreement by the holders of not less than
a majority of our outstanding common stock shares. |
Termination
Conditions to Termination. Subject to notice requirements and rights to cure defaults or
breaches, the merger agreement may be terminated at any time prior to the effective time:
|
|
|
by our and Alliance HealthCards mutual written consent as authorized by our and
Alliance HealthCards boards of directors; or |
|
|
|
|
by either us or Alliance HealthCard |
|
|
|
if the merger is not completed by April 1, 2009 due to our or Alliance
HealthCards failure to fulfill any obligation under the merger agreement that prevents
consummation of the merger by that date; or |
|
|
|
|
if there is a non-appealable final order, decree or ruling or other action having the
effect of permanently restraining, enjoining or otherwise prohibiting the merger; or |
|
|
|
|
(i) if any of our or Alliance HealthCards representations or warranties in the
merger agreement was untrue when made, or (ii) upon a breach by us or it of any covenant
or agreement in the merger agreement, and are of the nature that the conditions to our
or its obligations would not be satisfied; or |
|
|
|
|
by us, if any representation or warranty of Alliance HealthCard becomes untrue so
that the conditions of our obligations will not be satisfied, or by Alliance HealthCard
if any of our representations or warranties have become untrue so that the conditions to
its obligations will not be satisfied. |
|
|
|
by us if we accept or propose to accept, or recommend to our shareholders, an
alternative acquisition proposal and pay to Alliance HealthCard a breakup fee of $362,500,
so long as our board of directors has otherwise complied with the no solicitation
provisions of the merger agreement. The merger agreement defines an alternative
acquisition as an alternative acquisition proposal that our board of directors determines
in good faith, after consultation with independent financial and legal advisors, (i) is
reasonably capable of being completed on the terms proposed and (ii) would result in a
transaction more favorable to our shareholders from a financial point of view than the
merger. |
Costs and Expenses. All fees and expenses incurred by us or Alliance HealthCard in connection
with the merger will be paid by the party incurring the expenses, whether or not the merger is
consummated; however, the costs and expenses of Dunn Swan & Cunningham incurred in connection with
the merger will be borne and paid equally by each of us and Alliance HealthCard.
Amendment and Waiver
The merger agreement may be amended in writing by Alliance HealthCard and us at any time prior
to the effective time. At any time prior to the effective time, either we or Alliance HealthCard
may extend the time for the performance of any of the obligations or other acts of the other, waive
any inaccuracies in the representations and warranties of the other contained in the merger
agreement or in any document delivered pursuant to the merger agreement, or waive compliance with
any of the agreements or conditions of the other contained in the merger agreement. Any extension
or waiver will be valid if set forth in an instrument in writing signed by either us or Alliance
HealthCard, which ever will be bound.
29
COMPARATIVE SHARE PRICES AND DIVIDENDS
Alliance HealthCards common stock is quoted on the OTC Bulletin Board under the symbol ALHC
and our common stock is traded on The NASDAQ Capital under the symbol AUSA. The following table
sets forth the high and low sales prices per share of Alliance HealthCard common stock and our
common stock, as reported on the OTC Bulletin Board and The NASDAQ Capital Market, respectively,
for the quarterly periods presented below.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Closing Sale Price Common Stock |
|
|
Access Plans |
|
Alliance |
|
|
USA |
|
HealthCard |
Quarter Ended |
|
High |
|
Low |
|
High |
|
Low |
March 31, 2006 |
|
$ |
1.67 |
|
|
$ |
1.25 |
|
|
$ |
1.01 |
|
|
$ |
0.80 |
|
|
June 30, 2006 |
|
$ |
1.69 |
|
|
$ |
1.12 |
|
|
$ |
0.85 |
|
|
$ |
0.72 |
|
|
September 30, 2006 |
|
$ |
2.46 |
|
|
$ |
1.58 |
|
|
$ |
0.85 |
|
|
$ |
0.55 |
|
|
December 31, 2006 |
|
$ |
2.01 |
|
|
$ |
1.34 |
|
|
$ |
1.35 |
|
|
$ |
0.42 |
|
|
March 31, 2007 |
|
$ |
2.86 |
|
|
$ |
1.91 |
|
|
$ |
1.90 |
|
|
$ |
1.10 |
|
|
June 30, 2007 |
|
$ |
2.37 |
|
|
$ |
1.60 |
|
|
$ |
2.20 |
|
|
$ |
1.61 |
|
|
September 30, 2007 |
|
$ |
1.79 |
|
|
$ |
1.00 |
|
|
$ |
2.00 |
|
|
$ |
1.61 |
|
|
December 31, 2007 |
|
$ |
1.21 |
|
|
$ |
0.73 |
|
|
$ |
1.90 |
|
|
$ |
1.55 |
|
|
March 31, 2008 |
|
$ |
1.28 |
|
|
$ |
0.84 |
|
|
$ |
1.70 |
|
|
$ |
0.80 |
|
|
June 30, 2008 |
|
$ |
1.09 |
|
|
$ |
0.70 |
|
|
$ |
1.25 |
|
|
$ |
0.75 |
|
|
September 30, 2008 |
|
$ |
1.00 |
|
|
$ |
0.33 |
|
|
$ |
1.35 |
|
|
$ |
0.60 |
|
|
December 31, 2008 |
|
$ |
0.65 |
|
|
$ |
0.22 |
|
|
$ |
1.05 |
|
|
$ |
0.30 |
|
Alliance HealthCard anticipates that any future earnings will be retained to finance its
operations and for the growth and development of its business. Accordingly, Alliance HealthCard
does not anticipate paying cash dividends on its shares of common stock in the foreseeable future.
The payment of any future dividends will be subject to the discretion of Alliance HealthCards
board of directors and will depend on its results of operations, financial position and capital
requirements, general business conditions, restrictions imposed by financing arrangements, if any,
legal restrictions on the payment of dividends and other factors its board of directors deems
relevant.
We have not paid dividends on our common stock since our inception. Under the merger
agreement, we cannot pay cash dividends without the prior written consent of Alliance HealthCard.
If the merger is completed, the payment of any future dividends will be determined by Alliance
HealthCard. If the merger is not completed, we do not anticipate paying any cash dividends on our
common stock in the foreseeable future because we would intend to retain any future earnings for
use in business development.
On November 12, 2008, the last trading day prior to the public announcement of the proposed
merger, the sale price of Alliance HealthCard common stock reported on OTC Bulletin Board was $0.70
per share. On that same date, the closing sale price of our common stock reported on The NASDAQ
Capital Market was $0.65 per share. On February 6, 2009, the most recent practicable date prior to the
date of this information statement/prospectus, the reported closing prices of Alliance HealthCard
common stock and our common stock were $0.55 and $0.23, respectively.
30
ALLIANCE HEALTHCARD, INC.
Description of Business
Alliance HealthCard, Inc. was founded in 1998 as a provider of discount medical plans with its
focus on creating, marketing, and distributing membership savings programs primarily to the
underserved markets in the United States. Alliance HealthCards original programs offered
attractive savings in approximately 16 areas of health care, including physician visits, hospital
stays, chiropractics, vision, dental, pharmacy, hearing, and patient advocacy, among others. In
February 2007, Alliance HealthCard completed the merger-acquisition of BMS Holding Company, Inc.
and its subsidiaries, Benefit Marketing Solutions, LLC (BMS) and BMS Insurance Agency, LLC. BMS is
the largest membership plan providers to dealers in the rental purchase industry. While Alliance
HealthCard continues to market successful health oriented programs, the merger-acquisition greatly
expanded its business scope to include programs that offer discount savings on dining and
entertainment, automotive, legal and financial, as well as insurance programs for leased property,
involuntary unemployment, accidental death and dismemberment, and extended service plans. Alliance
HealthCard sells its membership savings programs to retailers, insurance companies, finance
companies, banks, employer groups and association-based organizations through direct sales or
independent marketing consultants, and is now one of the leading providers of value added
membership plans sold in conjunction with point-of-sale transactions.
Industry Overview
The market for Alliance HealthCards customer membership programs is sizable. U.S. consumers
spend billions of dollars annually among the large variety of membership plans available. While
competition is significant, with hundreds of customer membership companies nationally, Alliance
HealthCard believes that it is the largest provider of such membership plans to dealers in the
rental purchase industry and a leading provider of consumer membership plans offered at point of
sale through retail locations. Alliance HealthCards programs create a win/win for their clients
as well as their customers. Alliance HealthCards clients build profits and growth through Alliance
HealthCards programs without risk while encouraging customer loyalty and repeat business.
Recent History of Alliance HealthCard
Alliance HealthCard, Inc. was founded in 1998. On February 28, 2007, Alliance HealthCard
completed the merger-acquisition of BMS Holding Company, Inc. and its subsidiary, BMS. BMS was
formed in February 2002. As part of the merger-acquisition of BMS Holding Company, Inc., Alliance
HealthCard also acquired BMS Insurance Agency, LLC (BMS Agency) that was formed in January 2005.
BMS Agency is licensed to offer life, accident and health, and property and casualty insurance.
Business Overview
Alliance HealthCard is a leading provider of membership plans sold in conjunction with a
point-of-sale transaction through retail locations. In addition, Alliance HealthCard offers and
provides healthcare savings membership plans under both retail and wholesale arrangements, as
well as included as additional benefits to other membership programs. Through working with its
clients, Alliance HealthCard designs and builds membership plans that contain benefits aggregated
from its vendors that appeal to its clients customers. This process involves balancing the needs
of Alliance HealthCards clients, their customers and its vendors.
Alliance HealthCard enters into agreements with its clients to deliver customized membership
marketing plans that leverage the clients brand name and customer relationship and typically their
payment mechanism, and offer benefits that appeal to the customers of Alliance HealthCards
clients. The value provided by Alliance HealthCards plans to its clients, includes increased
customer attraction and retention, plus incremental fee income with no risk or capital cost. By
implementing these plans repetitively, Alliance HealthCards management team is uniquely qualified
to efficiently assist its clients in achieving their goals, while avoiding the operational and
marketing pitfalls.
The point-of-sale offered plans are primarily provided on a wholesale basis to Alliance
HealthCards clients whereby Alliance HealthCard provides the plan products and services as well as
customer service and fulfillment. Alliance HealthCard also supports the plan with field training,
in-store advertising materials and sales videos. The plans
31
may be further customized by incorporating benefits provided in-house by Alliance HealthCards
clients. Alliance HealthCards clients are responsible for member acquisition, retention and
collection of the periodic membership fees. Alliance HealthCards clients remit to Alliance
HealthCard a portion of the on-going membership fees collected the month following their receipt.
Alliance HealthCards largest market for these plans is dealers in the rental purchase industry.
The other markets include banks, retailers and consumer finance companies.
Alliance HealthCards wholesale plans are custom tailored to meet the needs of its clients,
generate incremental revenue for them and enhance the relationship with their customers via
value-added benefits. Services included with wholesale plans provided to Alliance HealthCards
largest member segment generally include insurance benefits and a variety of lifestyle benefits,
like discount medical, food & entertainment and automotive related discounts. Alliance HealthCard
also provides wholesale plans that include only discount medical benefits, lifestyle benefits and
other combinations to fit the customer needs of Alliance HealthCards clients.
Alliance HealthCards retail plan offerings are primarily health care savings plans. These
plans are not insurance, but allow members access to a variety of healthcare networks to obtain
discounts from usual and customary fees. Alliance HealthCards members pay providers the discounted
rate at the time services are provided to them. These plans are designed to serve the markets in
which individuals either have no health insurance or limited healthcare benefits.
Alliance HealthCard provides two standard healthcare savings plan offerings: Gold Card Plan
and Platinum Card Plan. These plans are designed to benefit the more than 47 million individuals
without healthcare insurance coverage and the millions more that are underinsured. The Gold Card
Plan is targeted to those who have some basic medical insurance but no ancillary services or as
add-on services alongside a healthcare plan. The Gold Card Plan benefit categories include
pharmacy, vision, dental, hearing, 24-hour nurse-line, chiropractic, medical lab and supplies,
alternative medicine, physical therapy, podiatry, mental health and long-term care. The Platinum
Card Plan is generally intended for those who do not have a healthcare insurance plan or have a
plan with only catastrophic coverage. It includes all of the Gold Card Plan benefits plus
primary-care physicians, specialists and outpatient facilities.
In addition to the wholesale and retails offerings, certain clients may choose to include
Alliance HealthCards benefits with their own membership plan offering. In these instances, the
client bears the cost of marketing and fulfillment, and Alliance HealthCard provides customer
service. These offerings are designed to enhance Alliance HealthCards clients existing offering
and improve their product value relative to their competition and in some instances to improve
their customer retention. While these plans provide lower periodic member fees, Alliance HealthCard
incurs limited implementation costs and receives higher revenue participation rates.
In order to deliver its membership offerings, Alliance HealthCard contracts with a number of
different vendors to provide various products and services to Alliance HealthCards members. The
majority of these vendor relationships involve the vendor providing the program members access to
their network or providers or their locations and the members obtain a discount at the time of
service. Alliance HealthCard has vendor relationships with medical networks, automotive service
companies, insurance companies, travel related entities and food and entertainment consumer
discount providers. Alliance HealthCards vendors value the relationship with Alliance HealthCard
because it delivers many customers to them without incremental capital cost or risk on their part
and these relationships are governed by multi-year agreements and aggregated volume scaling.
Business Strategy
Alliance HealthCards focus is providing national membership program benefits to organizations
that include, but are not limited to, rental-purchase companies, financial institutions, retail
merchants, and consumer finance companies nationwide. The strategy is to succeed in the marketplace
by
|
|
increasing market penetration; |
|
|
maintaining and enhancing customer satisfaction; |
|
|
continually enhancing programs and adding benefits; |
32
|
|
managing growth effectively; and |
|
|
helping the market to understand how Alliance HealthCards offerings are different and superior. |
Increase Market Penetration
Alliance HealthCard believes it has opportunities to expand its offerings to markets with
similar operational and customer demographic characteristics to those it now serves. In addition,
many of these markets may be substantially larger than its existing markets. Alliance HealthCard
has recently begun exploring these new markets and plans to continue those efforts. Alliance
HealthCards tested and proven infrastructure allows it to serve substantially more customers
without a significant increase in fixed costs.
Maintain and Enhance Customer Satisfaction
Alliance HealthCards belief is that providing high-quality customer service to its customers,
clients and members is extremely important in order to encourage memberships and to strengthen the
affinity of those members for the client that offered the service program. In order to achieve
Alliance HealthCards anticipated growth and to ensure client, member and marketing representative
loyalty, Alliance HealthCard continues to develop and invest significantly in its member service
systems. All new member service representatives are required to complete a training course before
beginning to take calls and attend on-the-job training thereafter. Through its training programs,
systems and software, Alliance HealthCard seeks to provide members with friendly, rapid and
effective answers to questions. In addition, Alliance HealthCard continues to work closely with its
clients customer service staffs to ensure that their representatives are knowledgeable in matters
relating to membership service programs offered by Alliance HealthCard.
Continually Enhance Programs
Alliance HealthCard believes that it is well-positioned to increase its market share by taking
advantage of providing consumers distinctive and innovative membership programs. Alliance
HealthCard continuously enhances its programs and ads, remove or restructure benefits to sustain
this advantage. As Alliance HealthCard considers new markets where competitors exist, Alliance
HealthCard seeks opportunities to deliver competitive plans with innovative services or operational
structures.
Manage Growth Effectively
Alliance HealthCard intends to grow by focusing its sales team on potential new accounts,
while continuing to expand its existing client base by tailoring new programs that further
complement and increase the clients existing revenue sources. In addition, Alliance HealthCard
will selectively consider acquisitions of membership program companies to further increase its
market share. Alliance HealthCard believes that it has the management team in place to manage this
growth.
Services
Alliance HealthCard provides customer membership programs designed to provide a wide range of
consumer benefits, discounts and protection. Successful programs are currently in place at
rental-purchase centers, financial institutions, retail merchants, and consumer finance companies
nationwide. Membership programs are successful wherever customers use products and services on a
repeat basis. Alliance HealthCards membership benefit categories include Discount Medical, Food
and Entertainment, Insurance, Automotive Discounts, Dealer Add-In Benefits and Miscellaneous
Benefits.
|
|
|
|
|
Discount Medical |
|
Automotive |
|
Physician Network Access
|
|
Discounted Roadside Assistance |
|
Dental Network Access
|
|
Automotive Service Provider Savings |
|
Vision Care & Eyewear Network Access
|
|
Customer Trip Routing |
|
Pharmacy Network Discounts
|
|
Car Theft Reward |
|
Mail Order Pharmacy Discounts
|
|
Rental Car Savings |
|
Chiropractor Network Access |
|
|
33
|
|
|
|
|
Hearing Aid Discounts
|
|
Dealer Add-In Benefits |
|
Vitamins & Nutritional Supplements
|
|
Lease Cancellation Benefit |
|
|
|
Account Reinstatement |
|
Food and Entertainment
|
|
Points Program for On Time Payments |
|
Grocery Coupon Savings |
|
|
|
Restaurant Savings
|
|
Miscellaneous Benefits |
|
Theme Park Discounts
|
|
Kid Secure |
|
Movie Theater Discounts
|
|
Discounted Legal Services |
|
|
|
Savings at Choice Hotels |
|
Insurance
|
|
Savings at 1-800Flowers.com |
|
Accidental Death & Dismemberment
|
|
Product Service Plans |
|
Involuntary Unemployment |
|
|
|
Leased Property Insurance |
|
|
Clients and Customers
Alliance HealthCard currently delivers membership plans to about 190 companies, including
rental purchase dealers, insurance companies, financial institutions, retail merchants, and
consumer finance companies. Its point-of-sale plans are offered at over 5,100 locations.
Revenue attributable to one contract was $11,557,715 or 55% of total revenue for the year
ended September 30, 3008 and $10,982,394 or 62% of total revenue for the year ended September 30,
2007. For the year ended September 30, 2006, there were two contracts attributable for revenue of
$9,843,860, or 70% of total revenue.
Sales and Marketing
Alliance HealthCard currently employs three full-time direct sales professionals. In addition,
Alliance HealthCard has contracted with a number of independent sales consultants, who are
primarily compensated on the basis of revenue produced.
Alliance HealthCard continues to expand its marketing programs and visibility in the
industries it targets for its offerings. Programs currently underway include public relations,
internet sales, direct mailings and industry trade shows. It presently generates the majority of
its new members via point-of-sale marketing by Alliance HealthCards clients. Alliance HealthCard
also employs online, direct mail and mail insert marketing efforts as well.
Competition
While there are numerous companies providing membership offerings, they compete for members by
soliciting customers throughout various industries. Alliance HealthCard strives to maintain strong
client relationships in order to mitigate the effects of this competition. There are a number of
companies that compete with Alliance HealthCard. Its principal competitors include New Benefits,
Members Trust, Vertrue, Affinion and CAREINGTON International Corporation. Alliance HealthCards
other competitors include large retailers, financial institutions, insurance companies, preferred
provider organization networks, and other organizations that offer benefit programs to their
customers.
The environment within which Alliance HealthCard operates is intensely competitive and subject
to rapid change. To maintain or increase its market share position, Alliance HealthCard must
continually enhance its product offerings, introduce new product features and enhancements, and
expand its client service capabilities. Alliance HealthCard currently competes principally on the
basis of the specialized nature of its products and services.
Government Regulation
Alliance HealthCard offers benefits including insurance products, discount medical and other
discount programs through association-based membership programs that are sold by its clients as
add-ons to the clients core business. Alliance HealthCard also sells its discount medical program
as a standalone program directly to the public and through marketers. Alliance HealthCard
administers claims for its association-based insurance and service programs through its subsidiary,
BMS Agency, an Oklahoma licensed insurance agency. The association based programs are
34
offered through an Oklahoma association in accordance with the laws of Oklahoma. BMS is an Oklahoma
licensed third-party administrator.
There are approximately 30 states that now have laws regulating discount medical provider
organizations (hereinafter referred to as DMPO). The regulations differ materially among states
and are subject to amendment and reinterpretation by the agencies charged with their enforcement.
Some states require a license to operate as a DMPO. Alliance HealthCard has been approved as a
licensed DMPO in 16 states and has applications pending in three other states. There is also the
risk that a state will adopt regulations or enact legislation restricting or prohibiting the sale
of Alliance HealthCards medical discount programs in that state. In addition, California views
Alliance HealthCards discount medical plans as managed healthcare and Californias Department of
Managed Health Care has taken the position that Alliance HealthCard must seek and eventually obtain
a license under the Knox-Keene Act. Compliance with these state regulations on a state-by-state
basis has been expensive and cumbersome.
Compliance with federal and state regulations is generally Alliance HealthCards
responsibility. The medical discount plan industry is especially susceptible to charges by the
media of regulatory noncompliance and unfair dealing. As is often the case, the media may publicize
perceived non-compliance with consumer protection regulations and violations of notions of fair
dealing with consumers. Alliance HealthCards failure to comply with current, as well as newly
enacted or adopted, federal and state regulations could have a material adverse effect upon
Alliance HealthCards business, financial condition and results of operations in addition to the
following:
|
|
|
non-compliance may cause it to lose licensing status or to become the
subject of a variety of enforcement or private actions; |
|
|
|
|
compliance with changes in applicable regulations could materially increase the associated operating costs; |
|
|
|
|
non-compliance with any rules and regulations enforced by a federal or
state consumer protection authority may subject it or its management
personnel to fines or various forms of civil or criminal prosecution;
and |
|
|
|
|
non-compliance, or alleged non-compliance may result in loss of
contracts, negative publicity potentially damaging its reputation,
network relationships, client relationships and the relationship with
program members, representatives and consumers in general. |
Insurance Regulations
Government regulation of insurance is a changing area of law and varies from state to state.
The insurance companies from which Alliance HealthCard obtains its insurance products and financial
services are subject to various federal and state regulations applicable to their operations. These
insurance companies must comply with constantly evolving regulations and make changes occasionally
to services, products, structure or operations in accordance with the requirements of those
regulations.
|
|
|
Similar to the insurance companies providing products and services
offered by Alliance HealthCard, it is unable to accurately predict
additional government regulations that may be enacted in the future
affecting the insurance industry and the offered products and service
or how existing or future regulations might be interpreted. |
|
|
|
|
Additional governmental regulation or future interpretation of
existing regulations may increase the cost of compliance or materially
affect the insurance products and services offered by Alliance
HealthCard and its profitability. |
|
|
|
|
Alliance HealthCard must rely on the insurance companies that provide
the insurance products and financial services offered by Alliance
HealthCard to carefully monitor state and federal legislative and
regulatory activity as it affects their insurance products and
services. Alliance HealthCard believes that the insurance products and
financial services that it offers complies in all material respects
with all applicable federal and state regulations. |
|
|
|
|
Among the benefits afforded to the members of Alliance HealthCards
association are varying forms of |
35
insurance. Alliance HealthCards
ability to offer insurance products that Alliance HealthCard is
authorized to distribute to this association for inclusion in its
benefit packages may be affected by governmental regulation or future
interpretation of existing regulations that may increase the cost of
regulatory compliance or affect the nature and scope of products that
Alliance HealthCard may make available to those associations.
The laws and regulations and their interpretation relating to Alliance HealthCards insurance
and discount medical business are subject to uncertainty and change. There is no assurance that a
review of Alliance HealthCards current and proposed operations will not result in a determination
that could materially and adversely affect its business, results of operations and financial
condition. Moreover, regulatory requirements are subject to change from time to time and may in the
future become more restrictive, thereby making compliance more difficult or expensive or otherwise
affecting or restricting Alliance HealthCards ability to conduct its business as presently
conducted or proposed to be conducted. Alliance HealthCard is subject to the risk of challenges to
the legality of selling insurance or other regulated products through its association based
marketing program, including claims that its programs do not comply with a particular states laws
regarding the offering and licensing for a regulated product or administration of claims. Alliance
HealthCard is subject to the risk that its discount programs will be determined to be regulated by
the discount buying club laws or physician referral laws. In addition, the use of the internet in
the marketing and distribution of Alliance HealthCards services is relatively new and presents
issues, including the limitations on an insurance regulators jurisdiction and whether internet
service providers, gateways or cybermalls are engaged in the solicitation or sale of insurance
policies or otherwise transacting business requiring licensure under the laws of one or more
states.
Healthcare Regulation and Reform
Government regulation and reform of the healthcare industry may also affect the future manner
in which Alliance HealthCard conducts its business. There continues to be diverse legislative and
regulatory initiatives at both the federal and state levels that affect aspects of the nations
healthcare system. The Gramm-Leach-Bliley Act mandated restrictions on the disclosure and
safeguarding of insureds financial information. The USA Patriot Act placed new federal compliance
requirements relating to anti-money laundering, customer identification and information sharing.
In addition, the Health Insurance Portability and Accountability Act of 1996 (HIPAA)
requires certain guaranteed issuance and renew-ability of health insurance coverage for individuals
and small employer groups and limits exclusions on pre-existing conditions. HIPAA has also mandated
the adoption of extensive standards for the use and disclosure of health information. HIPAA also
mandated the adoption of standards for the exchange of electronic health information in an effort
to encourage overall administrative simplification and enhance the effectiveness and the efficiency
of the healthcare industry.
HIPAAs security standards became effective April 20, 2005 and further mandated that specific
requirements be met relating to maintaining the confidentiality and integrity of electronic health
information and protecting it from anticipated hazards or uses and disclosures that are not
permitted.
Alliance HealthCard believes that is in compliance with these regulations. Alliance HealthCard
plans to continually audit its compliance, and accordingly cannot give assurance that its costs of
continuing to comply with HIPAA will not be material to Alliance HealthCard. Sanctions for failing
to comply with standards issued pursuant to HIPAA include criminal penalties and civil sanctions.
In addition to federal regulation and reform, many states have enacted, or are considering,
various healthcare reform statutes. These reforms relate to, among other things, managed care
practices, prompt pay payment practices, health insurer liability and mandated benefits. Most
states have also enacted patient confidentiality laws that prohibit the disclosure of confidential
information. As with all areas of legislation, the federal regulations establish minimum standards
and preempt conflicting state laws that are less restrictive but will allow state laws that are
more restrictive. Alliance HealthCard expects that this trend of increased legislation will
continue. Alliance HealthCard is unable to predict the state reforms that may be enacted or, if
enacted, the affect on its business.
E-Commerce Regulation
Alliance HealthCard may be subject to additional federal and state statutes and regulations in
connection with its product strategy, which includes Internet services and products. On an
increasingly frequent basis, federal and state
36
legislators are proposing laws and regulations that apply to Internet-based commerce and
communications. Areas being affected by this regulation include user privacy, pricing, content,
taxation, copyright protection, distribution and quality of products, and services. To the extent
that Alliance HealthCards products and services would be subject to these laws and regulations,
the sale of its products and its business could be harmed.
Legislative Development
Numerous proposals to reform the current healthcare system have been introduced in the U.S.
Congress and in various state legislatures. Proposals have included, among other things,
modifications to the existing employer-based insurance system, a quasi-regulated system of managed
competition among health insurers, and a single-payer, public program. Changes in health care
policy could significantly affect Alliance HealthCards business. Legislation has been introduced
from time to time in the U.S. Congress that could result in the federal government assuming a more
direct role in regulating insurance companies.
Alliance HealthCard is unable to evaluate new legislation that may be proposed and when or
whether any legislation will be enacted and implemented. However, many of the proposals, if
adopted, could have a material adverse effect on Alliance HealthCards business, financial
condition or results of operations; while others, if adopted, could potentially benefit its
business.
Privacy Laws
Certain of Alliance HealthCards services are based upon the collection, distribution and
protection of sensitive private data. Alliance HealthCards contracts with certain clients place a
duty on Alliance HealthCard to protect certain confidential information and to comply with certain
provisions of privacy laws such as the Gramm-Leach-Bliley Act. Unauthorized users might access that
data, and human error or technological failures might cause the wrongful dissemination of that
data. If Alliance HealthCard experiences a security breach, the integrity of certain of its
services may be affected and the breach could violate certain of its client agreements. Alliance
HealthCard has incurred, and may incur in the future, significant costs to protect against the
threat of a security breach. Alliance HealthCard may also incur significant costs to alleviate
problems that may be caused by future breaches. Any breach or perceived breach could subject
Alliance HealthCard to government fines or sanctions, legal claims from clients or customers under
that govern the security non-public personal information. There is no assurance that Alliance
HealthCard would prevail in such litigation. Moreover, any public perception that Alliance
HealthCard have engaged in the unauthorized release of, or have failed to adequately protect,
private information could adversely affect Alliance HealthCards ability to attract and retain
members and end-customers. In addition, unauthorized third parties might alter information in
Alliance HealthCards databases, which would adversely affect both its ability to market its
services and the credibility of its information.
Description of Properties
Alliance HealthCard leases its offices in Norcross, Georgia under a lease that expires in
October 2009. This office lease is a joint lease between the landlord, Alliance HealthCard and
NovaNet, Inc., a company partially owned by Robert D. Garces, one of Alliance HealthCards
Directors and its Executive Vice President. The total space consists of approximately 5,175 square
feet. This lease will terminate on October 31, 2009. See Certain Relationships and Related
Transactions, and Director Independence, below.
Alliance HealthCards subsidiary, BMS, occupies its offices in Norman, Oklahoma under a lease
that expires July 31, 2009. The total space consists of approximately 5,973 square feet. The lease
agreement is with Southwest Brokers, Inc., a company owned by Brett Wimberley, one of Alliance
HealthCards Directors and its President. See Certain Relationships and Related Transactions,
and Director Independence, below. BMS also rents office space in Dallas, Texas on a
month-to-month basis. The total space consists of approximately 300 square feet.
In the event Alliance HealthCard is required to move from the current offices in Norcross,
Georgia, Norman, Oklahoma, or Dallas, Texas, the terms and cost of occupancy may be substantially
different than those under which that office space is currently occupied and the rental rate may be
substantially greater.
37
Alliance HealthCard believes that its current office space facilities are adequate for its
current operations.
Legal Proceedings
From time to time, Alliance HealthCard may become involved in litigation relating to claims arising
out of its operations in the normal course of its business. Alliance HealthCard is not currently a
party to any legal proceedings.
Managements Discussion and Analysis
Overview
Since formation in 1998 Alliance HealthCard has been a provider of discount medical plans with
a focus on creating, marketing, and distributing membership savings programs primarily to the
underserved markets in the United States. Alliance HealthCards original programs offered
attractive savings in approximately 16 areas of health care, including physician visits, hospital
stays, chiropractics, vision, dental, pharmacy, hearing, and patient advocacy, among others. In
February 2007, Alliance HealthCard completed the merger-acquisition of BMS Holding Company, Inc.
and its subsidiaries, Benefit Marketing Solutions, L.L.C. (BMS) and BMS Insurance Agency, L.L.C.,
(BMS Agency). BMS is the largest membership plan provider to dealers in the rental-purchase
industry. For financial reporting purpose, BMS was considered the acquiring entity and historical
financial statements prior to March of 2007 reflect the activities of BMS as adjusted for the
effect of the recapitalization which occurred at the merger date. Activities of Alliance
HealthCard, Inc. prior to the merger date are no longer reflected in the historical financial
statements as it was considered to be the acquired entity. Additional intangible assets and
goodwill totaling $4,791,945 were recorded on the financial statements as of the merger date
reflecting the fair market value of Alliance HealthCard, Inc. in excess of its identifiable net
tangible assets as of the date of the merger. While Alliance HealthCard continues to market health
oriented programs, the merger-acquisition has greatly expanded its business scope to include
programs that offer discount savings on dining and entertainment, automotive, legal and financial,
as well as insurance programs including leased property, involuntary unemployment, accidental death
and dismemberment, and product service plans. Alliance HealthCard sells membership savings programs
to retailers, insurance companies, finance companies, banks, employer groups and association-based
organizations through direct sales or independent marketing consultants, and is a leading provider
of value added membership plans sold in conjunction with point-of-sale transactions.
BMS was formed in February 2002 and designs, markets, and distributes membership programs for
rental-purchase companies, financial organizations, employer groups, retailers and
association-based organizations on a nation-wide basis. These membership programs are sold as part
of a point-of-sale transaction or through direct marketing efforts. BMS is the largest membership
plan providers to dealers in the rental-purchase industry market space. The point-of-sale
membership plans are sold through more than 5,100 locations in the U.S. and Puerto Rico.
In connection with the merger-acquisition of BMS Holding Company, was accounted for as a
reverse merger-acquisition with Alliance HealthCard as the legal acquirer and BMS Holding Company
as the accounting acquirer. Under the accounting treatment, the historical operations of BMS
Holding Company and its subsidiaries, BMS and BMS Agency, became Alliance HealthCards and the
former operations and assets and liabilities were deemed purchased by BMS Holding Company.
Therefore, the historical operations contained in this report are those of BMS Holding Company and
its subsidiaries.
Critical Accounting Policies
Use of Estimates
The preparation of financial statements in conformity with generally accepted accounting
principles requires management to make estimates and assumptions that affect the amounts reported
in the financial statements and the accompanying notes. Actual results may differ from those
estimates and such differences may be material to the financial statements. Significant estimates
include our claims liability and the discounted future cash flows used to calculate our goodwill
for impairment.
38
Goodwill and Intangible Assets
Alliance HealthCard accounts for acquisitions of businesses in accordance with Statement of
Financial Accounting Standards (SFAS) No. 141, Business Combinations (SFAS 141). Goodwill in
such acquisitions represents the excess of the cost of a business acquired over the net of the
amounts assigned to assets acquired, including identifiable intangible assets and liabilities
assumed. SFAS 141 specifies criteria to be used in determining whether intangible assets acquired
in a business combination must be recognized and reported separately from goodwill. Amounts
assigned to goodwill and other identifiable intangible assets are based on independent appraisals
or internal estimates.
Customer lists acquired in an acquisition are capitalized and amortized over the estimated
useful lives of the customer lists. Customer lists deemed acquired in connection with the Alliance
Healthcard and BMS Holdings merger were valued at $2,500,000 and are being amortized over 60
months, the estimated useful life of the list. Amortization of customer lists totaled $500,004 and
$291,669, respectively for the fiscal years ended September 30, 2008 and September 30, 2007.
Alliance HealthCard accounts for recorded goodwill and other intangible assets in accordance
with SFAS No. 142, Goodwill and Other Intangible Assets (SFAS 142). In accordance with SFAS 142,
Alliance HealthCard does not amortize goodwill. Management of Alliance HealthCard evaluates
goodwill for impairment at least annually. If considered impaired
goodwill will be written down to fair value and a corresponding impairment loss recognized.
Alliance HealthCard evaluates the recoverability of identifiable intangible assets whenever
events or changes in circumstances indicate that an intangible assets carrying amount may not be
recoverable. Those circumstances include:
|
|
|
a significant decrease in the market value of an asset; |
|
|
|
|
a significant adverse change in the extent or manner in which an asset is used; or |
|
|
|
|
an accumulation of costs significantly in excess of the amount originally
expected for the acquisition of an asset. |
Alliance HealthCard measures the carrying amount of the asset against the estimated undiscounted
future cash flows associated with the asset. Should the sum of the expected future net cash flows
be less than the carrying value of the asset being evaluated, an impairment loss would be
recognized. The impairment loss would be calculated as the amount by which the carrying value of
the asset exceeds its fair value. The fair value is measured based on quoted market prices, if
available. If quoted market prices are not available, the estimate of fair value is based on
various valuation techniques, including the discounted value of estimated future cash flows. The
evaluation of asset impairment requires Alliance HealthCard to make assumptions about future cash
flows over the life of the asset being evaluated. These assumptions require significant judgment
and actual results may differ from assumed and estimated amounts. As of September 30, 2008 and 2007
Alliance HealthCard recognized no impairment losses related to its intangible assets.
Stock Based Compensation
In accordance with the provisions of SFAS No. 123 (revised 2004) Share-Based Payment (SFAS
123R), Alliance HealthCard measures stock based compensation expense as the excess of the market
price on date of grant over the amount of the grant. Alliance HealthCard grants stock based
compensation at the market price on the date of grant.
The provisions of SFAS 123R became generally accepted accounting principles on January 1,
2006. As permitted, prior to the effectiveness of SFAS 123R, Alliance HealthCard elected to adopt
only the disclosure provisions of SFAS No. 123, Accounting for Stock-based Compensation.
Income Taxes
Alliance HealthCard adopted SFAS No. 109, Accounting for Income Taxes, that requires, among
other things, a liability approach to calculating deferred income taxes. The objective is to
measure a deferred income tax liability or
39
asset using the tax rates expected to apply to taxable income in the periods in which the
deferred income tax liability or asset is expected to be settled or realized. Any resulting net
deferred income tax assets should be reduced by a valuation allowance sufficient to reduce those
assets to the amount that is more likely than not to be realized.
In 2006, FASB issued FIN 48 that clarifies the application of SFAS 109 by defining a criterion
that an individual income tax position must meet for any part of the benefit of that position to be
recognized in an enterprises financial statements and provides guidance on measurement,
de-recognition, classification, accounting for interest and penalties, accounting in interim
periods, disclosure and transition. In accordance with the transition provisions, Alliance
HealthCard adopted FIN 48 on January 1, 2007.
Alliance HealthCard recognized a liability for uncertain tax positions. Alliance HealthCard
further believes that there are no tax positions for which it is reasonably possible, based on
current tax law and policy that the unrecognized tax benefits will significantly increase or
decrease over the next 12 months producing, individually or in the aggregate, a material effect on
its results of operations, financial condition or cash flows.
Revenue Recognition
Alliance HealthCard recognizes revenue in accordance with Securities and Exchange Commission
Staff Accounting Bulletin No. 104, Revenue Recognition, corrected copy, that requires four basic
criteria be met before revenue can be recognized:
|
|
|
persuasive evidence of an arrangement exists; |
|
|
|
|
delivery has occurred or services have been rendered; |
|
|
|
|
the sellers price to the buyer is fixed or determinable; and, |
|
|
|
|
collectibility is reasonably assured. |
Recent Accounting Pronouncements
In September 2006, FASB issued SFAS No. 157, Fair Value Measurements (SFAS 157). SFAS No.
157 defines fair value, establishes a framework for measuring fair value in accordance with
generally accepted accounting principles, and expands disclosures about fair value measurements.
This statement does not require any new fair value measurements; rather, it applies under other
accounting pronouncements that require or permit fair value measurements. The provisions of this
statement are to be applied prospectively as of the beginning of the fiscal year in which this
statement is initially applied, with any transition adjustment recognized as a cumulative-effect
adjustment to the opening balance of retained earnings. The provisions of SFAS 157 are effective
for the fiscal years beginning after November 15, 2007. Therefore, Alliance HealthCard anticipates
adopting this standard as of October 1, 2008. Management has not determined the effect, if any, the
adoption of this statement will have on its financial condition or results of operations.
In September 2006, FASB issued SFAS No. 158, Employers Accounting for Defined Benefit Pension
and Other Postretirement Plans (SFAS No. 158), an amendment of FASB Nos. 87, 88, 106 and 132(R).
SFAS No. 158 requires
|
|
|
recognition of the funded status (measured as the difference between the fair
value of the plan assets and the benefit obligation) of a benefit plan as an asset or
liability in the employers statement of financial position, |
|
|
|
|
measurement of the funded status as of the employers fiscal year-end with
limited exceptions, and |
|
|
|
|
recognition of changes in the funded status in the year in which the changes
occur through comprehensive income. |
40
The requirement to recognize the funded status of a benefit plan and the disclosure requirements
are effective as of the end of the fiscal year ending after December 15, 2006. The requirement to
measure the plan assets and benefit obligations as of the date of the employers fiscal year-end
statement of financial position is effective for fiscal years ending after December 15, 2008. This
SFAS 158 has no current applicability to Alliance HealthCards financial statements.
In February 2007, FASB issued SFAS No. 159, The Fair Value Option for Financial Assets and
Financial Liabilities (SFAS 159).This statement permits companies to choose to measure many
financial assets and liabilities at fair value. Unrealized gains and losses on items for which the
fair value option has been elected are reported in earnings. SFAS 159 is effective for fiscal years
beginning after November 15, 2007. Alliance HealthCard is currently assessing the impact of SFAS
159 on its consolidated financial statements.
In December 2007, the FASB issued SFAS No. 141 (revised 2007), Business Combinations, that
replaced SFAS No. 141 (SFAS No. 141R). SFAS No. 141R establishes principles and requirements for
how an acquirer recognizes and measures in its financial statements the identifiable assets
acquired, the liabilities assumed, any non controlling interest in the acquiree and the goodwill
acquired. SFAS No. 141R also establishes disclosure requirements that will enable users to evaluate
the nature and financial effects of the business combination. SFAS No. 141R is effective as of the
beginning of an entitys fiscal year that begins after December 15, 2008 (our Fiscal 2010). SFAS
No. 141R will have an effect on the Alliance HealthCards consolidated financial statements for any
business combinations the Alliance HealthCard may enter into after the effective date, including
its merger-acquisition of us.
In December 2007, the FASB issued SFAS No. 160, Non-controlling Interests in Consolidated
Financial Statements an amendment of Accounting Research Bulletin No. 51 (SFAS No. 160), which
establishes accounting and reporting standards for ownership interests in subsidiaries held by
parties other than the parent, the amount of consolidated net income attributable to the parent and
to the non-controlling interest, changes in a parents ownership interest and the valuation of
retained non-controlling equity investments when a subsidiary is deconsolidated. The Statement also
establishes reporting requirements that provide sufficient disclosures that clearly identify and
distinguish between the interests of the parent and the interests of the non-controlling owners.
SFAS No.160 is effective as of the beginning of an entitys fiscal year that begins after
December 15, 2008 (our Fiscal 2010). Alliance HealthCard believes SFAS No. 160 will not have an
effect on its consolidated financial statements.
In March 2008, the FASB issued SFAS No. 161, Disclosures about Derivative Instruments and
Hedging Activities (SFAS 161) as an amendment to SFAS No. 133, Accounting for Derivative
Instruments and Hedging Activities (SFAS No. 161). SFAS 161 requires that objectives for using
derivative instruments be disclosed in terms of underlying risk and accounting designation. SFAS
161 is effective for financial statements issued for fiscal years beginning after November 15,
2008. The adoption of this statement is not expected to have a material effect on Alliance
HealthCards consolidated financial statements.
In May 2008, the FASB issued SFAS 162, The Hierarchy of Generally Accepted Accounting
Principles (SFAS 162). SFAS 162 identifies the sources of accounting generally accepted
accounting principles in the United States. SFAS 162 is effective sixty days following the SECs
approval of PCAOB amendments to AU Section 411, The Meaning of Present fairly in conformity with
generally accepted accounting principles. The adoption of this statement is not expected to have
a material effect on Alliance HealthCards consolidated financial statements.
In May 2008, the FASB issued SFAS No. 163, Accounting for Financial Guarantee Insurance
Contracts, an interpretation of SFAS No. 60 (SFAS 163). The scope of SFAS 163 is limited to
financial guarantee insurance (and reinsurance) contracts, as described in SFAS 163, issued by
enterprises included within the scope of SFAS 60. Accordingly, SFAS 163 does not apply to financial
guarantee contracts issued by enterprises excluded from the scope of SFAS 60 or to some insurance
contracts that seem similar to financial guarantee insurance contracts issued by insurance
enterprises (such as mortgage guaranty insurance or credit insurance on trade receivables). SFAS
163 also does not apply to financial guarantee insurance contracts that are derivative instruments
included within the scope of SFAS Statement No. 133, Accounting for Derivative Instruments and
Hedging Activities. The adoption of this statement is not expected to have a material effect on
Alliance Health Cards consolidated financial statements.
41
Results of Operations
Year Ended September 30, 2008 Compared to Year Ended September 30, 2007
Revenue increased $3.3 million, or 19%, to $20.9 million for the year ended September 30,
2008, compared to revenue of $17.6 million for the same prior year period. The $3.3 million
increase consisted of an increase for BMS of $2.2 million attributable to the following: (a) $.6
million from a major client due to an increase in membership sales and (b) 1.6 million from new and
existing client business. Alliance HealthCard was responsible for the remaining increase of $1.1
million attributable to new business.
Gross profit increased $3.7 million, or 62%, to $9.8 million for the year ended September 30,
2008 compared to $6.1 million for the prior year end. The increase was primarily attributable to
the following: (a) additional revenue; (b) a decrease in discount benefits and fulfillment
expenses; and partially offset by (c) an increase in claims expenses. Gross profit as a percentage
of revenue was 47% and 34% for the years ended September 30, 2008 and 2007, respectively.
Sales and marketing expenses increased $.3 million, or 37%, to $1.3 million for the year
ending September 30, 2008, compared to $.9 million for the year ending September 30, 2007. Sales
and marketing expenses as a percentage of revenue were 6.0% and 5.2% for the years ended September
30, 2008 and 2007, respectively. The increase consisted of $.2 million for BMS and $.1 million for
Alliance HealthCard. The increase was primarily attributable to compensation and commission
expense.
Depreciation and amortization expense increased by $.2 million to $.5 million for the year
ended September 30, 2008 due primarily to the amortization of customer lists deemed acquired by BMS
in connection with the 2007 merger.
General and administrative expenses increased $.2 million, or 8%, to $3.1 million for the year
ending September 30, 2008 compared to $2.9 million for the prior year. Expenses for 2007 consisted
of one-time merger expenses of $.3 million. Excluding one-time merger expenses from the year ended
September 30, 2007, there was an increase of $.5 million for the year ended September 30, 2008.
The $.5 million increase was primarily attributable to only seven months of operations for Alliance
for the year ended September 30, 2007. General and administrative expenses as a percentage of
revenue were 15% and 17% for the years ended September 30, 2008 and 2007, respectively.
Alliance HealthCard recognized net income tax expense of $2.2 million for the fiscal year
ended September 30, 2008 compared to $.5 million for the prior year. This was due primarily to the
fact that only the last seven months of fiscal 2007 for both Alliance HealthCard and BMS were taxed
at the corporate level. Prior to the merger, the BMS operations for the first five months of
fiscal 2007 were taxed at the shareholder level and Alliance HealthCard utilized net operating loss
carry forwards.
Alliance HealthCard reported net income prior to dividends and distributions of $2.7 million
for the year ended September 30, 2008 compared to $1.4 million for the same prior year. Net income
available for common shareholders was $2.7million for fiscal 2008 as compared to $(6.8) million for
fiscal 2007. Total dividends and distributions paid in connection with earn out arrangements to
former BMS shareholders were $0 and $8.2 million for the years ended September 30, 2008 and 2007,
respectively.
Off-Balance Sheet Arrangements
Alliance HealthCard does not have any off-balance sheet arrangements.
Liquidity and Capital Resources
As of September 30, 2008, Alliance HealthCard had unrestricted cash of $3.0 million and a
working capital deficit of $.5 million. Current liabilities include an estimated current portion of
notes payable to related parties. These note obligations are only payable in the event that
consolidated earnings before interest, income taxes, depreciation and amortization, determined in
accordance with generally accepted accounting principles for each of the fiscal years ending on
September 30, 2007, 2008 and 2009 (Actual EBITDA) exceeds $4,200,000 (the Targeted EBITDA). If
the Targeted EBITDA level is not achieved then the principal amount of these notes will be reduced
by an amount equal to the percentage by which the Actual EBITDA for each of those fiscal years
falls short of the Targeted EBITDA and the
42
adjusted principal balance of these notes will then be amortized over the remaining term of
the notes in accordance with the foregoing payment terms.
Cash provided by operating activities was $3.3 million and $2.0 million for the fiscal years
ended September 30, 2008 and 2007, respectively. The increase of $1.3 million was primarily
attributable to an increase in revenue and net income and offset by a decrease in claims and other
liabilities.
Cash used in investing activities was $.2 million for the fiscal year ended September 30, 2008
while during the 2007 fiscal year cash provided by investing activities was $1.0 million. The
decrease of $.8 million was attributable to the cash received from the merger for the fiscal year
ended September 30, 2007 and the increase in restricted cash of $.2 million.
Cash used in financing activities was $2.3 million for the year ended September 30, 2008
compared to $2.7 million for the same prior year period. The increase of $.4 million was related to
the following:
|
|
A reduction of $1.6 million for distributions paid prior to the merger to former shareholders
of BMS Holding Company, Inc. for the fiscal year ended September 30, 2007; |
|
|
Promissory note payments to related parties of $2.3 million for the fiscal year ended
September 30, 2008 compared to $1.2 million for the fiscal year ended September 30, 2007; |
|
|
Proceeds of $.1 million from exercise of stock options during the fiscal year ended September
30, 2008; and |
|
|
Repayment of our line of credit for $.15 million for the fiscal year ended September 30,
2008. |
Alliance HealthCard anticipates that its cash on hand, together with cash flow from
operations, will be sufficient for the next 12 months to finance operations, make capital
investments in the ordinary course of business, and pay indebtedness when due.
Impact of Inflation
Inflation has not had a material effect on the Company to date. However, the effects of
inflation on future operating results will depend in part, on the Companys ability to increase
prices or lower expenses, or both, in amounts that offset inflationary cost increases.
Quantitative and Qualitative Disclosure about Market Risk
The Company has no material exposure to market risk from derivatives or other financial
instruments.
Accounting Controls and Procedures
Alliance HealthCards Chief Executive Officer and Chief Financial Officer are responsible
primarily for establishing and maintaining disclosure controls and procedures designed to ensure
that information required to be disclosed in Alliance HealthCards reports filed or submitted under
the Securities Exchange Act of 1934, as amended (the Exchange Act) is recorded, processed,
summarized and reported within the time periods specified in the rules and forms of the United
States Securities and Exchange Commission. These controls and procedures are designed to ensure
that information required to be disclosed in Alliance HealthCards reports filed or submitted under
the Exchange Act is accumulated and communicated to its management, including its principal
executive and principal financial officers, or persons performing similar functions, as appropriate
to allow timely decisions regarding required disclosure.
Furthermore, Alliance HealthCards Chief Executive Officer and Chief Financial Officer are
responsible for the design and supervision of its internal controls over financial reporting that
are then effected by and through its board of directors, management and other personnel, to provide
reasonable assurance regarding the reliability of Alliance HealthCards financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted
accounting principles. These policies and procedures
43
|
|
|
pertain to the maintenance of records that, in reasonable detail,
accurately and fairly reflect the transactions and dispositions of
Alliance HealthCards assets; |
|
|
|
|
provide reasonable assurance that transactions are recorded as
necessary to permit preparation of financial statements in accordance
with generally accepted accounting principles, and that Alliance
HealthCards receipts and expenditures are being made only in
accordance with authorizations of its management and directors; and |
|
|
|
|
provide reasonable assurance regarding prevention or timely detection
of unauthorized acquisition, use or disposition of Alliance
HealthCards assets that could have a material effect on its financial
statements. |
Alliance HealthCard has not completed its assessment of the effectiveness of its internal
controls in accordance with Section 404 of Sarbanes-Oxley Act of 2002 to provide reasonable
assurance of the
|
|
reliability of financial reporting, |
|
|
|
effectiveness and efficiency of operations, and |
|
|
|
compliance with applicable laws and regulations. |
Internal controls are generally considered to consist of
|
|
the environmental foundation of discipline and structure of the internal control, |
|
|
|
identification of risks that may affect the integrity of its financial reporting system to
reduce financial reporting errors, |
|
|
|
preventive controls (the practices, policies and procedures) that reduce the possibility of
errors in entering the financial reporting system, |
|
|
|
the processes to identify, capture and exchange information to ensure availability of
complete and reliable information, and |
|
|
|
the process of testing the quality of internal control over time. |
Because of the incomplete assessment of the effectiveness of internal controls over financial
reporting, management of Alliance HealthCard was unable to issue its report on the effectiveness of
Alliance HealthCards internal controls at September 30,
2008. This has been determined to be a material
weakness in its internal controls, because Alliance HealthCard has not completed its assessment of
the reliability and effectiveness of its internal controls, and compliance with laws and
regulations. Until this assessment has been completed, Alliance HealthCard is not positioned to
implement corrective procedures, in the event any such corrective implementation will be required.
However, to date Alliance HealthCard has not discovered the need for implementation of any
corrective procedures in its internal controls over financial reporting. During the year ended
September 30, 2008, Alliance HealthCard continued to utilize the same accounting system and
internal controls over financial reporting that it utilized before and following enactment of
Sarbanes-Oxley Act of 2002 and has not previously discovered any
material weakness or significant deficiency in the
effectiveness of its internal controls over financial reporting.
Alliance HealthCard anticipates that by March 31, 2009, all required testing of its accounting
system and internal controls over financial reporting will be completed and that by June 30, 2009
all corrective requirements, if any, will be implemented. Thereafter, Alliance HealthCard will then
be positioned to issue its report in accordance with the requirements of Section 404 of
Sarbanes-Oxley. Furthermore, Alliance HealthCard believes this schedule for completion of their
assessment will be sufficient to timely permit its independent registered public accountants to
timely attest to the internal controls.
Although Alliance HealthCard was unable to issue its report on the effectiveness of its
internal controls at September 30, 2008, Alliance HealthCards Chief Executive Officer (principal
executive officer) and Chief Financial Officer (principal financial officer) conducted their
evaluation using the criteria set forth by the Committee of Sponsoring Organizations of the
Treadway Commission in Internal Control Integrated Framework. Alliance
44
HealthCards Chief Executive Officer and Chief Financial Officer, based upon their evaluation of
the effectiveness of Alliance HealthCard s disclosure controls and procedures and the internal
controls over financial reporting as of September 30, 2008, concluded that its disclosure controls
and procedures and internal controls over financial reporting were fully effective as of September
30, 2008 and reported to its auditors and the audit committee of its board of directors that no
change occurred in Alliance HealthCard s disclosure controls and procedures and internal control
over financial reporting occurred during the year ended September 30, 2008 that would materially
affect or is reasonably likely to materially affect Alliance HealthCards disclosure controls and
procedures or internal control over financial reporting. In conducting their evaluation of Alliance
HealthCards disclosure controls and procedures and internal controls over financial reporting,
these executive officers did not discover any fraud that involved management or other employees who
have a significant role in Alliance HealthCards disclosure controls and procedures and internal
controls over financial reporting. Furthermore, there were no significant changes in Alliance
HealthCards disclosure controls and procedures, internal controls over financial reporting, or
other factors that could significantly affect its disclosure controls and procedures or internal
controls over financial reporting subsequent to the date of their evaluation. Because no
significant deficiencies or material weaknesses were discovered, no corrective actions were
necessary or taken to correct significant deficiencies and material weaknesses in Alliance
HealthCards internal controls and disclosure controls and procedures.
Directors and Executive Officers
Set forth below is certain information with respect to Alliance HealthCards executive
officers and directors. Directors are generally elected at the annual shareholders meeting and
hold office until the next annual shareholders meeting and until their successors are elected and
qualify. Executive officers are elected by Alliance HealthCards board of directors and serve at
its discretion. Alliance HealthCards bylaws provide that the board of directors shall consist of
that number of members as the board of directors may from time to time determine by resolution or
election, but not less than five and not more than seven. Alliance HealthCards board of directors
currently consists of seven individuals.
|
|
|
|
|
|
|
Name |
|
Age |
|
Position |
Danny C. Wright
|
|
|
57 |
|
|
Chairman of the Board of Directors and Chief Executive Officer |
Brett Wimberley
|
|
|
46 |
|
|
Director, President and Chief Operating Officer |
Rita W. McKeown
|
|
|
55 |
|
|
Chief Financial Officer and Treasurer |
Robert D. Garces
|
|
|
59 |
|
|
Director and Executive Vice President |
Thomas W. Kiser
|
|
|
45 |
|
|
Director and Executive Vice President |
Susan Matthews
|
|
|
50 |
|
|
Executive Vice President of Sales and Marketing |
Bradley W. Denison
|
|
|
48 |
|
|
Senior Vice President, General Counsel, and Secretary |
David Huguelet
|
|
|
49 |
|
|
Senior Vice President New Business Development |
Larry G. Gerdes(1)
|
|
|
59 |
|
|
Director |
John Simonelli(1)
|
|
|
62 |
|
|
Director |
Mark R. Kidd(1)
|
|
|
42 |
|
|
Director |
|
|
|
(1) |
|
Member of the Audit and Compensation Committees. |
Danny C. Wright has served as Alliance HealthCard Chairman of the Board of Directors and Chief
Executive Officer since March 2007 and has served as Chief Executive Officer of Alliance
HealthCards subsidiary, Benefit Marketing Solutions, since January 2003. From 2000 to 2003,
Mr. Wright was a principal of Club Source Group (CSG). CSG was the largest independent
representative of Foresight, Inc. products and was sold in December 1999. In 1989, Mr. Wright
co-founded and served as President of Foresight, Inc. until December 1999. Mr. Wright led
Foresights growth from start-up to one of the leading membership plan providers in the rental
purchase industry serving two-thirds of the industrys locations. Prior to Foresight, Mr. Wright
managed warranty terms administration and add-on programs for a regional home and auto retail chain
and served in various positions for two insurance carriers.
Brett
Wimberley has served as one of Alliance HealthCards
Directors and as President and Chief Operating
Officer since May 2007 and has served as Chief Operating Officer of Alliance HealthCards
subsidiary Benefit Marketing Solutions (BMS) since February 2002. Mr. Wimberley has been President
of Southwest Brokers, Inc., a commercial real estate company, since February 1987. Mr. Wimberley
served as President of Universal Marketing Services from October 1996
45
to December 2000 and Foresight, Inc. from December 1999 to December 2000. From January 1990 to
September 1996, Mr. Wimberley served in various sales positions for United Bank Services, last as
Senior Vice President. Mr. Wimberley holds a BBA and MBA from the University of Oklahoma.
Rita W. McKeown began serving as Alliance HealthCards Chief Financial Officer in 2000. From
1994 to 1999, Ms. McKeown served as director of finance of Transcend Services, Inc., an Atlanta
Georgia healthcare company specializing in patient information management solutions for hospitals
and other associated healthcare providers. From 1991 to 1994, Ms. McKeown served as director of
accounting of Premier Anesthesia, Inc. From 1981 to 1991, Ms. McKeown held multiple senior
accounting positions with HBO & Co in Atlanta. Ms. McKeown is a Certified Public Accountant and
received her BBA from Kennesaw State University in Kennesaw, Georgia.
Robert D. Garces has served as one of Alliance HealthCards Directors and as Executive Vice
President since March, 2007. Mr. Garces is a co-founder of Alliance HealthCard. Prior to Alliance
HealthCard merger-acquisition of BMS Holding Company in February 2007, Mr. Garces served as
Alliance HealthCards Chairman of the Board and Chief Executive Officer since Alliance HealthCards
organization. Mr. Garces also serves as Chairman of NovaNet, Inc., and a company he founded in 1994
that provides a network of physicians, hospitals and other ancillary health services to
self-insured employers and insurance companies. In 1996, Mr. Garces co-founded Better Image, Inc. a
consolidation of Plastic Surgeons around the United States. In 1974, Mr. Garces started the Atlanta
Company of Southeastern Medical Consultants, a physician billing and Management Company. During
this same period he also founded two companies, which grew into one of the largest physician
billing companies in the southeast, ARTAC, a software and receivables management company for
hospital business offices and Southern Medical Imaging, a mobile imaging company. In 1989 he
developed a physician billing company for anesthesia departments for hospitals.
Thomas W. Kiser has served as one of Alliance HealthCards Directors and as Executive Vice
President since March 2007. Prior to Alliance HealthCards merger-acquisition of BMS Holding
Company in March 2007, Mr. Kiser served as Alliance HealthCards President and Director since
Alliance HealthCards organization. Mr. Kiser is also a co-founder of Alliance HealthCard. In 1996,
Mr. Kiser founded TWK Enterprises, Inc., a real estate acquisition and development company in
Atlanta, Georgia. Mr. Kiser also serves as President of TWK Enterprises, Inc.; however, operations
are handled by outside property management, reporting to Mr. Kiser. From 1991 to 1996, Mr. Kiser
formed two franchise companies, TC Concepts, Inc. in Orlando, Florida and MKM, Inc. in Atlanta,
Georgia, which was sold in 1994 and 1997 respectively. From 1989 through 1991, Mr. Kiser held
retail and institutional sales positions with Bear Stearns Company and Shapiro Carter and Company.
In 1988, Mr. Kiser joined Marshall and Company, an Atlanta based regional investment banking firm
specializing in the private placement and underwriting of securities of small-capitalization
southeastern companies. From 1986 through 1988, Mr. Kiser was an assistant manager with Stuart
James Co, an investment banking and brokerage company. Mr. Kiser holds a Bachelor of Science degree
in economics from Vanderbilt University in Nashville, Tennessee.
Susan Matthews has served as Alliance HealthCards Executive Vice President since May 2007 and
Executive Vice President of Sales & Marketing for its subsidiary Benefit Marketing Solutions since
January 2003. From 2000 to 2003, she co-founded Club Source Group, a company formed to market club
programs to various industries. Ms. Matthews served as Marketing Director for Foresight, Inc. from
1989 until it was sold in 1999. From 1984 to 1999 she served in various capacities with United Bank
Services and Steve Owens & Associates marketing club programs to financial institutions.
Ms. Matthews received her BBA from the University of Oklahoma.
Bradley W. Denison joined Benefit Marketing Solutions (BMS) in early 2006 as its General
Counsel. Mr. Denison was previously employed by Rent-A-Center, Inc. from 1991-2001 and served as
its Senior Vice President and General Counsel from 1998 through 2001. Prior to his employment at
Rent-A-Center, Mr. Denison worked extensively in insurance and litigation in private law practice
from 1985 through 1991. Prior to his employment with BMS, Mr. Denison was involved in consulting
and operating retail businesses. Mr. Denison has a B.S. Business Administration and a Juris
Doctorate from the University of Kansas.
David Huguelet has served as the Senior Vice President of New Business Development of Benefit
Marketing Solutions since January 2005. From 2003 to 2004 he was a Director of New Business
Development for Aon Innovative Solutions, a major provider of extended service contracts to
retailers. Mr. Huguelet served as Vice President of Lyndon Insurance Group, a subsidiary of
Protective Life, from 2001 to 2003. From 1989 to 2001, Mr. Huguelet served in various capacities,
including Business Board Chairman, with American Bankers Insurance Group, now Assurant. From
46
1984 to 1989, Mr. Huguelet served in various capacities with Household Finance, now HSBC.
Mr. Huguelet holds a Bachelor of Science in Business Administration from the University of North
Carolina at Greensboro, an MBA from Barry University, a CLU designation and a CPCU designation.
Larry G. Gerdes has served as one of Alliance HealthCards Directors since February 1, 2001.
Mr. Gerdes has served as the President and Chief Executive Officer of Transcend Services, Inc.
since May 1993 and as Chairman of the Board since 1995. From 1991 to 1993, Mr. Gerdes was a private
investor. Mr. Gerdes serves on the board of Transcend Services, Inc. (TRCR) and CME Group (CME).
For the five years prior to 1991, Mr. Gerdes held various executive positions with HBO & Company,
including Chief Financial Officer and Executive Vice President.
John Simonelli began serving as a Director of Alliance HealthCard in May 2008. Mr. Simonelli
served as Chairman of the Board and Chief Executive Officer (since February 3, 2005) and formerly
served as President and Chief Operating Officer (from August 18, 2003 to February 3, 2005) Graymark
Healthcare, Inc., a publicly-held company engaged in retail pharmacy and sleep disorder diagnoses.
Mr. Simonelli is an independent business consultant who has extensive experience in the planning,
development, and funding of emerging growth companies. He served as a director of Access Plans USA
from December 2000 until July 2001. From March 1994 until July 1999, Mr. Simonelli was employed by
Laboratory Specialists of America, Inc. and served as Chairman of the Board, Chief Executive
Officer and Secretary, and a Director until December 7, 1998. Mr. Simonelli has served in various
as chairman of the board of directors, a director, chief executive officer, or executive officer of
a number of public companies including Laboratory Specialists of America, Inc., The Vialink Company
(formerly Applied Intelligence Group, Inc.), MBF USA, Inc. (formerly American Drug Screens, Inc.),
Unico, Inc. (formerly CMS Advertising, Inc.), Moto Photo, Inc., and TM Communications, Inc.
(formerly Video Image, Inc. and TM Century, Inc.).
Mark R. Kidd began serving as a Director of Alliance HealthCard in May 2008. Mr. Kidd served
as Chief Financial Officer and Secretary of Graymark Healthcare, Inc. , a publicly-held company
engaged in retail pharmacy and sleep disorder diagnoses, from February 2003 until July 2008. Mr.
Kidd has over 15 years experience in finance and accounting. Mr. Kidd is also Chief Operations
Officer of C&L Supply, Inc., a privately-held wholesale distribution company which serves customers
in seven states. Mr. Kidd is also a co-owner of 36th Street Properties, LLC, a privately-held
commercial real estate company and RandMark, LLC, a privately-held retail wireless company. Mr.
Kidd served as Chief Financial Officer of Access Plans USA (formerly Precis, Inc.) from August 1999
until January 2002 and as a director from January 2000 until February 2002. He also served as
President, Chief Operating Officer, Secretary and a Director of Foresight, Inc., formerly a
wholly-owned subsidiary of Access Plans USA, from February 1999 until January 2002. Mr. Kidd
served as President of Paceco Financial Services, Inc., a privately-held regulated savings company,
from March 1998 until December 2000. Mr. Kidd is a Certified Public Accountant and holds a B.B.A.
in accounting from Southern Methodist University.
Director Independence
For purposes of determining whether a member of Alliance HealthCards Board of Directors
qualifies as independent director, Alliance HealthCard selected and utilizes the definition of
independent director within the meaning of Rule 4200 of the NASDAQ Stock Market, Inc. marketplace
rules. Currently, the members of Alliance HealthCards board of directors that qualifies as an
independent director are Larry G. Gerdes, John Simonelli and Mark R. Kidd. Because Alliance
HealthCards other directors are employees, they do not qualify as independent directors.
Committees of the Board of Directors
Alliance HealthCards Board of Directors has an Audit Committee and a Compensation Committee.
The Audit Committee is responsible for the selection and retention of Alliance HealthCards
independent auditors, reviews the scope of the audit function of the independent auditors, and
reviews audit reports rendered by the independent auditors. Each member of the Audit Committee
qualifies as an independent director within the meaning of Rule 4200 of the NASDAQ Stock
Market, Inc. marketplace rules.
Members of the Audit Committee:
Larry G. Gerdes
John Simonelli
Mark R. Kidd
47
The Compensation Committee reviews and approves compensation and benefits policies and
objectives, determines whether Alliance HealthCards executive officers, directors and employees
are compensated according to these objectives, and carries out the responsibilities of Alliance
HealthCards Board of Directors relating to the compensation of its executive officers. The primary
goals of Alliance HealthCards Compensation Committee in setting executive officer compensation are
to provide a competitive compensation package that enables Alliance HealthCard to attract and
retain key executives and to align the interests of Alliance HealthCards executive officers with
those of its shareholders and also with Alliance HealthCards performance. As a result of Alliance
HealthCards 2007 merger-acquisition of BMS Holding Company, new executive officers were appointed,
including a new Chief Executive Officer. Alliance HealthCard is also operating in a new industry
and may reorganize its previous operations. Accordingly, it is expected that in fiscal 2009, its
Compensation Committee will review the Alliance HealthCard policies and practices with respect to
executive compensation and make changes to its formal compensation policies.
Members of the Compensation Committee:
Larry G. Gerdes
John Simonelli
Mark R. Kidd
Code of Ethics
Alliance HealthCard has a code of ethics (the Code) that applies to members of its board of
directors, its officers including its chief executive officer (its principal executive officer),
and its chief financial officer (its principal financial and accounting officer). The Code sets
forth written standards that are designed to deter wrongdoing and to promote
|
|
honest and ethical conduct, |
|
|
|
full, fair, accurate, timely, and understandable disclosure in reports
and documents that Alliance HealthCard files with, or submit to, the
Securities and Exchange Commission and in other public communications
made by it; |
|
|
|
compliance with applicable governmental laws, rules and regulations; |
|
|
|
prompt internal reporting of violations of the Code to an appropriate
person or persons identified in the Code; and |
|
|
|
accountability for adherence to the Code. |
The Code may be found on Alliance HealthCards website at www.alliancehealthcard.com. Alliance
HealthCard will describe the nature of amendments to the Code on its website, except that it may
not describe amendments that are purely a technical, administrative, or otherwise non-substantive.
Alliance HealthCard will also disclose on its website any waivers from any provision of the Code
that Alliance HealthCard may grant. Information about amendments and waivers to the Code will be
available on Alliance HealthCards website for at least 12 months, and thereafter, the information
will be available upon request for five years. A copy of the Code may be obtained by written
request addressed to Bradley W. Denison, Corporate Secretary, Alliance HealthCard, Inc., 900
36th Avenue NW, Suite 105, Norman, Oklahoma 73072.
Compliance with Section 16(a) of the Exchange Act
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires Alliance
HealthCards directors, officers, and persons who own more than 10% of its common stock or other
registered class of its equity securities to file reports of ownership and changes in ownership
with the U.S. Securities and Exchange Commission. Officers, directors and greater than 10%
stockholders are required to furnish Alliance HealthCard with copies of all Section 16(a) forms
they file.
48
Based solely on review of the copies of the Section 16(a) forms Alliance HealthCard received
covering purchase and sale transactions in its common stock during the year ended September 30,
2008, Alliance HealthCard believes that each person who, at any time during that fiscal year, was a
director, executive officer, or beneficial owner of more than 10% of Alliance HealthCard common
stock complied with all Section 16(a) filing requirements during the year ended September 30, 2008.
Executive Compensation
The following table sets forth the cash and non-cash compensation of the individuals that
served as Alliance HealthCards Chief Executive Officer, Chief Financial Officer paid or accrued
during the years ended September 30, 2008, 2007 and 2006 and its three other most highly
compensated executive officers that were serving at September 30, 2008.
SUMMARY COMPENSATION TABLE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option |
|
All Other |
|
|
Name and Principal Position |
|
Year |
|
Salary |
|
Bonus |
|
Awards(1) |
|
Compensation |
|
Total |
Danny C. Wright |
|
|
2008 |
|
|
$ |
200,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
200,000 |
|
Chairman and
Chief Executive Officer |
|
|
2007 |
|
|
$ |
180,358 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
180,358 |
|
|
|
|
2006 |
|
|
$ |
452,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
452,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Brett Wimberley |
|
|
2008 |
|
|
$ |
175,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
175,000 |
|
Director, President |
|
|
2007 |
|
|
$ |
118,817 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
118,817 |
|
and Chief Operating Officer |
|
|
2006 |
|
|
$ |
144,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
144,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bradley W. Denison |
|
|
2008 |
|
|
$ |
250,000 |
|
|
$ |
10,400 |
|
|
$ |
6,096 |
|
|
$ |
|
|
|
$ |
266,496 |
|
Senior Vice President, General |
|
|
2007 |
|
|
$ |
205,743 |
|
|
$ |
4,800 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
210,543 |
|
Counsel and Secretary |
|
|
2006 |
|
|
$ |
53,596 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
53,596 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rita W. McKeown |
|
|
2008 |
|
|
$ |
94,000 |
|
|
$ |
5,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
99,000 |
|
Chief Financial Officer |
|
|
2007 |
|
|
$ |
87,833 |
|
|
$ |
|
|
|
$ |
11,500 |
|
|
$ |
|
|
|
$ |
99,333 |
|
and Treasurer |
|
|
2006 |
|
|
$ |
82,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
82,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Susan Matthews |
|
|
2008 |
|
|
$ |
175,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
175,000 |
|
Executive Vice President |
|
|
2007 |
|
|
$ |
118,792 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
118,792 |
|
of Sales and Marketing |
|
|
2006 |
|
|
$ |
144,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
144,000 |
|
|
|
|
(1) |
|
In determining the value of the Option Awards, Alliance HealthCard used the Black-Scholes
option-pricing model as described in Note 8 Stock Based Compensation of the Alliance
HealthCard audited financial statements appearing elsewhere in this information
statement/prospectus. |
Outstanding Equity Awards at Fiscal Year-End
During the year ended September 30, 2008, no options exercisable for the purchase of Alliance
HealthCard common stock were exercised by the named executive officers. The following table sets
forth information related to the number and value of options held by the named officers at
September 30, 2008.
Outstanding Equity Awards at September 30, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Option Awards |
|
|
|
Number of Common Stock |
|
|
Option |
|
Option |
|
|
|
Underlying Options |
|
|
Exercise |
|
Expiration |
|
Name |
|
Exercisable |
|
|
Unexercisable |
|
|
Price(1) |
|
Date |
|
Danny C. Wright |
|
|
|
|
|
|
|
|
|
$ |
|
|
|
N/A |
|
Brett Wimberley |
|
|
|
|
|
|
|
|
|
$ |
|
|
|
N/A |
|
Bradley Denison |
|
|
2,500 |
|
|
|
|
|
|
$ |
1.00 |
|
|
May 13, 2018 |
|
|
|
|
|
|
|
|
2,500 |
|
|
$ |
1.00 |
|
|
May 13, 2018 |
|
|
|
|
|
|
|
|
2,500 |
|
|
$ |
1.00 |
|
|
May 13, 2018 |
|
Rita McKeown |
|
|
23,410 |
|
|
|
|
|
|
$ |
0.83 |
|
|
October 1, 2009 |
|
|
|
|
6,000 |
|
|
|
|
|
|
$ |
1.00 |
|
|
October 1, 2010 |
|
|
|
|
4,999 |
|
|
|
|
|
|
$ |
1.01 |
|
|
May 26, 2014 |
|
|
|
|
10,000 |
|
|
|
|
|
|
$ |
1.15 |
|
|
February 15, 2017 |
|
Susan Matthews |
|
|
|
|
|
|
|
|
|
$ |
|
|
|
N/A |
|
49
|
|
|
(1) |
|
The closing sale price of Alliance HealthCards common stock as reported on the OTC
Bulletin Board on September 30, 2008 was $0.70. |
Equity Compensation Plans
2000 Stock Option Plan. For the benefit of Alliance HealthCards employees, directors and
consultants, Alliance HealthCard adopted the Alliance HealthCard, Inc. 2000 Stock Option Plan (the
stock option plan or the plan). The plan provides for the issuance of options intended to
qualify as incentive stock options for federal income tax purposes as well as option that do not
qualify as incentive stock options, to Alliance HealthCards employees and non-employees, including
employees who also serve as Alliance HealthCards directors. Qualification of the grant of options
under the plan as incentive stock options for federal income tax purposes is not a condition of the
grant and failure to so qualify does not affect the ability to exercise the stock options. The
number of shares of common stock authorized and reserved for issuance under the plan is 2,806,691.
As of September 30, 2008, options exercisable for the purchase of 1,518,897 common stock shares had
been granted under the plan.
Alliance HealthCards board of directors administers and interprets the plan (unless delegated
to a committee) and has authority to grant options to all eligible participants and determine the
types of options granted, the terms, restrictions and conditions of the options at the time of
grant.
The exercise price of qualifying incentive stock options may not be less than the fair market
value of Alliance HealthCards common stock on the date of grant of the option. The exercise price
of options other than those qualifying as incentive stock options may be granted at less than the
fair market value of common stock on the date of the grant. Upon the exercise of an option, the
exercise price must be paid in full, in cash, in Alliance HealthCards common stock (at the fair
market value thereof) or a combination thereof as permitted under the terms of the agreement
evidencing the option.
Options qualifying as incentive stock options, are exercisable only by an optionee during the
period ending three months after the optionee ceases to be an Alliance HealthCard employee, a
director or non-employee service provider. However, in the event of death or disability of the
optionee, the incentive stock options are exercisable for one year following death or disability
and in the event of the retirement of the optionee, Alliance HealthCards board of directors may
designate an additional period for exercise. In any event options may not be exercised beyond the
expiration date of the options. Options may be granted to Alliance HealthCards key management
employees, directors, key professional employees or key professional non-employee service
providers. Options granted non-employee directors do not qualify as incentive stock options. No
option may be granted after December 31, 2010. Options are not transferable except by will or by
the laws of descent and distribution.
Employment Arrangements and Keyman Insurance
In conjunction with Alliance HealthCards merger-acquisition of BMS Holding Company, Alliance
HealthCard entered into employment agreements with Danny C. Wright, Brett Wimberley, Susan
Matthews, Robert D. Garces and Thomas W. Kiser on March 1, 2007.
Pursuant to the employment agreement with Danny C. Wright, he agreed to serve as the Chief
Executive Officer of Alliance HealthCards subsidiary, AHC-Benefit Marketing Acquisition, Inc. The
term of the agreement commenced on March 1, 2007 and continues through February 28, 2010. The term
of the agreement will automatically be extended for additional one-year terms, unless notice of
termination is given to either Mr. Wright or AHC-Benefit Marketing Acquisition on or before
December 1 in the year of termination, commencing March 1, 2010. Alliance HealthCard agreed to pay
to Mr. Wright a base annualized salary of $200,000. In addition to the base salary, Mr. Wright is
eligible to be considered for annual bonuses to be determined by Alliance HealthCards Board of
Directors.
50
Pursuant to the employment agreement with Brett Wimberley, he agreed to serve as the Chief
Operating Officer of Alliance HealthCards subsidiary, AHC-Benefit Marketing Acquisition, Inc. The
term of the agreement commenced on March 1, 2007 and continues through February 28, 2010. The term
of the agreement will automatically be extended for additional one-year terms, unless notice of
termination is given to either Mr. Wimberley or AHC-Benefit Marketing Acquisition on or before
December 1 in the year of termination, commencing March 1, 2010. Alliance HealthCard agreed to pay
to Mr. Wimberley a base annualized salary of $175,000. In addition to the base salary,
Mr. Wimberley is eligible to be considered for annual bonuses to be determined by Alliance
HealthCards Board of Directors.
Pursuant to the employment agreement with Susan Matthews, she agreed to serve as the Executive
Vice President of Alliance HealthCards subsidiary, AHC-Benefit Marketing Acquisition, Inc. The
term of the agreement commenced on March 1, 2007 and continues through February 28, 2010. The term
of the agreement will automatically be extended for additional one-year terms, unless notice of
termination is given to either Ms. Matthews or AHC-Benefit Marketing Acquisition on or before
December 1 in the year of termination, commencing March 1, 2010. Alliance HealthCard agreed to pay
to Ms. Matthews a base annualized salary of $175,000. In addition to the base salary, Ms. Matthews
is eligible to be considered for annual bonuses to be determined by Alliance HealthCards Board of
Directors.
Pursuant to the employment agreement with Robert D. Garces, he agreed to serve as one of
Alliance HealthCards executive officers. The term of the agreement commenced on January 1, 2007
and continued through December 31, 2008 and was not extended. During the term of the agreement
Alliance HealthCard paid Mr. Garces a base annualized salary of $155,000. In addition to base
salary, Mr. Garces is eligible to be considered for annual bonuses to be determined by Alliance
HealthCards Board of Directors.
Pursuant to the employment agreement with Thomas W. Kiser, he agreed to serve as one of
Alliance HealthCards executive officers. The term of the agreement commenced on January 1, 2007
and continues through December 31, 2008 and was not extended. During the term of the agreement
Alliance HealthCard paid Mr. Kiser a base annualized salary of $135,000. In addition to base
salary, Mr. Kiser is eligible to be considered for annual bonuses to be determined by Alliance
HealthCards Board of Directors.
Alliance HealthCard does not maintain any key-man insurance covering the death or disability
of any of its executive officers.
Compensation of Directors
In May 2008, Alliance HealthCard adopted a compensation policy for its independent directors.
This policy provides that the directors qualifying as independent directors are entitled to receive
stock options exercisable for the purchase of 10,000 common stock shares upon initially becoming a
member of the board of directors, annually stock options exercisable for the purchase of 5,000
common stock shares, and $1,000 per calendar quarter. Prior to adoption of this compensation
policy, other than through the receipt of discretionary stock option grants, Alliance HealthCards
directors were not compensated for attending board or committee meetings. Directors who were also
Alliance HealthCards employees receive no additional compensation for serving as directors or on a
board committee. Alliance HealthCard reimburses its directors for travel and out-of-pocket expenses
in connection with their attendance at meetings of Alliance HealthCards board.
During the fiscal year ended September 30, 2008, the members of Alliance HealthCards board of
directors received the following compensation:
|
|
|
Each non-employee member received a quarterly payment of $1,000 for each calendar quarter
ending June 30 and September 30, 2008. |
|
|
|
|
Alliance HealthCard reimbursed its members for travel and out of pocket expenses in
connection with their attendance at board meetings. |
|
|
|
|
Alliance HealthCard granted stock options to the non-employee board members as follows:. |
|
|
|
|
|
Director Name |
|
Options Granted |
|
John Simonelli |
|
|
10,000 |
|
Mark R. Kidd |
|
|
10,000 |
|
Larry G. Gerdes |
|
|
5,000 |
|
51
In 2007, the following directors received compensation in the following aggregate amounts:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees Earned or |
|
Option |
|
|
Name |
|
Paid in Cash |
|
Awards (1) |
|
Total |
John Simonelli |
|
$ |
2,000 |
|
|
$ |
8,291 |
|
|
$ |
10,291 |
|
Mark R. Kidd |
|
$ |
2,000 |
|
|
$ |
8,291 |
|
|
$ |
10,291 |
|
Larry G. Gerdes |
|
$ |
2,000 |
|
|
$ |
4,145 |
|
|
$ |
6,145 |
|
|
|
|
(1) |
|
Alliance HealthCard uses the Black-Scholes option-pricing model to
estimate the option fair values of options awards (as described in
Note 8. Stock Based Compensation of Alliance HealthCards financial
statements appearing elsewhere in this information
statement/prospectus) to determine the value of the Option Awards. |
For his services directly associated with the merger in the capacity as a director of Alliance
HealthCard, the board of directors of Alliance HealthCard approved the payment of $50,000 and the
issuance of 25,000 options at an exercise price of $0.70 to John Simonelli as additional director
compensation. Mr. Simonelli will receive this additional director compensation following
completion of the merger.
Officer and Director Liability and Indemnification
As provided by the Georgia Business Corporation Code, each of Alliance HealthCards directors
and officers is not liable to Alliance HealthCard or its shareholders for any action taken as a
director or officer, or any failure to take any action, if the director or officer performed his or
her duties in compliance with the Georgia Business Corporation Code. A director is required to
discharge his or her duties as a director, including those duties as a member of a committee, or an
officer in a manner he or she believes in good faith to be in Alliance HealthCards best interests
and with the care that an ordinarily prudent person in a like position would exercise under similar
circumstances. In discharging his or her duties, a director or officer is entitled to rely on
information, opinions, reports, or statements, including financial statements and other financial
data, if prepared or presented by:
|
|
One or more of Alliance HealthCards officers or employees whom the
director reasonably believes to be reliable and competent in the
matters presented; |
|
|
|
Legal counsel, public accountants, investment bankers, or other
persons as to matters the director reasonably believes are within the
persons professional or expert competence; or |
|
|
|
A committee of Alliance HealthCards Board of Directors of which he is
not a member if the director reasonably believes the committee merits
confidence. |
However, neither a director nor an officer is entitled to rely on the forgoing if the director
or officer has knowledge concerning the matter in question that makes reliance unwarranted.
The provisions of the Georgia Business Corporation Code do not eliminate liability of a
director or an executive officer for violations of federal securities laws, nor do they limit
Alliance HealthCards rights or those of its stockholders, in appropriate circumstances, to seek
equitable remedies including injunctive or other forms of non-monetary relief. These remedies may
not be effective in all cases.
The Georgia Business Corporation Code requires Alliance HealthCard to indemnify all of its
directors, officers, employees and agents. Under these provisions, when an individual in his or her
capacity as an officer or a director is made or threatened to be made a party to any suit or
proceeding, the individual may be indemnified if he or she acted in good faith. These
indemnification provisions are not exclusive of any other rights to which the individual may be
entitled. Insofar as indemnification for liabilities arising under the Georgia Business Corporation
Code or
52
otherwise may be permitted to its directors and officers, Alliance HealthCard has been advised
that in the opinion of the United States Securities and Exchange Commission the indemnification is
against public policy and is, therefore, unenforceable.
Certain Relationships and Related Transactions
The following is a description of transactions Alliance HealthCard entered into with its
officers, directors and shareholders that beneficially own more than 5% of Alliance HealthCards
common stock during the years ended September 30, 2008 and 2007. These transactions will continue
in effect and may result in conflicts of interest between Alliance HealthCard and these
individuals. Although Alliance HealthCards officers and directors have fiduciary duties to
Alliance HealthCard and its shareholders, there can be no assurance that conflicts of interest will
always be resolved in favor of Alliance HealthCard and its shareholders.
Office
Space Leasing Arrangements
Alliance HealthCard leases its offices in Norcross, Georgia under a lease that expires in
October 2009. This office lease is a joint lease between the landlord, Alliance HealthCard and
NovaNet, Inc., a company partially owned by Robert D. Garces, one of Alliance HealthCards
Directors and its Executive Vice President. The total space consists of approximately 5,175 square
feet. This lease will terminate on October 31, 2009. See Certain Relationships and Related
Transactions, and Director Independence, below.
Alliance HealthCards subsidiary, BMS, occupies its offices in Norman, Oklahoma under a lease
that expires July 31, 2009. The total space consists of approximately 5,973 square feet. The lease
agreement is with Southwest Brokers, Inc., a company owned by Brett Wimberley, one of Alliance
HealthCards Directors and its President. See Certain Relationships and Related Transactions,
and Director Independence, below. BMS also rents office space in Dallas, Texas on a
month-to-month basis. The total space consists of approximately 300 square feet.
In the event Alliance HealthCard is required to move from the current offices in Norcross,
Georgia, Norman, Oklahoma, or Dallas, Texas, the terms and cost of occupancy may be substantially
different than those under which that office space is currently occupied and the rental rate may be
substantially greater.
Merger-Acquisition of BMS Holding Company
On February 28, 2007, Alliance HealthCard completed the merger-acquisition of BMS Holding Company.
The shareholders of BMS Holding Company were Danny C. Wright, Brett Wimberley and Susan Matthews.
In connection with the Merger, three promissory notes were issued to former BMS shareholders in the
aggregate amount of
$7,147,000. The notes are dated March 1, 2007 and bear interest at 1% per annum. The carrying
amount of these notes was discounted to $6,666,447 with an effective interest rate of 7% to adjust
for the below market interest rate carried by the notes. Principal and accrued interest shall be
due and payable in 12 consecutive quarterly installments commencing on May 15, 2007 and on each
August 14, November 14, February 14 and May 15 of each year thereafter and in full on February 14,
2010, if not previously paid. Any payment of principal and interest shall be applied first to the
payment of interest due on the outstanding principal sum and the balance thereof shall be applied
in reduction of principal sum. Notwithstanding the foregoing and any other provision in the notes,
in the event that the consolidated earnings before interest, income taxes, depreciation and
amortization of the Company, determined in accordance with generally accepted accounting principles
for each of the fiscal years ending on September 30, 2007, 2008 and 2009 shall be less (Actual
EBITDA) than Four Million Two Hundred Dollars ($4,200,000) (the Targeted EBITDA), then the
principal amount of these notes are be reduced by an amount equal to the percentage by which the
Actual EBITDA for each such period falls short of the Targeted EBITDA and the adjusted principal
balance of these notes will then be amortized over the remaining term of the Note in accordance
with the foregoing payment terms.
In addition to the foregoing, after the consummation of the transactions contemplated by the Merger
Agreement, the principal amount of these notes shall be reduced dollar for dollar by any loss
incurred by BMS Insurance Agency, L.L.C., a BMS Holdings affiliate, resulting from contingent
commissions being held by CAPIC pending receipt of a non-resident license from the Puerto Rico
Department of Insurance. Any net proceeds of BMS Insurance Agency, L.L.C. attributable to
pre-closing periods shall inure on a pro-rata basis to the benefit of the note holders. After any
decrease or increase in the principal amount of these notes related to post-closing payments to or
from CAPIC, the adjusted principal balance of these notes will be amortized over the remaining term
of the notes in accordance with the foregoing payment terms. To comply with this provision, the
principal on these notes was reduced by $247,073 as of September 30, 2007. The notes further
provide that recovery of any net proceeds of BMS Insurance Agency, L.L.C. attributable to
pre-closing periods will inure on a pro-rata basis to the benefit of the note holders. As a result
of the settlement agreement completed on March 13, 2008 with CAPIC (See Note 15 Restated
Quarterly Financial Statements of Alliance HealthCards audited financial statements appearing
elsewhere in this information statement/prospectus), BMSIA received proceeds of $34,280 which
resulted in a pro rata increase in the notes by that same amount.
53
Pursuant to discussions between the note holders and our disinterested directors, on January
10, 2008 the original notes were cancelled and replaced by new notes reflecting the unpaid
principal balance but modifying the measurement periods to be deferred by one year to the fiscal
years ending September 30, 2008, September 30, 2009 and converted to quarterly reviews thereafter.
Management felt that these deferred periods more appropriately tie the payment obligations to our
performance because the initial period did not reflect an entire year and also contained several
merger related one-time expenses. Several additional provisions were added to allow for adjustments
if necessary. The new notes were issued in the aggregate amount of $5,113,177 representing the
unpaid principal balances on the original notes on that date before the above described note
adjustments.
Principal and interest payments made on these notes were $2,358,265 and $1,222,382,
respectively for the years ended September 30, 2008 and 2007.
Securities Ownership of Certain Beneficial Owners and Management
The following table presents certain information as to the beneficial ownership of Alliance
HealthCards common stock as of the date of this information statement/prospectus and after giving
pro forma effect to the merger, and the beneficial ownership of the common stock of (i) each person
who is known to Alliance HealthCard to be the beneficial owner of more than 5% thereof, (ii) each
of Alliance HealthCards directors and executive officers, and (iii) all of Alliance HealthCards
executive officers and directors as a group, together with their percentage holdings of the
beneficial ownership of the shares. For purposes of presentation of the beneficial ownership of
Alliance HealthCards common stock after the merger, it is
assumed that 6,800,000 shares of
Alliance HealthCard common stock are exchanged for the 20,269,145
shares of Access Plans USA
outstanding common stock shares and an Exchange Ratio of 0.335485 partial share of Access Plans
USA common stock. See Summary of the Agreement and Plan of Merger, above. All persons listed
have sole voting and investment power with respect to their shares unless otherwise indicated, and
there are no family relationships among Alliance HealthCards executive officers, directors and 5%
and greater shareholders, except as otherwise indicated by footnote. For purposes of the following
table, the number of shares and percent of ownership of Alliance HealthCards outstanding common
stock that the named person beneficially owns includes shares of Alliance HealthCards common stock
that the named person has the right to acquire within 60 days of the date of this information
statement/prospectus pursuant to exercise of stock options and other types of purchase rights and
are deemed to be outstanding, but are not deemed to be outstanding for the purposes of computing
the number of shares beneficially owned and percent of ownership of any other named person.
54
Securities Ownership of Certain Beneficial Owners and Management
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name (and Addresses of 5% or |
|
Shares |
|
Rights |
|
Beneficially |
|
|
|
|
|
% of |
Greater Certain Beneficial |
|
Owned Of |
|
To |
|
Owned |
|
Total |
|
Ownership |
Owners |
|
Record (1) |
|
Acquire |
|
Shares |
|
Shares |
|
(1) (2) |
Danny Wright (3) |
|
|
4,014,300 |
|
|
|
|
|
|
|
|
|
|
|
4,014,300 |
|
|
|
27.1 |
% |
900 36th Avenue, Suite 105
Norman, Oklahoma 73072 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Brett Wimberley (4) |
|
|
4,002,500 |
|
|
|
|
|
|
|
|
|
|
|
4,002,500 |
|
|
|
27.0 |
% |
900 36th Avenue, Suite 105
Norman, Oklahoma 73072 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Susan Matthews (5) |
|
|
2,000,000 |
|
|
|
|
|
|
|
|
|
|
|
2,000,000 |
|
|
|
13.5 |
% |
900 36th Avenue, Suite 105
Norman, Oklahoma 73072 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert Garces (6) |
|
|
669,600 |
|
|
|
415,000 |
|
|
|
|
|
|
|
1,084,600 |
|
|
|
7.1 |
% |
3500 Parkway Lane, Suite 720
Norcross, Georgia 30092 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas Kiser (7) |
|
|
633,050 |
|
|
|
380,000 |
|
|
|
|
|
|
|
1,013,050 |
|
|
|
6.7 |
% |
3500 Parkway Lane, Suite 720
Norcross, Georgia 30092 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rita McKeown (8) |
|
|
|
|
|
|
50,399 |
|
|
|
|
|
|
|
50,399 |
|
|
|
0.3 |
% |
David Huguelet (9) |
|
|
900 |
|
|
|
4,500 |
|
|
|
|
|
|
|
5,400 |
|
|
|
** |
% |
Bradley Denison (10) |
|
|
1,500 |
|
|
|
7,500 |
|
|
|
|
|
|
|
9,000 |
|
|
|
0.1 |
% |
Larry Gerdes (12) |
|
|
176,665 |
|
|
|
145,000 |
|
|
|
|
|
|
|
321,665 |
|
|
|
2.2 |
% |
Mark Kidd (11) |
|
|
5,000 |
|
|
|
10,000 |
|
|
|
|
|
|
|
15,000 |
|
|
|
0.1 |
% |
John Simonelli (11) |
|
|
5,000 |
|
|
|
10,000 |
|
|
|
|
|
|
|
15,000 |
|
|
|
0.1 |
% |
|
|
|
All directors and officers as a group of 13 |
|
|
11,508,515 |
|
|
|
1,022,399 |
|
|
|
|
|
|
|
12,530,914 |
|
|
|
79.2 |
% |
|
|
|
After the merger: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Danny Wright (3) |
|
|
4,014,300 |
|
|
|
|
|
|
|
|
|
|
|
4,014,300 |
|
|
|
18.6 |
% |
Brett Wimberley (4) |
|
|
4,002,500 |
|
|
|
|
|
|
|
|
|
|
|
4,002,500 |
|
|
|
18.5 |
% |
Susan Matthews (5) |
|
|
2,000,000 |
|
|
|
|
|
|
|
|
|
|
|
2,000,000 |
|
|
|
9.3 |
% |
Michael K. Owens (13) |
|
|
48,591 |
|
|
|
|
|
|
|
1,856,402 |
|
|
|
1,904,993 |
|
|
|
8.8 |
% |
4929 West Royal Lane, Suite 200
Irving, Texas 75063 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Peter W. Nauert Revocable Trust (13) |
|
|
1,856,402 |
|
|
|
|
|
|
|
48,591 |
|
|
|
1,904,993 |
|
|
|
8.8 |
% |
4929 West Royal Lane, Suite 200
Irving, Texas 75063 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Russell
Cleveland (11)(14) |
|
|
|
|
|
|
8,387 |
|
|
|
1,494,707 |
|
|
|
1,503,054 |
|
|
|
7.0 |
% |
4929 West Royal Lane, Suite 200
Irving, Texas 75063 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RENN Capital (14) |
|
|
|
|
|
|
8,387 |
|
|
|
1,494,707 |
|
|
|
1,503,094 |
|
|
|
7.0 |
% |
4929 West Royal Lane, Suite 200
Irving, Texas 75063 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert Garces (6) |
|
|
669,600 |
|
|
|
415,000 |
|
|
|
|
|
|
|
1,084,600 |
|
|
|
4.9 |
% |
Thomas Kiser (7) |
|
|
633,050 |
|
|
|
380,000 |
|
|
|
|
|
|
|
1,013,050 |
|
|
|
4.6 |
% |
Rita McKeown (8) |
|
|
|
|
|
|
50,399 |
|
|
|
|
|
|
|
50,399 |
|
|
|
0.2 |
% |
David Huguelet (9) |
|
|
900 |
|
|
|
4,500 |
|
|
|
|
|
|
|
5,400 |
|
|
|
** |
% |
Bradley Denison (10) |
|
|
1,500 |
|
|
|
7,500 |
|
|
|
|
|
|
|
9,000 |
|
|
|
** |
% |
Larry Gerdes (12) |
|
|
176,665 |
|
|
|
145,000 |
|
|
|
|
|
|
|
321,665 |
|
|
|
1.5 |
% |
Mark Kidd (11) |
|
|
5,000 |
|
|
|
10,000 |
|
|
|
|
|
|
|
15,000 |
|
|
|
0.1 |
% |
John Simonelli (11) |
|
|
5,000 |
|
|
|
10,000 |
|
|
|
|
|
|
|
15,000 |
|
|
|
0.1 |
% |
Ian Stuart(15) |
|
|
298,433 |
|
|
|
|
|
|
|
|
|
|
|
298,433 |
|
|
|
1.4 |
% |
J. French Hill(11) |
|
|
2,348 |
|
|
|
26,839 |
|
|
|
|
|
|
|
29,187 |
|
|
|
0.1 |
% |
|
|
|
All directors and officers as a group of 13 |
|
|
11,851,887 |
|
|
|
1,057,625 |
|
|
|
3,351,109 |
|
|
|
16,266,621 |
|
|
|
71.8 |
% |
|
|
|
55
|
|
|
** |
|
Less than one tenth of a percent. |
|
(1) |
|
Shares not outstanding but deemed beneficially owned by virtue of the right of a person or
members of a group to acquire them within 60 days are treated as outstanding for
determining the amount and percentage of common stock owned by such person. To the
knowledge of Alliance HealthCard, each named person has sole voting and sole investment
power with respect to the shares shown except as noted, subject to community property laws,
where applicable. |
|
(2) |
|
Rounded to the nearest one-tenth of one percent, based upon 14,796,763 shares of common
stock outstanding before the merger and 21,996,563 after the merger without giving effect
to issuance of shares in elimination of fractional shares and the possible exercise of
appraisal rights. |
|
(3) |
|
Mr. Wright is Chairman of Board of Directors and Chief Executive Officer. |
|
(4) |
|
Mr. Wimberley is a director, President and Chief Operating Officer. |
|
(5) |
|
Ms. Matthews is Vice President of Sales and Marketing |
|
(6) |
|
Mr. Garces is a director and Executive Vice President. The number of shares and the
percentages include 1,050 common stock shares held of record by Mr. Garces spouse. |
|
(7) |
|
Mr. Kiser is a director and an Executive Vice President. |
|
(8) |
|
Ms. McKeown is Chief Financial Officer. |
|
(9) |
|
Mr. Huguelet is Senior Vice President New Business Development. |
|
(10) |
|
Mr. Denison is Senior Vice President, General Counsel and Secretary. |
|
(11) |
|
The named person is a director of Alliance HealthCard. |
|
(12) |
|
The number of shares and the percent includes 166,666 shares held by Gerdes Huff
Investments of which Mr. Gerdes is a general partner and 9,999 shares held by Gerdes Family
Partnership of which Mr. Gerdes is a general partner. |
|
(13) |
|
Michael K. Owens is the trustee of the Peter W. Nauert Revocable Trust and is considered
the beneficial owner of the 1,856,402 shares owned of record by this Trust. |
|
(14) |
|
The Other Beneficially Owned Shares are owned by US Special Opportunities Trust PLC
(270,506 shares), Renaissance Capital Growth & Income
Fund III, Inc. (300,426 shares),
Premier RENN US Emerging Growth Fund Limited (405,145 shares), Renaissance US Growth &
Income Trust PLC (527,017 shares), each of which is an investment fund managed by RENN
Capital Group, Inc. Mr. Cleveland controls RENN Capital Group, Inc. and is also deemed to
be the beneficial owner of those common stock shares. |
|
(15) |
|
Mr. Stuart is our Interim Chief Executive Officer and President and Chief Financial Officer. |
56
UNAUDITED PRO FORMA CONDENSED COMBINING FINANCIAL STATEMENTS
The following unaudited pro forma condensed combining financial statements give effect to our
proposed merger with Alliance HealthCard based on the assumptions and adjustments set forth in the
accompanying notes to the unaudited pro forma condensed combining financial statements. In
addition, the unaudited pro forma condensed combining statement of operations for the year ended
September 30, 2008 also gives effect to our divesture of Access HealthSource, that is a required
condition of merger based on the assumptions and adjustments set forth in the accompanying notes.
The unaudited pro forma condensed combining financial statements assume the issuance of
6,800,000 shares of Alliance HealthCards common stock in connection with the proposed merger. This
reflects an estimated 50,000 share reduction in connection with the divestiture of Access
HealthSource.
The unaudited pro forma condensed combining statement of operations for the year ended
September 30, 2008 also assumes the Alliance HealthCard common stock shares was outstanding for
that entire year.
The value assigned to the number of shares of Alliance HealthCards common stock assumed
issued in connection with the proposed merger is based on Alliance HealthCards common stock price
on November 13, 2008, the date the merger was announced. This results in a common stock price of
$0.70 for pro forma valuation purposes.
The purchase price of Alliance HealthCards acquisition of us has been allocated based on
preliminary estimates of the fair value of the acquired assets and liabilities. See Note 1 to the
Notes to Unaudited Pro Forma Condensed Combining Balance Sheet. The pro forma adjustments are
subject to change pending a final analysis of the fair values of our assets and liabilities. The
impact of these changes could be material.
Periods Covered
The unaudited pro forma condensed combining statement of operations for the year ended
September 30, 2008 is based on the individual historical statements of operations of Alliance
HealthCard and Access Plans USA as if the Merger occurred on October 1, 2007. The unaudited pro
forma condensed combining statement of operations of Alliance HealthCard for the year ended
September 30, 2008 is based on the audited historical statement of operations of Alliance
HealthCard. The unaudited pro forma condensed combining statement presented for Access Plans USA
for the year ended September 30, 2008 is based on its audited historical statement of operations
for the year ended December 31, 2007 adjusted for removal of the nine months ended on September 30,
2007 and the addition of its unaudited historical statement of operations for the nine months ended
September 30, 2008, adjusted to exclude its discontinued operations (the divesture of Access
Healthsource and ACP Agency).
The unaudited pro forma condensed combining balance sheet as of September 30, 2008 is based on
the individual historical audited balance sheet of Alliance HealthCard and unaudited balance sheet
of Access Plans USA (adjusted to give effect to the assumed divesture of Access HealthSource and
ACP Agency), as if the proposed merger occurred on September 30, 2008.
The unaudited pro forma condensed combining financial statements are based on estimates and
assumptions. These estimates and assumptions are preliminary and have been made solely for purposes
of developing this pro forma information. Unaudited pro forma condensed combining financial
information is presented for illustrative purposes only and is not necessarily indicative of the
operating results that would have been achieved if the merger had been consummated as of the
beginning of the period indicated, nor is it necessarily indicative of the results of future
operations. The pro forma condensed combining financial information does not give effect to any
cost savings or restructuring and integration costs that may result from the integration of our
business into Alliance HealthCard. Costs related to restructuring and our integration has not yet
been determined.
This unaudited pro forma condensed combining financial information is based upon our and
Alliance HealthCards respective historical consolidated financial statements and related notes
appearing elsewhere in this information statement/prospectus and should be read in conjunction with
those statements and the related notes.
57
ALLIANCE HEALTHCARD, INC.
UNAUDITED PRO FORMA COMBINED CONDENSED BALANCE SHEET
AS OF SEPTEMBER 30, 2008
(Dollars in Thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alliance |
|
|
Access |
|
|
|
|
|
|
|
|
|
Healthcard |
|
|
Plans |
|
|
Pro-Forma |
|
|
Pro-Forma |
|
|
|
Inc. |
|
|
USA, Inc. |
|
|
Adjustments |
|
|
Combined |
|
Cash and cash equivalents |
|
$ |
3,013 |
|
|
$ |
1,226 |
|
|
|
|
|
|
$ |
4,239 |
|
Restricted short-term investments |
|
|
157 |
|
|
|
858 |
|
|
|
|
|
|
|
1,015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cash and short-term investments |
|
|
3,170 |
|
|
|
2,084 |
|
|
|
|
|
|
|
5,254 |
|
Accounts receivable, net |
|
|
2,487 |
|
|
|
824 |
|
|
|
|
|
|
|
3,311 |
|
Advanced agent commissions, net |
|
|
|
|
|
|
6,448 |
|
|
|
|
|
|
|
6,448 |
|
Prepaid expenses |
|
|
31 |
|
|
|
241 |
|
|
|
|
|
|
|
272 |
|
Assets of discontinued operations |
|
|
|
|
|
|
63 |
|
|
|
(63 |
) c) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets |
|
|
5,688 |
|
|
|
9,660 |
|
|
|
(63 |
) |
|
|
15,285 |
|
Fixed assets, net |
|
|
165 |
|
|
|
542 |
|
|
|
(142 |
) b) |
|
|
565 |
|
Goodwill and other intangible assets, net |
|
|
4,243 |
|
|
|
8,366 |
|
|
|
(3,970 |
) a), b) |
|
|
8,639 |
|
Deferred tax asset |
|
|
380 |
|
|
|
|
|
|
|
|
|
|
|
380 |
|
Other assets |
|
|
48 |
|
|
|
132 |
|
|
|
|
|
|
|
180 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
$ |
10,524 |
|
|
$ |
18,700 |
|
|
$ |
(4,175 |
) |
|
$ |
25,049 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable |
|
$ |
927 |
|
|
$ |
398 |
|
|
|
110 |
a) |
|
|
1,435 |
|
Accrued commissions payable |
|
|
|
|
|
|
652 |
|
|
|
|
|
|
|
652 |
|
Liability for unrecognized tax benefit |
|
|
166 |
|
|
|
|
|
|
|
|
|
|
|
166 |
|
Other accrued liabilities |
|
|
1,629 |
|
|
|
1,839 |
|
|
|
|
|
|
|
3,468 |
|
Claims liability |
|
|
463 |
|
|
|
|
|
|
|
|
|
|
|
463 |
|
Income taxes payable |
|
|
|
|
|
|
239 |
|
|
|
|
|
|
|
239 |
|
Short-term debt |
|
|
|
|
|
|
530 |
|
|
|
|
|
|
|
530 |
|
Current portion of notes payable to related parties |
|
|
2,290 |
|
|
|
|
|
|
|
|
|
|
|
2,290 |
|
Unearned commissions |
|
|
|
|
|
|
4,545 |
|
|
|
|
|
|
|
4,545 |
|
Other deferred revenue |
|
|
844 |
|
|
|
308 |
|
|
|
|
|
|
|
1,152 |
|
Liabilities of discontinued operations |
|
|
|
|
|
|
254 |
|
|
|
(254 |
) c) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities |
|
|
6,319 |
|
|
|
8,765 |
|
|
|
(144 |
) |
|
|
14,940 |
|
Long-term debt |
|
|
|
|
|
|
864 |
|
|
|
|
|
|
|
864 |
|
Related party notes payable, less current portion |
|
|
932 |
|
|
|
|
|
|
|
|
|
|
|
932 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities |
|
|
7,251 |
|
|
|
9,629 |
|
|
|
(144 |
) |
|
|
16,736 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock |
|
|
15 |
|
|
|
207 |
|
|
|
(200 |
) a) |
|
|
22 |
|
Additional paid-in capital |
|
|
6,809 |
|
|
|
40,630 |
|
|
|
(35,597 |
) a) |
|
|
11,842 |
|
Accumulated deficit |
|
|
(3,551 |
) |
|
|
(30,757 |
) |
|
|
30,757 |
a) |
|
|
(3,551 |
) |
Less: Treasury stock |
|
|
|
|
|
|
(1,009 |
) |
|
|
1,009 |
a) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total stockholders equity |
|
|
3,273 |
|
|
|
9,071 |
|
|
|
(4,031 |
) |
|
|
8,313 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity |
|
$ |
10,524 |
|
|
$ |
18,700 |
|
|
$ |
(4,175 |
) |
|
$ |
25,049 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to unaudited pro forma combined condensed financial statements.
58
ALLIANCE HEALTHCARD, INC.
UNAUDITED PRO FORMA COMBINED CONDENSED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED SEPTEMBER 30, 2008
(Dollars in Thousands, Except Share Information)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alliance |
|
|
Access |
|
|
|
|
|
|
|
|
|
Healthcard, |
|
|
Plans |
|
|
Pro-Forma |
|
|
Pro-Forma |
|
|
|
Inc. |
|
|
USA, Inc. |
|
|
Adjustments |
|
|
Combined |
|
Total revenue |
|
$ |
20,913 |
|
|
$ |
35,550 |
|
|
$ |
|
|
|
$ |
56,463 |
|
Direct costs |
|
|
11,113 |
|
|
|
24,703 |
|
|
|
|
|
|
|
35,816 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross margin |
|
|
9,800 |
|
|
|
10,847 |
|
|
|
|
|
|
|
20,647 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Personnel costs and other sales and
administrative expenses |
|
|
4,367 |
|
|
|
10,959 |
|
|
|
|
|
|
|
15,326 |
|
Depreciation and amortization |
|
|
551 |
|
|
|
1,018 |
|
|
|
|
|
|
|
1,569 |
|
Restructuring and severance charges |
|
|
|
|
|
|
164 |
|
|
|
|
|
|
|
164 |
|
Goodwill impairment charges |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
4,918 |
|
|
|
12,141 |
|
|
|
|
|
|
|
17,059 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss) |
|
|
4,882 |
|
|
|
(1,294 |
) |
|
|
|
|
|
|
3,588 |
|
Other income (expense) |
|
|
15 |
|
|
|
35 |
|
|
|
|
|
|
|
50 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations
before income taxes |
|
|
4,897 |
|
|
|
(1,259 |
) |
|
|
|
|
|
|
3,638 |
|
Income tax expense (benefit) |
|
|
2,189 |
|
|
|
(157 |
) |
|
|
(650 |
) d) |
|
|
1,382 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) from continuing
operations |
|
|
2,708 |
|
|
|
(1,102 |
) |
|
|
650 |
|
|
|
2,256 |
|
Less dividends |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) available for common
stockholders |
|
$ |
2,708 |
|
|
$ |
(1,102 |
) |
|
$ |
650 |
|
|
$ |
2,256 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings per share from continuing operations: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic |
|
$ |
0.18 |
|
|
$ |
(0.05 |
) |
|
|
|
|
|
$ |
0.10 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted |
|
$ |
0.18 |
|
|
$ |
(0.05 |
) |
|
|
|
|
|
$ |
0.10 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares
outstanding (in 000) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic |
|
|
14,798 |
|
|
|
20,269 |
|
|
|
(13,069 |
) a) |
|
|
21,998 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted |
|
|
15,263 |
|
|
|
20,269 |
|
|
|
(13,069 |
) a) |
|
|
22,463 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to unaudited pro forma combined condensed financial statements.
59
ALLIANCE HEALTHCARD, INC.
NOTES TO UNAUDITED PRO FORMA COMBINED CONDENSED FINANCIAL STATEMENTS
Note 1Basis for Presentation
The unaudited pro forma combined condensed financial statements present the pro forma effects
of the proposed merger of Access Plans USA, Inc. with Access/Alliance Acquisition Corp. and
becoming a wholly-owned subsidiary of Alliance HealthCard, Inc. (the Merger) pursuant to an
Agreement and Plan of Merger (the Merger Agreement) dated November 13, 2008. Prior to
consummation of the Merger, Access Plans USA is required to divest its subsidiary, Access
HealthSource, Inc. The pro forma adjustments give effect to the December 31, 2008 divesture of
Access HealthSource, Inc. As a result of the Merger, Access/Alliance Acquisition Corp. will merge
into Access Plans USA, resulting in Access Plans USA becoming a wholly-owned subsidiary of
Alliance HealthCard.
The merger is subject to, among other conditions, approval of the Access Plans USA
shareholders. The Merger Agreement provides that on the effective date of the merger, Access Plans
USA will issue up to 6,850,000 shares of Alliance HealthCard common stock, reduced by one share for
each $2.00 of the net cost of the Access HealthSource divesture. The estimated net cost of
divesture is $100,000 and results in an estimated 6,800,000 shares to be issued by Alliance
HealthCard to the shareholders of Access Plans USA.
The unaudited pro forma condensed combining statement of operations for the year ended
September 30, 2008 is based on the individual historical statements of operations of Alliance
HealthCard and Access Plans USA as if the Merger occurred on October 1, 2007. The unaudited pro
forma condensed combining statement of operations of Alliance HealthCard for the year ended
September 30, 2008 is based on the audited historical statement of operations of Alliance
HealthCard. The unaudited pro forma condensed combining statement of operations presented for
Access Plans USA for the year ended September 30, 2008 is based on its audited historical statement
of operations for the year ended December 31, 2007 adjusted for removal of the nine months ended on
September 30, 2007 and the addition of its unaudited historical statement of operations for the
nine months ended September 30, 2008, adjusted for divesture of its discontinued operations (Access
Healthsource and ACP Agency).
The unaudited pro forma condensed combining balance sheet as of September 30, 2008 is based on
the individual historical audited balance sheet of Alliance HealthCard and the unaudited balance
sheet of Access Plans USA (adjusted to give effect to the divesture of Access HealthSource and
discontinuance of ACP Agency operations), as if the proposed merger occurred on September 30, 2008.
The pro forma financial information presented in the unaudited pro forma combined condensed
financial statements is not necessarily indicative of the financial position or results of
operations that would have been achieved had the operations been those of a single consolidated
corporate entity. The results of operations presented in the unaudited pro forma combined
statements of operations are not necessarily indicative of the combined results of future
operations of Alliance HealthCard following consummation of the Merger.
Note 2Pro Forma Adjustments
The accompanying unaudited pro forma combined condensed financial statements have been
adjusted to record and give effect to the Merger and the divesture of Access Plans USAs subsidiary
Access HealthSource as follows:
(a) On a pro forma basis, the purchase price of Access Plans USA is based on the issuance of
6,800,000 shares of Alliance HealthCard to the Access Plans USA shareholders multiplied by a per
share price of $0.70 plus acquisition costs of $110,000 resulting in
$4,870,000 (Purchase
Price). The per share price of Alliance HealthCards common stock is based on Alliance
HealthCards common stock price on November 13, 2008, the date the Merger was announced. This
resulted in a common stock price of $0.70 for pro forma valuation purposes and determining the
Purchase Price.
60
(b)
A goodwill and intangible asset of $4,116,000 was recorded based on( i) the difference between
the Purchase Price and the estimated fair market value of the acquired net assets of Access Plans
USA, (ii) an estimated fixed asset impairment charge of $142,000 attributable to expected
post-merger out-sourcing of the fulfillment operations of the Consumer Plan division of Access
Plans USA, plus (iii) accrual of estimated acquisition costs of $110,000. The total pro-forma
goodwill and intangible asset of $8,359,000 at September 30, 2008 includes $4,243,000 attributable
to Alliance HealthCard. The allocation of the $4,116,000 between goodwill and intangible assets
has not yet been determined.
(c) The unaudited pro forma combined condensed balance sheets were adjusted to eliminate assets and
liabilities of Access Plans USAs discontinued operations, including its subsidiary, Access
HealthSource, that was sold effective December 30, 2008. The pro-forma Access Plans USA income
statement excludes the results from discontinued operations.
(d) The provision for income tax benefit for the year ended September 30, 2008 was adjusted to give
effect to the operating losses of Access Plans USA which effectively reduces the effective tax rate
to 38%.
61
COMPARISON OF RIGHTS OF ALLIANCE HEALTHCARD STOCKHOLDERS
AND ACCESS PLANS USA SHAREHOLDERS AND DESCRIPTION OF SECURITIES
The rights of Alliance HealthCard shareholders are currently governed by the Georgia Business
Corporation Code, which we refer to as the GBCC, and the amended and restated articles of
incorporation, which we refer to as the articles of incorporation, and bylaws of Alliance
HealthCard. The rights of Access Plans USA shareholders are currently governed by the Oklahoma
General Corporation Act (which we refer to as the OGCA) and the restated certificate of
incorporation and bylaws of Access Plans USA. Upon completion of the merger, the rights of Access
Plans USA shareholders who become Alliance HealthCard shareholders and the rights of Alliance
HealthCard shareholders will be governed by the GBCC, the articles of incorporation and bylaws of
Alliance HealthCard.
The following summarizes the material differences between the GBCC and Alliance HealthCards
articles of incorporation and bylaws, on the one hand, and the OGCA and Access Plans USAs
certificate of incorporation and bylaws, on the other hand. This summary does not include a
complete description of all differences between the rights of Alliance HealthCard shareholders and
Access Plans USA shareholders, nor does it include a complete description of the specific rights of
these holders. Furthermore, the identification of some of the differences in the rights of these
holders as material is not intended to indicate that other differences that may be equally
important do not exist.
You and our other shareholders are urged to read carefully the relevant provisions of the OGCA
and the GBCC, as well as the articles of incorporation and bylaws of Alliance HealthCard and the
certificate of incorporation and bylaws of Access Plans USA. Copies of the organizational documents
of Alliance HealthCard and Access Plans USA referred to in this discussion are available to you
upon request. See Where You Can Find More Information on page i.
Classes and Series of Capital Stock
The authorized capital stock of Alliance HealthCard consists of 100,000,000 common shares,
having a par value of $0.001 per share and entitled to one vote per share.
Our authorized capital stock consists of 100,000,000 Access Plans USA common shares, having a
par value of $0.01 per share and entitled to one vote per share and 2,000,000 Access Plans USA
preferred shares, having a par value of $1.00 per share.
Annual Meeting of Shareholders
Alliance HealthCard. The GBCC provides that a meeting of shareholders will be held annually at
a time stated in or fixed in accordance with the corporations bylaws. The GBCC also requires
notice of a shareholders meeting to be sent to shareholders entitled to vote at a meeting not
fewer than 10 nor more than 60 days before the date of the meeting. Unless the GBCC or the articles
of incorporation require otherwise, the corporation is required to give notice only to shareholders
entitled to vote at the meeting.
The GBCC also provides that the superior court of the county where a corporations registered
office is located may summarily order a meeting to be held upon application of any shareholder of
the corporation if an annual meeting was not held within the earlier of six months after the end of
a fiscal year of the corporation or 15 months after its last annual meeting. Following notice to
the corporation, the superior court may order that a meeting ordered in this manner be deemed an
annual meeting or a special meeting.
The bylaws of Alliance HealthCard provide that the annual meeting of shareholders for the
election of directors and for the transaction of other business as may properly come before the
meeting will be held on that date and at that time and place as the board of directors may by
resolution provide. The bylaws of Alliance HealthCard also provide that written notice of each
meeting of shareholders will be given to each shareholder of record entitled to vote at the meeting
not less than 10 nor more than 60 days prior to the meeting.
62
Access Plans USA. The OGCA provides that, unless directors are elected by written consent in
lieu of an annual meeting, an annual meeting of shareholders will be held for the election of
directors on a date and at a time designated by or in the manner provided in the bylaws of the
corporation. Any other proper business may also be transacted at the annual meeting. The OGCA also
generally requires notices of annual meetings to be sent to all shareholders of record entitled to
vote at the meeting not less than 10 nor more than 60 days before the date of the meeting.
The OGCA also provides that if, for a period of 30 days after the date designated by the
bylaws for the annual meeting of shareholders, or, if no date has been designated, for a period of
13 months after the latest to occur of the organization of the corporation, its last annual meeting
or the last action by written consent to elect directors in lieu of an annual meeting, there is a
failure to hold an annual meeting or to take action by written consent to elect directors in lieu
of an annual meeting, the Oklahoma County District Court may summarily order a meeting to be held
upon the application of any shareholder or director.
The Access Plans USA bylaws provide that an annual meeting of the shareholders for the
election of directors to succeed those whose terms expire and for the transaction of other business
as may properly come before the meeting will be held at such place, on such date, and at such time
as the board of directors fixes each year. These bylaws also provide that written notice of each
meeting of shareholders will be given to each shareholder of record entitled to vote at the meeting
not less than 20 nor more than 60 days prior to the meeting.
Special Meetings of Shareholders
Alliance HealthCard. The GBCC provides that special meetings of shareholders may be called by
the board of directors or by any persons authorized to do so in the articles of incorporation or
the bylaws of the corporation.
The GBCC also provides that, except as to corporations having 100 or fewer shareholders of
record, a special meeting may be called by the holders of at least 25%, or that greater or lesser
percentage as may be provided in the articles of incorporation or bylaws, of all the votes entitled
to be cast on any issue proposed to be considered at a proposed special meeting. Those holders must
sign, date and deliver to the corporation one or more demands in writing or by electronic
transmission for the meeting describing the purpose or purposes of the special meeting. Under the
GBCC, the superior court of the county where a corporations registered office is located may order
a meeting upon application of a shareholder who signed a valid demand for a special meeting if
notice of the special meeting was not given within 30 days after the demand was delivered to the
corporations secretary, or the special meeting was not held in accordance with the notice.
Under the GBCC, notice of a special meeting must include a description of the purpose or
purposes for which the meeting is called. Only business within the purpose or purposes described in
this notice may be conducted at a special shareholders meeting.
The bylaws of Alliance HealthCard provide that a special shareholders meetings for any purpose
may be called at any time by the board or directors, or by a duly designated committee of the board
of directors and shall be called by the chief executive officer or secretary at the request in
writing of a majority of the directors, or at the request in writing (including a statement of the
purpose or purposes of the proposed meeting) of shareholders owning at least 25% of the outstanding
capital stock of Alliance HealthCard entitled to vote. The business transacted at any special
meeting of shareholders is limited to the purposes stated in the meeting notice.
Access Plans USA. The OGCA provides that a special meeting of shareholders may be called by
the board of directors or by any persons authorized in the certificate of incorporation or bylaws
of the corporation. The notice to shareholders of the meeting must include the purpose or purposes
for which the meeting is called.
The Access Plans USA bylaws provide that special meetings of the shareholders may only be
called, for any purpose or purposes, by the chairman of the board of directors, the chief executive
officer or the board of directors pursuant to a resolution adopted by a majority of the total
number of authorized directors (whether or not there exist any vacancies in previously authorized
directorships at the time any the resolution is presented to the board of directors for adoption).
63
Shareholder Action Without a Meeting
Alliance HealthCard. The GBCC provides that action required or permitted to be taken at a
shareholders meeting may be taken without a meeting upon the written consent of all the
shareholders entitled to vote on the action or, if the articles of incorporation so provide, upon
the written consent of persons who would be entitled to vote at a meeting shares having voting
power to cast not less than the minimum number of votes that would be necessary to authorize or
take the action at a meeting at which all shareholders entitled to vote were present and voted.
The articles of incorporation of Alliance HealthCard provide that any action required to be
taken or that may be taken at a meeting of the shareholders may be taken without a meeting if
written consent, setting forth the action so taken shall be signed by all the shareholders entitled
to vote with respect to the subject matter thereof or, if so provided in the shareholders entitled
to vote with respect to the subject matter thereof or, if so provided in the articles of
incorporation, by shareholders who would be entitled to vote at a meeting holding shares having
voting power to cast not less than the minimum number (or numbers, in the case of voting by groups)
of votes that would be necessary to authorize or take the action at a meeting at which all
shareholders entitled to vote were present and voted.
Access Plans USA. The OGCA provides that, unless otherwise provided in the certificate of
incorporation of the corporation having less than 1,000 record owners of capital shares, any action
required or permitted to be taken at a meeting of shareholders may be taken without a meeting,
without prior notice and without a vote, if a written consent or consents setting forth the action
taken is signed by the holders of outstanding shares having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at which all shares
entitled to vote upon such action were present and voted.
Under the Access Plans USA bylaws shareholders may take action by written consent without a
meeting to the extent and in the manner permitted by law. Any action taken by the shareholders
must be in accordance with the Regulation 14C promulgated under the Securities Exchange Act of
1934, as amended (the Exchange Act). Any action taken without a shareholders meeting must be by
written consent setting forth the action taken, be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to authorize or take the
action at a meeting at which all shares entitled to vote thereon were present and voted, and be
delivered to us at our principal place of business or to our secretary.
The written consent must bear the date of signature of each shareholder that signs the consent
and no written consent will be effective to take the action unless within 60 days of the date of
the earliest dated consent a sufficient number of holders have executed the consent and it is
received by us.
Shareholder Nominations and Proposals
Alliance HealthCard. The bylaws of Alliance HealthCard do not establish procedures for
shareholder nominations of directors and consideration of shareholder proposals at Alliance
HealthCards shareholders meetings.
Access Plans USA. The Access Plans USA bylaws establish procedures that must be followed for a
shareholder to submit a proposal to be voted on by the shareholders of Access Plans USA at its
annual meeting of shareholders and a substantially similar procedure to be followed for the
nomination and election of directors. No business may be proposed by a shareholder at the annual
meeting of shareholders without giving written notice to the Secretary of Access Plans USA 120 days
prior to the scheduled date of the meeting. In the event, however, that in the event that an annual
meeting was not held in the previous year or the date of the annual meeting has been changed by
more than 30 days from the date contemplated at the time of the previous years notice of annual
meeting, notice by the shareholder to be timely must be so received a reasonable time before the
notice of annual meeting is released to shareholders. The shareholders notice must set forth:
a brief description of the business desired to be brought before the annual meeting and the
reasons for conducting the business at the annual meeting;
64
the name and record address of the shareholder;
the class or series and number of shares of Access Plans USA capital stock that are owned
beneficially or of record of the shareholder;
any material interest of the shareholder in the business or matter to be considered; and
any other information that is required to be provided by the shareholder pursuant to
Regulation 14A promulgated under the Exchange Act, in the shareholders capacity as a proponent of
a shareholder proposal.
In addition, shareholders notices relating to director nominations must be accompanied by a
written consent of each proposed nominee being named as a nominee and to serve as a director, if
elected, and must include:
the name, age, business address and residence address of the nominee;
the principal occupation or employment of the nominee;
the class or series and number of shares of Access Plans USA capital stock that are owned
beneficially or of record by the nominee;
any other information relating to the nominee that is required to be disclosed in proxy
solicitations for director elections pursuant to Section 14 of the Exchange Act; and
certain other specified information relating to the shareholder making the nomination.
If the chairman of the board determines that any proposal or nomination was not made in
accordance with these procedures, the chairman of the board may declare this at the meeting, and
the defective proposal or nomination will be disregarded.
Access to Corporate Records, Financial Statements and Related Matters
Alliance HealthCard. The GBCC requires that a corporation or its agent maintain a record of
its shareholders, in a form that permits preparation of a list of the names and addresses of all
shareholders, in alphabetical order by class of shares showing the number and class of shares held
by each.
The GBCC further provides that, upon written demand at least five business days in advance, a
shareholder of a corporation is entitled to inspect and copy, during regular business hours at the
corporations principal office, certain records of the corporation specifically designated in the
GBCC, including minutes of shareholders meetings for the preceding three years and a list of the
names and business addresses of each director.
In addition, the GBCC provides that a shareholder whose demand is made in good faith and for a
proper purpose that is reasonably relevant to his legitimate interest as a shareholder, and who
describes with reasonable particularity his purpose and the records he desires to inspect, is
entitled to inspect and copy, upon written demand at least five days in advance, during regular
business hours at a reasonable location specified by the corporation, any of the following records
that are directly connected with his purpose (and the records are to be used only for the stated
purpose):
excerpts from minutes of any meeting of the board of directors, records of any action of a
committee of the board of directors while acting in place of the board of directors on behalf of
the corporation, minutes of any shareholders meeting, and records of action taken by the
shareholders or board of directors without a meeting, to the extent not otherwise subject to
inspection as discussed above;
accounting records of the corporation; and
65
the record of shareholders.
These last rights of inspection may be limited under the GBCC by a corporations articles of
incorporation or bylaws for shareholders owning two percent or less of the shares outstanding.
Neither Alliance HealthCards articles of incorporation nor its bylaws contain the permissible
limitation noted above, and therefore the GBCCs default rules apply.
Further, after fixing a record date for a shareholders meeting, a corporation must prepare a
list of shareholders who are entitled to notice of the shareholders meeting, and this list must be
available for inspection by any shareholder, his or her agent, or his or her attorney on a
reasonably accessible electronic network or during ordinary business hours at the principal place
of business of the corporation. The shareholders list may also be inspected by any shareholder
present during the shareholders meeting, or on a reasonably accessible electronic network during
the whole time of the meeting if the meeting is to be held solely by means of remote communication.
Access Plans USA. The OGCA provides that any shareholder, in person or by attorney or other
agent, upon written demand under oath stating the shareholders purpose, has the right during usual
business hours to inspect for any proper purpose reasonably related to that persons interest as a
shareholder, and to make copies and extracts from the corporations stock ledger, a list of its
shareholders, its other books and records and a subsidiarys books and records, to the extent that
the corporation has actual possession and control of those records or the corporation could obtain
such records through the exercise of control over that subsidiary, with certain limitations. In
addition, a shareholder has the right to examine the list of shareholders prepared at least 10 days
before every meeting of shareholders, for any purpose germane to the meeting, for a period of at
least 10 days prior to the meeting on a reasonably accessible electronic network or during ordinary
business hours, at the principal place of business of the corporation. The shareholders list may
also be inspected by any shareholder present during the shareholders meeting, or on a reasonably
accessible electronic network during the whole time of the meeting if the meeting is to be held
solely by means of remote communication.
Amendments of Organizational Documents
Alliance HealthCard. Generally, under the GBCC, a proposed amendment to the articles of
incorporation requires the recommendation of the amendment to the shareholders by the board of
directors, unless the board of directors elects, because of a conflict of interest or other special
circumstances, to make no recommendation and communicates the basis for its election to the
shareholders with the amendment; further, the board of directors may condition its submission of
the proposed amendment, the effectiveness of the proposed amendment, or both on any basis. The
corporation must notify each shareholder entitled to vote of the proposed shareholders meeting,
and the notice must state that the purpose or one of the purposes of the meeting is to consider the
proposed amendment and contain or be accompanied by a copy or summary of the amendment. Unless the
articles of incorporation, the GBCC, or the board of directors require a greater vote, generally,
an affirmative vote by a majority of the votes entitled to be cast on the amendment by each voting
group entitled to vote is needed for adoption of the amendment.
Access Plans USA. Under the OGCA, after a corporation has received payment for its capital
stock, a proposed amendment to the certificate of incorporation requires the adoption by the board
of directors of a resolution setting forth the amendment proposed and a declaration of the
amendments advisability and either calling a special meeting of the shareholders entitled to vote
in respect of the amendment for the consideration of the amendment or directing that the amendment
proposed be considered at the next annual meeting of the shareholders. Unless the certificate of
incorporation requires a greater vote, generally, an affirmative vote of a majority of the voting
power of the outstanding shares entitled to vote and a majority of the voting power of the
outstanding shares of each class entitled to vote as a class on the amendment is needed for
adoption of the amendment.
Bylaw Amendments
Alliance HealthCard. Under the GBCC, a corporations board of directors may amend or repeal
the corporations bylaws or adopt new bylaws unless the articles of incorporation or the GBCC
reserve the power exclusively to the shareholders in whole or in part, or the shareholders in
amending or repealing a particular bylaw provide expressly that the board of directors may not
amend or repeal that bylaw. A corporations shareholders may
66
amend or repeal the corporations bylaws or adopt new bylaws even though the bylaws may also be
amended or repealed by its board of directors.
The bylaws of Alliance HealthCard provide that the bylaws may be amended or repealed, or new
Bylaws may be adopted, (a) by the shareholders or (b) by the affirmative vote of a majority of the
full board of directors at any regular or special meeting. Any bylaws adopted or amended by the
shareholders may be amended or repealed by the board of directors or the shareholders, unless the
shareholders in amending or repealing a particular bylaw provide expressly that the board of
directors may not amend or repeal that bylaw.
Access Plans USA. Under the OGCA, the power to adopt, alter and repeal bylaws is vested in the
shareholders, except to the extent that a corporations certificate of incorporation rests
concurrent power in the board of directors.
The Access Plans USA certificate of incorporation of provides that the power to adopt, amend
or repeal the bylaws is conferred on the board of directors. The Access Plans USA bylaws provide
that the bylaws may be amended or repealed and new bylaws adopted by the board of directors or by
the shareholders entitled to vote.
Dividends
Alliance HealthCard. Under the GBCC, a corporations board of directors may authorize and the
corporation may pay dividends to its shareholders, unless, after giving effect to the dividend, the
corporation would not be able to pay its debts as they become due in the ordinary course of
business, or the corporations total assets would be less than the sum of its total liabilities
plus (unless the articles of incorporation permit otherwise) the amount that would be needed, if
the corporation were to be dissolved at the time of the dividend, to satisfy the preferential
rights upon dissolution of shareholders whose preferential rights are superior to those receiving
the dividend.
Access Plans USA. Under the OGCA, a board of directors may declare and pay dividends and other
distributions to its shareholders, subject to any restrictions contained in the corporations
certificate of incorporation, either out of surplus, or, if there is no surplus, out of net profits
for the current or preceding fiscal year in which the dividend is declared. However, a distribution
out of net profits is not permitted if a corporations capital is less than the amount of capital
represented by the issued and outstanding shares of all classes having a preference upon the
distribution of assets, until the deficiency has been repaired.
Dissenters and Appraisal Rights
Alliance HealthCard. The GBCC provides to shareholders who dissent from (i) a merger, (ii) a
share exchange, (iii) a sale of all or substantially all of the assets of the corporation, (iv) an
amendment of the articles of incorporation with respect to a class or series of shares that reduces
the number of shares of a class or series owned by the shareholder to a fraction of a share if the
fractional share so created is to be acquired for cash or (v) any corporate action taken pursuant
to a shareholder vote to the extent that certain provisions of the GBCC, the articles of
incorporation, bylaws or a resolution of the board of directors provides that voting or nonvoting
shareholders are entitled to dissent and obtain payment for their shares, the right to demand and
receive the fair value of their shares as appraised by the court (if the shareholder is
dissatisfied with the corporations offer to pay the shareholder the corporations estimate of such
fair value). However, shareholders do not have dissenters rights if the shares they hold, on the
record date fixed for determination of the shareholders entitled to receive notice of and to vote
at the shareholders meeting to act upon the plan of merger, share exchange, sale of corporate
property or other specified corporate actions, are either (i) listed on a national securities
exchange or (ii) held of record by more than 2,000 shareholders.
Those shareholders, however, will have dissenters rights if the articles of incorporation or
a resolution of the board of directors approving the transaction so provide or, in the case of a
merger or share exchange, the plan of merger or share exchange requires that they receive for their
shares anything other than shares of the surviving corporation or another publicly held corporation
which are either listed on a national securities exchange or held of record by more than 2,000
shareholders, except for scrip or cash payments in lieu of fractional shares. The Alliance
67
HealthCard common shares and the Access Plans USA common shares are not listed on a national
exchange and it is anticipated that following the merger, Alliance HealthCard will have less than
2,000 shareholders of record. Accordingly, holders of Access Plans USA shares are entitled to
dissenters rights in connection with the merger.
Access Plans USA. The OGCA provides to shareholders who dissent from a merger or consolidation
of the corporation the right to demand and receive payment of the fair value of their shares as
appraised by the Oklahoma County District Court. However, shareholders do not have appraisal rights
if they are holders of shares of the constituent corporation surviving a merger if the merger did
not require approval of the shareholders of the surviving corporation, or if the shares they hold,
at the record date for determination of shareholders entitled to vote at the meeting of
shareholders to act upon the merger or consolidation, or on the record date with respect to action
by written consent, are listed on a national securities exchange or designated as a national market
system security on an interdealer quotation system by the National Association of Securities
Dealers, Inc. or held of record by more than 2,000 shareholders. See The Merger Appraisal
Rights.
Number and Qualification of Directors
Alliance HealthCard. The GBCC provides that a board of directors must consist of one or more
individuals, with the number specified in or fixed in accordance with the articles of incorporation
or bylaws. The articles of incorporation or bylaws may allow the shareholders or the board of
directors to fix or change the number of directors, or may establish a permissible range for the
number of directors pursuant to which the shareholders or, if the articles or bylaws so provide,
the board of directors may fix or change the number of directors from time to time. Because
Alliance HealthCard does not have a staggered board of directors, after directors are first elected
or appointed, directors are elected to one-year terms at each annual shareholders meeting.
The bylaws of Alliance HealthCard provide that the board of director will consist of one or
more members in that number as determined from time to time by resolution of the board or by the
shareholders at the annual meeting. Directors need not be shareholders. Each director will be
elected or re-elected by the shareholders at an annual meeting and shall serve until his or her
successor is elected and qualified or until his or her death, retirement, resignation or removal.
Access Plans USA. The OGCA permits the certificate of incorporation or the bylaws of a
corporation to contain provisions governing the number and terms of directors. In addition, the
certificate of incorporation may confer upon one or more directors, whether or not elected
separately by the holders of any class or series of shares, voting powers greater or less than
those of other directors. Because Access Plans USA does not have a staggered board of directors,
directors are elected to one-year terms at each annual shareholders meeting.
The bylaws of Access Plans USA provide that the number of directors constituting the board of
directors will be one or more as the directors may from time to time determine by resolution of the
board of directors or election by the board of directors.
Filling Vacancies on the Board of Directors
Alliance HealthCard. Under the GBCC, unless the articles of incorporation or a bylaw approved
by the shareholders provides otherwise, if a vacancy occurs on a board of directors, including a
vacancy resulting from an increase in the number of directors, the shareholders or the board of
directors may fill the vacancy, or, if the directors remaining in office constitute fewer than a
quorum of the board, the board of directors may fill the vacancy by the affirmative vote of a
majority of all the directors remaining in office.
The bylaws of Alliance HealthCard provide that any newly created directorship resulting from
an increase in the number of directors may be filled by vote of a majority of the board of
directors then in office, provided that a quorum is present, and any other vacancy on the board of
directors may be filled by a vote of a majority of the directors then in office, even if less than
a quorum, or by a sole remaining director.
Access Plans USA. Under the OGCA, unless otherwise provided in the certificate of
incorporation or the bylaws, vacancies on a board of directors and newly created directorships
resulting from an increase in the
68
authorized number of directors elected by all of the shareholders having the right to vote as a
single class may be filled by a majority of the directors then in office, although less than a
quorum, or by the sole remaining director. In addition, under the OGCA, if, at the time of the
filling of any vacancy or newly created directorship, the directors in office constitute less than
a majority of the whole board of directors (as constituted immediately before any such increase),
the Oklahoma District Court may, upon application of any shareholder or shareholders holding at
least ten percent of the total number of outstanding shares entitled to vote for such directors,
summarily order an election to fill any vacancy or newly created directorship, or replace the
directors chosen by the directors then in office.
The bylaws of Access Plans USA provide that vacancies occurring on the board of directors for
any reason may be filled by vote of a majority of the remaining members of the board of directors,
although less than a quorum, at any meeting of the board of directors, or by a sole remaining
director. Each director so elected will hold office for the unexpired portion of the term of the
director whose place was vacant and until his or her successor has duly elected and qualified or
until the directors earlier death, resignation or due removal.
Removal of Directors
Alliance HealthCard. The GBCC provides that the shareholders may remove one or more directors
with or without cause unless the articles of incorporation or a bylaw adopted by the shareholders
provides that directors may be removed only for cause. Unless a higher vote is required in the
articles of incorporation or bylaws adopted by the shareholders, a director may be removed only by
a majority of the votes entitled to be cast. A director may be removed by the shareholders only at
a meeting called for the purpose of removing him and the meeting notice must state that the
purpose, or one of the purposes, of the meeting is removal of the director.
The bylaws of Alliance HealthCard provide that, unless otherwise restricted by the articles of
incorporation or by law, any director or the entire board may be removed, with or without cause, by
the holders of a majority of shares entitled to vote at a meeting called for the purpose of
removing the director or directors and the meeting notice must state that one of the purposes of
such meeting is the removal of the director or directors.
Access Plans USA. The OGCA provides that a director or directors may be removed, with or
without cause, by the holders of a majority in voting power of the shares then entitled to vote on
the election of directors.
The bylaws of Access Plans USA provide that the entire board of directors, or any individual
director, may be removed at any time, with or without cause, by a vote of the shareholders holding
a majority of the outstanding shares entitled to vote at an annual or special meeting of
shareholders.
Limitation of Personal Liability of Directors
Alliance HealthCard. The GBCC provides that the articles of incorporation may set forth a
provision eliminating or limiting the liability of a director to the corporation or any of its
shareholders for money damages for any action taken, or any failure to take any action, as a
director, except liability for any appropriation, in violation of his or her duties, of any
business opportunity of the corporation, for acts or omissions which involve intentional misconduct
or a knowing violation of law, for participation in certain unlawful distributions to shareholders
or for any transaction from which the director received an improper personal benefit. However, no
provision may eliminate or limit the liability of a director for any act or omission occurring
prior to the date that such provision becomes effective.
The articles of incorporation of Alliance HealthCard provide that a director will not be
personally liable to Alliance HealthCard or its shareholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any appropriation, in violation of his
duties, of any business opportunity of Alliance HealthCard, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law, (iii) for the type of
liability set forth under Section 14-2-832 of the GBCC, or (iv) for any transaction from which the
director received an improper personal benefit.
Access Plans USA. The OGCA provides that a corporation may include in its certificate of
incorporation a provision eliminating or limiting the personal liability of a director to the
corporation or its shareholders for
69
monetary damages for breach of fiduciary duty as a director. However, the provision may not
eliminate or limit the liability of a director for:
|
|
|
breach of the duty of loyalty to the corporation or its shareholders; |
|
|
|
|
|
|
acts or omissions not in good faith or that involve intentional misconduct or a knowing
violation of law; |
|
|
|
|
|
|
unlawful payments of dividends, certain share repurchases or redemptions; or |
|
|
|
|
|
|
any transaction from which the director derived an improper personal benefit. |
The Access Plans USA certificate of incorporation provides that no director of the corporation
will be liable to the corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability:
|
|
|
for any breach of the directors duty of loyalty to the corporation or its shareholders; |
|
|
|
|
|
|
for acts or omissions not in good faith or which involve intentional misconduct or knowing
violation of the law; |
|
|
|
|
|
|
under Section 174 of the OGCA; or |
|
|
|
|
|
|
for any transaction from which a director derived an improper benefit. |
Indemnification of Directors and Officers
Alliance HealthCard. The GBCC provides that, subject to certain limitations in the case of
suits by the corporation and derivative suits brought by a corporations shareholders in the right
of the corporation and specified procedural requirements, a corporation may indemnify any person
who is a party to a proceeding by reason of being or having been a director or officer against
liability incurred in the proceeding if the person:
|
|
conducted himself or herself in good faith and the person reasonably believed, in the case of
conduct in his or her official capacity, that the conduct was in the best interests of the
corporation, and in all other cases, that the conduct was at least not opposed to the best
interests of the corporation; and |
|
|
|
in a criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. |
Any director or officer who has been wholly successful, on the merits or otherwise, in
defending any proceeding to which he or she was a party because he or she was a director or officer
must be indemnified against reasonable expenses incurred by the director or officer, in connection
with the proceeding. The GBCC also provides that a corporations articles of incorporation, a bylaw
or an agreement may provide a director or officer with additional indemnification rights without
regard to the limitations described above. In the case of a director, any bylaw or agreement
providing such further indemnification must be approved by the shareholders. Nevertheless, the
corporation is not permitted to indemnify a director or officer for any liability to the
corporation for:
|
|
appropriation, in violation of his or her duties, of any business opportunity of the corporation; |
|
|
|
acts or omission which involve intentional misconduct or a knowing violation of law; |
|
|
|
participation in certain unlawful distributions to shareholders; or |
|
|
|
any transaction from which he or she received an improper personal benefit. |
Alliance HealthCards bylaws generally provide for indemnification of directors and officers
as permitted by the GBCC. Alliance HealthCards bylaws also expressly permit the board of directors
to enter into indemnity agreements between the corporation and any director or officer of the
corporation in form and content acceptable to
70
the board and substantially in the form of an agreement submitted to and approved by shareholders
of the corporation. See Officer and Director Compensation Indemnification. Alliance HealthCard
and each of its directors have not entered into an indemnity agreement.
Access Plans USA. The OGCA provides that, subject to certain limitations in the case of suits
by the corporation and derivative suits brought by a corporations shareholders in the right of the
corporation, a corporation may indemnify any person who is made a party to any third-party suit or
proceeding by reason of being or having been a director or officer of the corporation against
expenses, including attorneys fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with the action, if the person:
|
|
acted in good faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation; and |
|
|
|
with respect to any criminal proceeding, had no reasonable cause to believe his or her
conduct was unlawful. |
To the extent a director, officer, employee or agent is successful in the defense of an
action, suit or proceeding, the corporation is required by the OGCA to indemnify that person for
expenses, including attorneys fees, actually and reasonably incurred thereby.
The bylaws of Access Plans USA provide for indemnification of officers and directors as
permitted by the OGCA.
Vote on Mergers and Certain Other Transactions
Alliance HealthCard. The GBCC provides that one or more corporations may merge into another
corporation if the board of directors of each corporation adopts and its shareholders (if required)
approve a plan of merger, and, without limiting the power of a corporation to acquire all or part
of the shares of one or more classes or series of another corporation through a voluntary exchange
or otherwise, may engage in such a share exchange if the board of directors of each corporation
adopts and its shareholders (if required) approve the share exchange. After adopting a plan of
merger or share exchange, the board of directors of each corporation party to the merger, and the
board of directors of the corporation whose shares will be acquired in the share exchange, will
submit the plan of merger, subject to certain exceptions, or share exchange for approval by its
shareholders. For a plan of merger or share exchange to be approved, the board of directors must
recommend the plan of merger or share exchange to the shareholders, unless the board of directors
elects, because of conflict of interest or other special circumstances, to make no recommendation
and communicates the basis for its election to the shareholders with the plan. However, the board
of directors may condition its submission of the proposed merger or share exchange, the
effectiveness of the proposed merger or share exchange, or both on any basis.
The GBCC provides that unless the GBCC, the articles of incorporation, the bylaws, or the
board of directors requires a greater vote or a vote by voting groups, the plan of merger or share
exchange to be authorized must be approved by a majority of all the votes entitled to be cast on
the plan by all shares entitled to vote on the plan, voting as a single voting group and a majority
of all the votes entitled to be cast by holders of the shares of each voting group entitled to vote
separately on the plan as a voting group by the articles of incorporation. Action by the
shareholders of the surviving corporation on a plan of merger or by the shareholders of the
acquiring corporation in a share exchange is not required if:
|
|
the articles of incorporation of the surviving or acquiring corporation will not differ
(except for certain amendments) from its articles before the merger or share exchange; |
|
|
|
each share of the surviving or acquiring corporation outstanding immediately before the
effective date of the merger or share exchange is to be an identical outstanding or reacquired
share immediately after the merger or share exchange; and |
71
|
|
the number and kind of shares outstanding immediately after the merger or share exchange,
plus the number and kind of shares issuable as a result of the merger or share exchange and by
the conversion of securities issued pursuant to the merger or share exchange or the exercise
of rights and warrants issued pursuant to the merger or share exchange, will not exceed the
total number and kind of shares of the surviving or acquiring corporation authorized by its
articles of incorporation immediately before the merger or share exchange. |
The GBCC provides that a corporation may sell, lease, exchange, or otherwise dispose of all or
substantially all of its property (with or without goodwill) on the terms and conditions and for
the consideration determined by the corporations board of directors under circumstances similar to
those enumerated above for approval of mergers and share exchanges, subject to exceptions for
certain dispositions of a corporations property that do not require shareholder approval.
Neither the bylaws nor the articles of incorporation of Alliance HealthCard require a greater
vote for approval of the above transactions than that specified in the GBCC.
Access Plans USA. Under the OGCA, a merger, consolidation or sale of all or substantially all
of a corporations assets must be approved by the board of directors and adopted by a majority of
the outstanding shares of the corporation entitled to vote, subject to certain exceptions for
mergers with wholly-owned subsidiaries of a corporation or a sale, lease or exchange of property to
a corporations subsidiary. However, unless required by its certificate of incorporation, approval
is not required by the holders of the outstanding shares of a constituent corporation surviving a
merger if:
|
|
the merger agreement does not amend in any respect its certificate of incorporation; |
|
|
|
each share of the corporation outstanding prior to the merger will be an identical share
following the merger; and |
|
|
|
the merger will not result in the issuance of shares exceeding 20 percent of the common
shares of the corporation outstanding immediately prior to the merger. |
Anti-Takeover and Ownership Provisions
Alliance HealthCard. The GBCC provides for both fair price requirements in connection with
business combinations with interested shareholders and prohibitions of such business combinations
in certain circumstances. These fair price requirements and business combinations limitations under
Georgia law apply only to corporations that elect pursuant to bylaw to be subject to these
provisions.
The GBCC provides that, in addition to any vote otherwise required by law or the articles of
incorporation of the corporation or unless certain fair price conditions are met, a business
combination with an interested shareholder (as defined below) must be:
|
|
unanimously approved by the continuing directors (as defined below), so long as the
continuing directors constitute at least three members of the board of directors at the time
of such approval; or |
|
|
|
recommended by at least two-thirds of the continuing directors and approved by a majority of
the votes entitled to be cast by holders of voting shares, other than voting shares
beneficially owned by the interested shareholder who is, or whose affiliate is, a party to the
business combination. |
The Alliance HealthCard bylaws do not specifically provide that the fair price provisions of
the GBCC.
The GBCC provides that a resident domestic corporation (as defined in the GBCC) may not engage
in any business combination with any interested shareholder, subject to certain exceptions, for a
period of five years following the time that the shareholder became an interested shareholder,
unless:
72
|
|
prior to the time the resident domestic corporations board of directors approved either
the business combination or the transaction which resulted in the shareholder becoming an
interested shareholder; |
|
|
|
in the transaction which resulted in the shareholder becoming an interested shareholder,
the interested shareholder became the beneficial owner of at least 90% of the voting shares
of the resident domestic corporation outstanding at the time the transaction commenced,
excluding shares held by certain parties enumerated in the GBCC; or |
|
|
|
subsequent to becoming an interested shareholder, the shareholder acquired additional
shares resulting in the interested shareholder being the beneficial owner of at least 90% of
the outstanding voting shares of the resident domestic corporation, excluding shares held by
certain parties enumerated in the GBCC, and the business combination was approved at an
annual or special meeting of shareholders by the holders of a majority of the voting shares
entitled to vote thereon, excluding the shares held by certain parties enumerated in the
GBCC. |
The Alliance HealthCard bylaws do not provide that the GBCCs restrictions against business
combinations with interested shareholders are applicable to business combinations of Alliance
HealthCard.
Access Plans USA. The OGCA contains a business combination statute that prohibits some
transactions once an acquiror has gained a significant holding in the corporation. The OGCA
generally prohibits business combinations, including mergers, sales and leases of assets, issuances
of securities and similar transactions by a corporation or a subsidiary with an interested
shareholder (defined as including the beneficial owner of 15% or more of a corporations voting
shares), within three years after the person or entity becomes an interested shareholder, unless:
|
|
the board of directors has approved, before the acquisition date, either the business
combination or the transaction that resulted in the person becoming an interested shareholder; |
|
|
|
upon completion of the transaction that resulted in the person becoming an interested
shareholder, the person owns at least 85% of the corporations voting shares, excluding shares
owned by directors who are officers and shares owned by employee stock plans in which
participants do not have the right to determine confidentially whether shares will be tendered
in a tender or exchange offer; or |
|
|
|
after the person or entity becomes an interested shareholder, the business combination is
approved by the board of directors and authorized by the vote of at least 66 2/3% of the
outstanding voting shares not owned by the interested shareholder at an annual or special
meeting of shareholders and not by written consent. |
The Access Plans USA certificate of incorporation provides that the anti-takeover provisions
of the OGBA are not applicable.
PLAN OF DISTRIBUTION
This information statement/prospectus covers securities that Alliance HealthCard will issue to
the Access Plans USA shareholders in connection with our merger with Alliance HealthCard. We and
Alliance HealthCard will share the costs and expenses of the merger and the offering of the shares.
We will not pay any underwriting discounts or commissions in connection with issuing the Alliance
HealthCard shares to the Access Plans USA shareholders. The shares are registered under the
Securities Act and will be freely transferrable under the Securities Act, except that shares of
common stock issued to any person who is deemed to be an Access Plans USA affiliate may only be
sold in accordance with Rule 144 under the Securities Act.
LEGAL MATTERS
The validity of issuance of the shares of Alliance HealthCard common stock to be issued in
connection with the merger will be passed upon for us by our and Alliance HealthCards counsel,
Dunn Swan & Cunningham, A Professional Corporation, of Oklahoma City, Oklahoma. Dunn Swan &
Cunningham has delivered an opinion to
73
the effect that the description of the federal income tax consequences of the merger under the
section of this information statement/prospectus captioned The Merger Certain Federal Income Tax
Consequences of the Merger correctly sets forth the material federal income tax consequences of
the merger to us, our shareholders and Alliance HealthCard.
EXPERTS
The
consolidated balance sheets as of December 31, 2007 and 2006 and the related statements of
operations and, stockholders equity and cash flows for the
three years in the period ended December 31, 2007 of Access Plans USA in
this information statement/prospectus have been included in reliance on the report of Hein &
Associates LLP, independent registered public accounting firm, given on authority of that firm as
experts in accounting and auditing.
The consolidated balance sheet as of September 30, 2008, and the related statements of
operations and, stockholders equity and cash flows for the year then ended of Alliance HealthCard
included in the 2008 Annual Report on Form 10-K of Alliance HealthCard in
this information statement/prospectus have been included in reliance on the report of Eide Bailly
LLP, independent registered public accounting firm, given on authority of that firm as experts in
accounting and auditing.
The consolidated balance sheet as of September 30, 2007, and the related statements of
operations and, stockholders equity and cash flows for the year then ended of Alliance HealthCard
included in the 2007 Annual Report on Form 10-K of Alliance HealthCard in
this information statement/prospectus have been included in reliance on the report of Murrell,
Hall, McIntosh & Co., PLLP, independent registered public accounting firm, given on authority of
that firm as experts in accounting and auditing.
74
INDEX TO FINANCIAL STATEMENTS
|
|
|
|
|
|
|
Page |
|
ALLIANCE HEALTHCARD, INC. |
|
|
|
|
|
|
|
|
|
|
|
|
F-2 |
|
|
|
|
F-3 |
|
|
|
|
F-4 |
|
|
|
|
F-5 |
|
|
|
|
F-6 |
|
|
|
|
F-7 |
|
|
|
|
F-8 |
|
|
|
|
|
|
ACCESS PLANS USA, INC. |
|
|
|
|
|
|
|
|
|
|
|
|
F-25 |
|
|
|
|
F-26 |
|
|
|
|
F-27 |
|
|
|
|
F-28 |
|
|
|
|
F-29 |
|
|
|
|
F-31 |
|
|
|
|
F-53 |
|
|
|
|
F-54 |
|
|
|
|
F-55 |
|
|
|
|
F-56 |
|
|
|
|
F-57 |
|
F-1
Report of Independent Registered Public Accounting Firm
The Board of Directors and Stockholders of
Alliance HealthCard, Inc.
We have audited the accompanying consolidated balance sheet of Alliance HealthCard, Inc. and
subsidiaries, as of September 30, 2008 and the related consolidated statements of operations,
stockholders equity, and cash flows for the year then ended. These financial statements are the
responsibility of the Companys management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight
Board (United States). Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material misstatement. The
Company is not required to have, nor were we engaged to perform, an audit of its internal control
over financial reporting. Our audit included consideration of internal control over financial
reporting as a basis for designing audit procedures that are appropriate in the circumstances, but
not for the purpose of expressing an opinion on the effectiveness of the Companys internal control
over financial reporting. Accordingly, we express no such opinion. An audit also includes
examining, on a test basis, evidence supporting the amounts and disclosures in the financial
statements, assessing the accounting principles used and significant estimates made by management,
as well as evaluating the overall financial statement presentation. We believe that our audit
provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all
material respects, the financial position of Alliance HealthCard, Inc. and subsidiaries as of
September 30, 2008 and the results of their operations and their cash flows for the year then ended
in conformity with accounting principles generally accepted in the United States of America.
/s/ Eide Bailly LLP
Greenwood Village, Colorado
December 23, 2008
F-2
Report of Independent Registered Public Accounting Firm
The Board of Directors and Stockholders of
Alliance HealthCard, Inc.
We have audited the accompanying consolidated balance sheet of Alliance HealthCard, Inc. and
subsidiaries, as of September 30, 2007 and the related consolidated statements of operations,
stockholders equity, and cash flows for the year then ended. These financial statements are the
responsibility of the companys management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight
Board (United States). Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material misstatement. The
company is not required to have, nor were we engaged to perform, an audit of its internal control
over financial reporting. Our audit included consideration of internal control over financial
reporting as a basis for designing audit procedures that are appropriate in the circumstances, but
not for the purpose of expressing an opinion on the effectiveness of the companys internal control
over financial reporting. Accordingly, we express no such opinion. An audit also includes
examining, on a test basis, evidence supporting the amounts and disclosures in the financial
statements, assessing the accounting principles used and significant estimates made by management,
as well as evaluating the overall financial statement presentation. We believe that our audit
provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all
material respects, the consolidated financial position of Alliance HealthCard, Inc. and
subsidiaries as of September 30, 2007 and the results of their operations and their cash flows for
the year then ended in conformity with accounting principles generally accepted in the United
States of America.
/s/ Murrell, Hall, McIntosh & Co. PLLP
Oklahoma City, Oklahoma
January 14, 2008
F-3
Alliance HealthCard, Inc. & Subsidiaries
Consolidated Balance Sheets
|
|
|
|
|
|
|
|
|
|
|
September 30, |
|
|
|
2008 |
|
|
2007 |
|
Assets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets: |
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
3,012,683 |
|
|
$ |
2,274,411 |
|
Restricted cash |
|
|
156,935 |
|
|
|
|
|
Accounts receivable, net |
|
|
2,486,938 |
|
|
|
2,389,541 |
|
Prepaid expenses |
|
|
31,372 |
|
|
|
33,666 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets |
|
|
5,687,928 |
|
|
|
4,697,618 |
|
|
|
|
|
|
|
|
|
|
Furniture, fixtures and equipment, net |
|
|
165,020 |
|
|
|
131,969 |
|
Goodwill |
|
|
2,534,152 |
|
|
|
2,746,945 |
|
Intangibles Customer lists, net |
|
|
1,708,883 |
|
|
|
2,212,220 |
|
Deferred income taxes and other |
|
|
427,604 |
|
|
|
443,537 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
$ |
10,523,587 |
|
|
$ |
10,232,459 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities and stockholders equity |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities: |
|
|
|
|
|
|
|
|
Accounts payable |
|
$ |
927,101 |
|
|
$ |
1,441,703 |
|
Accrued salaries and benefits |
|
|
161,732 |
|
|
|
129,525 |
|
Claims liability |
|
|
462,596 |
|
|
|
260,360 |
|
Deferred revenue |
|
|
843,868 |
|
|
|
911,588 |
|
Line-of-credit |
|
|
|
|
|
|
149,980 |
|
Current portion of notes payable to related parties |
|
|
2,289,663 |
|
|
|
2,382,333 |
|
Liability for unrecognized tax benefit |
|
|
166,000 |
|
|
|
|
|
Other accrued liabilities |
|
|
1,468,349 |
|
|
|
1,323,817 |
|
|
|
|
|
|
|
|
Total current liabilities |
|
|
6,319,309 |
|
|
|
6,599,306 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long term liabilities: |
|
|
|
|
|
|
|
|
Notes payable to related parties, net of current portion shown above |
|
|
931,581 |
|
|
|
3,200,055 |
|
|
|
|
|
|
|
|
Total liabilities |
|
|
7,250,890 |
|
|
|
9,799,361 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitments |
|
|
|
|
|
|
|
|
Stockholders equity: |
|
|
|
|
|
|
|
|
Common stock, $.001 par value; 100,000,000 shares authorized;
14,796,763 shares issued and outstanding at September 30, 2008 and
14,647,763 at September 30, 2007 |
|
|
14,796 |
|
|
|
14,647 |
|
Additional paid-in-capital |
|
|
6,808,758 |
|
|
|
6,677,567 |
|
Accumulated deficit |
|
|
(3,550,857 |
) |
|
|
(6,259,116 |
) |
|
|
|
|
|
|
|
Total stockholders equity |
|
|
3,272,697 |
|
|
|
433,098 |
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity |
|
$ |
10,523,587 |
|
|
$ |
10,232,459 |
|
|
|
|
|
|
|
|
See the accompanying notes to the financial statements.
F-4
Alliance HealthCard, Inc. & Subsidiaries
Consolidated Statements of Operations
|
|
|
|
|
|
|
|
|
|
|
Year Ended |
|
|
|
September 30, |
|
|
|
2008 |
|
|
2007 |
|
Net revenues |
|
$ |
20,913,609 |
|
|
$ |
17,608,747 |
|
Direct costs |
|
|
11,113,452 |
|
|
|
11,541,715 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
9,800,157 |
|
|
|
6,067,032 |
|
|
|
|
|
|
|
|
|
|
Marketing and sales expenses |
|
|
1,252,051 |
|
|
|
916,820 |
|
Depreciation and amortization expense |
|
|
550,764 |
|
|
|
343,621 |
|
General and administrative expenses |
|
|
3,115,049 |
|
|
|
2,877,099 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income |
|
|
4,882,293 |
|
|
|
1,929,492 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income (expense): |
|
|
|
|
|
|
|
|
Other income |
|
|
163,951 |
|
|
|
71,132 |
|
Other expense, net |
|
|
(148,985 |
) |
|
|
(148,972 |
) |
|
|
|
|
|
|
|
|
|
|
14,966 |
|
|
|
(77,840 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income before income taxes |
|
|
4,897,259 |
|
|
|
1,851,652 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision for income taxes |
|
|
|
|
|
|
|
|
Current |
|
|
2,140,000 |
|
|
|
589,000 |
|
Deferred tax (benefit) |
|
|
49,000 |
|
|
|
(134,000 |
) |
|
|
|
|
|
|
|
Total provision for income taxes |
|
|
2,189,000 |
|
|
|
455,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
2,708,259 |
|
|
$ |
1,396,652 |
|
Less dividends and distributions |
|
|
|
|
|
|
8,243,218 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income available for common stock |
|
$ |
2,708,259 |
|
|
$ |
(6,846,566 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Per share data: |
|
|
|
|
|
|
|
|
Basic income |
|
$ |
0.18 |
|
|
$ |
(0.47 |
) |
|
|
|
|
|
|
|
|
|
Diluted income |
|
$ |
0.18 |
|
|
$ |
(0.47 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic weighted average shares
outstanding |
|
|
14,797,612 |
|
|
|
14,548,804 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted weighted average shares
outstanding |
|
|
15,262,596 |
|
|
|
14,548,804 |
|
|
|
|
|
|
|
|
See the accompanying notes to the financial statements.
F-5
Alliance HealthCard, Inc. & Subsidiaries
Consolidated Statements of Stockholders Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
|
|
|
|
Total |
|
|
|
Common Stock |
|
|
Paid-in |
|
|
Retained |
|
|
Stockholders |
|
|
|
Shares |
|
|
Amount |
|
|
Capital |
|
|
Earnings |
|
|
Equity |
|
Balance at October 1, 2006 |
|
|
10,000,000 |
|
|
$ |
10,000 |
|
|
$ |
1,553,420 |
|
|
$ |
587,450 |
|
|
$ |
2,150,870 |
|
Stock Issued in connection
with merger |
|
|
4,524,263 |
|
|
|
4,524 |
|
|
|
4,972,165 |
|
|
|
|
|
|
|
4,976,689 |
|
Stock issued to consultant
on 2/28/07 |
|
|
20,000 |
|
|
|
20 |
|
|
|
21,980 |
|
|
|
|
|
|
|
22,000 |
|
Stock options exercised on
8/17/07 |
|
|
103,500 |
|
|
|
103 |
|
|
|
75,002 |
|
|
|
|
|
|
|
75,105 |
|
Stock options issued to
consultant on 2/28/07 |
|
|
|
|
|
|
|
|
|
|
55,000 |
|
|
|
|
|
|
|
55,000 |
|
Net income |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,396,652 |
|
|
|
1,396,652 |
|
Dividends |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(8,243,218 |
) |
|
|
(8,243,218 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at September 30, 2007 |
|
|
14,647,763 |
|
|
|
14,647 |
|
|
|
6,677,567 |
|
|
|
(6,259,116 |
) |
|
|
433,098 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock options exercised on
12/28/07 |
|
|
149,000 |
|
|
|
149 |
|
|
|
112,721 |
|
|
|
|
|
|
|
112,870 |
|
Stock options issued to
consultant on 12/31/07 |
|
|
|
|
|
|
|
|
|
|
2,250 |
|
|
|
|
|
|
|
2,250 |
|
Stock options issued to
consultant on 03/31/08 |
|
|
|
|
|
|
|
|
|
|
2,250 |
|
|
|
|
|
|
|
2,250 |
|
Stock options issued to
directors on 5/31/08 |
|
|
|
|
|
|
|
|
|
|
13,970 |
|
|
|
|
|
|
|
13,970 |
|
Net income |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,708,259 |
|
|
|
2,708,259 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at September 30, 2008 |
|
|
14,796,763 |
|
|
$ |
14,796 |
|
|
$ |
6,808,758 |
|
|
$ |
(3,550,857 |
) |
|
$ |
3,272,697 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See the accompanying notes to the financial statements.
F-6
Alliance HealthCard, Inc. & Subsidiaries
Consolidated Statements of Cash Flows
|
|
|
|
|
|
|
|
|
|
|
Year Ended |
|
|
|
September 30, |
|
|
|
2008 |
|
|
2007 |
|
Cash flows from operating activities |
|
|
|
|
|
|
|
|
Net income |
|
$ |
2,708,259 |
|
|
$ |
1,396,652 |
|
Adjustments to reconcile net income to net cash
provided by operating activities: |
|
|
|
|
|
|
|
|
Depreciation and amortization |
|
|
550,764 |
|
|
|
343,621 |
|
Deferred tax (benefit) |
|
|
49,000 |
|
|
|
(134,000 |
) |
Stock issued to consultant |
|
|
|
|
|
|
22,000 |
|
Stock options issued to consultants/directors |
|
|
18,470 |
|
|
|
55,000 |
|
Amortization of loan discount to interest expense |
|
|
160,194 |
|
|
|
107,138 |
|
Change in operating assets and liabilities: |
|
|
|
|
|
|
|
|
Receivables |
|
|
(88,928 |
) |
|
|
(258,333 |
) |
Prepaid expenses |
|
|
2,294 |
|
|
|
216,676 |
|
Other long term assets |
|
|
|
|
|
|
1,200 |
|
Accounts payable |
|
|
(514,602 |
) |
|
|
(850,381 |
) |
Accrued salaries and benefits |
|
|
32,207 |
|
|
|
57,366 |
|
Deferred revenue |
|
|
(67,720 |
) |
|
|
82,584 |
|
Claims and other accrued liabilities |
|
|
471,404 |
|
|
|
1,002,471 |
|
|
|
|
|
|
|
|
Net cash provided by operating activities |
|
|
3,321,342 |
|
|
|
2,041,994 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities |
|
|
|
|
|
|
|
|
Increase in restricted cash |
|
|
(156,935 |
) |
|
|
|
|
Cash received from merger |
|
|
|
|
|
|
1,065,528 |
|
Purchase of equipment |
|
|
(80,479 |
) |
|
|
(80,426 |
) |
Net cash provided by (used by) investing activities |
|
|
(237,414 |
) |
|
|
985,102 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities |
|
|
|
|
|
|
|
|
Payments on notes to related parties |
|
|
(2,308,546 |
) |
|
|
(1,191,167 |
) |
Dividends and distributions paid out |
|
|
|
|
|
|
(1,576,801 |
) |
Stock options exercised |
|
|
112,870 |
|
|
|
75 105 |
|
Repayment of line of credit |
|
|
(149,980 |
) |
|
|
|
|
|
|
|
|
|
|
|
Net cash (used by) financing activities |
|
|
(2,345,656 |
) |
|
|
(2,692,863 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net increase in cash and cash equivalents |
|
|
738,272 |
|
|
|
334,233 |
|
Cash at beginning of period |
|
|
2,274,411 |
|
|
|
1,940,178 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash at end of period |
|
$ |
3,012,683 |
|
|
$ |
2,274,411 |
|
|
|
|
|
|
|
|
See the accompanying notes to the financial statements.
F-7
Alliance HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements
September 30, 2008 and 2007
1. Description of the Business
We were founded in 1998 as a provider of discount medical plans with a focus on creating,
marketing, and distributing membership savings programs primarily to the underserved markets in the
United States. Our original programs offered attractive savings in approximately 16 areas of health
care, including physician visits, hospital stays, chiropractics, vision, dental, pharmacy, hearing,
and patient advocacy, among others. On February 28, 2007, we completed a merger with Benefit
Marketing Solutions, L.L.C., (BMS). BMS is the largest membership plan provider to dealers in the
rental-purchase industry. For financial reporting purpose, BMS was considered the acquiring entity
and historical financial statements prior to March 2007 reflect the activities of BMS as adjusted
for the effect of the recapitalization which occurred at the merger date. Activities of Alliance
HealthCard, Inc. prior to the merger date are no longer reflected in the historical financial
statements as it was considered to be the acquired entity. While we continue to market our
successful health oriented programs, the merger has greatly expanded its business scope to include
programs that offer discount savings on dining and entertainment, automotive, legal and financial,
as well as insurance programs including leased property, involuntary unemployment, accidental death
and dismemberment, and extended service plans. We sell our membership savings programs to
retailers, insurance companies, finance companies, banks, employer groups and association-based
organizations through direct sales or independent marketing consultants, and are now a leading
provider of value added membership plans sold in conjunction with point-of-sale transactions.
Please refer to Note 4 Mergers and Acquisitions for additional information.
BMS was formed in February 2002 and is a national membership program benefits organization that
designs, markets, and distributes membership programs for rental-purchase companies, financial
organizations, employer groups, retailers and association-based organizations. These membership
programs are sold as part of a point-of-sale transaction or through direct marketing efforts. The
point-of-sale membership plans are sold through more than 5,100 locations in the U.S. and Canada.
2. Summary of Significant Accounting Policies
Basis of Presentation
The historical financial statements prior to February 28, 2007 are those of BMS, the accounting
acquirer in the merger. The historical financial statements of BMS have been adjusted for the
effect of the recapitalization which took place at the time of the reverse merger. Activity after
February 28, 2007 includes the consolidated activities of the merged company.
We have adopted the Financial Accounting Standards Board (FASB) Interpretation No. 46R,
Consolidation of Variable Interest Entities (FIN 46R), which establishes accounting guidance
for consolidation of variable interest entities (VIE) that function to support the activities of
the primary beneficiary. The primary beneficiary of a VIE is the entity that absorbs a majority of
the VIEs expected losses, receives a majority of the VIEs expected residual returns, or both, as
a result of ownership, controlling interest, contractual relationship or other business
relationship with a VIE.
The consolidated financial statements include our accounts and those of our wholly owned
subsidiaries BMS Holding Company, Inc. and Alliance HealthCard of Florida, Inc. BMS Insurance
Agency, L.L.C. (the Agency), a wholly owned subsidiary of BMS Holding Company, qualifies for
consolidation as a VIE under the provisions of FIN 46R. The Agency was formed to comply with the
State of Oklahoma regulations for insurance agencies. All intercompany accounts and transactions
have been eliminated in consolidation.
Use of Estimates
The preparation of financial statements in conformity with generally accepted accounting principles
requires management to make estimates and assumptions that affect the amounts reported in the
financial statements and the accompanying notes. Actual results may differ from those estimates and
such differences may be material to the financial statements. Significant estimates include our
claims liability (see Note 12) and the discounted future cash flows used to calculate our goodwill
for impairment.
F-8
Alliance HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
2. Summary of Significant Accounting Policies (continued)
Fair Values of Financial Instruments
The Company has a number of financial instruments, consisting of cash and various receivables and
payables. None of the financial instruments are held for trading purposes. The Company estimates
that the fair value of these instruments at September 30, 2008 and 2007 does not materially differ
from the aggregate carrying values of its financial instruments recorded in the accompanying
balance sheet.
Cash and Cash Equivalents
For the purposes of the balance sheets and statements of cash flows, we consider investments
purchased with maturities of three months or less at the time of purchase to be cash equivalents.
Restricted Cash
Restricted cash consists of short term investments with original maturities of one year or less.
The investments are pledged to secure letters of credit required as collateral for surety bonds
that are required by multiple states to do business as a discount medical provider organization.
Accounts Receivable and Credit Policies
Accounts receivable are recorded net of an allowance for doubtful accounts established to provide
for losses on uncollectible accounts based on managements estimates and historical collection
experience. The allowance for doubtful accounts was $5,632 for the year ended September 30, 2008
and for the year ended September 30, 2007. Bad debt expense totaled $9,070 and $0, respectively for
the years ended September 30, 2008 and 2007. Our customers are located in 48 states and are not
confined to a single geographic area.
Property and Equipment
Property and equipment are stated at cost, less accumulated depreciation, which is computed using
the straight-line method over the estimated useful life of each asset which range from three to
five years. Major additions and enhancements are charged to the property accounts while
replacements, maintenance and repairs which do not improve or extend the life of the respective
assets are expensed as incurred. When property is retired or otherwise disposed, the cost and
related accumulated depreciation are removed from the accounts and the resulting gain or loss, if
any, is recognized. Depreciation totaled $37,460 and $25,113, respectively for the fiscal years
ended September 30, 2008 and 2007.
Goodwill and Intangible Assets
We account for acquisitions of businesses in accordance with Statement of Financial Accounting
Standards (SFAS) No. 141, Business Combinations (SFAS 141). Goodwill in such acquisitions
represents the excess of the cost of a business acquired over the net of the amounts assigned to
assets acquired, including identifiable intangible assets and liabilities assumed. SFAS 141
specifies criteria to be used in determining whether intangible assets acquired in a business
combination must be recognized and reported separately from goodwill. Amounts assigned to goodwill
and other identifiable intangible assets are based on independent appraisals or internal estimates.
Customer lists acquired in an acquisition are capitalized and amortized over the estimated useful
lives of the customer lists. Customer lists deemed acquired in connection with the Alliance
Healthcard, Inc. merger were valued at $2,500,000 and are being amortized over 60 months, the
estimated useful life of the list. Amortization of customer lists totaled $500,004 and $291,669,
respectively for the fiscal years ended September 30, 2008 and September 30, 2007.
We account for recorded goodwill and other intangible assets in accordance with SFAS No. 142,
Goodwill and Other Intangible Assets (SFAS 142). In accordance with SFAS 142, we do not
amortize goodwill. Management evaluates goodwill for impairment for each reporting period. If
considered impaired goodwill will be written down to fair value and a corresponding impairment loss
recognized.
F-9
Alliance HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
2. Summary of Significant Accounting Policies (continued)
We evaluate the recoverability of identifiable intangible assets whenever events or changes in
circumstances indicate that an intangible assets carrying amount may not be recoverable. Such
circumstances could include, but are not limited to: (1) a significant decrease in the market value
of an asset, (2) a significant adverse change in the extent or manner in which an asset is used, or
(3) an accumulation of costs significantly in excess of the amount originally expected for the
acquisition of an asset. We measure the carrying amount of the asset against the estimated
undiscounted future cash flows associated with it. Should the sum of the expected future net cash
flows be less than the carrying value of the asset being evaluated, an impairment loss would be
recognized. The impairment loss would be calculated as the amount by which the carrying value of
the asset exceeds its fair value. The fair value is measured based on quoted market prices, if
available. If quoted market prices are not available, the estimate of fair value is based on
various valuation techniques, including the discounted value of estimated future cash flows. The
evaluation of asset impairment requires us to make assumptions about future cash flows over the
life of the asset being evaluated. These assumptions require significant judgment and actual
results may differ from assumed and estimated amounts. As of September 30, 2008 and 2007 we
recognized no impairment losses related to our intangible assets.
Stock Based Compensation
In accordance with the provisions of SFAS No. 123 (revised 2004) Share-Based Payment (SFAS
123R), we measure stock-based compensation expense as the excess of the market price on date of
grant over the amount of the grant. We grant stock-based compensation at the market price on the
date of grant.
The provisions of SFAS 123R became generally accepted accounting principles on January 1, 2006. As
permitted, prior to the effectiveness of SFAS 123R, we elected to adopt only the disclosure
provisions of SFAS No. 123, Accounting for Stock-based Compensation (See Note 8).
Income Taxes
We adopted SFAS No. 109, Accounting for Income Taxes, that requires, among other things, a
liability approach to calculating deferred income taxes. The objective is to measure a deferred
income tax liability or asset using the tax rates expected to apply to taxable income in the
periods in which the deferred income tax liability or asset is expected to be settled or realized.
Any resulting net deferred income tax assets should be reduced by a valuation allowance sufficient
to reduce such assets to the amount that is more likely than not to be realized.
In 2006, FASB issued FIN 48, which clarifies the application of SFAS 109 by defining a criterion
that an individual income tax position must meet for any part of the benefit of that position to be
recognized in an enterprises financial statements and provides guidance on measurement,
de-recognition, classification, accounting for interest and penalties, accounting in interim
periods, disclosure and transition. In accordance with the transition provisions, we adopted FIN 48
on January 1, 2007.
We have recognized a liability for uncertain tax positions. See Note 9. Income Taxes. We believe
that there are no additional tax positions for which it is reasonably possible, based on current
tax law and policy that the unrecognized tax benefits will significantly increase or decrease over
the next 12 months producing, individually or in the aggregate, a material effect on our results of
operations, financial condition or cash flows.
Revenue Recognition
The Company recognizes revenue in accordance with Securities and Exchange Commission Staff
Accounting Bulletin No. 104, Revenue Recognition, corrected copy, which requires that four basic
criteria must be met before revenue can be recognized: (1) persuasive evidence of an arrangement
exists; (2) delivery has occurred or services have been rendered; (3) the sellers price to the
buyer is fixed or determinable; and, (4) collectibility is reasonably assured.
Membership fees are paid to us on a monthly or annual basis and fees paid in advance are recorded
as deferred revenue and recognized monthly over the applicable membership term.
F-10
Alliance HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
2. Summary of Significant Accounting Policies (continued)
Segment Reporting
SFAS 131, Disclosures about Segments of an Enterprise and Related Information, requires a public
entity to report financial and descriptive information about its reportable operating segments.
Management believes that all operations are evaluated and managed as a single segment consumer
membership plans.
Impairment of Long Lived Assets
The carrying values of long-lived assets are reviewed for impairment whenever events or changes in
circumstances indicate that such carrying values may not be recoverable. We do not perform periodic
assessments of assets for impairment in the absence of such information or indicators. Currently,
management has no indication of any events or circumstances that would significantly impair any of
our long-lived assets. An impairment charge, if any, would be recorded for the excess of the
carrying value of an asset over its estimated fair value, as determined based upon estimates of
future cash flows, third-party valuation or other measures determined appropriate for the
circumstances.
Advertising Expense
Our advertising is non-direct and the costs are expensed as incurred. During the years ended
September 30, 2008 and 2007, we incurred $37,299 and $15,989 of advertising expense, respectively.
Earnings per Share
Basic net earnings (loss) per common share is computed by dividing net earnings (loss) applicable
to common shareholders by the weighted-average number of common shares outstanding during the
period. Diluted net earnings (loss) per common share is determined using the weighted-average
number of common share shares outstanding during the period, adjusted for the dilutive effect of
common stock equivalents, consisting of shares that might be issued upon exercise of common stock
options. In periods where losses are reported, the weighted-average number of common shares
outstanding excludes common stock equivalents, because their inclusion would be anti-dilutive.
Recent Accounting Pronouncements
In September 2006, FASB issued SFAS No. 157, Fair Value Measurements (SFAS 157). SFAS No. 157
defines fair value, establishes a framework for measuring fair value in accordance with generally
accepted accounting principles, and expands disclosures about fair value measurements. This
statement does not require any new fair value measurements; rather, it applies under other
accounting pronouncements that require or permit fair value measurements. The provisions of this
statement are to be applied prospectively as of the beginning of the fiscal year in which this
statement is initially applied, with any transition adjustment recognized as a cumulative-effect
adjustment to the opening balance of retained earnings. The provisions of SFAS 157 are effective
for the fiscal years beginning after November 15, 2007. Therefore, we anticipate adopting this
standard as of October 1, 2008. Management has not determined the effect, if any, the adoption of
this statement will have on our financial condition or results of operations.
In September 2006, FASB issued SFAS No. 158, Employers Accounting for Defined Benefit Pension and
Other Postretirement Plans (SFAS No. 158), an amendment of FASB Nos. 87, 88, 106 and 132(R). SFAS
No. 158 requires (a) recognition of the funded status (measured as the difference between the fair
value of the plan assets and the benefit obligation) of a benefit plan as an asset or liability in
the employers statement of financial position, (b) measurement of the funded status as of the
employers fiscal year-end with limited exceptions, and (c) recognition of changes in the funded
status in the year in which the changes occur through comprehensive income. The requirement to
recognize the funded status of a benefit plan and the disclosure requirements are effective as of
the end of the fiscal year ending after December 15, 2006. The requirement to measure the plan
assets and benefit obligations as of the date of the employers fiscal year-end statement of
financial position is effective for fiscal years ending after December 15, 2008. This SFAS 158 has
no current applicability to our financial statements.
F-11
Alliance HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
2. Summary of Significant Accounting Policies (continued)
In February 2007, FASB issued SFAS No. 159, The Fair Value Option for Financial Assets and
Financial Liabilities(SFAS 159). This statement permits companies to choose to measure many
financial assets and liabilities at fair value. Unrealized gains and losses on items for which the
fair value option has been elected are reported in earnings. SFAS 159 is effective for fiscal years
beginning after November 15, 2007. The Company is currently assessing the impact of SFAS 159 on its
consolidated financial statements.
In December 2007, the FASB issued SFAS No. 141 (revised 2007), Business Combinations, which
replaces SFAS No. 141. SFAS No. 141R establishes principles and requirements for how an acquirer
recognizes and measures in its financial statements the identifiable assets acquired, the
liabilities assumed, any non controlling interest in the acquiree and the goodwill acquired. The
Statement also establishes disclosure requirements which will enable users to evaluate the nature
and financial effects of the business combination. SFAS No. 141R is effective as of the beginning
of an entitys fiscal year that begins after December 15, 2008 (our Fiscal 2010). SFAS No. 141R
will have an effect on the Companys consolidated financial statements for any business
combinations the Company may enter into after the effective date.
In December 2007, the FASB issued SFAS No. 160, Non-controlling Interests in Consolidated Financial
Statements an amendment of Accounting Research Bulletin No. 51, which establishes accounting and
reporting standards for ownership interests in subsidiaries held by parties other than the parent,
the amount of consolidated net income attributable to the parent and to the non-controlling
interest, changes in a parents ownership interest and the valuation of retained non-controlling
equity investments when a subsidiary is deconsolidated. The Statement also establishes reporting
requirements that provide sufficient disclosures that clearly identify and distinguish between the
interests of the parent and the interests of the non-controlling owners. SFAS No.160 is effective
as of the beginning of an entitys fiscal year that begins after December 15, 2008 (our Fiscal
2010). The Company does not believe SFAS No. 160 will have an effect on the Companys consolidated
financial statements.
In March 2008, the FASB issued SFAS No. 161, Disclosures about Derivative Instruments and Hedging
Activities (SFAS 161) as an amendment to SFAS No. 133, Accounting for Derivative Instruments and
Hedging Activities. SFAS 161 requires that objectives for using derivative instruments be
disclosed in terms of underlying risk and accounting designation. SFAS 161 is effective for
financial statements issued for fiscal years beginning after November 15, 2008. The adoption of
this statement is not expected to have a material effect on the Companys consolidated financial
statements.
In May 2008, the FASB issued SFAS 162 The Hierarchy of Generally Accepted Accounting Principles
(SFAS 162). SFAS 162 identifies the sources of accounting generally accepted accounting
principles in the United States. SFAS 162 is effective sixty days following the SECs approval of
PCAOB amendments to AU Section 411, The Meaning of Present fairly in conformity with generally
accepted accounting principles. The adoption of this statement is not expected to have a material
effect on the Companys consolidated financial statements.
In May 2008, the FASB issued SFAS No. 163, Accounting for Financial Guarantee Insurance Contracts,
an interpretation of SFAS No. 60. The scope of SFAS 163 is limited to financial guarantee
insurance (and reinsurance) contracts, as described in this Statement, issued by enterprises
included within the scope of SFAS 60. Accordingly, SFAS 163 does not apply to financial guarantee
contracts issued by enterprises excluded from the scope of SFAS 60 or to some insurance contracts
that seem similar to financial guarantee insurance contracts issued by insurance enterprises (such
as mortgage guaranty insurance or credit insurance on trade receivables). SFAS 163 also does not
apply to financial guarantee insurance contracts that are derivative instruments included within
the scope of SFAS No. 133, Accounting for Derivative Instruments and Hedging Activities. The
adoption of this statement is not expected to have a material effect on the Companys consolidated
financial statements.
F-12
Alliance HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
3. Supplemental Cash Flows Information
Cash payments for interest and income taxes for the years ended at September 30, were as follows:
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
2007 |
Interest |
|
$ |
53,020 |
|
|
$ |
41,262 |
|
Income taxes paid |
|
$ |
1,704,883 |
|
|
$ |
528,677 |
|
Other non cash transactions are as follows: |
|
|
|
|
|
|
|
|
Issuance of 4,524,263 shares of common stock for the
acquisition of Alliance HealthCard, Inc., in connection with
the reverse merger |
|
$ |
|
|
|
$ |
4,976,689 |
|
|
|
|
|
|
|
|
|
|
Issuance of stock and options to consultants and directors |
|
$ |
18,470 |
|
|
$ |
77,000 |
|
Notes, net of discount issued as dividends to BMS shareholders |
|
$ |
|
|
|
$ |
6,666,417 |
|
4. Mergers and Acquisitions
On February 28, 2007, Alliance HealthCard, Inc. (Alliance) consummated a merger (the Merger) by
and among Alliance, AHCBenefit Marketing Acquisition, Inc., an Oklahoma corporation and a
wholly-owned subsidiary of Alliance (Merger Sub); BMS Holding Company, Inc., an Oklahoma
corporation (BMS). As a result of the Merger, BMS merged with and into Merger Sub, with Merger
Sub continuing as the surviving entity as a wholly-owned subsidiary of Alliance. Although in form
Alliance acquired BMS, as a result of the Merger the outstanding shares of BMS common stock were
converted into 10,000,000 shares of common stock of Alliance representing approximately 69% of the
total number of shares of common stock of Alliance outstanding following the Merger. Three original
promissory notes (the Notes and each a Note) were made and issued by the Company to three
former BMS shareholders in the aggregate amount of $7,147,000. Commencing on March 1, 2007, the
Notes bear interest on the unpaid principal balance at one percent (1%) per annum (the Contract
Rate) with such interest payable quarterly. The principal and interest on the Original Notes is
required to be paid in twelve equal quarterly installments, commencing on May 15, 2007, and payable
on each August 14, November 14, February 14, and May 15 thereafter through February 14, 2010. On
January 10, 2008, pursuant to an agreement among us and three former BMS shareholders. The Original
Notes were cancelled, and we issued new promissory notes in the principal amount of totaling
$5,113,177 (the New Notes). The principal amounts of the New Notes are equal to the outstanding
balances respectively owed to the holders of the Original Notes at the time the Original Notes were
cancelled less a reduction of $247,073 for the CAPIC requirement. As a result of the settlement
agreement completed on March 13, 2008 with CAPIC, BMSIA received proceeds of $34,820 which resulted
in a pro rata increase in the notes by that same amount. The offset of $212,793 for the net note
adjustments was offset to goodwill. See Note 5. The cancellation of the Original Notes and the
issuance of the New Notes were approved by the disinterested members of our board of directors.
These revised notes modified the terms to defer the measurement periods by one year to the fiscal
years ending September 30, 2008, September 30, 2009 and converted to quarterly review thereafter.
For financial reporting purposes, BMS was considered the acquiring entity and historical financial
statements prior to March of 2007 reflect the activities of BMS as adjusted for the effect of the
recapitalization which occurred at the merger date. Activities of Alliance HealthCard, Inc. prior
to the merger date are no longer reflected in the historical financial statements as it was
considered to be the acquired entity. These notes, net of the discount related to the below market
interest rates were treated as dividend distributions to the BMS shareholders. A recap of dividends
and distributions made to the BMS shareholders is as follows.
F-13
Alliance HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
4. Mergers and Acquisitions (continued)
|
|
|
|
|
|
|
|
|
|
|
Fiscal Year Ended |
|
|
|
September 30, |
|
|
|
2008 |
|
|
2007 |
|
Issuance of notes, net of imputed interest |
|
$ |
|
|
|
$ |
6,666,417 |
|
Cash distributions made |
|
|
|
|
|
|
1,576,801 |
|
|
|
|
|
|
|
|
|
|
$ |
|
|
|
$ |
8,243,218 |
|
|
|
|
|
|
|
|
The aggregate purchase price of the former Alliance HealthCard, Inc. was determined to be
$4,976,689 which was determined based on the fair market value of the 4,525,263 shares it had
outstanding at the date of the merger.
The following table presents the allocation of the acquisition costs, to the assets acquired and
liabilities assumed, based on fair market values:
|
|
|
|
|
Current assets |
|
$ |
1,860,252 |
|
Property and equipment |
|
|
3,624 |
|
Other assets |
|
|
39,637 |
|
Customer lists |
|
|
2,500,000 |
|
Goodwill |
|
|
2,291,945 |
|
|
|
|
|
|
|
|
|
|
Total assets acquired |
|
|
6,695,458 |
|
|
|
|
|
|
|
|
|
|
Current liabilities assumed |
|
|
1,718,769 |
|
|
|
|
|
|
|
|
|
|
Total liabilities assumed |
|
|
1,718,769 |
|
|
|
|
|
|
|
|
|
|
Net assets acquired |
|
$ |
4,976,689 |
|
|
|
|
|
In December, 2005, BMS acquired substantially all of the net assets of Foresight, Inc.,
(Foresight). The purchase price consisted of a cash payment of $475,000. The acquisition of
Foresight expanded the Companys membership program.
The allocation of the purchase price for this acquisition, on the date of the acquisition, is as
follows:
|
|
|
|
|
Goodwill |
|
$ |
455,000 |
|
Non-competition agreement |
|
|
10,000 |
|
Software |
|
|
10,000 |
|
|
|
|
|
|
|
|
|
|
|
|
$ |
475,000 |
|
|
|
|
|
The software and the non-compete agreement are being amortized over three years. Amortization
expense was $6,667 and $6,667, respectively for the years ended September 30, 2008 and 2007.
Under SFAS 142 we are required to test goodwill for impairment on an annual basis. Using the
discounted cash flow method, we determined that the goodwill was not impaired on September 30, 2008
or September 30, 2007.
F-14
Alliance HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
5. Notes Payable to Related Parties
In connection with the Merger, three promissory notes were issued to former BMS shareholders in the
aggregate amount of $7,147,000. The notes are dated March 1, 2007 and bear interest at 1% per
annum. The carrying amount of these notes was discounted to $6,666,447 with an effective interest
rate of 7% to adjust for the below market interest rate carried by the notes.
Principal and accrued interest shall be due and payable in 12 consecutive quarterly installments
commencing on May 15, 2007 and on each August 14, November 14, February 14 and May 15 of each year
thereafter and in full on February 14, 2010, if not previously paid. Any payment of principal and
interest shall be applied first to the payment of interest due on the outstanding principal sum and
the balance thereof shall be applied in reduction of principal sum. Notwithstanding the foregoing
and any other provision in the notes, in the event that the
consolidated earnings before interest, income taxes, depreciation and amortization of the Company, determined in
accordance with generally accepted accounting principles for each of the fiscal years ending on
September 30, 2007, 2008 and 2009 shall be less (Actual EBITDA) than Four Million Two Hundred
Dollars ($4,200,000) (the Targeted EBITDA), then the principal amount of these notes are be
reduced by an amount equal to the percentage by which the Actual EBITDA for each such period falls
short of the Targeted EBITDA and the adjusted principal balance of these notes will then be
amortized over the remaining term of the Note in accordance with the foregoing payment terms.
In addition to the foregoing, after the consummation of the transactions contemplated by the Merger
Agreement, the principal amount of these notes shall be reduced dollar for dollar by any loss
incurred by BMS Insurance Agency, L.L.C., a BMS Holdings affiliate, resulting from contingent
commissions being held by CAPIC pending receipt of a non-resident license from the Puerto Rico
Department of Insurance. Any net proceeds of BMS Insurance Agency, L.L.C. attributable to
pre-closing periods shall inure on a pro-rata basis to the benefit of the note holders. After any
decrease or increase in the principal amount of these notes related to post-closing payments to or
from CAPIC, the adjusted principal balance of these notes will be amortized over the remaining term
of the notes in accordance with the foregoing payment terms. To comply with this provision, the
principal on these notes was reduced by $247,073 as of September 30, 2007. The notes further
provide that recovery of any net proceeds of BMS Insurance Agency, L.L.C. attributable to
pre-closing periods will inure on a pro-rata basis to the benefit of the note holders. As a result
of the settlement agreement completed on March 13, 2008 with CAPIC (See Note 15 Restated
Quarterly Financial Statements), BMSIA received proceeds of $34,280 which resulted in a pro rata
increase in the notes by that same amount. For financial reporting purposes, the issuance of these
notes in 2007 was treated as a dividend to the former BMS shareholders.
Pursuant to discussions between the note holders and our disinterested directors, on January 10,
2008 the original notes were cancelled and replaced by new notes reflecting the unpaid principal
balance but modifying the measurement periods to be deferred by one year to the fiscal years ending
September 30, 2008, September 30, 2009 and converted to quarterly reviews thereafter. Management
felt that these deferred periods more appropriately tie the payment obligations to our performance
because the initial period did not reflect an entire year and also contained several merger related
one-time expenses. Several additional provisions were added to allow for adjustments if necessary.
The new notes were issued in the aggregate amount of $5,113,177 representing the unpaid principal
balances on the original notes on that date before the above described note adjustments.
Principal and interest payments made on these notes (net of discount) were $2,358,265 and
$1,222,382, respectively for the years ended September 30, 2008 and 2007. Principal payments due on
these notes for the next two years are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Principal |
|
Discount |
|
Net |
Fiscal Year Ended September 30 |
|
Payments |
|
Applied |
|
Amount Due |
2009 |
|
|
2,431,352 |
|
|
|
141,689 |
|
|
|
2,289,663 |
|
2010 |
|
|
1,013,910 |
|
|
|
82,329 |
|
|
|
931,581 |
|
F-15
Alliance HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
6. Line of Credit
BMS secured a line of credit with Republic Bank & Trust for $150,000, secured by the personal
guarantee of Brett Wimberley, our President, with interest of the Wall Street Journal prime plus
1%, which was 8.75% at September 30, 2007, and a maturity date of December 19, 2007. The principal
balance of $149,980 was paid in full on December 19, 2007. The credit agreement was increased to
$500,000 and was renewed on January 25, 2008 with a new maturity date of December 19, 2008 and
bears an interest rate of the Wall Street Journal prime rate per annum to be adjusted daily. The
renewal of the line of credit is currently under negotiation.
The unpaid principal balance on the line of credit was $0 and $149,980 at September 30, 2008 and
2007, respectively. The line of credit is currently being renewed.
7. Furniture and Equipment
Furniture and equipment consists of the following at September 30, 2008 and 2007:
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2007 |
|
Furniture, fixtures and equipment |
|
$ |
368,155 |
|
|
$ |
299,087 |
|
Website and video training |
|
|
33,595 |
|
|
|
33,595 |
|
Software |
|
|
83,099 |
|
|
|
71,691 |
|
Leasehold improvements |
|
|
12,686 |
|
|
|
12,686 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
497,535 |
|
|
|
417,059 |
|
Less: accumulated depreciation and amortization |
|
|
(332,515 |
) |
|
|
(285,090 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
165,020 |
|
|
$ |
131,969 |
|
|
|
|
|
|
|
|
8. Stock Based Compensation
In conjunction with certain employment and consulting agreements, we granted stock options relating
to 82,500 shares and 122,500 shares of Common Stock for the years ended September 30, 2008 and
2007, respectively.
Effective January 1, 2006, we adopted SFAS No. 123 (revised 2004), Share-based payment (SFAS
123R). The provisions of SFAS 123R requires companies to expense in their financial statements the
estimated fair value of awarded stock options after the effective date. The Company adopted this
statement using the modified prospective application. For options granted and vested prior to the
effective date, the Company continues to follow the intrinsic value method set forth in Accounting
Principles Board (APB) Opinion No. 25, Accounting for Stock Issued to Employees (APB No. 25),
and disclose the pro forma effects on net income had the fair value of these options been expensed.
The fair value of each option award is estimated on the date of grant using the Black-Scholes
option-pricing model using the assumptions noted in the following table. Expected volatilities are
base on historical volatilities of our stock. We use historical data to estimate expected term and
option forfeitures within the valuation model. The risk-free rate for periods within the
contractual life of the option is based on the U.S. Treasury yield curve in effect at the time of
grant. We do not provide for any expected dividends or discount for post-vesting restrictions in
the model.
|
|
|
|
|
Expected volatility |
|
|
84 |
% |
Dividend yield |
|
|
0 |
% |
Risk free interest rate |
|
|
1.0 |
% |
Expected lives |
|
|
10 Years |
|
F-16
Alliance HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
8. Stock Based Compensation (continued)
Information regarding the options is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
Average |
|
|
|
|
|
|
Exercise |
|
Options |
|
Options |
|
|
Price |
|
Outstanding |
|
Exercisable |
Assumed in connection with reverse merger |
|
|
|
|
|
|
1,766,896 |
|
|
|
1,758,900 |
|
Granted |
|
$ |
1.01 |
|
|
|
122,500 |
|
|
|
90,000 |
|
Forfeited |
|
$ |
0.88 |
|
|
|
(84,500 |
) |
|
|
(84,167 |
) |
Exercised |
|
$ |
0.73 |
|
|
|
(103,500 |
) |
|
|
(103,500 |
) |
Became exercisable |
|
$ |
1.04 |
|
|
|
|
|
|
|
7,663 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at September 30, 2007 |
|
|
|
|
|
|
1,701,396 |
|
|
|
1,668,896 |
|
Granted |
|
$ |
1.61 |
|
|
|
82,500 |
|
|
|
62,500 |
|
Forfeited |
|
$ |
1.37 |
|
|
|
(115,999 |
) |
|
|
(103,499 |
) |
Exercised |
|
$ |
0.76 |
|
|
|
(149,000 |
) |
|
|
(149,000 |
) |
Became exercisable |
|
$ |
0.93 |
|
|
|
|
|
|
|
10,833 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, September 30, 2008 |
|
|
|
|
|
|
1,518,897 |
|
|
|
1,489,730 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
There were 82,500 options granted for the year ended September 30, 2008 and 122,500 options granted
for the year ended September 30, 2007. We had 1,518,897 options outstanding on September 30, 2008.
The exercise price on these options ranged from $0.23 to $2.00 with an average weighted remaining
contractual life of 4.4 years with an average exercise price of $0.93. The following table
summarizes information about stock options outstanding at September 30, 2008.
|
|
|
|
|
Range of exercise price |
|
$ |
0.23-$2.00 |
|
Number outstanding |
|
|
1,518,897 |
|
Weighted average remaining contractual life |
|
|
4.4 Years |
|
Weighted average exercise price |
|
$ |
0.93 |
|
During the year ending September 30, 2008 and 2007, options were exercised for the purchase of
149,000 common stock shares for $112,870 and 108,500 options for $75,105, respectively.
F-17
Alliance HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
9. Income Taxes
Components of income tax expense for the fiscal years ended September 30, 2008 and 2007 are as
follows:
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2007 |
|
Current income tax expense |
|
|
|
|
|
|
|
|
Federal |
|
$ |
1,890,000 |
|
|
$ |
513,000 |
|
State |
|
|
250,000 |
|
|
|
76,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current income tax expense |
|
|
2,140,000 |
|
|
|
589,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred income tax (benefit) |
|
|
|
|
|
|
|
|
Federal |
|
|
43,000 |
|
|
|
(117,000 |
) |
State |
|
|
6,000 |
|
|
|
(17,000 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total deferred income tax (benefit) |
|
|
49,000 |
|
|
|
(134,000 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income tax expense |
|
$ |
2,189,000 |
|
|
$ |
455,000 |
|
|
|
|
|
|
|
|
During the fiscal year ended September 30, 2006 and for the five months ended February 28, 2007,
the taxable income and expenses of BMS (the reporting entity for financial reporting purposes)
flowed though and were reported at the shareholder level.
A reconciliation of the provision for income taxes with amounts determined by applying the
statutory US federal income tax rate to income before taxes is as follows:
|
|
|
|
|
|
|
|
|
|
|
Fiscal Year Ended September 30, |
|
|
|
2008 |
|
|
2007 |
|
Computed tax at federal statutory rate of 34% |
|
$ |
1,667,000 |
|
|
$ |
629,000 |
|
State income taxes |
|
|
221,000 |
|
|
|
111,000 |
|
Less tax effect of earnings reported at the shareholder level |
|
|
|
|
|
|
(300,000 |
) |
Tax effect of non deductible amortization of intangible assets |
|
|
193,000 |
|
|
|
114,000 |
|
Tax effect of CAPIC settlement See Note 5 |
|
|
166,000 |
|
|
|
|
|
Tax effect of utilization of NOL |
|
|
(79,000 |
) |
|
|
(81,000 |
) |
Change in valuation allowance |
|
|
(100,000 |
) |
|
|
|
|
Non-deductible expenses |
|
|
18,000 |
|
|
|
(47,000 |
) |
Other |
|
|
103,000 |
|
|
|
29,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision for income taxes |
|
$ |
2,189,000 |
|
|
$ |
455,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effective tax rate |
|
|
45 |
% |
|
|
23 |
% |
F-18
Alliance HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
9. Income Taxes (continued)
Deferred income taxes reflect the net tax effects of temporary differences between the carrying
amounts of assets and liabilities for financial reporting purposes and the amounts used for income
tax reporting purposes. Significant components of our deferred tax assets and liabilities as of
September 30, 2008 and 2007 are as follows:
Deferred income tax assets
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2007 |
|
Tax effect of vacation accruals not deductible for income tax reporting purposes |
|
$ |
18,000 |
|
|
$ |
18,000 |
|
Tax effect of book depreciation in excess of tax depreciation |
|
|
119,000 |
|
|
|
142,000 |
|
Tax effect of revenue deferred for financial reporting purposes |
|
|
325,000 |
|
|
|
356,000 |
|
Tax effect of NOL carryover |
|
|
582,000 |
|
|
|
682,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total deferred tax assets |
|
|
1,044,000 |
|
|
|
1,193,000 |
|
Less Valuation allowance |
|
|
(700,000 |
) |
|
|
(800,000 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Deferred income tax asset at September 30, 2008 |
|
$ |
344,000 |
|
|
$ |
393,000 |
|
|
|
|
|
|
|
|
In connection with the acquisition of Alliance Healthcard, Inc., we allocated $259,000 of the
purchase price to deferred income tax assets.
As of September 30, 2008, we had a net operating loss carry-forward of approximately $1,511,000
which will expire as follows:
|
|
|
|
|
|
|
|
|
Fiscal year ended September 30, |
|
|
2021 |
|
$ |
608,000 |
|
|
|
|
|
2023 |
|
|
903,000 |
|
|
|
|
|
As discussed in Note 2, on January 1, 2007, we adopted a new accounting standard, FIN 48,
Accounting for Uncertainty in Income Taxes. For the year ended September 30, 2008, for income tax
reporting purposes, the Company will not recognize income for which it believes that income is
properly attributable to other parties. See note 15.
The balance of unrecognized tax benefits, the amount of related interest and penalties we have
provided and what we believe to be the range of reasonably possible changes in the next 12 months
were:
|
|
|
|
|
Unrecognized tax benefits |
|
$ |
141,000 |
|
Portion that, if recognized, would reduce tax expense and effective tax rate |
|
|
141,000 |
|
Accrued interest and penalties on unrecognized tax benefits |
|
|
25,000 |
|
Portion that, if recognized, would reduce tax expense and effective tax rate |
|
|
25,000 |
|
A reconciliation of the beginning and ending amounts of unrecognized tax benefits is as follows:
|
|
|
|
|
|
|
2008 |
|
Balance at September 30, 2007 |
|
$ |
|
|
Additions for tax positions of the current year |
|
|
166,000 |
|
|
|
|
|
|
|
|
|
|
Balance at September 30, 2008 |
|
$ |
166,000 |
|
|
|
|
|
During the year ended September 30, 2008, the company recognized interest and penalties of
approximately $25,000. These amounts have been accounted for as income tax expense.
F-19
Alliance HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
10. Earnings Per Share (continued)
With few exceptions, the Company is no longer subject to US Federal, State or local income tax
examinations by tax authorities for years prior to 2005.
Basic earnings per common share for the years ended September 30, 2008 and 2007 were calculated by
dividing the net income available to common shareholders by the weighted-average common shares
outstanding during the period. Diluted earnings per share for the years ended September 30, 2008 and 2007 were calculated
by dividing net income available to common shareholders by the weighted average common shares
outstanding during the period plus the dilutive potential common shares, which were determined as
follows:
|
|
|
|
|
|
|
|
|
|
|
Fiscal Year Ended September 30, |
|
|
2008 |
|
2007 |
Weighted-average common shares |
|
|
14,797,612 |
|
|
|
14,548,804 |
|
Effect of dilutive securities
|
|
|
|
|
|
|
|
|
Options to purchase common stock |
|
|
464,984 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted potential common shares |
|
|
15,262,596 |
|
|
|
14,548,804 |
|
|
|
|
|
|
|
|
|
|
The effect of options outstanding at September 30, 2007 was anti-dilutive because we had a net loss
available to common shareholders. Therefore there were no differences in basic and diluted shares
outstanding for the fiscal year ended September 30, 2007.
Dilutive potential common shares are calculated in accordance with the treasury stock method, which
assumes that proceeds from the exercise of all options are used to repurchase common stock at
market value. The amount of shares remaining after the proceeds are exhausted, represent the
potential dilutive effect of the securities.
11. Related Party Transactions
We lease the space for our offices in Norcross, Georgia under a lease that expires in October 2009.
The lease is in the name of Alliance HealthCard, Inc. and NovaNet, Inc., a company partially owned
by Robert D. Garces, one of our executive officers and a Director. The total space consists of
approximately 8,712 square feet and NovaNet leases approximately 3,902 square feet of that space.
The lease was executed on May 1, 2004, amended on December 16, 2004 with a revised termination date
of October 31, 2009.
BMS leases the space for its office in Norman, Oklahoma under a lease that expires July 31, 2009.
The total space consists of approximately 5,973 square feet. The lease agreement is with Southwest
Brokers, Inc., a company owned by Brett Wimberley, one of our Director and executive officers. The
lease was executed on May 1, 2005, amended on August 1, 2006 and April 30, 2008.
Our rent expense associated with related party transactions was approximately $167,525 and $127,321
for the years ending September 30, 2008 and 2007, respectively.
Our share of the minimum future rental payments due under the non-cancelable operating lease
arrangements is as follows:
|
|
|
|
|
Year Ending September 30, |
|
Amount |
|
2009 |
|
$ |
174,793 |
|
Thereafter |
|
|
8,203 |
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
182,996 |
|
|
|
|
|
F-20
Alliance HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
12. Claims Liability
We have obligations for claims incurred but not reported (IBNR) as of September 30, 2008 and
2007. These liabilities are estimated using current claims payment information. It is our policy
to reserve the necessary funds in order to pay claim obligations as they become due in the future.
As of September 30, 2008 and 2007, we recorded an estimated IBNR of $462,596 and $260,300,
respectively.
13. Concentration of Credit Risk
We use financial institutions in which we maintain cash balances that at times may exceed federally
insured limits. We have not experienced any losses in those accounts and management believes it is
not exposed to any significant credit risk on cash. Our uninsured cash balance totaled $2,659,126
and $2,135,379 at September 30, 2008 and 2007, respectively.
Concentration of credit risk with respect to accounts receivable and revenue is due to a high
volume of business conducted with one customer. Approximately 43% and 53% of total accounts
receivable was due from one customer as of September 30, 2008 and 2007, respectively. Approximately
55% and 62% of total sales was generated from the same customer for the years ending September 30,
2008 and 2007, respectively.
Approximately 47% and 87% of the total accounts payable and trade-related accrued liabilities
relate to three parties for the years ended September 30, 2008 and 2007, respectively.
14. Defined Contribution Plan
We implemented a 401(k) plan on August 1, 2004. Eligible employees contribute to the 401(k) Plan.
Employees become eligible after attaining age 18. The employee may become a participant of the
401(k) plan on the first day of the month following the completion of the eligibility requirements.
Effective August 1, 2007, we implemented a Non-elective Contribution to the Plan of 50% up to 6% of
the employees contribution. The Non-elective Contributions are allocated to all employees eligible
to participate in the Plan. The Non-elective Contributions are subject to a vesting schedule that
takes five years of service to become 100% vested. All accounts are participant-directed accounts.
We made Non-elective Contributions of $38,343 and $9,627 for the years ended September 30, 2008 and
2007, respectively.
15. Restated Quarterly Financial Statements for March 31, 2008 and June 30, 2008
Financial statements for the six months ended March 31, 2008 were improperly reported as a result
of not applying the correct accounting principles in accounting for the settlement agreement
completed on March 13, 2008 with the Caribbean American Property Insurance Company (CAPIC). BMSIA
and CAPIC were involved in a dispute involving the amount of contingent commissions due to BMSIA
for the period of time beginning January 1, 2006 through June 30, 2007. As a result of the
settlement, BMSIA received proceeds of $400,000. Pursuant to the terms of the merger completed on
February 28, 2007, net proceeds of the settlement for BMSIA attributable to the pre-merger periods
totaling $365,720 should have been paid directly to the former shareholders of BMS Holding Company,
Inc. with the remaining $34,280 payable to the Company.
The amount of $365,720 was initially recorded as other income with the payment of funds to the
former shareholders classified as a distribution. Instead, these monies did not belong to us and
should not have been reported by us.
The settlement agreement has been properly accounted for in the audited financial statements for
our fiscal year ended September 30, 2008. The restated condensed statements of operations for the
six and nine month period ended March 31, 2008 and June 30, 2008 are presented below.
F-21
Alliance
HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
15. Restated Quarterly Financial Statements for March 31, 2008 and June 30, 2008
(continued)
A. Restated Condensed Balance Sheets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As Previously |
|
|
|
Restated |
|
|
Reported |
|
|
|
March 31, 2008 |
|
|
March 31, 2008 |
|
|
|
(Unaudited) |
|
|
(Unaudited) |
|
Current assets |
|
$ |
5,271,479 |
|
|
$ |
5,271,479 |
|
Other assets |
|
|
609,774 |
|
|
|
609,774 |
|
Goodwill |
|
|
2,746,945 |
|
|
|
2,746,945 |
|
Intangibles, net |
|
|
1,960,551 |
|
|
|
1,960,551 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
$ |
10,588,749 |
|
|
$ |
10,588,749 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities |
|
|
|
|
|
|
|
|
Current liabilities |
|
$ |
6,557,087 |
|
|
$ |
6,191,367 |
|
Dividends payable |
|
|
|
|
|
|
365,720 |
|
Long-term debt, related party |
|
|
2,116,438 |
|
|
|
2,116,438 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities |
|
|
8,673,525 |
|
|
|
8,673,525 |
|
Total stockholders equity |
|
|
1,915,224 |
|
|
|
1,915,224 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity |
|
$ |
10,588,749 |
|
|
$ |
10,588,749 |
|
|
|
|
|
|
|
|
B. Restated Condensed Statements of Operations For the Three and Six Months Ended:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Six Months Ended |
|
|
|
March 31, 2008 |
|
|
March 31, 2008 |
|
|
|
|
|
|
|
As Previously |
|
|
|
|
|
|
As Previously |
|
|
|
Restated |
|
|
Reported |
|
|
Restated |
|
|
Reported |
|
|
|
(Unaudited) |
|
|
(Unaudited) |
|
|
(Unaudited) |
|
|
(Unaudited) |
|
Net revenues |
|
$ |
5,291,812 |
|
|
$ |
5,291,812 |
|
|
$ |
10,055,445 |
|
|
$ |
10,055,445 |
|
Gross profit |
|
|
2,356,950 |
|
|
|
2,356,950 |
|
|
|
4,631,036 |
|
|
|
4,631,036 |
|
Operating income |
|
|
1,071,100 |
|
|
|
1,071,100 |
|
|
|
2,156,383 |
|
|
|
2,156,383 |
|
Other income (expense) |
|
|
119,230 |
|
|
|
484,950 |
|
|
|
76,593 |
|
|
|
442,313 |
|
Pre-tax income |
|
|
1,190,330 |
|
|
|
1,556,050 |
|
|
|
2,232,976 |
|
|
|
2,598,696 |
|
Tax provision |
|
|
461,471 |
|
|
|
461,471 |
|
|
|
868,221 |
|
|
|
868,221 |
|
Net income prior to dividends |
|
|
728,859 |
|
|
|
1,094,579 |
|
|
|
1,364,755 |
|
|
|
1,730,475 |
|
Dividends and distributions |
|
|
|
|
|
|
365,720 |
|
|
|
|
|
|
|
365,720 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) available for common stock |
|
$ |
728,859 |
|
|
$ |
728,859 |
|
|
$ |
1,364,755 |
|
|
$ |
1,364,755 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted net income (loss) per share |
|
$ |
0.05 |
|
|
$ |
0.05 |
|
|
$ |
0.09 |
|
|
$ |
0.09 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-22
Alliance
HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
15. Restated Quarterly Financial Statements for March 31, 2008 and June 30, 2008
(continued)
C. Restated Condensed Statements of Operations For the Nine Months Ended:
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended |
|
|
|
June 30, 2008 |
|
|
|
|
|
|
|
As Previously |
|
|
|
Restated |
|
|
Reported |
|
|
|
(Unaudited) |
|
|
(Unaudited) |
|
Net revenues |
|
$ |
15,421,698 |
|
|
$ |
15,421,698 |
|
Gross profit |
|
|
7,125,588 |
|
|
|
7,125,588 |
|
Operating income |
|
|
3,450,164 |
|
|
|
3,450,164 |
|
Other income (expense) |
|
|
41,337 |
|
|
|
407,057 |
|
Pre-tax income |
|
|
3,491,501 |
|
|
|
3,857,221 |
|
Tax provision |
|
|
1,596,493 |
|
|
|
1,596,493 |
|
Net income prior to dividends |
|
|
1,895,008 |
|
|
|
2,260,728 |
|
Dividends and distributions |
|
|
|
|
|
|
365,720 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) available for common stock |
|
$ |
1,895,008 |
|
|
$ |
1,895,008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted net income (loss) per share |
|
$ |
0.12 |
|
|
$ |
0.12 |
|
|
|
|
|
|
|
|
16. Selected Quarterly Financial Data (Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First |
|
Second |
|
Third |
|
Fourth |
|
|
Quarter |
|
Quarter |
|
Quarter |
|
Quarter |
|
|
|
|
|
|
(Restated) |
|
(Restated) |
|
|
|
|
2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue |
|
$ |
4,763,633 |
|
|
$ |
5,291,812 |
|
|
$ |
5,366,253 |
|
|
$ |
5,491,911 |
|
Gross profit |
|
$ |
2,489,547 |
|
|
$ |
2,356,950 |
|
|
$ |
2,871,701 |
|
|
$ |
2,674,569 |
|
Net income prior to dividends |
|
$ |
635,896 |
|
|
$ |
728,859 |
|
|
$ |
530,253 |
|
|
$ |
813,251 |
|
Dividends and distributions |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
Net income available for common shareholders |
|
$ |
635,896 |
|
|
$ |
728,859 |
|
|
$ |
530,253 |
|
|
$ |
813,251 |
|
Diluted net income per share |
|
$ |
0.04 |
|
|
$ |
0.05 |
|
|
$ |
0.04 |
|
|
$ |
0.05 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue |
|
$ |
3,655,450 |
|
|
$ |
4,137,161 |
|
|
$ |
4,762,984 |
|
|
$ |
5,053,152 |
|
Gross profit |
|
$ |
1,022,018 |
|
|
$ |
1,339,914 |
|
|
$ |
2,232,017 |
|
|
$ |
1,473,083 |
|
Net income prior to dividends |
|
$ |
214,532 |
|
|
$ |
723,959 |
|
|
$ |
705,359 |
|
|
$ |
(247,198 |
) |
Dividends and distributions |
|
$ |
1,576,801 |
|
|
$ |
6,666,417 |
|
|
$ |
|
|
|
$ |
|
|
Net income (loss) available for common
shareholders |
|
$ |
(1,362,269 |
) |
|
$ |
(5,942,458 |
) |
|
$ |
705,359 |
|
|
$ |
(247,198 |
) |
Diluted net income per share |
|
$ |
(0.09 |
) |
|
$ |
(0.41 |
) |
|
$ |
0.05 |
|
|
$ |
(0.02 |
) |
F-23
Alliance
HealthCard, Inc. & Subsidiaries
Notes to Consolidated Financial Statements, Continued
17. Legal Proceedings
On December 14, 2005, Bankers Fidelity Life Insurance Company filed a demand for arbitration to
determine their and our relative rights arising out of the Prescription Drug Card and our
Multi-Service Benefits Agreement. The dispute involves a determination of our responsibilities, as
well as certain other contract rights between us and Bankers Fidelity Life Insurance. In September,
2008 we entered into a Mutual Release, Settlement Agreement and Agreement Not to Sue with Bankers
Fidelity Life Insurance Company for a full settlement and release of all claims in exchange our
$100,000 settlement payment. We reduced accrued liabilities by $100,000 for the year ended
September 30, 2008, to reflect this settlement payment.
18. Subsequent Events
On November 13, 2008 we entered into an agreement for the merger-acquisition of Access Plans USA,
Inc. The agreement provides that at closing, we will issue up to 7.25 million shares of our common
stock to Access Plans shareholders. It is expected that the merger-acquisition will be completed in
the first calendar quarter of 2009. Consummation of the merger-acquisition is contingent on
approval by Access Plans shareholders and divestiture of its Regional Healthcare Division and
certain other matters.
F-24
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of Access Plans USA, Inc.
Irving, Texas
We have audited the accompanying consolidated balance sheets of Access Plans USA, Inc. as of
December 31, 2007 and 2006 and the related consolidated statements of operations, stockholders
equity, and cash flows for each of the three years in the period ended December 31, 2007. These
financial statements are the responsibility of the Companys management. Our responsibility is to
express an opinion on the consolidated financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting
Oversight Board (United States). Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of material
misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its
internal control over financial reporting. Our audit included consideration of internal control
over financial reporting as a basis for designing audit procedures that are appropriate in the
circumstances, but not for the purpose of expressing an opinion on the effectiveness of the
Companys internal control over financial reporting. Accordingly, we express no such opinion. An
audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements, assessing the accounting principles used and significant estimates made
by management, as well as evaluating the overall financial statement presentation. We believe that
our audit provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all
material respects, the consolidated financial position of Access Plans USA, Inc. at December 31,
2007 and 2006, and the results of its operations and its cash flows for each of the three years in
the period ended December 31, 2007, in conformity with accounting principles generally accepted in
the United States of America.
As discussed in Note 2 to the financial statements, the Company made a change in accounting
principle in the third quarter of 2007, when they changed the timing of the annual assessment of
the carrying value of indefinite lived intangibles from December 31 to September 30.
(Signed Hein & Associates LLP)
Dallas, Texas
March 31, 2008, except for Notes 3 and 20, which are dated January 16, 2009
F-25
ACCESS PLANS USA, INC.
CONSOLIDATED BALANCE SHEETS
AS OF DECEMBER 31, 2007 AND 2006
|
|
|
|
|
|
|
|
|
Dollars in thousands |
|
2007 |
|
|
2006 |
|
ASSETS |
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
2,711 |
|
|
$ |
3,232 |
|
Unrestricted short-term investments |
|
|
|
|
|
|
200 |
|
Restricted short-term investments |
|
|
1,231 |
|
|
|
1,420 |
|
|
|
|
|
|
|
|
Total cash and short-term investments |
|
|
3,942 |
|
|
|
4,852 |
|
Accounts and notes receivable, net |
|
|
964 |
|
|
|
141 |
|
Income taxes receivable |
|
|
70 |
|
|
|
246 |
|
Advanced agent commissions, net |
|
|
4,942 |
|
|
|
|
|
Prepaid expenses |
|
|
154 |
|
|
|
1,134 |
|
Deferred tax asset |
|
|
23 |
|
|
|
|
|
Current assets of discontinued operations |
|
|
519 |
|
|
|
427 |
|
|
|
|
|
|
|
|
Total current assets |
|
|
10,614 |
|
|
|
6,800 |
|
Fixed assets, net |
|
|
447 |
|
|
|
609 |
|
Goodwill, net |
|
|
5,489 |
|
|
|
3,379 |
|
Other intangible assets, net |
|
|
3,462 |
|
|
|
|
|
Deferred tax asset, net |
|
|
|
|
|
|
387 |
|
Other assets |
|
|
69 |
|
|
|
587 |
|
Non-current assets of discontinued operations |
|
|
738 |
|
|
|
4,482 |
|
|
|
|
|
|
|
|
Total assets |
|
$ |
20,819 |
|
|
$ |
16,244 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS EQUITY |
|
|
|
|
|
|
|
|
Accounts payable |
|
$ |
562 |
|
|
$ |
87 |
|
Accrued commissions payable |
|
|
478 |
|
|
|
156 |
|
Other accrued liabilities |
|
|
2,021 |
|
|
|
1,246 |
|
Income taxes payable |
|
|
267 |
|
|
|
353 |
|
Short-term debt |
|
|
1,255 |
|
|
|
|
|
Current portion of capital leases |
|
|
48 |
|
|
|
190 |
|
Unearned commissions |
|
|
3,683 |
|
|
|
|
|
Deferred service and enrollment fees, net of acquisition costs |
|
|
289 |
|
|
|
82 |
|
Deferred tax liability |
|
|
|
|
|
|
387 |
|
Current liabilities of discontinued operations |
|
|
936 |
|
|
|
303 |
|
|
|
|
|
|
|
|
Total current liabilities |
|
|
9,539 |
|
|
|
2,804 |
|
Capital lease obligation, long-term |
|
|
|
|
|
|
48 |
|
Deferred tax liability |
|
|
23 |
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities |
|
|
9,562 |
|
|
|
2,852 |
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies (Note 17) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock, $1.00 par value, 2,000,000 authorized shares; none issued |
|
|
|
|
|
|
|
|
Common stock, $0.01 par value, 100,000,000 shares authorized;
20,749,145 issued and 20,269,145 outstanding |
|
|
207 |
|
|
|
140 |
|
Additional paid-in capital |
|
|
40,619 |
|
|
|
29,691 |
|
Accumulated deficit |
|
|
(28,560 |
) |
|
|
(15,388 |
) |
Less: Treasury stock (480,000 shares) |
|
|
(1,009 |
) |
|
|
(1,051 |
) |
|
|
|
|
|
|
|
Total stockholders equity |
|
|
11,257 |
|
|
|
13,392 |
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity |
|
$ |
20,819 |
|
|
$ |
16,244 |
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these consolidated financial statements
F-26
ACCESS PLANS USA, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 2007, 2006 AND 2005
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollars
in thousands, except share information |
|
2007 |
|
|
2006 |
|
|
2005 |
|
Commission and service revenues |
|
$ |
28,421 |
|
|
$ |
14,525 |
|
|
$ |
21,301 |
|
Interest income on agent advances |
|
|
551 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenue |
|
|
28,972 |
|
|
|
14,525 |
|
|
|
21,301 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commission expenses |
|
|
13,994 |
|
|
|
3,686 |
|
|
|
6,015 |
|
Provider network fees and other direct costs |
|
|
5,086 |
|
|
|
3,329 |
|
|
|
4,434 |
|
|
|
|
|
|
|
|
|
|
|
Total direct costs |
|
|
19,080 |
|
|
|
7,015 |
|
|
|
10,449 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross margin |
|
|
9,892 |
|
|
|
7,510 |
|
|
|
10,852 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Personnel costs, including benefits |
|
|
5,383 |
|
|
|
4,475 |
|
|
|
6,701 |
|
Other sales, general and administrative expenses |
|
|
5,548 |
|
|
|
4,181 |
|
|
|
4,491 |
|
Depreciation and amortization |
|
|
809 |
|
|
|
669 |
|
|
|
1,461 |
|
Restructuring, severance and other impairment charges |
|
|
696 |
|
|
|
269 |
|
|
|
94 |
|
Goodwill and intangible asset impairment charges |
|
|
3,978 |
|
|
|
2,800 |
|
|
|
12,900 |
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
16,414 |
|
|
|
12,394 |
|
|
|
25,647 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income |
|
|
(6,522 |
) |
|
|
(4,884 |
) |
|
|
(14,795 |
) |
Other income (expense) |
|
|
|
|
|
|
|
|
|
|
|
|
Interest income |
|
|
105 |
|
|
|
291 |
|
|
|
96 |
|
Interest expense (a) |
|
|
(26 |
) |
|
|
(50 |
) |
|
|
(47 |
) |
|
|
|
|
|
|
|
|
|
|
Total other income (expense) |
|
|
79 |
|
|
|
241 |
|
|
|
49 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations before
income taxes |
|
|
(6,443 |
) |
|
|
(4,643 |
) |
|
|
(14,746 |
) |
Provision for income tax expense (benefit) |
|
|
(656 |
) |
|
|
14 |
|
|
|
47 |
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations |
|
|
(5,787 |
) |
|
|
(4,657 |
) |
|
|
(14,793 |
) |
Income (loss) from discontinued operations, net |
|
|
(7,368 |
) |
|
|
(3,067 |
) |
|
|
1,422 |
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(13,155 |
) |
|
$ |
(7,724 |
) |
|
$ |
(13,371 |
) |
|
|
|
|
|
|
|
|
|
|
Basic and diluted net income (loss) per share: |
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
$ |
(0.30 |
) |
|
$ |
(0.35 |
) |
|
$ |
(1.18 |
) |
Discontinued operations |
|
|
(0.39 |
) |
|
|
(0.22 |
) |
|
|
0.11 |
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
(0.69 |
) |
|
$ |
(0.57 |
) |
|
$ |
(1.07 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares
outstanding, basic and diluted |
|
|
18,983,843 |
|
|
|
13,486,562 |
|
|
|
12,432,591 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
a) |
|
Interest expense for the year ended December 31, 2007 excludes $208,000 directly attributable to
financing facilities obtained by the Insurance Marketing division to
fund agent commission advances.
This amount has been included in provider network fees and other direct costs. |
The accompanying notes are an integral part of these consolidated financial statements
F-27
ACCESS PLANS USA, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS EQUITY
FOR THE YEARS ENDED DECEMBER 31, 2007, 2006 AND 2005
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Retained |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
Earnings |
|
|
|
|
|
|
Total |
|
|
|
Common Stock |
|
|
Paid-In |
|
|
(Accumulated |
|
|
Treasury |
|
|
Stockholders |
|
Dollars in thousands |
|
Shares |
|
|
Amount |
|
|
Capital |
|
|
Deficit) |
|
|
Stock |
|
|
Equity |
|
Balance, December 31, 2004 |
|
|
12,079,820 |
|
|
$ |
123 |
|
|
$ |
27,221 |
|
|
$ |
5,707 |
|
|
$ |
(682 |
) |
|
$ |
32,369 |
|
Changes during 2005: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock options exercised, net |
|
|
20,000 |
|
|
|
|
|
|
|
25 |
|
|
|
|
|
|
|
|
|
|
|
25 |
|
Issuance of stock in business
combination |
|
|
1,348,503 |
|
|
|
14 |
|
|
|
1,696 |
|
|
|
|
|
|
|
|
|
|
|
1,710 |
|
Purchase of treasury stock |
|
|
(244,054 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(369 |
) |
|
|
(369 |
) |
Net loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(13,371 |
) |
|
|
|
|
|
|
(13,371 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, December 31, 2005 |
|
|
13,204,269 |
|
|
|
137 |
|
|
|
28,942 |
|
|
|
(7,664 |
) |
|
|
(1,051 |
) |
|
|
20,364 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Changes during 2006: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock options expense |
|
|
|
|
|
|
|
|
|
|
231 |
|
|
|
|
|
|
|
|
|
|
|
231 |
|
Issuance of stock in business
combination |
|
|
308,494 |
|
|
|
3 |
|
|
|
518 |
|
|
|
|
|
|
|
|
|
|
|
521 |
|
Net loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(7,724 |
) |
|
|
|
|
|
|
(7,724 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, December 31, 2006 |
|
|
13,512,763 |
|
|
|
140 |
|
|
|
29,691 |
|
|
|
(15,388 |
) |
|
|
(1,051 |
) |
|
|
13,392 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Changes during 2007: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock options expense |
|
|
|
|
|
|
|
|
|
|
401 |
|
|
|
|
|
|
|
|
|
|
|
401 |
|
Impact of business combinations: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of stock |
|
|
6,756,382 |
|
|
|
67 |
|
|
|
10,473 |
|
|
|
|
|
|
|
|
|
|
|
10,540 |
|
Issuance of stock options |
|
|
|
|
|
|
|
|
|
|
79 |
|
|
|
|
|
|
|
|
|
|
|
79 |
|
Treasury stock adjustment |
|
|
|
|
|
|
|
|
|
|
(25 |
) |
|
|
(17 |
) |
|
|
42 |
|
|
|
|
|
Net loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(13,155 |
) |
|
|
|
|
|
|
(13,155 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, December 31, 2007 |
|
|
20,269,145 |
|
|
$ |
207 |
|
|
$ |
40,619 |
|
|
$ |
(28,560 |
) |
|
$ |
(1,009 |
) |
|
$ |
11,257 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these consolidated financial statements
F-28
ACCESS PLANS USA, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 2007, 2006 AND 2005
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollars in thousands |
|
2007 |
|
|
2006 |
|
|
2005 |
|
Cash flows from operating activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(13,155 |
) |
|
$ |
(7,724 |
) |
|
$ |
(13,371 |
) |
Adjustments to reconcile net loss to net cash provided by (used in) operating activities: |
|
|
|
|
|
|
|
|
|
|
|
|
(Income) loss from discontinued operations |
|
|
7,368 |
|
|
|
3,067 |
|
|
|
(1,422 |
) |
Non-cash charges: |
|
|
|
|
|
|
|
|
|
|
|
|
Stock option compensation charges |
|
|
401 |
|
|
|
231 |
|
|
|
|
|
Depreciation and amortization |
|
|
809 |
|
|
|
669 |
|
|
|
1,461 |
|
Provision for losses on accounts receivable and agent advances |
|
|
349 |
|
|
|
39 |
|
|
|
198 |
|
Loss on disposal and impairment of fixed assets |
|
|
335 |
|
|
|
269 |
|
|
|
94 |
|
Goodwill and intangible asset impairment charges |
|
|
3,978 |
|
|
|
2,800 |
|
|
|
12,900 |
|
Deferred income taxes |
|
|
(433 |
) |
|
|
|
|
|
|
1,146 |
|
Changes in operating assets and liabilities (net of businesses acquired in 2007): |
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
165 |
|
|
|
82 |
|
|
|
(284 |
) |
Income taxes receivable, net of payable |
|
|
90 |
|
|
|
646 |
|
|
|
(68 |
) |
Advanced agent commissions |
|
|
(1,215 |
) |
|
|
|
|
|
|
|
|
Prepaid expenses and other assets |
|
|
1,571 |
|
|
|
68 |
|
|
|
(709 |
) |
Accounts payable and accrued liabilities, including commissions |
|
|
(731 |
) |
|
|
(629 |
) |
|
|
(122 |
) |
Unearned commissions and net deferred service and enrollment fees |
|
|
981 |
|
|
|
35 |
|
|
|
(107 |
) |
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) continuing operating activities |
|
|
513 |
|
|
|
(447 |
) |
|
|
(284 |
) |
Net cash provided by discontinued operating activities |
|
|
922 |
|
|
|
1,172 |
|
|
|
798 |
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities |
|
|
1,435 |
|
|
|
725 |
|
|
|
514 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Decrease in unrestricted short-term investments |
|
|
200 |
|
|
|
(200 |
) |
|
|
|
|
Decrease in restricted short-term investments |
|
|
320 |
|
|
|
(1,170 |
) |
|
|
(250 |
) |
Purchase of fixed assets continuing operations |
|
|
(282 |
) |
|
|
(558 |
) |
|
|
(336 |
) |
Cash used in business combinations, net continuing operations |
|
|
(832 |
) |
|
|
(1,045 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities continuing operations |
|
|
(594 |
) |
|
|
(2,973 |
) |
|
|
(586 |
) |
Purchase of fixed assets discontinued operations |
|
|
(23 |
) |
|
|
(290 |
) |
|
|
|
|
Cash used in business combinations, net discontinued operations |
|
|
|
|
|
|
|
|
|
|
(1,711 |
) |
Proceeds from sale of discontinued operations |
|
|
|
|
|
|
|
|
|
|
475 |
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities |
|
|
(617 |
) |
|
|
(3,263 |
) |
|
|
(1,822 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Increase (decrease) in debt, net |
|
|
(1,149 |
) |
|
|
|
|
|
|
|
|
Payments of capital leases |
|
|
(190 |
) |
|
|
(241 |
) |
|
|
(620 |
) |
Exercise of stock options |
|
|
|
|
|
|
|
|
|
|
25 |
|
Purchase of treasury stock |
|
|
|
|
|
|
|
|
|
|
(369 |
) |
|
|
|
|
|
|
|
|
|
|
Net cash used in financing activities continuing operations |
|
|
(1,339 |
) |
|
|
(241 |
) |
|
|
(964 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net change in cash and cash equivalents |
|
|
(521 |
) |
|
|
(2,779 |
) |
|
|
(2,272 |
) |
Cash and cash equivalents at beginning of period |
|
|
3,232 |
|
|
|
6,011 |
|
|
|
8,283 |
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period |
|
$ |
2,711 |
|
|
$ |
3,232 |
|
|
$ |
6,011 |
|
|
|
|
|
|
|
|
|
|
|
See following page for supplemental disclosures and non-cash investing and financing activities
The accompanying notes are an integral part of these consolidated financial statements
F-29
ACCESS PLANS USA, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS Continued
FOR THE YEARS ENDED DECEMBER 31, 2007, 2006 AND 2005
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollars in thousands |
|
2007 |
|
|
2006 |
|
|
2005 |
|
Supplemental disclosure: |
|
|
|
|
|
|
|
|
|
|
|
|
Income taxes recovered, net |
|
$ |
249 |
|
|
$ |
1,117 |
|
|
$ |
848 |
|
Interest paid |
|
|
(233 |
) |
|
|
(50 |
) |
|
|
(72 |
) |
|
|
|
|
|
|
|
|
|
|
Non-cash investing and financing activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Stock issued in connection with business combination |
|
$ |
10,540 |
|
|
$ |
521 |
|
|
$ |
1,710 |
|
Cash-in-trust (refunded) collected, net |
|
|
|
|
|
|
(5,585 |
) |
|
|
663 |
|
Acquisition of fixed assets through capital leases |
|
|
|
|
|
|
|
|
|
|
507 |
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these consolidated financial statements
F-30
ACCESS PLANS USA, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1 Nature of Business
Access Plans USA, Inc., formerly Precis, Inc. (the Company), provides access to affordable
healthcare to individuals and families. The Companys health insurance products and its
non-insurance healthcare discount programs are designed as affordable solutions for the growing
number of uninsured and underinsured individuals and families seeking a way to address rising
healthcare costs.
Note 2 Summary of Significant Accounting Policies
Basis of Presentation. The consolidated financial statements have been prepared in accordance
with generally accepted accounting principles and include the accounts of the Companys
wholly-owned subsidiaries, the Capella Group, Inc. (Capella) and Insuraco USA LLC (Insuraco).
All significant inter-company accounts and transactions have been eliminated. Certain
reclassifications have been made to prior period financial statements to conform to the current
presentation of the financial statements, including:
|
|
Reclassification of the financial position, results of operations and cash flows of ACP
Agency (formerly a line of business in the Insurance Marketing division) and Foresight TPA,
the former Regional Healthcare division, as discontinued operations (see Note 3) and |
|
|
Reclassification of the consolidated statement of operations to segregate direct costs from
other operating expenses and interest income and expense in order to present the gross margin
and pre-tax operating income for each year of operation. |
Use of Estimates. The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and assumptions that affect
the amounts reported in the financial statements and accompanying notes. Certain significant
estimates are required in the evaluation of goodwill and intangible assets for impairment as well
as allowances for doubtful recoveries of advanced agent commissions and accounts and notes
receivable. Actual results could differ from those estimates and such differences could be
material.
Revenue Recognition. Revenue recognition varies based on source.
Consumer Plan Division Revenues. The Company recognizes its Consumer Plan program membership
revenues, other than initial enrollment fees, ratably over the membership month. Membership
revenues are reduced by the amount of estimated refunds. For members that are billed directly, the
billed amount is collected almost entirely by electronic charge to the members credit cards,
automated clearinghouse or electronic check. The settlement of those charges occurs within a day or
two. Under certain private label arrangements, the Companys private label partners bill their
members for the membership fees and the Companys portion of the membership fees is periodically
remitted to the Company. During the time from the billing of these private-label membership fees
and the remittance to it, the Company records a receivable from the private label partners and
records an estimated allowance for uncollectible amounts. The allowance for uncollectible
receivables is based upon review of the aging of outstanding balances, the credit worthiness of the
private label partner and its history of paying the agreed amounts owed.
Membership enrollment fees, net of direct costs, are deferred and amortized over the estimated
membership period that averages eight to ten months. Independent marketing representative fees, net
of direct costs, are deferred and amortized over the term of the applicable contract. Judgment is
involved in the allocation of costs to determine the direct costs netted against those deferred
revenues, as well as in estimating the membership period over which to amortize such net revenue.
The Company maintains a statistical analysis of the costs and membership periods as a basis for
adjusting these estimates from time to time.
F-31
Insurance Marketing Division Revenues. The revenue of our insurance marketing division is
primarily from sales commissions due from the insurance companies it represents. These sales
commissions are generally a percentage of premiums collected. Commission income and policy fees,
other than initial enrollment fees, and corresponding commission expense payable to agents, are
generally recognized at their gross amount, as earned on a monthly basis, until such time as the
underlying policyholder contract is terminated. Advanced commissions received are recorded as
unearned insurance commissions and are recognized in income as earned. Initial enrollment fees are
deferred and amortized over the estimated lives of the respective policies. The estimated weighted
average life for the policies sold ranges from eighteen months to two years and is based upon the
Companys historical policyholder contract termination experience.
Commission Expense. Commission expense varies based upon source.
Consumer Plan. Commissions on Consumer Plan Division revenues are accrued in the month in
which a member has enrolled in the program. These commissions are only paid to our independent
marketing representatives in the month following our receipt of the related membership fees. In
2007, we began issuing advances of commissions on certain Consumer Plan programs to increase sales
representative recruitment.
Insurance Marketing. Commission expense is generally recognized as earned on a monthly basis
until the underlying policyholders contract is terminated.
Acquisition Costs. Certain policy acquisition cost, such as lead expenses are capitalized and
amortized over the estimated lives of the respective policies. The estimated weighted-average life
for the policies sold ranges from 18 to 48 months, and is based upon our historical policyholder
contract termination experience.
Advanced Agent Commissions. The Companys insurance marketing division advances agent
commissions up to one year for certain insurance programs. Collection of the commissions advanced
(plus accrued interest) is accomplished by withholding amounts due to the agents for future
commissions on the policy upon which the advance was made, commissions on other policies sold by
the agent or, in certain cases, commissions due to agents managing the agent to whom advances were
made. Advanced agent commissions are reviewed periodically to determine if any advanced agent
commissions will likely be uncollectible. An allowance is provided for the estimated advanced agent
commission balance where recovery is considered doubtful. This allowance for uncollectible advances
required judgment and is based upon review of the aging of outstanding balances and estimates of
future commissions expected to be due to the agents to whom advances are outstanding and the agents
responsible for their management. Advances are written off when determined to be non-collectible.
Cash and Cash Equivalents. Cash and cash equivalents consist primarily of cash on deposit or
cash investments purchased with original maturities of three months or less.
Unrestricted Short-Term Investments. Unrestricted short term investments represent investments
with original maturities of more than three months and less than one year.
Restricted Short-Term Investments. Restricted short term investments represent investments
with original maturities of one year or less pledged to obtain processing and collection
arrangements for credit card and automated clearing house payments.
Accounts Receivable. Accounts receivable generally represent commissions and fees due from
insurance carriers and plan sponsors. Accounts receivable are reviewed on a monthly basis to
determine if any receivables will be potentially uncollectible. An allowance is provided for any
accounts receivable balance where recovery is considered to be doubtful. Accounts receivable are
written off when they are determined to be uncollectible. The Company does not require collateral
on its receivables.
F-32
Fixed Assets. Property and equipment are carried at cost less accumulated depreciation and
amortization. Depreciation and amortization are provided using the straight-line method over the
estimated useful lives of the related assets for financial reporting purposes and principally on
accelerated methods for tax purposes. Leasehold improvements are depreciated using the
straight-line method over their estimated useful lives or the lease term, whichever is shorter.
Ordinary maintenance and repairs are charged to expense as incurred. Expenditures that extend the
physical or economic life of property and equipment are capitalized. The estimated useful lives of
property and equipment are as follows:
|
|
|
Furniture and Fixtures
|
|
7 years |
Leasehold Improvements
|
|
Over the term of the lease, or useful life, whichever is shorter |
Computers and Office Equipment
|
|
3-5 years |
Software
|
|
3 years |
The Company capitalizes both internal and external costs of developing or obtaining computer
software for internal use. Costs incurred to develop internal-use software during the application
development stage are capitalized, while data conversion, training and maintenance costs associated
with internal-use software are expensed as incurred. As of December 31, 2007 and 2006, the net book
value of capitalized software costs was $96,000 and $324,000, respectively. Amortization expense
related to capitalized software was $65,000, $118,000 and $598,000 in fiscal years 2007, 2006 and
2005, respectively.
Intangible Asset Valuation. Intangible assets consist of goodwill and finite life intangible
assets. Goodwill represents the excess of acquisition costs over the fair value of net assets
acquired. Goodwill is not amortized. The other intangible assets represent the estimated value, at
the date of their acquisition, of policies in force (Customer Contracts), certain agent
relationships (Agent Relationships), and proprietary networks of contracted dental and vision
providers.
Recorded goodwill must be reviewed and analyzed to determine its fair value and possible
impairment. This review and analysis is conducted at least annually, and may be conducted more
frequently if an event occurs or circumstances change that would, more likely than not, reduce the
fair value of a reporting unit below its carrying amount. The aggregate fair market value of the
reporting units assets, including recorded goodwill, in excess of the fair value of the reporting
units liabilities, may not exceed the fair value of the reporting units equity. The fair value of
the reporting units equity is based upon valuation techniques that estimate the amount at which
the reporting unit as a whole could be bought or sold in a current transaction between willing
parties. The downward trending of our common stock price may have a material effect on the fair
value of our goodwill in future accounting periods.
As of the end of our 2007 third quarter, the Company performed an annual assessment of the
carrying value of goodwill as mentioned above. Previously, the Company had performed this
assessment as of the end of the fiscal year (December 31). However, the Company determined that it
be preferable to perform the annual assessment as of September 30 of this and subsequent years, to
allow the Company to incorporate into that analysis, and give most timely effect to, the budgets
and forecasts for the coming year that would be developed during the fourth quarter budgeting
process. Additionally, performing the assessment of goodwill for impairment as of September 30 of
each year will reduce the burden on the Company and the professional advisors during the period
immediately following the fiscal year-end, when preparation of the audited year-end financial
statements and evaluation of internal controls over financial reporting pursuant to Sarbanes-Oxley
Section 404 occurs.
As the result of this assessment of the carrying value of goodwill and intangible assets,
impairment charges of $3,377,000 for Capella due to the failure of certain new product and
marketing initiatives to achieve expected results, and $600,000 for the Insurance Marketing
Division were recorded in 2007. In 2006, Capella recorded a charge of $2,800,000 and in 2005 a
charge of $12,900,000 due to continuing decline in members and revenues to a lower level than
previously predicted and to also reflect pending litigation and regulatory activity.
Discontinued operations reflect goodwill and intangible asset impairment charges in 2007 of
$4,092,000 for the Foresight TPA operation due to the loss of significant contracts and $4,000,000
attributable to ACP Agencys significant decline in sales of Medicare supplemental policies. In
2006, the Foresight TPA operation recorded a $3,640,000 goodwill impairment charge to reflect a
decline in the number of lives covered under plans that it administered.
F-33
Significant judgments and estimates were required in connection with the impairment test to
determine the estimated future cash flows and fair value of the reporting unit. The Company
estimated the fair values of Foresight TPA, the Insurance Marketing division inclusive and
exclusive of ACP Agency, and Capella using discounted cash flow projections and other valuation
methodologies in evaluating and measuring a potential goodwill impairment charges. To the extent
that, in the future, the estimates change or the Companys stock price decreases, further goodwill
write-downs may occur. Those assessments of the carrying value of goodwill were reviewed and
approved by the Audit Committee of the Board of Directors.
Income Taxes. Income taxes are provided for the tax effects of transactions reported in the
financial statements and consist of taxes currently due plus deferred taxes related primarily to
differences between the basis of assets and liabilities for financial and income tax reporting. The
net deferred tax assets and liabilities represent the future tax return consequences of those
differences, which will either be taxable or deductible when the assets and liabilities are
recovered or settled. As of December 31, 2007, we evaluated the probability of recognizing the
benefit of deferred tax assets through the reduction of taxes otherwise payable in the future. We
determined that a valuation allowance to fully offset net deferred tax assets was appropriate as of
December 31, 2007.
On July 14, 2006, the FASB issued Interpretation No. 48 (FIN 48), Accounting for Uncertainty
in Income Taxes, an Interpretation of SFAS No. 109, Accounting for Income Taxes. FIN 48
prescribes guidance to address inconsistencies among entities with the measurement and recognition
in accounting for income tax positions for financial statement purposes. Specifically, FIN 48
addresses the timing of the recognition of income tax benefits. FIN 48 requires the financial
statement recognition of an income tax benefit when the company determines that it is
more-likely-than-not that the tax position will be ultimately sustained. We adopted the provisions
of FIN 48 on January 1, 2007. We have analyzed all filing positions in federal and state tax
jurisdictions where we are required to file income tax returns. Our major tax jurisdictions include
the federal jurisdiction and the state of Texas. Tax years open to examination include 2003 through
2006 for the federal return. A federal audit for 2004 has been completed with no change to our tax
liability. The Texas audit for Capella for the years 2002-2005 have been concluded with no material
change to our tax provision. We have elected to recognize penalties and interest related to tax
liabilities as a component of income tax expense and income taxes payable. As of December 31, 2007,
income taxes payable included $62,000 of accrued interest expense and $3,750 of accrued penalties
related to state tax liabilities.
Net Earnings per Share. Basic net earnings per share is calculated by dividing the net
earnings by the weighted average number of shares outstanding for the year without consideration
for common stock equivalents. Diluted net earnings per share gives effect to all dilutive potential
common shares outstanding for the year. Diluted earnings per share are not considered when there is
a net loss. For the years ended December 31, 2007, 2006, and 2005 outstanding stock options of
31,369, 43,575, and 25,375 shares, respectively, were not included in the calculation of fully
diluted earnings per share because their inclusion would have been anti-dilutive. The number of
stock options and warrants that were considered out-of-the- money and thus excluded for purposes of
the diluted earnings per share calculation for the year ended December 31, 2007, 2006 and 2005 was
1,286,131 and 1,255,354 and 1,089,354, respectively.
Concentration of Credit Risk. The Company maintains its cash in bank deposit accounts which,
at times, may exceed federally insured limits. The Company has not experienced any losses in such
accounts and believes it is not exposed to any significant risk. The Company attempts to mitigate
this risk by transferring balances not immediately needed into accounts secured with pledged
U.S. government securities of short maturity.
The Companys customers are not concentrated in any specific geographic region or industry.
During 2007, insurance commissions on sales of policies for two carriers amounted to 12.6% and
10.8% of our total revenue. Additionally, a material portion of our discontinued Regional
Healthcare divisions revenues have historically been derived from its contractual relationships
with a few key governmental entities. The Company establishes an allowance for doubtful accounts
based upon factors surrounding the credit risk of specific customers, historical trends and other
information.
Fair Value of Financial Instruments. The recorded amounts of cash, short-term investments,
accounts receivable, income taxes receivable, notes receivable, accounts payable, accrued
liabilities, income taxes payable and capital lease obligations approximate fair value because of
the short-term maturity of these items.
F-34
Stock Option Expense and Option-Pricing Model. Recognized compensation expense for stock
options granted to employees includes: (a) compensation cost for all share-based payments
previously granted, but not yet vested, based on the grant date fair value estimated in accordance
with the original provisions of SFAS No. 123, Accounting for Stock Based-Compensation, and
(b) compensation cost for all share-based payments currently granted based on the grant date fair
value estimated in accordance with the provisions of SFAS No. 123(R), Share- Based Payment. The
binomial lattice option-pricing model is used to estimate the option fair values. The
option-pricing model requires a number of assumptions, of which the most significant are expected
stock price volatility, the expected pre-vesting forfeiture rate and the risk-free interest rate.
Expected volatility was calculated based upon actual historical stock price movements over the most
recent period ended December 31, 2007 equal to the expected option term. Expected pre-vesting
forfeitures were estimated based on actual historical pre-vesting forfeitures over the most recent
year ended December 31, 2007 for the expected option term. The risk-free interest rate is based on
the interest rate of zero-coupon United States Treasury securities over the expected option term.
Recently Issued Accounting Standards In September 2006, the FASB issued Statement of Financial
Accounting Standards (SFAS) No. 157, Fair Value Measurements, which provides enhanced guidance
for using fair value measurements in financial reporting. While the standard does not expand the
use of fair value in any new circumstance, it has applicability to several current accounting
standards that require or permit entities to measure assets and liabilities at fair value. This
standard defines fair value, establishes a framework for measuring fair value in U.S. Generally
Accepted Accounting Principles (GAAP) and expands disclosures about fair value measurements.
Application of this standard is required beginning in 2008.
In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial Assets
and Financial Liabilities Including an Amendment of FASB Statement No. 115, which is effective
for fiscal years beginning after November 15, 2007. This statement permits an entity to choose to
measure many financial instruments and certain other items at fair value on specified election
dates. Such election, which may be applied on an instrument by instrument basis, is typically
irrevocable once elected. Subsequent unrealized gains and losses on items for which the fair value
option has been elected will be reported in earnings. Management does not presently anticipate
election to measure any of the Companys assets or liabilities on a fair value basis.
In December 2007, the FASB issued SFAS No. 141R (FAS 141R), Business Combinations, which
revises FAS 141 and changes multiple aspects of the accounting for business combinations. Under the
guidance in FAS 141R, the acquisition method must be used, which requires the acquirer to recognize
most identifiable assets acquired, liabilities assumed, and non-controlling interests in the
acquiree at their full fair value on the acquisition date. Goodwill is to be recognized as the
excess of the consideration transferred plus the fair value of the non-controlling interest over
the fair values of the identifiable net assets acquired. Subsequent changes in the fair value of
contingent consideration classified as a liability are to be recognized in earnings, while
contingent consideration classified as equity is not to be re-measured. Costs such as transaction
costs are to be excluded from acquisition accounting, generally leading to recognizing expense,
and, additionally, restructuring costs that do not meet certain criteria at acquisition date are to
be subsequently recognized as post-acquisition costs. FAS 141R is effective for business
combinations for which the acquisition date is on or after the beginning of the first annual
reporting period beginning on or after December 15, 2008. The Company is currently evaluating the
impact that this issuance will have on its financial position and results of operation.
In fiscal year 2007, the Company adopted Securities and Exchange Commission Staff Accounting
Bulletin (SAB) No. 108, Considering the Effects of Prior Year Misstatements when Quantifying
Current Year Misstatements. SAB No. 108 requires companies to quantify misstatements using both a
balance sheet (iron curtain) and an income statement (rollover) approach to evaluate whether either
approach results in an error that is material in light of relevant quantitative and qualitative
factors, and provides for a one-time cumulative effect transition adjustment. The adoption of
SAB No. 108 did not have an impact on the Companys financial statements.
F-35
Note 3 Discontinued Operations
Discontinued operations comprise:
|
|
Foresight TPA, During the third quarter of 2008, the Company formally commenced an
initiative to exit the third-party administration market. Accordingly, Foresight TPA, the
former Regional Healthcare division, has been reclassified as a discontinued operation.
Effective December 30, 2008 the Company sold Foresight TPA and incurred a $100,000 net loss in
connection with this sale. |
|
|
ACP Agency. During June 2008, the Company sold all of ACP Agencys rights to future
override commissions on substantially all of the Medicare supplement business previously sold
by agents contracted with ACP Agency. Accordingly, this agency, which was previously included
in the Insurance Marketing division, has been reclassified as a discontinued operation.
During June 2008, the Company recognized a $385,000 gain from the sale of future override
commissions. The Company may also receive, depending upon the average policy termination rate
of the business sold during the remainder of 2008, additional proceeds of up to $190,000. |
|
|
Financial Services Care 125. This operation, which was discontinued in December 2006,
previously provided health savings account (HSA), health reimbursement arrangements (HRA) and
medical and dependant care flexible spending account (FSA) programs for sale by agents and
brokers. |
|
|
Vergeance. Effective June 30, 2006, the Company discontinued this operation, which had
previously been included in the Consumer Plan division. Vergeance commenced operations in the
third quarter of 2005 selling neutraceutical products under the Natrience brand; however sales
were immaterial. |
|
|
Member Services. During December 2005, the Company sold substantially all of the operating
assets of the Member Services business unit, which designed and offered club membership
programs for rental-purchase companies and association-based organizations to Benefit
Marketing Solutions |
The following sets forth summarized financial information for the discontinued operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Year Ended December 31, |
|
dollars in thousands |
|
2007 |
|
|
2006 |
|
|
2005 |
|
Total Revenue: |
|
|
|
|
|
|
|
|
|
|
|
|
Foresight TPA |
|
$ |
6,583 |
|
|
$ |
7,409 |
|
|
$ |
8,537 |
|
ACP Agency |
|
|
4,887 |
|
|
|
|
|
|
|
|
|
Financial Services Care 125 |
|
|
|
|
|
|
69 |
|
|
|
58 |
|
Vergance |
|
|
|
|
|
|
56 |
|
|
|
57 |
|
Member Services (c) |
|
|
|
|
|
|
|
|
|
|
1,065 |
|
|
|
|
|
|
|
|
|
|
|
Total revenue |
|
$ |
11,470 |
|
|
$ |
7,534 |
|
|
$ |
9,717 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) from operations: |
|
|
|
|
|
|
|
|
|
|
|
|
Foresight TPA (a) |
|
$ |
(3,608 |
) |
|
$ |
(2,157 |
) |
|
$ |
1,564 |
|
ACP Agency (b) |
|
|
(3,760 |
) |
|
|
|
|
|
|
|
|
Financial Services Care 125 |
|
|
|
|
|
|
(121 |
) |
|
|
(137 |
) |
Vergance |
|
|
|
|
|
|
(789 |
) |
|
|
(321 |
) |
Member Services |
|
|
|
|
|
|
|
|
|
|
16 |
|
|
|
|
|
|
|
|
|
|
|
Total net income (loss) from operations |
|
|
(7,368 |
) |
|
|
(3,067 |
) |
|
|
1,122 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gain on sale of Member Services, net of taxes |
|
|
|
|
|
|
|
|
|
|
300 |
|
|
|
|
|
|
|
|
|
|
|
Total net income (loss) |
|
$ |
(7,368 |
) |
|
$ |
(3,067 |
) |
|
$ |
1,422 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
a) |
|
Foresight TPAs 2007 and 2006 net loss reflects goodwill and intangible asset impairment charges
of $4,092,000 and $3,640,000, respectively. |
|
b) |
|
ACP Agencys net loss for 2007 includes a $4,000,000 goodwill impairment charge |
|
c) |
|
Member Services 2005 revenue includes a pre-tax gain from the
sale of operations of $480,000. The corresponding after-tax gain was
$300,000. |
F-36
Note 4 Business Acquisitions
On January 30, 2007, the Company completed its merger with Insurance Capital Management USA,
Inc. (ICM). The acquisition of ICM provides the Company with future commission revenue from a
book of health insurance policies in force, a broader range of insured health care products and
services and an established distribution channel of health insurance agents. As a result, the
purchase price exceeded the estimated market value of ICMs net identifiable assets and goodwill of
$10,087,000 was recorded, of which $4,000,000 was attributed to the subsequently discontinued ACP
Agency operation. ICMs results of operations are included in our financial statements from
January 30, 2007 forward. Under the terms of the merger, ICM became a wholly-owned subsidiary of
the Company and the shareholders of ICM received shares of Company common stock based on the
adjusted earnings before income taxes, depreciation and amortization (adjusted EBITDA) of ICM and
its subsidiary companies. On January 30, 2007, the ICM shareholders were issued 4,498,529 of common
stock shares of the Company. Further, on May 31, 2007, the ICM shareholders were issued an
additional 2,257,853 shares of Company common stock based upon the acquired ICM companies having
achieved adjusted EBITDA of $1,250,000 over the four calendar quarters ending on December 31, 2006.
The cost of the acquisition of $11,143,000 consisted of $10,540,000 attributable to the issuance
of common stock (6,756,382 shares) and $603,000 of costs directly related to the acquisition.
On October 1, 2007, the Company completed its acquisition of Protective Marketing Enterprises,
Inc. (PME). Under the terms of the acquisition, PME becomes a wholly owned subsidiary of the
Company. PME offers, as a wholesaler, discount medical service products, provides back office
support through its use of various operating systems, maintains a customer service facility, and
develops products from both its proprietary and third party provider networks. After the
acquisition of PME, the Company transitioned most of their member services functions to their own
member services call center. The Company is now able to provide, on an in-house-basis, primary and
secondary customer support, enrollment and billing functions, fulfillment services, claims
administration, provider location services, a concierge service that allows interaction with
providers on behalf of members, and an advocacy function that allows negotiation for preferred
rates for members that receive services from out-of-network providers. Additionally, the
acquisition of PME resulted in the Company acquiring an existing base of consumer plan members, who
had been customers of PME. PMEs results of operations are included in our financial statements
from October 1, 2007 forward. The net cash consideration for the acquisition was $851,000.
F-37
The cost of the acquisitions of ICM and PME was allocated as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Reclassify |
|
|
|
|
|
|
Combined |
|
|
|
ICM |
|
|
ACP Agency |
|
|
PME |
|
|
Total |
|
dollars in thousands |
|
(unaudited) |
|
|
(unaudited) |
|
|
(unaudited) |
|
|
(unaudited) |
|
Unrestricted cash |
|
$ |
77 |
|
|
$ |
|
|
|
$ |
288 |
|
|
$ |
365 |
|
Restricted cash |
|
|
|
|
|
|
|
|
|
|
131 |
|
|
|
131 |
|
Accounts receivable, net |
|
|
915 |
|
|
|
(95 |
) |
|
|
205 |
|
|
|
1,025 |
|
Advanced agent commissions, net |
|
|
4,795 |
|
|
|
(756 |
) |
|
|
|
|
|
|
4,039 |
|
Current assets of discontinued operations |
|
|
|
|
|
|
851 |
|
|
|
|
|
|
|
851 |
|
Fixed assets, net |
|
|
35 |
|
|
|
|
|
|
|
77 |
|
|
|
112 |
|
Goodwill, net |
|
|
10,087 |
|
|
|
(4,000 |
) |
|
|
|
|
|
|
6,087 |
|
Other intangible assets, net |
|
|
3,700 |
|
|
|
(720 |
) |
|
|
1,073 |
|
|
|
4,053 |
|
Other assets |
|
|
37 |
|
|
|
|
|
|
|
36 |
|
|
|
73 |
|
Non-current assets of discontinued operations |
|
|
|
|
|
|
4,720 |
|
|
|
|
|
|
|
4,720 |
|
Accounts payable and accrued liabilities |
|
|
(1,640 |
) |
|
|
292 |
|
|
|
(412 |
) |
|
|
(1,760 |
) |
Debt |
|
|
(2,404 |
) |
|
|
|
|
|
|
|
|
|
|
(2,404 |
) |
Unearned commissions |
|
|
(3,603 |
) |
|
|
955 |
|
|
|
|
|
|
|
(2,648 |
) |
Deferred service and enrollment fees, net |
|
|
(423 |
) |
|
|
342 |
|
|
|
(180 |
) |
|
|
(261 |
) |
Deferred tax liability, net |
|
|
(433 |
) |
|
|
|
|
|
|
|
|
|
|
(433 |
) |
Current liabilities of discontinued operations |
|
|
|
|
|
|
(1,589 |
) |
|
|
|
|
|
|
(1,589 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
11,143 |
|
|
$ |
|
|
|
$ |
1,218 |
|
|
$ |
12,361 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase consideration: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of common stock |
|
$ |
10,540 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
10,540 |
|
Cash payment |
|
|
|
|
|
|
|
|
|
|
1,098 |
|
|
|
1,098 |
|
Acquisition costs |
|
|
603 |
|
|
|
|
|
|
|
41 |
|
|
|
644 |
|
Issuance of stock options |
|
|
|
|
|
|
|
|
|
|
79 |
|
|
|
79 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
11,143 |
|
|
$ |
|
|
|
$ |
1,218 |
|
|
$ |
12,361 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Judgment was required in the allocation of value to the acquired assets and liabilities, based
upon their fair values, especially with regard to the allocation of goodwill and other intangible
assets. Goodwill is deemed to have an infinite life and is subject to an annual, or more frequent,
analysis for possible impairment. The other intangible assets represent the estimated value, at the
date of the acquisition, of:
|
|
ICM Policies in force (Customer Contracts) of $1,800,000, of which $720,000 was
allocated to ACP Agency, and certain agent relationships (Agent Relationships) of
$1,900,000. These assets are being amortized on a straight-line basis over three years and
eight years, respectively. |
|
|
|
PME Memberships in force (Customer Contracts) of $482,000 and certain dental and vision
provider network contracts (Network Contracts) of $591,000. These assets are being amortized
on a straight-line basis over four and eight years, respectively. |
Goodwill and other intangible assets arising from the ICM acquisition are not deductible for
federal income tax purposes. Intangible assets arising from the PME acquisition may be amortizable
and deductible for federal income tax purposes pursuant to an available Section 338 election.
F-38
The following pro-forma condensed results of operations have been prepared as if the Companys
acquisitions of ICM and PME occurred on January 1, 2005:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Year Ended December 31, |
|
dollars in thousands |
|
2007 |
|
|
2006 |
|
|
2005 |
|
Total Revenue |
|
$ |
37,199 |
|
|
$ |
50,054 |
|
|
$ |
35,474 |
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations |
|
$ |
(5,613 |
) |
|
$ |
(5,160 |
) |
|
$ |
(16,173 |
) |
Loss from discontinued operations |
|
|
(7,346 |
) |
|
|
(3,196 |
) |
|
|
1,326 |
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(12,959 |
) |
|
$ |
(8,356 |
) |
|
$ |
(14,847 |
) |
|
|
|
|
|
|
|
|
|
|
Basic and diluted net loss per share: |
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
$ |
(0.28 |
) |
|
$ |
(0.27 |
) |
|
$ |
(0.86 |
) |
Discontinued operations |
|
|
(0.36 |
) |
|
|
(0.17 |
) |
|
$ |
0.07 |
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
(0.64 |
) |
|
$ |
(0.44 |
) |
|
$ |
(0.79 |
) |
|
|
|
|
|
|
|
|
|
|
Weighted average number of common
shares outstanding, basic and diluted |
|
|
20,242,944 |
|
|
|
19,188,973 |
|
|
|
18,678,328 |
|
|
|
|
|
|
|
|
|
|
|
Note 5 Accounts and Notes Receivable
The Company records accounts receivable for commissions due to it from insurance carriers.
Additionally, during 2007 and 2006, the Company held notes receivable with certain private label
clients. Accounts and notes receivable are comprised of the following at December 31,
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
December 31, |
|
dollars in thousands |
|
2007 |
|
|
2006 |
|
Accounts receivable |
|
$ |
1,039 |
|
|
$ |
227 |
|
Allowance for doubtful accounts receivable |
|
|
(75 |
) |
|
|
(86 |
) |
|
|
|
|
|
|
|
Accounts receivable, net |
|
|
964 |
|
|
|
141 |
|
|
|
|
|
|
|
|
Notes receivable |
|
|
|
|
|
|
154 |
|
Allowance for doubtful notes receivable |
|
|
|
|
|
|
(154 |
) |
|
|
|
|
|
|
|
Notes receivable, net |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts and notes receivable, net |
|
$ |
964 |
|
|
$ |
141 |
|
|
|
|
|
|
|
|
Based on the information available to the Company, the Company believes its allowances for both
doubtful accounts and notes receivable are adequate. However, actual write-offs might exceed the
recorded allowance. The Company has recognized bad debt expense applicable to accounts and notes
receivable of $37,000, $39,000 and $198,000 for 2007, 2006, and 2005 respectively.
Note 6 Advanced Agent Commissions
Advanced agent commissions consist of amounts paid to agents at the inception of policies in
advance of up to twelve months future commission on policy premiums and are comprised of the
following at December 31
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
December 31, |
|
dollars in thousands |
|
2007 |
|
|
2006 |
|
Advances funded by: |
|
|
|
|
|
|
|
|
Insurance carriers |
|
$ |
3,683 |
|
|
$ |
|
|
Commercial bank |
|
|
425 |
|
|
|
|
|
Speciality lending corporation |
|
|
452 |
|
|
|
|
|
Self-funded |
|
|
1,234 |
|
|
|
|
|
|
|
|
|
|
|
|
Sub-total |
|
|
5,342 |
|
|
|
|
|
Allowance for doubtful recoveries |
|
|
(400 |
) |
|
|
|
|
|
|
|
|
|
|
|
Total advanced agent commissions |
|
$ |
4,942 |
|
|
$ |
|
|
|
|
|
|
|
|
|
F-39
The allowance for doubtful recoveries was determined based upon review of the aging of
outstanding balances and estimates of future commissions expected to be due to the agents to whom
advances are outstanding and the agents responsible for their management. The Company recognized
bad debt expense of $312,000 on advanced agent commissions in 2007.
Note 7 Prepaid Expenses
Prepaid expenses are comprised of the following at December 31,
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
December 31, |
|
dollars in thousands |
|
2007 |
|
|
2006 |
|
Provider network fees |
|
$ |
|
|
|
$ |
435 |
|
Administrative service fees |
|
|
|
|
|
|
296 |
|
Insurance |
|
|
88 |
|
|
|
327 |
|
Other |
|
|
66 |
|
|
|
76 |
|
|
|
|
|
|
|
|
Total |
|
$ |
154 |
|
|
$ |
1,134 |
|
|
|
|
|
|
|
|
Note 8 Fixed Assets
Fixed assets are comprised of the following at December 31,
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
December 31, |
|
dollars in thousands |
|
2007 |
|
|
2006 |
|
Furniture and fixtures |
|
$ |
83 |
|
|
$ |
23 |
|
Leasehold improvements |
|
|
172 |
|
|
|
141 |
|
Computer and office equipment |
|
|
1,195 |
|
|
|
1,066 |
|
Software |
|
|
955 |
|
|
|
1,117 |
|
|
|
|
|
|
|
|
Total cost |
|
|
2,405 |
|
|
|
2,347 |
|
Accumulated depreciation and amortization |
|
|
(1,958 |
) |
|
|
(1,738 |
) |
|
|
|
|
|
|
|
Fixed assets, net |
|
$ |
447 |
|
|
$ |
609 |
|
|
|
|
|
|
|
|
F-40
Note 9 Goodwill and Other Intangible Assets
The changes in the carrying amount of the Companys intangible assets for the years ended
December 31, 2007, 2006 and 2005 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Intangible |
|
|
Combined |
|
dollars in thousands |
|
Goodwill |
|
|
Assets |
|
|
Total |
|
Balance at December 31, 2004 |
|
|
19,079 |
|
|
|
|
|
|
|
19,079 |
|
Change during 2005: |
|
|
|
|
|
|
|
|
|
|
|
|
Goodwill impairment charge Capella |
|
|
(12,900 |
) |
|
|
|
|
|
|
(12,900 |
) |
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2005 |
|
|
6,179 |
|
|
|
|
|
|
|
6,179 |
|
Changes during 2006: |
|
|
|
|
|
|
|
|
|
|
|
|
Goodwill impairment charge Capella |
|
|
(2,800 |
) |
|
|
|
|
|
|
(2,800 |
) |
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2006 |
|
|
3,379 |
|
|
|
|
|
|
|
3,379 |
|
Changes during 2007: |
|
|
|
|
|
|
|
|
|
|
|
|
Acquisition of ICM |
|
|
10,087 |
|
|
|
3,700 |
|
|
|
13,787 |
|
Reclassification of allocated ACP Agency goodwill
and intangible assets to discontinued operations |
|
|
(4,000 |
) |
|
|
(720 |
) |
|
|
(4,720 |
) |
Acquistion of PME |
|
|
|
|
|
|
1,073 |
|
|
|
1,073 |
|
Intangible asset amortization charge |
|
|
|
|
|
|
(591 |
) |
|
|
(591 |
) |
Goodwill impairment charge Capella |
|
|
(3,377 |
) |
|
|
|
|
|
|
(3,377 |
) |
Goodwill impairment charge ICM |
|
|
(600 |
) |
|
|
|
|
|
|
(600 |
) |
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2007 |
|
|
5,489 |
|
|
|
3,462 |
|
|
|
8,951 |
|
|
|
|
|
|
|
|
|
|
|
Impairment charges were recorded related to Capellas goodwill in 2005 due to continuing
decline in the number of members and related revenues to a lower level than previously predicted
and pending litigation and regulatory activity that was announced in the second quarter of that
year. Impairment charges were again recorded in 2006 and 2007 related to Capellas goodwill due to
continuing decline in members and revenues and the failure of certain new product and marketing
initiatives to achieve expected results. In 2007 and 2006, we recorded goodwill impairment charges
for Foresight due to the loss of significant contracts. In 2007 we recorded impairment charges for
Insurance Marketing due to significant declines in sales of Medicare supplemental policies.
The above table excludes goodwill impairment charges attributable to discontinued operations.
In 2007 Foresight TPA recorded a $4,092,000 impairment charge to reflect the loss of significant
contracts and ACP Agency recorded a $4,000,000 impairment charge attributable to the significant
decline in sales of Medicare supplemental policies. In 2006, the Foresight TPA operation recorded a
$3,640,000 goodwill impairment charge to reflect a decline in the number of lives covered under
plans that it administered. There was no recorded goodwill balance for discontinued operations at
December 31, 2007.
To the extent that, in the future, the Companys revenue and earnings estimates change or the
Companys stock price decreases, further goodwill write-downs may occur.
Goodwill is subject to impairment valuations as described above but are not subject to
amortization. During 2007, the Company recorded additions to intangible assets subject to
amortization of $4,773,000, of which $720,000 was allocated to ACP Agency, with a weighted average
amortization life of 6.2 years. The components of finite-lived intangible assets acquired during
2007 attributable to continuing operations are: $1,562,000 Customer contracts (3.2 Years);
$1,900,000 Agent relationships (8 years); and $591,000 Network contracts (8 years). These
assets have no significant residual values. Estimated future amortization expense for those
intangible assets for the next five years is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
dollars in thousands |
|
2008 |
|
2009 |
|
2010 |
|
2011 |
|
2012 |
|
Total |
Amortization expense |
|
$ |
780 |
|
|
$ |
780 |
|
|
$ |
450 |
|
|
$ |
391 |
|
|
$ |
307 |
|
|
$ |
2,708 |
|
F-41
Note 10 Short-term and Long-term Debt
Short-term debt is comprised of at December 31,
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
December 31, |
|
dollars in thousands |
|
2007 |
|
|
2006 |
|
Commercial bank revolving lines of credit |
|
$ |
425 |
|
|
$ |
|
|
Loan from specialty lending corporation |
|
|
452 |
|
|
|
|
|
Promissory note from related party |
|
|
378 |
|
|
|
|
|
|
|
|
|
|
|
|
Total short-term debt |
|
$ |
1,255 |
|
|
$ |
|
|
|
|
|
|
|
|
|
The Company has obtained line of credit facilities and short-term notes from a commercial
banking institution, specialty lending corporation and a promissory note from a related party
(Peter Nauert Estate). The commercial bank outstanding balance at December 31, 2007 of $425,000
comprises credit facilities in which the proceeds are used to fund the advancing of agent
commissions for certain programs. These debt obligations are collateralized by certain future
commissions and fees. Interest is charged at prime plus 1.5% (8.75% at December 31, 2007). The
Company is the primary party on the loan agreement but Peter Nauert, the former Chairman, had
executed a personal guarantee. Mr. Nauert passed away on August 19, 2007. As a result, amounts
outstanding to the commercial bank became due immediately.
As part of the ICM acquisition, the Company also assumed a three-year loan that was obtained
in November 2006, from a specialty lending corporation in the amount of $600,000 of which $452,000
remains outstanding at December 31, 2007. All of the outstanding balance has been classified as
short-term debt. The loan bears interest at prime plus 5.0% (12.25% at December 31, 2007). The
Company is the primary party on the loan agreement and Peter Nauert, the former Chairman, had
executed a personal guarantee. As stated above, Mr. Nauert passed away on August 19, 2007. As a
result, amounts outstanding to that lender became due immediately. On March 24, 2008, we entered
into a financing arrangement with the specialty lender and received funding in the amount of
$1,604,972 to extinguish debt outstanding to this specialty lender and the commercial bank. The
remaining proceeds of $864,467 are also available for general working capital needs, including
advances of commissions to agents.
On September 28, 2007, the Company entered into a loan arrangement with the Peter W. Nauert
Revocable Trust U/A/D 8-71978 (the Nauert Trust). The Nauert Trust holds approximately 27% of the
Companys issued and outstanding common stock. Under this arrangement, the Nauert Trust lent the
Company $500,000 as evidenced by the Revolving Promissory Note (the Note) of which $378,000
remains outstanding at December 31, 2007. The Note matures September 28, 2008 and all principal and
interest will be due and payable. The outstanding principal balance of the Note accrues interest at
a rate of 0.5% below the Prime Rate charged by a designated local bank (6.75% at December 31,
2007). Based upon the current interest rate, the Note requires twelve monthly principal and
interest payments of $43,321. The proceeds from this loan were used to pay down existing financing
arrangements with an unrelated third-party lender.
Note 11 Capital Leases
The Company has several capital leases for office equipment with an aggregate net book value
of $11,000, and $63,000 as of December 31, 2007 and 2006, respectively. These lease purchases have
been capitalized at the present value of future cash payments discounted using an interest rate of
8.5% for both years and the assets are being depreciated over their estimated useful lives. The
present value of the net lease payments as of December 31, 2007, all of which is due in 2008, is
$48,000.
The following is a schedule of equipment under capital leases in effect as of December 31:
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
December 31, |
|
dollars in thousands |
|
2007 |
|
|
2006 |
|
Capitalized lease assets |
|
$ |
582 |
|
|
$ |
582 |
|
Accumulated amortization |
|
|
(571 |
) |
|
|
(519 |
) |
|
|
|
|
|
|
|
Net book value |
|
$ |
11 |
|
|
$ |
63 |
|
|
|
|
|
|
|
|
|
Capitalized lease obligation |
|
$ |
48 |
|
|
$ |
238 |
|
|
|
|
|
|
|
|
For the years ended December 31, 2007, 2006 and 2005, amortization of capitalized lease assets
in the amounts of $52,000, $386,000 and $649,000 respectively, were included in depreciation and
amortization expense. The fourth quarter of 2006 amortization expense included an impairment charge
of $151,000 related to the discontinued use of certain leased equipment due to the Companys
outsourcing initiative.
F-42
Note 12 Accrued Liabilities
Accrued Liabilities are comprised of the following at December 31,
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
December 31, |
|
dollars in thousands |
|
2007 |
|
|
2006 |
|
Accrued acquisition costs |
|
$ |
|
|
|
$ |
162 |
|
Accrued payroll and benefits |
|
|
202 |
|
|
|
115 |
|
Accrued professional fees |
|
|
530 |
|
|
|
197 |
|
Unrecoverable claims accrual |
|
|
|
|
|
|
116 |
|
Accrued convention costs |
|
|
170 |
|
|
|
|
|
Accrued administrative and processing charges |
|
|
309 |
|
|
|
|
|
Accrued membership refunds |
|
|
228 |
|
|
|
23 |
|
Other accruals |
|
|
582 |
|
|
|
633 |
|
|
|
|
|
|
|
|
Total accrued liabilities |
|
$ |
2,021 |
|
|
$ |
1,246 |
|
|
|
|
|
|
|
|
Note 13 Stockholders Equity
Pursuant to its Certificate of Incorporation, the Company is authorized to issue up to
102,000,000 shares of capital stock, consisting of 100,000,000 shares of common stock, $0.01 par
value per share (the Common Stock), and 2,000,000 shares of preferred stock, $1.00 par value per
share (the Preferred Stock). Preferred stock may be issued in series with rights and preferences
as determined by the board of directors.
On July 8, 2004, the Companys Board of Directors authorized the repurchase of up to
500,000 shares of the Companys common stock through open market or private purchase transactions
over the next year depending on prevailing market conditions. Through December 31, 2004, the
Company had purchased 255,946 shares under this authorization for a total consideration of $682,000
at a weighted average price of $2.66 per share. In 2005, the Company purchased an additional
244,054 shares for a total consideration of $369,000 at a weighted average price of $1.51 per
share. No shares were purchased in 2006 or 2007.
Note 14 Common Stock Options
Stock-Based Compensation. Effective January 1, 2006, the Company adopted the fair value
recognition provisions of SFAS 123(R) using the modified prospective transition method. In
addition, the Securities and Exchange Commission issued Staff Accounting Bulletin No. 107
Share-Based Payment (SAB 107) in March, 2005, which provides supplemental SFAS 123(R)
application guidance based on the views of the SEC. Under the modified prospective transition
method, compensation cost recognized in 2007 and 2006 includes: (a) compensation cost for all
share-based payments granted prior to, but not yet vested as of January 1, 2006, based on the grant
date fair value estimated in accordance with the original provisions of SFAS No. 123, and
(b) compensation cost for all share-based payments granted beginning January 1, 2006, based on the
grant date fair value estimated in accordance with the provisions of SFAS 123(R). In accordance
with the modified prospective transition method, results for prior periods have not been restated.
The binomial lattice option-pricing model was used to estimate the option fair values. The
option-pricing model requires a number of assumptions, of which the most significant are, expected
stock price volatility, the expected pre-vesting forfeiture rate and the risk-free interest rate.
Expected volatility was calculated based upon actual historical stock price movements over the most
recent periods ending December 31, 2007 equal to the expected option term. Expected pre-vesting
forfeitures were estimated based on actual historical pre-vesting forfeitures over the most recent
periods ending December 31, 2007 for the expected option term. The risk-free interest rate is based
on the interest rate of zero-coupon United States Treasury securities over the expected option
term. The Companys prior pro-forma presentations used the Black-Scholes option pricing model. If
the Company had continued to use the Black-Scholes model the effect on the recorded expense would
have been immaterial.
F-43
Prior to the adoption of SFAS 123(R), the Company presented any tax benefits of deductions
resulting from the exercise of stock options within operating cash flows in the consolidated
statements of cash flow. SFAS 123(R) requires tax benefits resulting from tax deductions in excess
of the compensation cost recognized for those options (excess tax benefits) to be classified and
reported as both an operating cash outflow and a financing cash inflow upon adoption of
SFAS 123(R).
For the year ended December 31, 2005, the Company applied the intrinsic value method of
accounting for stock options as prescribed by APB 25. Since all options granted during this period
had an exercise price equal to the closing market price of the underlying common stock on the grant
date, no compensation expense was recognized. If compensation expense had been recognized based on
the estimated fair value of each option granted in accordance with the provisions of SFAS 123R, the
Companys net loss would have been increased to the following pro-forma amounts:
|
|
|
|
|
dollars in thousands |
|
2005 |
|
Loss from continuing operations |
|
$ |
(14,793 |
) |
Income (loss) from discontinued operations, net |
|
|
1,422 |
|
|
|
|
|
Net loss |
|
|
(13,371 |
) |
Deduct: Total stock-based compensation expense determined
under fair value based method for all awards, net of tax |
|
|
(361 |
) |
|
|
|
|
Pro-forma net loss |
|
$ |
(13,732 |
) |
|
|
|
|
If compensation expense had been recognized based on the estimated fair value of each option
granted in accordance with the provisions of SFAS 123R, net loss per share would have increased to
the following pro-forma amounts:
|
|
|
|
|
|
|
|
|
|
|
2005 - As |
|
|
2005- |
|
|
|
Reported |
|
|
Pro-Forma |
|
Basic and diluted net income (loss) per share: |
|
|
|
|
|
|
|
|
Continuing operations |
|
$ |
(1.18 |
) |
|
$ |
(1.21 |
) |
Discontinued operations |
|
|
0.11 |
|
|
|
0.11 |
|
|
|
|
|
|
|
|
Total |
|
$ |
(1.07 |
) |
|
|
(1.10 |
) |
|
|
|
|
|
|
|
The fair value of each option grant was estimated on the date of grant using the Black-Scholes
option pricing model. The intent of the Black-Scholes option valuation model is to provide
estimates of fair values of traded options that have no vesting restrictions and are fully
transferable. The following assumptions were used for grants in 2005 and 2004:
|
|
|
Risk free interest rate 4.23% |
|
|
|
|
Volatility rate 72% |
|
|
|
|
Dividend yield none |
|
|
|
|
Expected life of options 5 years |
Stock-Based Compensation Plans. As of December 31, 2007, the Company has two stock-based
compensation plans as described below.
In November 1999, the Companys Board of Directors restated and adopted the 1999 Stock Option
Plan with an effective date of November 30, 1999. The Company has reserved 700,000 shares of the
Companys common stock for issuance upon the exercise of options granted under this plan. Under the
1999 Stock Option Plan, the Board can determine the date on which options can vest and become
exercisable as well as the term of the options granted.
In July 2002, the Companys stockholders adopted the 2002 IMR Stock Option Plan with an
effective date of July 29, 2002. The Company has reserved 500,000 shares of its common stock for
issuance upon the exercise of options granted under this plan. Under the 2002 IMR Stock Option
Plan, the Board can determine the date on which options can vest and become exercisable as well as
the term of the options granted. On January 29, 2003, the Board approved a motion effective June 1,
2003 for the discontinuance of any further stock option grants under the 2002 IMR Stock Option
Plan.
F-44
In July 2002, the Companys stockholders adopted the 2002 Non Employee Stock Option Plan with
an effective date of July 29, 2002. The Company has reserved 500,000 shares of its common stock for
issuance upon the exercise of options granted under this plan. Under the 2002 Non Employee Stock
Option Plan, the Board can determine the date on which options can vest and become exercisable as
well as the term of the options granted.
In connection with the Companys initial public offering, the Company agreed to sell to the
underwriter warrants exercisable for the purchase of 100,000 shares of common stock for $9.00 per
share during a five-year period. The holders of these warrants had the right through the expiration
date, to include such warrants and the shares of common stock issuable upon their exercise in any
registration statement or amendment to a registration statement of the Company at no expense to
such holders. As of December 31, 2007, 16,500 of these warrants had been exercised at a per share
price of $9.00. All warrants expired February 10, 2005.
Amendments to the Stock-Based Compensation Plans. The Company has made amendments to the
stock-based compensation plans as described below.
On June 29, 2003, the Companys stockholders approved an amendment to increase the number of
shares reserved under the Companys 1999 Stock Option Plan from 700,000 to 1,400,000 shares of
common stock for issuance upon the exercise of options under this plan. Under the 1999 Stock Option
Plan, the Board can determine the date on which options can vest and become exercisable as well as
the term of the option granted. As of December 31, 2007, the number of options remaining available
for future issuance under the 1999 Stock Option Plan is 579,000.
On November 8, 2006 the Board of Directors adopted and approved an amendment of the 2002 Non
Employee Stock Option Plan. They increased the number of common stock shares reserved for issuance
upon the exercise of options granted under the Plan from 500,000 to 1,500,000 shares and the
expiration date of the Plan was extended from March 31, 2007 to March 31, 2010. The companys
stockholders approved this amendment on January 30, 2007. As of December 31, 2007, the number of
options remaining available for future issuance under the 2002 Non Employee Stock Option Plan is
905,000.
2007 Stock Option Information. The following table sets forth certain information relating to
options granted in 2007 to named officers to purchase shares of our common stock.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of |
|
Exercise |
Name |
|
Grant Date |
|
Options |
|
Price |
Frank Apodaca (1) |
|
March 26, 2007 |
|
|
50,000 |
|
|
$ |
2.23 |
|
Scott Treadway (2) |
|
October 30, 2007 |
|
|
120,000 |
|
|
$ |
1.50 |
|
|
|
|
1) |
|
Mr Apodacas employment was terminated by us and these options have been forfeited |
|
2) |
|
These options were issued to Mr Treadway in connection with our acquisition of PME, his former
employer |
The total outstanding stock options held by Directors as of December 31, 2007 totaled
424,000 shares with a weighted average exercise price of $1.89. During 2007, the Companys
executives and directors exercised no stock options and forfeited 259,560 stock options.
Compensation costs of $401,000 for 2007 were included in general and administrative expenses.
F-45
The changes in outstanding stock options for the year ended December 31, 2007 is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007 |
|
|
|
|
|
|
|
Weighted |
|
|
Weighted |
|
|
Aggregate |
|
|
|
|
|
|
|
Average |
|
|
Average |
|
|
Intrinsic |
|
|
|
Number of |
|
|
Exercise |
|
|
Fair |
|
|
Value |
|
|
|
Options |
|
|
Price |
|
|
Value |
|
|
(thousands) |
|
Outstanding at January 1, 2007 |
|
|
1,427,354 |
|
|
$ |
2.21 |
|
|
$ |
1.39 |
|
|
|
|
|
Granted |
|
|
397,500 |
|
|
|
1.90 |
|
|
|
0.93 |
|
|
|
|
|
Exercised |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Forfeited |
|
|
(507,354 |
) |
|
|
2.64 |
|
|
|
1.61 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2007 |
|
|
1,317,500 |
|
|
$ |
1.95 |
|
|
$ |
1.16 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vested (exercisable) |
|
|
1,008,500 |
|
|
$ |
1.98 |
|
|
$ |
1.18 |
|
|
$ |
250 |
|
Non-vested |
|
|
309,000 |
|
|
|
1.86 |
|
|
|
1.11 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2007 |
|
|
1,317,500 |
|
|
$ |
1.95 |
|
|
$ |
1.16 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The options outstanding and exercisable are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options Outstanding |
|
|
Options Exercisable |
|
|
|
|
|
|
|
Weighted |
|
|
Weighted |
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
|
Average |
|
|
Average |
|
|
|
|
|
|
Average |
|
|
|
Outstanding |
|
|
Remaining |
|
|
Exercise |
|
|
Outstanding |
|
|
Exercise |
|
Price Range |
|
at 12/31/07 |
|
|
Life (Years) |
|
|
Price |
|
|
at 12/31/07 |
|
|
Price |
|
$1.05 to $1.75 |
|
|
287,000 |
|
|
|
4.1 |
|
|
$ |
1.37 |
|
|
|
287,000 |
|
|
$ |
1.37 |
|
$1.76 to $3.55 |
|
|
1,013,500 |
|
|
|
2.6 |
|
|
|
2.07 |
|
|
|
707,250 |
|
|
|
2.17 |
|
$3.56 to $5.25 |
|
|
17,000 |
|
|
|
1.0 |
|
|
|
4.36 |
|
|
|
14,250 |
|
|
|
4.46 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
1,317,500 |
|
|
|
|
|
|
$ |
1.95 |
|
|
|
1,008,500 |
|
|
$ |
1.98 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006 Stock Option Information. In November 2006, the Board of Directors granted 310,000
options to Company officers. These stock options have an exercise price of $1.76, a five year life
and vest in equal portions over four years. The Company recognized about $16,000 of expense in 2006
related to these grants and expects to recognize a total additional compensation expense of
approximately $200,000 over the four year vesting period of these options.
In November 2006, the Board of Directors voted to reprice all outstanding stock options
effective December 27, 2006 with an exercise price greater than $2.00 per share held by the
Companys current directors and officers. As a result, the exercise price of outstanding options on
649,000 shares, subject to repricing, was reduced from a range of $2.24 to $9.50 per share to $2.00
per share. There was no change in the number of shares subject to each repriced stock option,
vesting, expiration date, or other terms. The Company expects to recognize a total additional
compensation expense of $158,000 over the remaining average vesting life of these options over
1.3 years. Approximately $127,000 was recognized in the fourth quarter of 2006, as a result of
repricing currently vested options, and the remaining $31,000 will be recognized in 2007 and 2008.
The total outstanding stock options held by Directors as of December 31, 2006 were for
475,000 shares with a weighted average exercise price of $1.99. Compensation costs of $231,000 for
2006 were included in general and administrative expenses. The tax benefit related to compensation
costs is $85,000.
F-46
The changes in outstanding stock options for the year ended December 31,2006 is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006 |
|
|
|
|
|
|
|
Weighted |
|
|
Weighted |
|
|
|
|
|
|
|
Average |
|
|
Average |
|
|
|
Number of |
|
|
Exercise |
|
|
Fair |
|
|
|
Options |
|
|
Price |
|
|
Value |
|
Outstanding at January 1, 2006 |
|
|
1,301,354 |
|
|
$ |
3.48 |
|
|
$ |
1.58 |
|
Granted |
|
|
310,000 |
|
|
|
1.76 |
|
|
|
0.95 |
|
Exercised |
|
|
|
|
|
|
|
|
|
|
|
|
Forfeited |
|
|
(184,000 |
) |
|
|
4.13 |
|
|
|
1.77 |
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2006 |
|
|
1,427,354 |
|
|
$ |
2.21 |
|
|
$ |
1.39 |
|
|
|
|
|
|
|
|
|
|
|
|
Vested (exercisable) |
|
|
832,854 |
|
|
$ |
2.45 |
|
|
$ |
1.58 |
|
Non-vested |
|
|
594,500 |
|
|
|
1.87 |
|
|
|
1.12 |
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2006 |
|
|
1,427,354 |
|
|
$ |
2.21 |
|
|
$ |
1.39 |
|
|
|
|
|
|
|
|
|
|
|
2005 Stock Option Information. The changes in outstanding stock options for the year ended December
31, 2005 is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2005 |
|
|
|
|
|
|
|
Weighted |
|
|
Weighted |
|
|
|
|
|
|
|
Average |
|
|
Average |
|
|
|
Number of |
|
|
Exercise |
|
|
Fair |
|
|
|
Options |
|
|
Price |
|
|
Value |
|
Outstanding at January 1, 2005 |
|
|
1,489,764 |
|
|
$ |
4.01 |
|
|
$ |
1.78 |
|
Granted |
|
|
224,000 |
|
|
|
1.37 |
|
|
|
1.02 |
|
Exercised |
|
|
(20,000 |
) |
|
|
1.25 |
|
|
|
0.55 |
|
Forfeited |
|
|
(392,410 |
) |
|
|
4.39 |
|
|
|
1.95 |
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2005 |
|
|
1,301,354 |
|
|
$ |
3.48 |
|
|
$ |
1.58 |
|
|
|
|
|
|
|
|
|
|
|
|
Vested (exercisable) |
|
|
842,229 |
|
|
$ |
3.88 |
|
|
$ |
1.79 |
|
Non-vested |
|
|
459,125 |
|
|
|
4.18 |
|
|
|
1.84 |
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2005 |
|
|
1,301,354 |
|
|
$ |
3.48 |
|
|
$ |
1.58 |
|
|
|
|
|
|
|
|
|
|
|
Note 15 Income Taxes
The income tax provision for the years ended December 31, 2007, 2006 and 2005 consists of:
|
|
|
|
|
|
|
|
|
|
|
|
|
dollars in thousands |
|
2007 |
|
|
2006 |
|
|
2005 |
|
Current provision |
|
$ |
(159 |
) |
|
$ |
(465 |
) |
|
$ |
(916 |
) |
Deferred provision |
|
|
(432 |
) |
|
|
415 |
|
|
|
1,146 |
|
|
|
|
|
|
|
|
|
|
|
Total provision for income tax expense (benefit) |
|
$ |
(591 |
) |
|
$ |
(50 |
) |
|
$ |
230 |
|
|
|
|
|
|
|
|
|
|
|
|
Tax provision (benefit) from continuing operations |
|
$ |
(656 |
) |
|
$ |
14 |
|
|
$ |
47 |
|
Tax provision (benefit) from discontinued operations |
|
|
65 |
|
|
|
(64 |
) |
|
|
183 |
|
|
|
|
|
|
|
|
|
|
|
Total provision for income tax expense (benefit) |
|
$ |
(591 |
) |
|
$ |
(50 |
) |
|
$ |
230 |
|
|
|
|
|
|
|
|
|
|
|
F-47
Deferred income tax assets and liabilities as of December 31, 2007 and 2006 are comprised of:
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
December 31, |
|
dollars in thousands |
|
2007 |
|
|
2006 |
|
Deferred tax assets: |
|
|
|
|
|
|
|
|
Net operating loss carryforwards |
|
$ |
676 |
|
|
$ |
1,047 |
|
Provision for losses on accounts receivable and
agent advances |
|
|
221 |
|
|
|
89 |
|
Depreciation and impairment of fixed assets |
|
|
(30 |
) |
|
|
41 |
|
Accrued expenses |
|
|
513 |
|
|
|
201 |
|
Valuation allowance |
|
|
(291 |
) |
|
|
(862 |
) |
|
|
|
|
|
|
|
Total deferred tax asset |
|
|
1,089 |
|
|
|
516 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred tax liabilities: |
|
|
|
|
|
|
|
|
Prepaid expenses |
|
|
63 |
|
|
|
516 |
|
Intangible asset basis difference |
|
|
1,026 |
|
|
|
0 |
|
|
|
|
|
|
|
|
Total deferred tax liability |
|
|
1,089 |
|
|
|
516 |
|
|
|
|
|
|
|
|
Net deferred tax asset (liability) |
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current deferred tax asset, net |
|
$ |
23 |
|
|
$ |
|
|
Non-current deferred tax asset, net |
|
|
|
|
|
|
387 |
|
Current deferred tax liability, net |
|
|
|
|
|
|
(387 |
) |
Non-current deferred tax liability, net |
|
|
(23 |
) |
|
|
|
|
|
|
|
|
|
|
|
Net deferred tax asset (liability) |
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
At December 31, 2007 and 2006, the Company had federal and state net operating loss (NOL)
carryforwards of approximately $1,988,000 and $3,081,000, respectively, expiring at various dates
through 2020. The NOL carryforwards after tax effects of 34% result in a deferred tax asset of
$676,000 and $1,047,000 as of December 31, 2007 and 2006, respectively. Internal Revenue Code
Section 382 places a limitation on the amount of taxable income which can be offset by net
operating loss (NOL) carryforwards after a change in control (generally greater than 50% change
in ownership) of a loss corporation. Generally, after a change in control, a loss corporation
cannot deduct NOL carryforwards in excess of the Section 382 limitation. Due to these change in
ownership provisions, utilization of NOL and tax credit carryforwards may be subject to an annual
limitation regarding their utilization against taxable income in future periods.
The Companys effective income tax rate for continuing operations differs from the U.S. federal
statutory rate as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007 |
|
2006 |
|
2005 |
Federal statutory rate |
|
|
34.0 |
% |
|
|
34.0 |
% |
|
|
34.0 |
% |
Permanent differences |
|
|
-21.3 |
% |
|
|
-20.6 |
% |
|
|
-26.7 |
% |
State rate |
|
|
1.6 |
% |
|
|
7.8 |
% |
|
|
-0.7 |
% |
Change in valuation allowance |
|
|
-11.3 |
% |
|
|
-20.2 |
% |
|
|
-3.1 |
% |
Impact of purchase accounting ICM acquisition |
|
|
6.7 |
% |
|
|
0.0 |
% |
|
|
0.0 |
% |
Other |
|
|
0.5 |
% |
|
|
-1.3 |
% |
|
|
-3.8 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Effective tax rate |
|
|
10.2 |
% |
|
|
-0.3 |
% |
|
|
-0.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Note 16 Related Party Transactions
Mr. Frank Apodaca, Foresights former Chief Operating Officer, had an agreement with Ready One
Industries, formerly National Center for Employment of the Disabled (NCED). NCED was the party
from whom the Company acquired Foresight in June 2004. This agreement between Mr. Apodaca and NCED
predates the Companys acquisition of Foresight and entitles him to 10% of the proceeds (stock or
cash) from the sale of Foresight. Pursuant to this agreement, as of December 31, 2006, Mr. Apodaca
has received 214,548 of the Companys shares and may be entitled to receive $223,000 from NCED.
F-48
The office space we lease for our Foresight operation in El Paso was owned by NCED through
January 2007. Total payments of $24,000 were paid to NCED under this agreement through January
2007. In the first quarter of 2007, the property was sold to a non-related party and the lease was
assigned to that new landlord. Foresight also earned revenue from NCED of $684,000 and $146,000 in
2006 and 2007, respectively.
The Company has an arrangement with Insurance Producers Group of America, Inc. (IPG). IPG
was a subsidiary of ICM before it merged with ICM in January of this year, but was distributed to
certain ICM shareholders prior to its merger. IPG markets insurance products through career agents
that it has appointed. The Companys arrangement with IPG allows IPG to use a portion of its office
space and also allows certain of the Companys officers and employees to provide services to IPG.
IPG pays the Company, on an arms length basis, for the use of the space and the use of its
employees. The monthly amount paid to the Company varies but is less than $5,000 per month. IPG is
managed by individuals not related to the Company, but Ian Stuart, the Companys Interim President
and CEO, owns approximately 12% of the issued and outstanding shares of IPG and occasionally
provides management services to IPG. In addition, the Peter Nauert Revocable Trust, which owns 27%
of the Companys issued and outstanding common stock, owns approximately 47% of the issued and
outstanding shares of IPG.
See Note 10 for a discussion of a note payable to the Nauert Trust.
Note 17 Commitments and Contingencies
In the normal course of business, the Company may become involved in litigation or in
settlement proceedings relating to claims arising out of the Companys operations. Except as
described below, the Company is not a party to any legal proceedings, the adverse outcome of which,
individually or in the aggregate, could have a material adverse effect on the Companys business,
financial condition and results of operations.
Zermeno v Precis, Inc. The case styled Manuela Zermeno, individually and on behalf of the
general public; and Juan A. Zermeno, individually and on behalf of the general public v Precis,
Inc., and Does 1 through 100, inclusive was filed on August 14, 2003 in the Superior Court of the
State of California for the County of Los Angeles under case number BC 300788.
The Zermeno plaintiffs are former members of the Care Entréetm discount
healthcare program who allege that they (for themselves and for the general public) are entitled to
injunctive, declaratory, and equitable relief under California Health and Safety Code § 445
(Section 445). That provision governs medical referral services. The plaintiffs also sought
relief under Business and Professions Code § 17200, Californias Unfair Competition Law
(Section 17200).
On December 21, 2007, the Company received a verdict in our favor. The plaintiffs have
indicated that they plan to appeal. A negative result in this case would have a material affect on
the Companys financial condition and would limit the Companys ability (and that of other
healthcare discount programs) to do business in California.
We believe that the Company has complied with all applicable statues and regulations in the
state of California. Although the Company believes the Plaintiffs claims are without merit, the
Company cannot provide any assurance regarding the outcome or results of this litigation.
State of Texas v The Capella Group, Inc. et al. The State of Texas filed a lawsuit against
Capella and Equal Access Health, Inc. (including various names under which Equal Access Health,
Inc. does business) on April 28, 2005. Equal Access Health was a third-party marketer of the
Companys discount medical card programs, but is otherwise not affiliated with the Companys
subsidiaries or the Company. The lawsuit alleges that Care Entréetm, directly
and through at least one other party that formerly resold the services of Care
Entréetms to the public, violated certain provisions of the Texas Deceptive
Trade Practices Consumer Protection Act. The lawsuit seeks, among other things, injunctive relief,
unspecified monetary penalties and restitution. The Company believes that the allegations are
without merit and are vigorously defending this lawsuit. The lawsuit was filed in the 98th District
Court of Travis County, Texas as case number GV501264. Unfavorable findings in this lawsuit could
have a material adverse effect on the Companys financial condition and results of operations. No
assurance can be provided regarding the outcome or results of this litigation.
F-49
Investigation of National Center for Employment of the Disabled, Inc. and Access HealthSource,
Inc. (Foresight) In June 2004, we acquired Foresight and its subsidiaries from National Center
for Employment of the Disabled, Inc. (now known as Ready One Industries, NCED). Robert E. Jones,
the C.E.O. of NCED was elected to and served on the Companys Board of Directors until his March
2006 resignation. Frank Apodaca served as the President and C.E.O. of Foresight from the Companys
acquisition until September 3, 2007, on which his date his employment was terminated by the
Company. Mr. Apodaca, who had been placed on leave prior to the termination of his employment, also
served as Chief Administrative Officer and a member of the Board of Directors of NCED. Mr. Apodaca
also served as the Companys President from June 10, 2004 to January 30, 2007. Until July 2006, his
employment agreement with the Company allowed him to spend up to 20% of his time on matters related
to NCEDs operations. NCED is one of the Companys greater than 10% shareholders as a result of
shares it received from the acquisition of Foresight.
There is an ongoing federal investigation of Mr. Apodaca and Foresight, and there has been
publicity in the El Paso, Texas area about the investigation. The investigation involves several
elected public officials and over 20 companies that do business with local government entities in
the El Paso area. Although no indictments have occurred, the Company believes that the
investigation involves, among other things, allegations of corruption relating to contract
procurement by Mr. Apodaca and Foresight and other companies from these local governmental
entities. The Company can offer no assurance as to the outcome of the investigation. In addition to
the negative financial effect from the loss of business, the Company has suffered and may continue
to suffer as a result of the investigation and the adverse publicity surrounding the investigation.
The Companys financial condition and the results of its operations will be materially affected
should the investigation result in formal allegations of wrongdoing by Foresight. The Company may
become obligated to pay fines or restitution and its ability to operate Foresight under licenses
may be restricted or terminated. In addition, the publicity and financial effect resulting from the
investigation may affect the other divisions reputation and ability to attract business, and
secure financing.
States General Life Insurance Company. In February 2005, States General Life Insurance Company
(SGLIC) was placed in permanent receivership by the Texas Insurance Commission (The State of
Texas v States General Life Insurance Company, Cause No. GV-500484, in the 126th District Court of
Travis County, Texas.) Pursuant to letters dated October 19, 2006, the Special Deputy Receiver (the
SDR) of SGLIC asserted certain claims against ICM, its subsidiaries, Peter W. Nauert, ICMs
Chairman and Chief Executive Officer, and G. Scott Smith, a former Executive Officer of ICM,
totaling $2,839,000. The SDR is seeking recovery of certain SGLIC funds that it alleges were
inappropriately transferred and paid to or for the benefit of ICM, its subsidiaries and
Messrs. Nauert and Smith. These claims are based upon assertions of Texas law violations, including
prohibitions against self-dealing, participation in breach of fiduciary duty and preferential and
fraudulent transfers. Mr. Nauert was in control and Chairman of the Board of SGLIC when it was
placed in receivership by the Texas Insurance Commission. The Company, its subsidiaries and
Messrs. Nauert and Smith intend to exercise their full rights in defense of the SDRs asserted
claims. The SDR filed its own action against SGLIC, pending in the 126th District Court of Travis
County, Texas under cause No. GV-500484 and against Messrs. Nauert and Smith, ICM, certain
subsidiaries of ICM and other parties, in the 126th District Court of Travis County, Texas under
cause No. D-1-GN-06-4697. Access Plans has been named as a defendant in this action as a
successor-in-interest to ICM.
In connection with the Companys acquisition of ICM and its subsidiaries, Mr. Nauert and the
Peter W. Nauert Revocable Trust have agreed to fully indemnify ICM and the Company against any
losses resulting from this matter. Although the Company can provide no assurance, we believe that
the ultimate outcome of these claims and lawsuits will not have a material adverse effect on the
Companys consolidated financial condition, results of operation, or liquidity, and no amounts for
any potential losses have been accrued at December 31, 2007.
At December 31, 2007 the Company has accrued $310,000, inclusive of defense costs, for the
resolution of these matters. While it is possible that we may incur costs in excess of this amount,
we are unable to provide a reasonable estimate of the range of additional costs that may be
incurred.
F-50
Restricted Short-Term Investments. In order to arrange for the processing and collection of
credit card and automated clearing house payments to it from its customers, the company has pledged
cash and short-term investments in the aggregate amounts of $1,231,000 and $1,420,000 as of
December 31, 2007 and 2006, respectively.
Note 18 Operating Leases
The Company has leased various office spaces through December 15, 2011. Future lease
commitments on this space are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less than |
|
|
|
|
|
|
|
|
|
|
More than |
|
|
|
|
dollars in thousands |
|
1 Year |
|
|
1-2 Years |
|
|
3-5 Years |
|
|
5 Years |
|
|
Total |
|
Total operating leases on
real property: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
$ |
353 |
|
|
$ |
587 |
|
|
$ |
247 |
|
|
$ |
|
|
|
$ |
1,187 |
|
Discontinued operations |
|
|
294 |
|
|
|
614 |
|
|
|
131 |
|
|
|
|
|
|
|
1,039 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
647 |
|
|
$ |
1,201 |
|
|
$ |
378 |
|
|
$ |
|
|
|
$ |
2,226 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The office space we lease for our Foresight operation in El Paso was owned by an affiliated
company through January 2007. Total payments of $169,000 were paid to NCED under this agreement in
2006.
Management expects that leases currently in effect will be renewed or replaced with other
leases of a similar nature and term. For the years ended December 31, 2007, 2006 and 2005, the
Company recognized rent expense related to office space and equipment in the amounts of $595,000,
$733,000 and $629,000 respectively.
Note 19 Employee Benefit Plan
The Company has adopted a retirement plan that includes a 401(k) deferred compensation
feature. All employees who have completed at least six months of service and are 21 years of age or
older may participate in the plan. The Company makes matching contributions of up to 50% of a
participants contributions limited to 3% of the participants annual compensation. The Company
matching contributions vest 20% per year and become fully vested after the participant has 6 or
more years of service. During 2007, 2006 and 2005, the Company made $51,000, 112,000 and $29,000,
respectively, in matching contributions to the Plan. All contributions by participants are fully
vested.
Note 20 Segmented Information
The Company discloses segment information in accordance with SFAS No. 131, Disclosure About
Segments of an Enterprise and Related Information, that requires companies to report selected
segment information on a quarterly basis and to report certain entity-wide disclosures about
products and services, major customers, and the material countries in which the entity holds assets
and reports revenues. The Companys reportable segments are strategic divisions that offer
different services and are managed separately as each division requires different resources and
marketing strategies. The Companys Consumer Plan Division segment, offers savings on healthcare
services to persons who are un-insured, under-insured, or who have elected to purchase only high
deductible or limited benefit medical insurance policies, by providing access to the same preferred
provider organizations (PPOs) that are utilized by many insurance companies and employers who
self-fund at least a portion of their employees healthcare risk. These programs are sold primarily
through private label resellers and a network marketing strategy. The Companys Insurance Marketing
Division provides web-based technology, specialty products and marketing of individual health
insurance products and related benefits plans, primarily through a broad network of independent
agency channels. Prior to the second quarter of 2008, the Insurance Marketing Division also
included the results of ACP Agency, which is now reported as a discontinued operation. The
Foresight TPA operations, which were classified as a discontinued operation during the third
quarter of 2008, were previously reported as the Regional Healthcare segment. In prior years, the
Company reported the financial results of the Companys wholly-owned subsidiary Care Financial of
Texas, L.L.C. (Care Financial) in a separate segment, Financial Services. Financial Services
included two divisions Care Financial which offered high deductible and scheduled benefit
insurance policies and Care 125 which offered life insurance and annuities, along with Healthcare
Savings Accounts (HSAs), Healthcare Reimbursement Arrangements (HRAs) and medical and dependent
care Flexible Spending Accounts (FSAs). Care 125 was discontinued in December 2006 and Care
Financial is included with Corporate and Other.
The accounting policies of the segments are consistent with those described in the summary of
significant accounting policies in Note 2. Intersegment sales are not material and all intersegment
transfers are eliminated.
F-51
The Company evaluates segment performance based on revenues and income before provision for income
taxes. The table on this page summarizes segment information for continuing operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consumer |
|
|
Insurance |
|
|
|
|
|
|
Toal |
|
|
|
Plan |
|
|
Marketing |
|
|
Corporate |
|
|
Continuing |
|
dollars in thousands |
|
Division |
|
|
Division |
|
|
and Other |
|
|
Operations |
|
Year ended December 31, 2007: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenue |
|
$ |
13,690 |
|
|
$ |
15,246 |
|
|
$ |
36 |
|
|
$ |
28,972 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes |
|
|
(3,396 |
) |
|
|
(634 |
) |
|
|
(2,413 |
) |
|
|
(6,443 |
) |
Provision for income taxes (benefit) |
|
|
16 |
|
|
|
13 |
|
|
|
(685 |
) |
|
|
(656 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
|
(3,412 |
) |
|
|
(647 |
) |
|
|
(1,728 |
) |
|
|
(5,787 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets held |
|
$ |
2,557 |
|
|
$ |
14,215 |
|
|
$ |
2,790 |
|
|
$ |
19,562 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, 2006: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenue |
|
$ |
14,443 |
|
|
$ |
|
|
|
$ |
82 |
|
|
$ |
14,525 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes |
|
|
(2,814 |
) |
|
|
|
|
|
|
(1,829 |
) |
|
|
(4,643 |
) |
Provision for income taxes (benefit) |
|
|
(9 |
) |
|
|
|
|
|
|
23 |
|
|
|
14 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
|
(2,805 |
) |
|
|
|
|
|
|
(1,852 |
) |
|
|
(4,657 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets held |
|
$ |
5,448 |
|
|
$ |
|
|
|
$ |
5,887 |
|
|
$ |
11,335 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, 2005: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenue |
|
$ |
20,970 |
|
|
$ |
|
|
|
$ |
331 |
|
|
$ |
21,301 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes |
|
|
(12,333 |
) |
|
|
|
|
|
|
(2,413 |
) |
|
|
(14,746 |
) |
Provision for income taxes (benefit) |
|
|
11 |
|
|
|
|
|
|
|
36 |
|
|
|
47 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
|
(12,344 |
) |
|
|
|
|
|
|
(2,449 |
) |
|
|
(14,793 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets held |
|
$ |
13,390 |
|
|
$ |
|
|
|
$ |
8,419 |
|
|
$ |
21,809 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-52
ACCESS PLANS USA, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS (a)
(dollars in thousands)
|
|
|
|
|
|
|
|
|
|
|
September 30, |
|
|
December 31, |
|
|
|
2008 |
|
|
2007 (b) |
|
|
|
(unaudited) |
|
|
|
|
|
ASSETS
|
Cash and cash equivalents |
|
$ |
1,226 |
|
|
$ |
2,711 |
|
Restricted short-term investments |
|
|
858 |
|
|
|
1,231 |
|
|
|
|
|
|
|
|
Total cash and short-term investments |
|
|
2,084 |
|
|
|
3,942 |
|
Accounts receivable, net |
|
|
824 |
|
|
|
964 |
|
Income taxes receivable |
|
|
|
|
|
|
70 |
|
Advanced agent commissions, net |
|
|
6,448 |
|
|
|
4,942 |
|
Prepaid expenses |
|
|
241 |
|
|
|
154 |
|
Deferred tax asset |
|
|
|
|
|
|
23 |
|
Current assets of discontinued operations |
|
|
63 |
|
|
|
519 |
|
|
|
|
|
|
|
|
Total current assets |
|
|
9,660 |
|
|
|
10,614 |
|
Fixed assets, net |
|
|
542 |
|
|
|
447 |
|
Goodwill, net |
|
|
5,489 |
|
|
|
5,489 |
|
Other intangible assets, net |
|
|
2,877 |
|
|
|
3,462 |
|
Other assets |
|
|
132 |
|
|
|
69 |
|
Non-current assets of discontinued operations |
|
|
|
|
|
|
738 |
|
|
|
|
|
|
|
|
Total assets |
|
$ |
18,700 |
|
|
$ |
20,819 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS EQUITY
|
Accounts payable |
|
$ |
398 |
|
|
$ |
562 |
|
Accrued commissions payable |
|
|
652 |
|
|
|
478 |
|
Other accrued liabilities |
|
|
1,839 |
|
|
|
2,021 |
|
Income taxes payable |
|
|
239 |
|
|
|
267 |
|
Short-term debt |
|
|
530 |
|
|
|
1,255 |
|
Current portion of capital leases |
|
|
|
|
|
|
48 |
|
Unearned commissions |
|
|
4,545 |
|
|
|
3,683 |
|
Deferred service fees and deferred enrollment fees, net of acquisition costs |
|
|
308 |
|
|
|
289 |
|
Liabilities of discontinued operations |
|
|
254 |
|
|
|
936 |
|
|
|
|
|
|
|
|
Total current liabilities |
|
|
8,765 |
|
|
|
9,539 |
|
Long-term debt |
|
|
864 |
|
|
|
|
|
Deferred tax liability |
|
|
|
|
|
|
23 |
|
|
|
|
|
|
|
|
Total liabilities |
|
|
9,629 |
|
|
|
9,562 |
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies (Note 9) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock, $1.00 par value, 2,000,000 authorized
shares; none issued |
|
|
|
|
|
|
|
|
Common stock, $0.01 par value, 100,000,000 shares authorized;
20,749,145 issued and 20,269,145 outstanding |
|
|
207 |
|
|
|
207 |
|
Additional paid-in capital |
|
|
40,630 |
|
|
|
40,619 |
|
Accumulated deficit |
|
|
(30,757 |
) |
|
|
(28,560 |
) |
Less: Treasury stock (480,000 shares) |
|
|
(1,009 |
) |
|
|
(1,009 |
) |
|
|
|
|
|
|
|
Total stockholders equity |
|
|
9,071 |
|
|
|
11,257 |
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity |
|
$ |
18,700 |
|
|
$ |
20,819 |
|
|
|
|
|
|
|
|
|
|
|
a) |
|
The accompanying notes are an integral part of these condensed consolidated financial
statements |
|
b) |
|
Reclassified to conform to the current periods presentation |
F-53
ACCESS PLANS USA, INC.
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (a)
(Dollars in thousands, except earnings per share)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months |
|
|
For the Nine Months |
|
|
|
Ended September 30, |
|
|
Ended September 30, |
|
Dollars
in thousands, except per share information |
|
2008 |
|
|
2007 (b) |
|
|
2008 |
|
|
2007 (b) |
|
Commission and service revenues |
|
$ |
8,452 |
|
|
$ |
7,306 |
|
|
$ |
26,261 |
|
|
$ |
19,912 |
|
Interest income on agent advances |
|
|
231 |
|
|
|
155 |
|
|
|
596 |
|
|
|
367 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenue |
|
|
8,683 |
|
|
|
7,461 |
|
|
|
26,857 |
|
|
|
20,279 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commission expenses |
|
|
4,834 |
|
|
|
3,784 |
|
|
|
14,835 |
|
|
|
9,562 |
|
Provider network fees and other direct costs |
|
|
1,145 |
|
|
|
1,281 |
|
|
|
3,880 |
|
|
|
3,466 |
|
Interest expense from funding agent advances |
|
|
44 |
|
|
|
68 |
|
|
|
119 |
|
|
|
183 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total direct costs |
|
|
6,023 |
|
|
|
5,133 |
|
|
|
18,834 |
|
|
|
13,211 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross margin |
|
|
2,660 |
|
|
|
2,328 |
|
|
|
8,023 |
|
|
|
7,068 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Personnel costs, including benefits |
|
|
1,504 |
|
|
|
1,227 |
|
|
|
4,752 |
|
|
|
3,875 |
|
Other sales, general and administrative expenses |
|
|
1,002 |
|
|
|
1,218 |
|
|
|
3,446 |
|
|
|
4,294 |
|
Depreciation and amortization |
|
|
252 |
|
|
|
192 |
|
|
|
761 |
|
|
|
554 |
|
Restructuring and severance charges |
|
|
|
|
|
|
|
|
|
|
164 |
|
|
|
696 |
|
Goodwill and intangible asset impairment charges |
|
|
|
|
|
|
3,977 |
|
|
|
|
|
|
|
3,977 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
2,758 |
|
|
|
6,614 |
|
|
|
9,123 |
|
|
|
13,396 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating loss |
|
|
(98 |
) |
|
|
(4,286 |
) |
|
|
(1,100 |
) |
|
|
(6,328 |
) |
Other income (expense) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income |
|
|
5 |
|
|
|
21 |
|
|
|
38 |
|
|
|
86 |
|
Interest expense |
|
|
(1 |
) |
|
|
(3 |
) |
|
|
(11 |
) |
|
|
(15 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other income (expense) |
|
|
4 |
|
|
|
18 |
|
|
|
27 |
|
|
|
71 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations before
income taxes |
|
|
(94 |
) |
|
|
(4,268 |
) |
|
|
(1,073 |
) |
|
|
(6,257 |
) |
Provision for income tax expense (benefit) |
|
|
32 |
|
|
|
(474 |
) |
|
|
39 |
|
|
|
(460 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations |
|
|
(126 |
) |
|
|
(3,794 |
) |
|
|
(1,112 |
) |
|
|
(5,797 |
) |
Income (loss) from discontinued operations, net |
|
|
(702 |
) |
|
|
(3,970 |
) |
|
|
(1,085 |
) |
|
|
(7,743 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(828 |
) |
|
$ |
(7,764 |
) |
|
$ |
(2,197 |
) |
|
$ |
(13,540 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted net income (loss) per share: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
$ |
(0.01 |
) |
|
$ |
(0.19 |
) |
|
$ |
(0.06 |
) |
|
$ |
(0.31 |
) |
Discontinued operations |
|
|
(0.03 |
) |
|
|
(0.19 |
) |
|
|
(0.05 |
) |
|
|
(0.42 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
(0.04 |
) |
|
$ |
(0.38 |
) |
|
$ |
(0.11 |
) |
|
$ |
(0.73 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares
outstanding, basic and diluted |
|
|
20,269,145 |
|
|
|
20,269,145 |
|
|
|
20,269,145 |
|
|
|
18,550,701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
a) |
|
The accompanying notes are an integral part of these condensed consolidated financial
statements |
|
b) |
|
Reclassified to conform to the current periods presentation |
F-54
ACCESS PLANS USA, INC.
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS EQUITY (a)
(Dollars in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
Common |
|
|
Paid-In |
|
|
Accumulated |
|
|
Treasury |
|
|
Stockholders |
|
|
|
Stock |
|
|
Capital |
|
|
Deficit |
|
|
Stock |
|
|
Equity |
|
Balance, December 31, 2007 |
|
$ |
207 |
|
|
$ |
40,619 |
|
|
$ |
(28,560 |
) |
|
$ |
(1,009 |
) |
|
$ |
11,257 |
|
Changes during the nine months
ended September 30, 2008: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock option awards |
|
|
|
|
|
|
11 |
|
|
|
|
|
|
|
|
|
|
|
11 |
|
Net loss |
|
|
|
|
|
|
|
|
|
|
(2,197 |
) |
|
|
|
|
|
|
(2,197 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, September 30, 2008 |
|
$ |
207 |
|
|
$ |
40,630 |
|
|
$ |
(30,757 |
) |
|
$ |
(1,009 |
) |
|
$ |
9,071 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
a) |
|
The accompanying notes are an integral part of these condensed consolidated financial statements |
F-55
ACCESS PLANS USA, INC.
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (a)
(Dollars in thousands)
|
|
|
|
|
|
|
|
|
|
|
For the Nine Months |
|
|
|
Ended September 30, |
|
|
|
2008 |
|
|
2007 (b) |
|
Cash flows from operating activities: |
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(2,197 |
) |
|
$ |
(13,540 |
) |
Adjustments to reconcile net loss to net cash provided by (used in) operating
activities: |
|
|
|
|
|
|
|
|
Loss from discontinued operations |
|
|
1,085 |
|
|
|
7,743 |
|
Non-cash charges: |
|
|
|
|
|
|
|
|
Stock option compensation charges |
|
|
11 |
|
|
|
367 |
|
Depreciation and amortization |
|
|
761 |
|
|
|
554 |
|
Provision for losses on accounts receivable and agent advances |
|
|
387 |
|
|
|
226 |
|
Loss on disposal and impairment of fixed assets |
|
|
|
|
|
|
335 |
|
Goodwill impairment charge |
|
|
|
|
|
|
3,977 |
|
Deferred income taxes |
|
|
|
|
|
|
(433 |
) |
Changes in operating assets and liabilities (net of businesses acquired in
2007): |
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
3 |
|
|
|
(355 |
) |
Income taxes receivable, net of payable |
|
|
63 |
|
|
|
(193 |
) |
Advanced agent commissions |
|
|
(1,756 |
) |
|
|
(163 |
) |
Prepaid expenses and other assets |
|
|
(149 |
) |
|
|
1,541 |
|
Accounts payable and accrued liabilities, including commissions |
|
|
(174 |
) |
|
|
118 |
|
Unearned commissions |
|
|
862 |
|
|
|
56 |
|
Deferred service fees and deferred enrollment fees, net of acquisition costs |
|
|
19 |
|
|
|
(97 |
) |
|
|
|
|
|
|
|
Net cash provided by (used in) continuing operating activities |
|
|
(1,085 |
) |
|
|
136 |
|
Net cash provided by (used in) discontinued operating activities |
|
|
(592 |
) |
|
|
553 |
|
|
|
|
|
|
|
|
Net cash provided by (used in) operating activities |
|
|
(1,677 |
) |
|
|
689 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities: |
|
|
|
|
|
|
|
|
Decrease in unrestricted short-term investments |
|
|
|
|
|
|
320 |
|
Decrease in restricted short-term investments |
|
|
373 |
|
|
|
189 |
|
Purchase of fixed assets |
|
|
(273 |
) |
|
|
(266 |
) |
Cash acquired in business combination, net |
|
|
|
|
|
|
77 |
|
|
|
|
|
|
|
|
Net cash provided by (used in) investing activities (c) |
|
|
100 |
|
|
|
320 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities: |
|
|
|
|
|
|
|
|
Payments of capital leases |
|
|
(48 |
) |
|
|
(144 |
) |
Increase (decrease) in debt, net |
|
|
140 |
|
|
|
(591 |
) |
|
|
|
|
|
|
|
Net cash provided by (used) in financing activities (c) |
|
|
92 |
|
|
|
(735 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net change in cash and cash equivalents |
|
|
(1,485 |
) |
|
|
274 |
|
Cash and cash equivalents at beginning of period |
|
|
2,711 |
|
|
|
3,232 |
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period |
|
$ |
1,226 |
|
|
$ |
3,506 |
|
|
|
|
|
|
|
|
Supplemental disclosure: |
|
|
|
|
|
|
|
|
Income taxes paid (recovered), net |
|
$ |
34 |
|
|
$ |
(204 |
) |
|
|
|
|
|
|
|
Interest paid |
|
$ |
131 |
|
|
$ |
198 |
|
|
|
|
|
|
|
|
Non-cash investing and financing activities: |
|
|
|
|
|
|
|
|
Stock issued in connection with business combination |
|
$ |
|
|
|
$ |
10,540 |
|
|
|
|
|
|
|
|
|
|
|
a) |
|
The accompanying notes are an integral part of these condensed consolidated financial statements |
|
b) |
|
Reclassified to conform to the current periods presentation |
|
c) |
|
All cash provided by (used in) investing and financing activity is attributable to continuing
operations other than $25,000 of fixed asset purchases during the nine month period ended September
30, 2007 |
F-56
ACCESS PLANS USA, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (unaudited)
Note 1 Nature of Operations
Access Plans USA, Inc. (the Company) develops and distributes quality affordable consumer driven
healthcare programs primarily for individuals. Our products and programs are designed to deal with
the rising costs of healthcare. They include health insurance plans and non-insurance healthcare
discount programs to help provide solutions for the millions of Americans who need access to
affordable healthcare.
On November 13, 2008 the Company announced that its Board of Directors had approved an agreement to
merge the Company with Alliance HealthCard, Inc. The merger must be approved by a majority vote of
the Companys shareholders and is conditional upon the Companys exit from its Regional Healthcare
operations based in El Paso and Alliance HealthCards registration of the common stock shares to be
issued in conjunction with the merger. At closing, Alliance HealthCard will issue up to 7.25
million of its shares to the Companys shareholders. Immediately after closing, which is
anticipated to occur during the first calendar quarter of 2009, it is expected that the Companys
former shareholders will own approximately 33% of the outstanding Alliance HealthCard shares.
The Companys operations are currently organized under two business divisions:
§ |
|
Consumer Plan Division - develops and markets non-insurance healthcare discount programs
and association memberships. Since October 1, 2007, the Consumer Plan Division has included
the results of Protective Marketing Enterprises, Inc. which was acquired on that date. |
|
§ |
|
Insurance Marketing Division - markets individual major medical health insurance products
through AHCP Agency, a national network of independent agents. Prior to the second quarter of
2008, this division also included the results of ACP Agency (a broad network of independent
agents that distributed Medicare insurance programs to individuals), which is now reported as
a discontinued operation. The Insurance Marketing division was formed on January 30, 2007,
the date the Company completed its merger with Insurance Capital Management USA, Inc. AHCP
Agency and ACP Agency are wholly-owned subsidiaries. |
Note 2 Basis of Presentation.
The accompanying unaudited consolidated financial statements, which should be read in conjunction
with the Companys audited financial statements, included in its December 31, 2007 Form 10-K filed
with the Securities and Exchange Commission, have been prepared in accordance with generally
accepted accounting principles and include the accounts of the Company and its subsidiaries. In
the opinion of management, all adjustments considered necessary for a fair presentation have been
included.
Certain financial information that is normally included in annual financial statements prepared in
accordance with accounting principles generally accepted in the United States of America, but not
required for interim reporting purposes, has been condensed or omitted. Additionally, certain
reclassifications have been made to prior period financial statements to conform to the current
presentation of the financial statements, including:
§ |
|
Reclassification of the Regional Healthcare division and ACP Agencys financial position,
results of operations and cash flows as discontinued operations (see Note 3) |
|
§ |
|
Reclassification of cash flows attributable to commission advances received from insurance
carriers and paid to agents as an operating activity. Prior to June 30, 2008, these cash
flows were classified as financing and investing cash flows, respectively. |
Operating results for the three and nine months ended September 30, 2008 are not necessarily
indicative of results that may be expected for the entire year.
F-57
Note 3 Discontinued Operation
During the third quarter of 2008, we formally commenced an initiative to exit the third-party
administration market. Accordingly, the El Paso-based Regional Healthcare operation has been
reclassified as a discontinued operation. Effective December 30, 2008 the Company sold Foresight
TPA and incurred a $100,000 net loss in connection with this sale.
Discontinued operations also include the results of ACP Agency. During June 2008, the Company sold
all of its rights to future override commissions on substantially all of the Medicare supplement
business previously sold by agents contracted with ACP Agency for cash proceeds aggregating
$764,000. The Company may also receive, depending upon the policy termination rate of the business
sold, up to an additional $190,000 during December 2008. Other business written by ACP Agency has
been relatively minor and during 2008 ACP Agency has not actively engaged in the marketing of
Medicare insurance programs.
The following sets forth summarized financial information for the discontinued operation:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Nine Months Ended |
|
|
|
September 30, |
|
|
September 30, |
|
{dollars
in thousands} |
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
Total Revenue: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Regional Healthcare division |
|
$ |
691 |
|
|
$ |
1,620 |
|
|
$ |
2,224 |
|
|
$ |
4,670 |
|
ACP Agency (a) |
|
|
|
|
|
|
1,344 |
|
|
|
1,886 |
|
|
|
3,716 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenue |
|
$ |
691 |
|
|
$ |
2,964 |
|
|
$ |
4,110 |
|
|
$ |
8,386 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) from: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Regional Healthcare division (b) |
|
$ |
(702 |
) |
|
$ |
(56 |
) |
|
$ |
(1,602 |
) |
|
$ |
(3,900 |
) |
ACP Agency (a), (c) |
|
|
|
|
|
|
(3,914 |
) |
|
|
517 |
|
|
|
(3,843 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net loss |
|
$ |
(702 |
) |
|
$ |
(3,970 |
) |
|
$ |
(1,085 |
) |
|
$ |
(7,743 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
a) |
|
ACP Agency revenue and net income for the nine months ended September 30, 2008 includes a
$385,000 gain from the sale of future override commissions. This gain is net of a $400,000 charge
for accelerated amortization of the intangible asset balance attributable to the January 2007
acquisition of ACP Agency |
|
b) |
|
Regional Healthcare net loss includes a $173,000 third quarter 2008 fixed asset impairment
charge, arising in connection with the valuation of the Regional Healthcare balance sheet at its
estimated fair value, and a $4,092,000 second quarter 2007 goodwill impairment charge. |
|
c) |
|
ACP Agency results reflect a $4,000,000 third quarter 2007 goodwill impairment charge. |
Note 4 Business Acquisitions
On January 30, 2007, the Company completed its merger with Insurance Capital Management USA, Inc.
(ICM). On October 1, 2007, the Company completed its acquisition of Protective Marketing
Enterprises, Inc. (PME). The following pro-forma condensed results of operations have been
prepared as if the Companys acquisitions of ICM and PME occurred on January 1, 2007:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Nine Months Ended |
|
|
|
September 30, |
|
|
September 30, |
|
{dollars in thousands} |
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
Total Revenue |
|
$ |
8,688 |
|
|
$ |
9,106 |
|
|
$ |
26,895 |
|
|
$ |
28,010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations |
|
$ |
(126 |
) |
|
$ |
(3,796 |
) |
|
$ |
(1,112 |
) |
|
$ |
(6,098 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted net income (loss) per
share from continuing operations |
|
$ |
(0.01 |
) |
|
$ |
(0.19 |
) |
|
$ |
(0.05 |
) |
|
$ |
(0.30 |
) |
Weighted average number of common
shares outstanding, basic and diluted |
|
|
20,269,145 |
|
|
|
20,269,145 |
|
|
|
20,269,145 |
|
|
|
20,269,145 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-58
The pro-forma revenues reflected above include $3,446,000, $2,106,000 and $1,624,000 of revenue
from PMEs operations for the three month periods ended March 31, 2007, June 30, 2007 and September
30, 2007, respectively. Because PME had discontinued much of its marketing activities by the
beginning of 2007, its revenues declined throughout 2007 to only $1,320,000 for the three months
ended December 31, 2007. PME revenue for the three month and nine month periods ended September
30, 2008 aggregated $1,190,000 and $4,004,000, respectively.
Note 5 Goodwill and Other Intangible Assets
Goodwill and other intangible assets comprise:
|
|
|
|
|
|
|
|
|
|
|
September 30, |
|
|
December 31, |
|
{dollars in thousands} |
|
2008 |
|
|
2007 |
|
Goodwill |
|
$ |
5,489 |
|
|
$ |
5,489 |
|
Intangible assets |
|
|
2,877 |
|
|
|
3,462 |
|
|
|
|
|
|
|
|
Total |
|
$ |
8,366 |
|
|
$ |
8,951 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Goodwill and intangible assets: |
|
|
|
|
|
|
|
|
Attributable to ICM acquisition |
|
|
7,478 |
|
|
|
7,926 |
|
Attributable to PME acquisition |
|
|
888 |
|
|
|
1,025 |
|
|
|
|
|
|
|
|
Total |
|
$ |
8,366 |
|
|
$ |
8,951 |
|
|
|
|
|
|
|
|
Note 6 Advanced Agent Commissions
Advanced agent commissions consist of:
|
|
|
|
|
|
|
|
|
|
|
September 30, |
|
|
December 31, |
|
{dollars in thousands} |
|
2008 |
|
|
2007 |
|
Advances funded by: |
|
|
|
|
|
|
|
|
Insurance carriers |
|
$ |
4,545 |
|
|
$ |
3,683 |
|
Speciality lending corporation |
|
|
1,394 |
|
|
|
452 |
|
Commercial bank |
|
|
|
|
|
|
425 |
|
Self-funded |
|
|
1,159 |
|
|
|
782 |
|
|
|
|
|
|
|
|
Sub-total |
|
|
7,098 |
|
|
|
5,342 |
|
Allowance for doubtful recoveries |
|
|
(650 |
) |
|
|
(400 |
) |
|
|
|
|
|
|
|
Total advanced agent commissions |
|
$ |
6,448 |
|
|
$ |
4,942 |
|
|
|
|
|
|
|
|
Note 7 Debt
Short-term and long-term debt consists of:
|
|
|
|
|
|
|
|
|
|
|
September 30, |
|
|
December 31, |
|
{dollars in thousands} |
|
2008 |
|
|
2007 |
|
Short-term debt |
|
$ |
530 |
|
|
$ |
1,255 |
|
Long-term debt |
|
|
864 |
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
1,394 |
|
|
|
1,255 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total debt: |
|
|
|
|
|
|
|
|
Specialty lending corporation loan |
|
$ |
1,394 |
|
|
$ |
452 |
|
Commercial bank revolving lines of credit |
|
|
|
|
|
|
425 |
|
Related party promissory note |
|
|
|
|
|
|
378 |
|
|
|
|
|
|
|
|
Total debt |
|
$ |
1,394 |
|
|
$ |
1,255 |
|
|
|
|
|
|
|
|
During March 2008, the Company obtained a new $1,605,000 loan from Commission Funding Group (CFG),
a specialty lending corporation. $731,000 of these proceeds were used immediately to fully pay-off
the previous CFG loan, the outstanding commercial bank revolving lines of credit, and the loan
origination fee. The current CFG loan matures March 2011, and the principal is repayable in equal
monthly installments. The current interest rate charge, which is variable, together with the loan
origination fee amortization charge, currently approximates 11%. The loan may be prepaid without
penalty. Collateral provided to CFG includes rights, only in the event of a default, to certain
AHCP Agency commissions from insurance carriers.
F-59
The related party promissory note, which was obtained from the Peter Nauert estate during September
2007 was paid in full during September 30, 2008.
Note 8 Common Stock Options
During the nine months ended September 30, 2008, the Company granted 25,000 stock options,
exercisable over a four year period, at a strike price of $1.25. At September 30, 2008 there were
939,500 outstanding stock options with a weighted remaining average life of 2.4 years and a
weighted average exercise price of $1.94. Exercisable stock options at September 30, 2008
aggregated 787,000, with a weighted average exercise price of $1.98. The average stock price
during 2008 has been less than $1.00. Stock option compensation expense for the nine months ended
September 30, 2008 and 2007, net of the credit arising from cancellation of options previously
granted to terminated employees, aggregated $10,000 and $370,000, respectively.
Note 9 Commitments and Contingencies
In the normal course of business, the Company may become involved in litigation or in settlement
proceedings relating to claims arising out of the Companys operations. Except as described below,
the Company is not a party to any legal proceedings, the adverse outcome of which, individually or
in the aggregate, could have a material adverse effect on the Companys business, financial
condition and results of operations.
a. |
|
Foresight TPA dispute with Tenet. The Demand for Arbitration brought against our Foresight
TPA
subsidiary by Tenet Hospitals Limited d/b/a Sierra Medical Center and Providence Memorial
Hospital and R.H.S.C. El Paso, Inc. d/b/a Rio Vista Physical Rehabilitation Hospital
(collectively, Tenet) and a separate dispute between Tenet and Foresight regarding the
administration of benefit plans by Foresight TPA that include access to Tenet hospitals has
been resolved by a confidential settlement agreement entered into by the parties on September
19, 2008. We disclosed these disputes in our 10-Q filed on August 14, 2008. |
|
b. |
|
William Andrew Rivell, M.D. and Alan B. Whitehouse, M.D., individually and on behalf of all
persons similarly situated, v. Private Health Care Systems and The Capella Group, Inc.; Civil
Action File No: CV106-176. was
was filed and remains pending in the United States District Court for the Southern District of
Georgia, Augusta Division. The plaintiffs in this case allege that the contracts entered into
by medical providers with our subsidiary, The Capella Group, Inc. (Capella) through Capellas
relationship with the Private Health Care Systems network of providers (PHCS) did not allow
for the use of the providers names to market a discount medical plan whereby payment for
services is made at the point of service by the consumer, and not by a third party payor such as
an insurance company. We vigorously contest this assertion and intend to defend this case.
The Plaintiffs are, however, seeking certification of this case as a class action on behalf of
all similarly-situated physicians nationwide. If the plaintiffs succeed with such certification
and ultimately prevail in the case, it could have a material adverse affect on our financial
condition and our results of operation. The case was originally instituted on November 17,
2006, but was thereafter dismissed by the District Court. The United States Court of Appeals
for the Eleventh Circuit vacated such dismissal and remanded the case to the District Court on
March 24, 2008. |
|
c. |
|
Investigation of National Center for Employment of the Disabled, Inc. and Access
HealthSource, Inc. (Foresight): In June 2004, the Company acquired Foresight (formerly
Access Healthsource, Inc.) and its subsidiaries from National Center for Employment of the
Disabled, Inc. (now known as Ready One Industries, NCED). Robert E. Jones, the C.E.O. of
NCED was elected to and served on our Board of Directors until his March 2006 resignation.
Frank Apodaca served as the President and C.E.O. of Foresight from the date of our acquisition
until September 3, 2007, on which date we terminated his employment. Mr. Apodaca, who had
been placed on leave prior to the termination of his employment, also served as Chief
Administrative Officer and a member of the Board of Directors of NCED. Mr. Apodaca also served
as our President from June 10, 2004 to January 30, 2007. Until July 2006, his employment
agreement with us allowed him to spend up to 20% of his time on matters related to NCEDs
operations. NCED holds 9.7% of our common stock as a result of shares it received from the
acquisition of Foresight. |
F-60
|
|
There is an ongoing federal investigation of Mr. Apodaca and Foresight, and there has been
publicity in the El Paso, Texas area about the investigation. The investigation involves several
elected public officials and over 20 companies that do business with local government entities
in the El Paso area. Although no indictments have occurred, we believe that the investigation
involves, among other things, allegations of corruption relating to contract procurement by
Mr. Apodaca and Foresight and other companies from these local governmental entities. We can
offer no assurance as to the outcome of the investigation. In addition to the negative financial
effect from the loss of business, we have suffered and may continue to suffer as a result of the
investigation and the adverse publicity surrounding the investigation. Our financial condition
and the results of our operations will be materially affected should the investigation result in
formal allegations of wrongdoing by Foresight. We may become obligated to pay fines or
restitution and our ability to operate Foresight under licenses may be restricted or terminated.
In addition, the publicity and financial effect resulting from the investigation may affect our
other divisions reputation and ability to attract business, and secure financing. |
|
d. |
|
State of Texas v The Capella Group, Inc. et al. The State of Texas filed a lawsuit against
Capella and Equal Access Health, Inc. (including various names under which Equal Access
Health, Inc. does business) on April 28, 2005. Equal Access Health was a third-party marketer
of our discount medical card programs, but is otherwise not affiliated with us. The lawsuit
alleges that Care Entréetm, directly and through at least one other party
that formerly resold the services of Care Entréetms to the public,
violated certain provisions of the Texas Deceptive Trade Practices Consumer Protection Act.
The lawsuit seeks, among other things, injunctive relief, unspecified monetary penalties and
restitution. We believe that the allegations are without merit and are vigorously defending
this lawsuit. The lawsuit was filed in the 98th District Court of Travis County,
Texas as case number GV501264. Unfavorable findings in this lawsuit could have a material
adverse effect on our financial condition and results of operations. No assurance can be
provided regarding the outcome or results of this litigation. |
|
e. |
|
Zermeno v Precis, Inc. The case styled Manuela Zermeno, individually and on behalf of the
general public; and Juan A. Zermeno, individually and on behalf of the general public v
Precis, Inc., and Does 1 through 100, inclusive was filed on August 14, 2003 in the Superior
Court of the State of California for the County of Los Angeles under case number BC 300788. |
|
|
|
The Zermeno plaintiffs are former members of the Care Entréetm discount
healthcare program who allege that they (for themselves and for the general public) are entitled
to injunctive, declaratory, and equitable relief under California Health and Safety Code § 445
(Section 445). That provision governs medical referral services. The plaintiffs also sought
relief under Business and Professions Code § 17200, Californias Unfair Competition Law
(Section 17200). |
|
|
|
On December 21, 2007, we received a favorable verdict. The plaintiffs have indicated that they
plan to appeal. A negative result in this case could have a material affect on our financial
condition and would limit our ability (and that of other healthcare discount programs) to do
business in California. |
|
|
|
We believe that we have complied with all applicable statues and regulations in the state of
California. Although we believe the Plaintiffs claims are without merit, we cannot provide any
assurance regarding the outcome or results of this litigation. |
F-61
f. |
|
States General Life Insurance Company. In February 2005, States General Life Insurance
Company (SGLIC) was placed in permanent receivership by the Texas Insurance Commission (The
State of Texas v States General Life Insurance Company, Cause No. GV-500484, in the
126th District Court of Travis County, Texas.) Pursuant to letters dated
October 19, 2006, the Special Deputy Receiver (the SDR) of SGLIC asserted certain claims
against ICM, its subsidiaries, Peter W. Nauert, ICMs Chairman and Chief Executive Officer,
and G. Scott Smith, a former Executive Officer of ICM, totaling $2,839,000. The SDR is
seeking recovery of certain SGLIC funds that it alleges were inappropriately transferred and
paid to or for the benefit of ICM, its subsidiaries and Messrs. Nauert and Smith. These
claims are based upon assertions of Texas law violations, including prohibitions against
self-dealing, participation in breach of fiduciary duty and preferential and fraudulent
transfers. Mr. Nauert was in control and Chairman of the Board of SGLIC when it was placed in
receivership by the Texas Insurance Commission. The Company, its subsidiaries and
Messrs. Nauert and Smith intend to exercise their full rights in defense of the SDRs asserted
claims. The SDR filed its own action against SGLIC, pending in the 126th District
Court of Travis County, Texas under cause No. GV-500484 and against Messrs. Nauert and Smith,
ICM, certain subsidiaries of ICM and other parties, in the 126th District Court of
Travis County, Texas under cause No. D-1-GN-06-4697. Access Plans has been named as a
defendant in this action as a successor-in-interest to ICM. |
|
|
|
On May 6, 2008 our Motion for Summary Judgment on various matters was granted. The order
granting our motion dismissed the Special Deputy Receivers causes of action related to recovery
from affiliates, fraudulent transfers, avoidable preferences and under the Uniform Fraudulent
Transfer Act. While the granting of our motion does not summarily dismiss the case, it narrowed
the issues significantly and makes it less likely that the Special Deputy Receiver will obtain
any monetary recovery from us |
|
|
|
In connection with the Companys acquisition of ICM and its subsidiaries, Mr. Nauert and the
Peter W. Nauert Revocable Trust agreed to fully indemnify ICM and the Company against any losses
resulting from this matter. Although the Company can provide no assurance, we believe that the
ultimate outcome of these claims and lawsuits will not have a material adverse effect on the
Companys consolidated financial
condition, results of operation, or liquidity, and no amounts for any potential losses have been
accrued at September 30, 2008. |
At September 30, 2008, the Company had accrued $625,000, inclusive of defense costs, for the
resolution of the above matters. While it is possible that we may incur costs in excess of this
amount, we are unable to provide a reasonable estimate of the range of additional costs that may be
incurred.
F-62
Note 10 Segment Information
The following table sets forth segment information for continuing operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended September 30, 2008 |
|
|
|
Consumer |
|
|
Insurance |
|
|
Corporate |
|
|
|
|
{dollars in thousands} |
|
Plan |
|
|
Marketing |
|
|
and Other |
|
|
Total |
|
Total revenue |
|
$ |
3,304 |
|
|
$ |
5,376 |
|
|
$ |
8 |
|
|
$ |
8,688 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations
before income taxes |
|
|
120 |
|
|
|
259 |
|
|
|
(473 |
) |
|
$ |
(94 |
) |
Provision for income tax (benefit) expense |
|
|
22 |
|
|
|
10 |
|
|
|
|
|
|
|
32 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income/(loss) from continuing operations |
|
$ |
98 |
|
|
$ |
249 |
|
|
$ |
(473 |
) |
|
$ |
(126 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets held |
|
$ |
2,113 |
|
|
$ |
15,003 |
|
|
$ |
1,521 |
|
|
$ |
18,637 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended September 30, 2007 |
|
|
|
Consumer |
|
|
Insurance |
|
|
Corporate |
|
|
|
|
|
|
Plan |
|
|
Marketing |
|
|
and Other |
|
|
Total |
|
Total revenue |
|
$ |
3,146 |
|
|
$ |
4,331 |
|
|
$ |
5 |
|
|
$ |
7,482 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations
before income taxes |
|
|
(3,179 |
) |
|
|
(543 |
) |
|
|
(546 |
) |
|
$ |
(4,268 |
) |
Provision for income tax (benefit) expense |
|
|
13 |
|
|
|
6 |
|
|
|
(493 |
) |
|
|
(474 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Income/(loss) from continuing operations |
|
$ |
(3,192 |
) |
|
$ |
(549 |
) |
|
$ |
(53 |
) |
|
$ |
(3,794 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets held |
|
$ |
1,628 |
|
|
$ |
14,399 |
|
|
$ |
3,722 |
|
|
$ |
19,749 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended September 30, 2008 |
|
|
|
Consumer |
|
|
Insurance |
|
|
Corporate |
|
|
|
|
|
|
Plan |
|
|
Marketing |
|
|
and Other |
|
|
Total |
|
Total revenue |
|
$ |
11,302 |
|
|
$ |
15,567 |
|
|
$ |
26 |
|
|
$ |
26,895 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations
before income taxes |
|
|
(32 |
) |
|
|
631 |
|
|
|
(1,672 |
) |
|
$ |
(1,073 |
) |
Provision for income tax (benefit) expense |
|
|
26 |
|
|
|
26 |
|
|
|
(13 |
) |
|
|
39 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income/(loss) from continuing operations |
|
$ |
(58 |
) |
|
$ |
605 |
|
|
$ |
(1,659 |
) |
|
$ |
(1,112 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended September 30, 2007 |
|
|
|
Consumer |
|
|
Insurance |
|
|
Corporate |
|
|
|
|
|
|
Plan |
|
|
Marketing |
|
|
and Other |
|
|
Total |
|
Total revenue |
|
$ |
9,556 |
|
|
$ |
10,778 |
|
|
$ |
31 |
|
|
$ |
20,365 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations
before income taxes |
|
|
(3,663 |
) |
|
|
(774 |
) |
|
|
(1,820 |
) |
|
$ |
(6,257 |
) |
Provision for income tax (benefit) expense |
|
|
12 |
|
|
|
7 |
|
|
|
(479 |
) |
|
|
(460 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Income/(loss) from continuing operations |
|
$ |
(3,675 |
) |
|
$ |
(781 |
) |
|
$ |
(1,341 |
) |
|
$ |
(5,797 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
F-63
APPENDIX A
SECTION 1091 APPRAISAL RIGHTS
A. Any shareholder of a corporation of this state who holds shares of stock on the date of the
making of a demand pursuant to the provisions of subsection D of this section with respect to the
shares, who continuously holds the shares through the effective date of the merger or
consolidation, who has otherwise complied with the provisions of subsection D of this section and
who has neither voted in favor of the merger or consolidation nor consented thereto in writing
pursuant to the provisions of Section 1073 of this title shall be entitled to an appraisal by the
district court of the fair value of the shares of stock under the circumstances described in
subsections B and C of this section. As used in this section, the word shareholder means a holder
of record of stock in a stock corporation and also a member of record of a nonstock corporation;
the words stock and share mean and include what is ordinarily meant by those words and also
membership or membership interest of a member of a nonstock corporation; and depository receipt
means an instrument issued by a depository representing an interest in one or more shares, or
fractions thereof, solely of stock of a corporation, which stock is deposited with the depository.
The provisions of this subsection shall be effective only with respect to mergers or consolidations
consummated pursuant to an agreement of merger or consolidation entered into after November 1,
1988.
B. 1. Except as otherwise provided for in this subsection, appraisal rights shall be available
for the shares of any class or series of stock of a constituent corporation in a merger or
consolidation, or of the acquired corporation in a share acquisition, to be effected pursuant to
the provisions of Section 1081, other than a merger effected pursuant to subsection G of Section
1081, and Section 1082, 1086, 1087, 1090.1 or 1090.2 of this title.
2. a. No appraisal rights under this section shall be available for the shares of any class or
series of stock which stock, or depository receipts in respect thereof, at the record date fixed to
determine the shareholders entitled to receive notice of and to vote at the meeting of shareholders
to act upon the agreement of merger or consolidation, were either:
(1) listed on a national securities exchange or designated as a national market system
security on an interdealer quotation system by the National Association of Securities Dealers,
Inc.; or
(2) held of record by more than two thousand holders.
No appraisal rights shall be available for any shares of stock of the constituent corporation
surviving a merger if the merger did not require for its approval the vote of the shareholders of
the surviving corporation as provided in subsection G of Section 1081 of this title.
b. In addition, no appraisal rights shall be available for any shares of stock, or depository
receipts in respect thereof, of the constituent corporation surviving a merger if the merger did
not require for its approval the vote of the shareholders of the surviving corporation as provided
for in subsection F of Section 1081 of this title.
3. Notwithstanding the provisions of paragraph 2 of this subsection, appraisal rights provided
for in this section shall be available for the shares of any class or series of stock of a
constituent corporation if the holders thereof are required by the terms of an agreement of merger
or consolidation pursuant to the provisions of Section 1081, 1082, 1086, 1087, 1090.1 or 1090.2 of
this title to accept for the stock anything except:
a. shares of stock of the corporation surviving or resulting from the merger or consolidation
or depository receipts thereof, or
b. shares of stock of any other corporation, or depository receipts in respect thereof, which
shares of stock or depository receipts at the effective date of the merger or consolidation will be
either listed on a national securities exchange or designated as a national market system security
on an interdealer quotation system by the National Association of Securities Dealers, Inc. or held
of record by more than two thousand holders, or
c. cash in lieu of fractional shares or fractional depository receipts described in
subparagraphs a and b of this paragraph, or
d. any combination of the shares of stock, depository receipts, and cash in lieu of the
fractional shares or depository receipts described in subparagraphs a, b, and c of this paragraph.
4. In the event all of the stock of a subsidiary Oklahoma corporation party to a merger
effected pursuant to the provisions of Section 1083 of this title is not owned by the parent
corporation immediately prior to the merger, appraisal rights shall be available for the shares of
the subsidiary Oklahoma corporation.
C. Any corporation may provide in its certificate of incorporation that appraisal rights under
this section shall be available for the shares of any class or series of its stock as a result of
an amendment to its certificate of incorporation, any merger or consolidation in which the
corporation is a constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision, the procedures of
this section, including those set forth in subsections D and E of this section, shall apply as
nearly as is practicable.
D. Appraisal rights shall be perfected as follows:
1. If a proposed merger or consolidation for which appraisal rights are provided under this
section is to be submitted for approval at a meeting of shareholders, the corporation, not less
than twenty (20) days prior to the meeting, shall notify each of its shareholders entitled to
appraisal rights that appraisal rights are available for any or all of the shares of the
constituent corporations, and shall include in the notice a copy of this section. Each shareholder
electing to demand the appraisal of the shares of the shareholder shall deliver to the corporation,
before the taking of the vote on the merger or consolidation, a written demand for appraisal of the
shares of the shareholder. The demand will be sufficient if it reasonably informs the corporation
of the identity of the shareholder and that the shareholder intends thereby to demand the appraisal
of the shares of the shareholder. A proxy or vote against the merger or consolidation shall not
constitute such a demand. A shareholder electing to take such action must do so by a separate
written demand as herein provided. Within ten (10) days after the effective date of the merger or
consolidation, the surviving or resulting corporation shall notify each shareholder of each
constituent corporation who has complied with the provisions of this subsection and has not voted
in favor of or consented to the merger or consolidation as of the date that the merger or
consolidation has become effective; or
2. If the merger or consolidation is approved pursuant to the provisions of Section 1073 or
1083 of this title, either a constituent corporation before the effective date of the merger or
consolidation or the surviving or resulting corporation within ten (10) days thereafter shall
notify each of the holders of any class or series of stock of the constituent corporation who are
entitled to appraisal rights of the approval of the merger or consolidation and that appraisal
rights are available for any or all shares of such class or series of stock of the constituent
corporation, and shall include in the notice a copy of this section. The notice may, and, if given
on or after the effective date of the merger or consolidation, shall, also notify the shareholders
of the effective date of the merger or consolidation. Any shareholder entitled to appraisal rights
may, within twenty (20) days after the date of mailing of the notice, demand in writing from the
surviving or resulting corporation the appraisal of the holders shares. The demand will be
sufficient if it reasonably informs the corporation of the identity of the shareholder and that the
shareholder intends to demand the appraisal of the holders shares. If the notice does not notify
shareholders of the effective date of the merger or consolidation either:
a. each constituent corporation shall send a second notice before the effective date of the
merger or consolidation notifying each of the holders of any class or series of stock of the
constituent corporation that are entitled to appraisal rights of the effective date of the merger
or consolidation, or
b. the surviving or resulting corporation shall send a second notice to all holders on
or within ten (10) days after the effective date of the merger or consolidation; provided, however,
that if the second notice is sent more than twenty (20) days following the mailing of the first
notice, the second notice need only be sent to each shareholder
A-2
who is entitled to appraisal rights
and who has demanded appraisal of the holders shares in accordance with this subsection. An
affidavit of the secretary or assistant secretary or of the transfer agent of the corporation
that is required to give either notice that the notice has been given shall, in the absence of
fraud, be prima facie evidence of the facts stated therein. For purposes of determining the
shareholders entitled to receive either notice, each constituent corporation may fix, in advance, a
record date that shall be not more than ten (10) days prior to the date the notice is given;
provided, if the notice is given on or after the effective date of the merger or consolidation, the
record date shall be the effective date. If no record date is fixed and the notice is given prior
to the effective date, the record date shall be the close of business on the day next preceding the
day on which the notice is given.
E. Within one hundred twenty (120) days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any shareholder who has complied with the
provisions of subsections A and D of this section and who is otherwise entitled to appraisal
rights, may file a petition in district court demanding a determination of the value of the stock
of all such shareholders; provided, however, at any time within sixty (60) days after the effective
date of the merger or consolidation, any shareholder shall have the right to withdraw the demand of
the shareholder for appraisal and to accept the terms offered upon the merger or consolidation.
Within one hundred twenty (120) days after the effective date of the merger or consolidation, any
shareholder who has complied with the requirements of subsections A and D of this section, upon
written request, shall be entitled to receive from the corporation surviving the merger or
resulting from the consolidation a statement setting forth the aggregate number of shares not voted
in favor of the merger or consolidation and with respect to which demands for appraisal have been
received and the aggregate number of holders of the shares. The written statement shall be mailed
to the shareholder within ten (10) days after the shareholders written request for a statement is
received by the surviving or resulting corporation or within ten (10) days after expiration of the
period for delivery of demands for appraisal pursuant to the provisions of subsection D of this
section, whichever is later.
F. Upon the filing of any such petition by a shareholder, service of a copy thereof shall be
made upon the surviving or resulting corporation, which, within twenty (20) days after service,
shall file, in the office of the court clerk of the district court in which the petition was filed,
a duly verified list containing the names and addresses of all shareholders who have demanded
payment for their shares and with whom agreements regarding the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be filed by the surviving
or resulting corporation, the petition shall be accompanied by such duly verified list. The court
clerk, if so ordered by the court, shall give notice of the time and place fixed for the hearing on
the petition by registered or certified mail to the surviving or resulting corporation and to the
shareholders shown on the list at the addresses therein stated. Notice shall also be given by one
or more publications at least one (1) week before the day of the hearing, in a newspaper of general
circulation published in the City of Oklahoma City, Oklahoma, or other publication as the court
deems advisable. The forms of the notices by mail and by publication shall be approved by the
court, and the costs thereof shall be borne by the surviving or resulting corporation.
G. At the hearing on the petition, the court shall determine the shareholders who have
complied with the provisions of this section and who have become entitled to appraisal rights. The
court may require the shareholders who have demanded an appraisal of their shares and who hold
stock represented by certificates to submit their certificates of stock to the court clerk for
notation thereon of the pendency of the appraisal proceedings; and if any shareholder fails to
comply with this direction, the court may dismiss the proceedings as to that shareholder.
H. After determining the shareholders entitled to an appraisal, the court shall
appraise the shares, determining their fair value exclusive of any element of value arising from
the accomplishment or expectation of the merger or consolidation, together with a fair rate of
interest, if any, to be paid upon the amount determined to be the fair value. In determining the
fair value, the court shall take into account all relevant factors. In determining the fair rate of
interest, the court may consider all relevant factors, including the rate of interest which the
surviving or resulting corporation would have to pay to borrow money during the pendency of the
proceeding. Upon application by the surviving or resulting corporation or by any shareholder
entitled to participate in the appraisal proceeding, the court may, in its discretion, permit
discovery or other pretrial proceedings and may proceed to trial upon the appraisal prior to the
final determination of the shareholder entitled to an appraisal. Any shareholder whose name appears
on the list filed by the surviving or resulting corporation pursuant to the provisions of
subsection F of this
A-3
section and who has submitted the
certificates of stock of the shareholder to the court clerk, if required, may participate
fully in all proceedings until it is finally determined that the shareholder is not entitled to
appraisal rights pursuant to the provisions of this section.
I. The court shall direct the payment of the fair value of the shares, together with interest,
if any, by the surviving or resulting corporation to the shareholders entitled thereto. Interest
may be simple or compound, as the court may direct. Payment shall be made to each shareholder, in
the case of holders of uncertificated stock immediately, and in the case of holders of shares
represented by certificates upon the surrender to the corporation of the certificates representing
the stock. The courts decree may be enforced as other decrees in the district court may be
enforced, whether the surviving or resulting corporation be a corporation of this state or of any
other state.
J. The costs of the proceeding may be determined by the court and taxed upon the parties as
the court deems equitable in the circumstances. Upon application of a shareholder, the court may
order all or a portion of the expenses incurred by any shareholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorneys fees and the fees and expenses of
experts, to be charged pro rata against the value of all of the shares entitled to an appraisal.
K. From and after the effective date of the merger or consolidation, no shareholder who has
demanded appraisal rights as provided for in subsection D of this section shall be entitled to vote
the stock for any purpose or to receive payment of dividends or other distributions on the stock,
except dividends or other distributions payable to shareholders of record at a date which is prior
to the effective date of the merger or consolidation; provided, however, that if no petition for an
appraisal shall be filed within the time provided for in subsection E of this section, or if the
shareholder shall deliver to the surviving or resulting corporation a written withdrawal of the
shareholders demand for an appraisal and an acceptance of the merger or consolidation, either
within sixty (60) days after the effective date of the merger or consolidation as provided for in
subsection E of this section or thereafter with the written approval of the corporation, then the
right of the shareholder to an appraisal shall cease; provided further, no appraisal proceeding in
the district court shall be dismissed as to any shareholder without the approval of the court, and
approval may be conditioned upon terms as the court deems just.
L. The shares of the surviving or resulting corporation into which the shares of any objecting
shareholders would have been converted had they assented to the merger or consolidation shall have
the status of authorized and unissued shares of the surviving or resulting corporation.
A-4