Item 1. Business.
General Development of Business
National Patent Development Corporation (the “Company”, “we” or “us”) was incorporated on March 10, 1998 as a wholly-owned subsidiary of GP Strategies Corporation (“GP Strategies”) and in November 2004, the Company’s common stock was spun-off to holders of record of GP Strategies common stock and GP Strategies Class B capital stock. The Company common stock is quoted on the OTC Bulletin Board and is traded under the symbol “NPDV.OB”.
Historically, the Company owned a home improvement distribution business through its then wholly-owned subsidiary Five Star Products, Inc. (“Five Star Products”). The Company with a substantial portion of its assets consisting of cash and cash equivalents, also owned, and continues to own, certain non-strategic assets, primarily consisting of certain real estate and an investment in the optical plastics molding and precision coating businesses of MXL Industries (each as described herein).
On January 15, 2010, we completed the sale (the “Five Star Sale”) to The Merit Group, Inc. (“Merit”) of all of the issued and outstanding stock (the “Five Star Stock”) of our wholly-owned subsidiary, Five Star Products, the holding company and sole stockholder of Five Star Group, Inc. (“Five Star Group”), for cash pursuant to the terms and subject to the conditions of the Stock Purchase Agreement between the Company and Merit, dated as of November 24, 2009 (the “Five Star Stock Purchase Agreement”). As used herein, references to “Five Star” refer to Five Star Products or Five Star Group, or both, as the context requires.
Nature of Our Business Following the Five Star Sale
Upon the consummation of the Five Star Sale, we became a “shell company”, as defined in Rule 12b-2 of the Exchange Act. Because we are a shell company, our stockholders are unable to utilize Rule 144 to sell “restricted stock” as defined in Rule 144 or to otherwise use Rule 144 to sell our securities, and we are ineligible to utilize registration statements on Form S-3 or Form S-8 for so long as we remain a shell company and for 12 months thereafter. As a consequence, among other things, the offering, issuance and sale of our securities is likely to be more expensive and time consuming and may make our securities less attractive to investors. See “Item 1A.
Item 1A. Risk Factors.
Risks Related to our Business
As a result of the sale of Five Star, we are a shell company under the federal securities laws.
Upon the sale of Five Star, we have no or nominal operations. Pursuant to Rule 405 of the Securities Act and Exchange Act Rule 12b-2, a shell company is defined as a registrant that has no or nominal operations, and either:
·
no or nominal assets;
·
assets consisting solely of cash and cash equivalents; or
·
assets consisting of any amount of cash and cash equivalents and nominal other assets.
Following the Five Star Sale, our consolidated balance sheet has consisted primarily of cash and cash equivalents. Accordingly, we are a shell company. Applicable securities rules prohibit shell companies from using a Form S-8 registration statement to register securities pursuant to employee compensation plans and from utilizing Form S-3 for the registration of securities for so long as we are a shell company and for 12 months thereafter.
Additionally, Form 8-K requires shell companies to provide more detailed disclosure upon completion of a transaction that causes it to cease being a shell company. To the extent that we acquire a business in the future, we must file a current report on Form 8-K containing the financial and other information required in a registration statement on Form 10 within four business days following completion of such a transaction.
To assist the SEC in the identification of shell companies, we are also required to check a box on our quarterly reports on Form 10-Q and our annual reports on Form 10-K that identifies us as a shell company. To the extent that we are required to comply with additional disclosure requirements because we are a shell company, we may be delayed in executing any mergers or acquiring other assets that would cause us to cease being a shell company. In addition, under Rule 144 of the Securities Act, a holder of restricted securities of a “shell company” is not allowed to resell securities of the company in reliance upon Rule 144 for so long as the company is a shell company and for 12 months thereafter.
Preclusion from any prospective purchase using the exemptions from registration afforded by Rule 144 may make it more difficult for us to sell equity securities in the future and the inability to utilize registration statements on Forms S-8 and S-3 is likely to increase our cost to register securities in the future. Additionally, the loss of the use of Rule 144 and Forms S-3 and S-8 may make investments in our securities less attractive to investors and may make the offering and sale of our securities to employees, directors and others under compensatory arrangements more expensive and less attractive to recipients.
Until we select a particular industry or target business with which to complete a business combination, you will be unable to ascertain the merits or risks of the industry or business in which we may ultimately operate.
We intend to develop or acquire interests in one or more operating businesses. While we have focused our development or acquisition efforts on sectors in which our management has expertise, we do not wish to limit ourselves to, or to foreclose any opportunities in, any particular industry or sector. The goal of our investment strategy is to develop or acquire businesses in order to generate value for our stockholders. Accordingly, there is no current basis for you to evaluate the possible merits or risks of the particular industry in which we may ultimately operate or the target business or businesses with which we may ultimately enter a business combination. Although we will evaluate the risks inherent in a particular target business, we cannot assure you that all of the significant risks present in that target business will be properly assessed. Even if we properly assess those risks, some of them may be outside of our control or ability to affect. Depending upon the form of such transaction, stockholders may not be entitled to vote on the transaction.
Resources will be expended in researching potential acquisitions that might not be consummated.
The investigation of target businesses and the negotiation, drafting and execution of relevant agreements, disclosure documents, and other instruments will require substantial management time and attention in addition to costs for accountants, attorneys and others. If a decision is made not to complete a specific business combination, the costs incurred up to that point for the proposed transaction likely would not be recoverable. Furthermore, even if an agreement is reached relating to a specific target business, we may fail to consummate the business combination for any number of reasons including those beyond our control.
There can be no guarantee that we will quickly identify a potential target business or complete a business combination.
The process to identify potential acquisition targets, to investigate and evaluate the future business prospects thereof and to negotiate an acceptable purchase agreement with one or more target companies can be time consuming and costly. We may incur operating losses, resulting from payroll, rent and other overhead and professional fees, while we are searching for a business to develop or acquire.
We may be treated as a personal holding company or subject to the accumulated earnings tax, which could adversely affect our operating results and financial condition.
We may realize substantial “personal holding company income” within the meaning of Section 543 of the Internal Revenue Code of 1986, as amended, from investment of the proceeds of the Five Star Sale. This could be significant if it were determined that we were a “personal holding company” for federal income tax purposes. We have not determined whether our stock ownership could make us a personal holding company within the meaning of these rules.
In the event that we or any of our subsidiaries were determined to be a personal holding company, we or the subsidiary could be liable for additional taxes, and possibly interest and penalties, based on the undistributed personal holding company income and the tax rate in effect at that time, unless we decide to fully abate the tax by the payment of a dividend (such a dividend would not eliminate interest and penalties). We are unable to quantify the amount of tax that we could be liable for or the dividend that we could elect to pay for future periods, because such amounts, if any, would be based upon the application of the personal holding company income rules to the results of our future operations.
If we or any of our subsidiaries were to pay personal holding company tax (and possibly interest and penalties), this could significantly increase our consolidated tax expense and adversely affect our operating results. In addition, if tax rates increase in the future, the amount of any personal holding company tax we or any of our subsidiaries may have to pay could increase significantly, further impairing our operating results. In that regard, the personal holding company tax rate, which is currently 15%, is scheduled to return to ordinary income tax rates for tax years beginning on or after January 1, 2013. If we were deemed to be a personal holding company and, instead of paying the personal holding company tax, we elected to pay a dividend to our stockholders in an amount equal to all or a significant part of our undistributed personal holding company income, we could consume a significant amount of cash resources and be unable to retain or generate working capital. This could adversely affect our financial condition. As a result, if we pay such a dividend, we may decide to seek additional financing, although that financing might not be available to us when and as required on commercially reasonable terms.
If we or our subsidiaries were determined not to be personal holding companies, we could still possibly be subject to the accumulated earnings tax if we were found to be a “mere holding company” or to have accumulated earnings beyond the reasonable needs of the business. The accumulated earnings tax rate is currently 15% but is scheduled to increase to ordinary income tax rates in taxable years beginning on or after January 1, 2013. As discussed above with respect to the personal holding company tax, the amount of any accumulated earnings tax we might have to pay could impair our operating results or, if we declared dividends in amounts sufficient to avoid the accumulated earnings tax, deplete our cash resources.
Following the Five Star Sale, we have no revenue from operations; therefore, our existing assets may be diminished and ultimately depleted by our corporate overhead and other expenses.
Following the Five Star Sale, we have no revenue from operations and have been experiencing significant negative cash flow. Expenditures related to corporate overhead generated and other related items are expensed. Until such time as we develop or acquire an operating business or businesses that generate revenue, we will continue to deplete our existing assets.
Risks Related to Our Stock
We have agreed to restrictions and adopted policies that could have possible anti-takeover effects and reduce the value of our stock.
Several provisions of our Certificate of Incorporation and Bylaws could deter or delay unsolicited changes in control of the Company. These include limiting the stockholders’ powers to amend the Bylaws or remove directors, and prohibiting the stockholders from increasing the size of the Board of Directors or acting by written consent instead of at a stockholders’ meeting. Our Board of Directors has the authority, without further action by the stockholders to fix the rights and preferences of and issue preferred stock. These provisions and others that could be adopted in the future could deter unsolicited takeovers or delay or prevent changes in control or management of the Company including transactions in which stockholders might otherwise receive a premium for their shares over then current market prices. These provisions may limit the ability of stockholders to approve transactions that they may deem to be in their best interests.
Item 1B.
Item 1B. Unresolved Staff Comments.
Not applicable.
Item 2.
Item 2. Properties.
None.
Item 3.
Item 3. Legal Proceedings.
On or about December 14, 2011, the Official Committee of Unsecured Creditors of TMG Liquidation Corp on behalf of the estates of debtors created as a result of filing under Chapter 11 by Merit filed an adversary proceeding against the Company with the United States Bankruptcy Court for the District of South Carolina, seeking to void the sale of Five Star to Merit. Management believes the claim is without merit and the Company intends to vigorously defend this matter.
PART II
Item 5.
Item 5. Market for the Registrant’s Common Equity and Related Stockholder Matters.
The following table presents the high and low bid and asked prices for the Company’s common stock for 2011 and 2010. The Company’s common stock, $0.01 par value, is quoted on the OTC Bulletin Board. Such quotations reflect inter-dealer prices, without retail mark-up, mark-down or commission and may not necessarily represent actual transactions.
The number of stockholders of record of the Company’s common stock as of February 21, 2012 was 956 and the closing price on the OTC Bulletin Board of such common stock on that date was $1.95 per share.
The Company did not declare or pay any cash dividends on its common stock in 2011 or 2010. The Company currently intends to retain future earnings to finance the growth and development of its business and does not intend to pay cash dividends in the foreseeable future.
Issuer Purchases of Equity Securities
On December 15, 2006, the Company’s Board of Directors authorized the Company to repurchase up to 2,000,000 shares, or approximately 11%, of its outstanding shares of common stock on that date, from time to time either in open market or privately negotiated transactions. The Company undertook this repurchase program in an effort to increase stockholder value.
On August 13, 2008, the Company’s Board of Directors authorized an increase of 2,000,000 shares, or approximately 11% of the Company’s then-outstanding shares of common stock, to the Company’s stock repurchase program and on March 29, 2011 the Company’s Board of Directors authorized an increase of an additional 1,000,000 shares to be repurchased.
There were no common stock repurchases made by or on behalf of the Company during the year ended December 31, 2011. At December 31, 2011 a total of 3,208,179 shares of common stock remained available for purchase.
Item 6.
Item 6. Selected Financial Data.
Not required.
Item 7.
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
General Overview
On January 15, 2010, we completed the Five Star Sale, in which we sold to Merit all of the issued and outstanding shares of Five Star stock for cash pursuant to the terms and subject to the conditions of the Five Star Stock Purchase Agreement (see Note 3 to the Consolidated Financial Statements). See “Item 1. Business - General Development of Business”.
Five Star’s results of operations for the year ended December 31, 2011 has been accounted for as a discontinued operation in the consolidated statements of operations. (see Note 2 to the Consolidated Financial Statements). .
Upon the consummation of the Five Star Sale, we became a “shell company”, as defined in Rule 12b-2 of the Exchange Act. Because we are a shell company, our stockholders are unable to utilize Rule 144 to sell “restricted stock” as defined in Rule 144 or to otherwise use Rule 144 to sell our securities, and we are ineligible to utilize registration statements on Form S-3 or Form S-8 for so long as we remain a shell company and for 12 months thereafter. As a consequence, among other things, the offering, issuance and sale of our securities is likely to be more expensive and time consuming and may make our securities less attractive to investors. See “Item 1. Business - Nature of Our Business Following the Five Star Sale”, and “Item 1A. Risk Factors”.
Our Board of Directors is considering strategic uses for the Five Star Sale proceeds including, without limitation, using such funds, together with other funds of the Company, to develop or acquire interests in one or more operating businesses. While we have focused our development or acquisition efforts on sectors in which our management has expertise, we do not wish to limit ourselves to, or to foreclose any opportunities in, any particular industry or sector. Prior to this use, the Five Star Sale proceeds have been, and we anticipate will continue to be, invested in high-grade, short-term investments (such as cash and cash equivalents) consistent with the preservation of principal, maintenance of liquidity and avoidance of speculation, until such time as we need to utilize such funds, or any portion thereof, for the purposes described above. We have not distributed, and do not anticipate distributing, the proceeds of the Five Star Sale to our stockholders.
Five Star Leases
The Company had guaranteed the lease for Five Star’s New Jersey warehouse. On January 15, 2010, the Company completed the sale to Merit of all the issued and outstanding stock of Five Star. Merit extended the New Jersey warehouse lease, which originally expired in September 2010 through March 2011 at which time the lease expired. Under the terms of the Five Star Stock Purchase Agreement, Merit is responsible for the first $25,000 of repairs and end of lease costs, and the Company is responsible for 75% of the remaining costs. The Company had been in negotiations with Merit regarding an allocation of financial responsibility for repairs to the New Jersey warehouse and end of lease costs. However, on May 17, 2011, Merit and its affiliates filed voluntary Chapter 11 petitions in the United States Bankruptcy Court for the District of South Carolina. As a result of the Chapter 11 filing, and the inability of the parties to come to an agreement on financial responsibility, the landlord drew down on a $128,000 letter of credit previously provided by GP Strategies Corporation (GP Strategies). GP Strategies had issued the letter of credit to the landlord in exchange for the landlord removing the GP Strategies guarantee for the New Jersey warehouse lease. As a result of the spin off of the Company from GP Strategies in November 2004, the Company had indemnified GP Strategies for any costs related to their guarantee of the Five Star lease, and therefore the Company reimbursed GP Strategies $128,000. The Company filed a claim with the bankruptcy court, but based on its initial analysis of the Chapter 11 filings believes it is unlikely that it will recover its claim. For the year ended December 31, 2011, Company has recorded approximately $135,000 for its estimated share of the costs, which is included in Loss from discontinued operations.
In connection with the sale of Five Star, the Company is responsible for all activities necessary to achieve compliance with the Connecticut Transfer Act, including receipt of approval from the Connecticut Department of Environmental Protection (“CTDEP’) and implementation of a remediation plan, if required, with respect to environmental obligations related to Five Star’s Connecticut warehouse. For the year ended December 31, 2011, the Company has accrued an additional $40,000 for estimated costs associated with completing the Connecticut Transfer Act process with the CTDEP. Such amount is included in loss from discontinued operations. The Company has satisfied its remediation and environmental obligations with the New Jersey Department of Environmental Protection.
Other Assets
The Company owns certain non-strategic assets, including an investment in MXL Operations Inc. (MXL), certain contingent stock rights in products under development by Endo and interests in land and flowage rights in undeveloped property in Killingly, Connecticut. The Company has a $275,000 investment and a 19.9% interest in MXL.
On March 23, 2009, Indevus filed a Current Report on Form 8-K with the SEC announcing the completion of an Agreement and Plan of Merger with Endo Pharmaceuticals Holdings Inc., a Delaware corporation (“Endo”), and BTB Purchaser Inc., a Delaware corporation and wholly-owned subsidiary of Endo, pursuant to which Endo acquired all of the issued and outstanding shares of the common stock of Indevus (the “Endo Merger”). Notwithstanding the consummation of such transaction, the Company retains rights to receive certain cash payments based on FDA approval of certain drug applications. If FDA approval of the Octreotide implant for the treatment for acromegaly is achieved on or before April 18, 2012, the Company would receive approximately $3,100,000 and if Aveed™ is approved by the FDA, an additional approximately $2,100,000 would be received by the Company. The Aveed™ amount would only be payable to the Company and former Valera shareholders if there were Octreotide Approval.
On November 11, 2011, Endo decided to terminate the development of its Octreotide implant for the treatment of acromegaly. The decision was made by Endo after conducting an in-depth review of their research and development activities, including an analysis of research and development priorities, focus and available resources for current and future projects and the commercial potential for the product. Therefore the Company does not anticipate receiving any contingent cash consideration, since the Aveed™ contingent consideration was contingent upon receiving Octreotide approval. See “Item 1. Business- Endo Pharmaceuticals” and Note 6 to the Consolidated Financial Statements.
Management discussion of critical accounting policies
The following discussion and analysis of the financial condition and results of operations are based on the consolidated financial statements and notes to consolidated financial statements contained in this report that have been prepared in accordance with the rules and regulations of the SEC and include all the disclosures normally required in annual consolidated financial statements prepared in accordance with accounting principles generally accepted in the United States of America. The preparation of these financial statements requires us to make estimates that affect the reported amounts of assets, liabilities, sales and expenses, and related disclosures of contingent assets and liabilities. We base these estimates on historical results and various other assumptions believed to be reasonable, all of which form the basis for making estimates concerning the carrying values of assets and liabilities that are not readily available from other sources. Actual results may differ from these estimates.
Certain of our accounting policies require higher degrees of judgment than others in their application. These include stock based compensation and accounting for income taxes which are summarized below.
Cash and cash equivalents
Cash equivalents consist of investments in Treasury money market funds.
Investments
The Company holds 19.9% equity investments in certain privately-held companies which acquired the assets of its former subsidiary, which was engaged in the plastic molding and precision coating businesses. The investments are included in other assets and accounted for at cost of $275,000 under ASC 325, Investments- Other. The Company monitors these investments for impairment by considering current factors, including the economic environment, market conditions, operational performance and other specific factors relating to the business underlying the investment, and records impairments in carrying values when necessary.
Fair value of financial instruments.
The carrying value of cash and cash equivalents and accounts payable approximate estimated fair values because of short maturities.
Cash equivalents are classified within level 1 of the fair value hierarchy because they are valued using quoted market prices in active markets.
Employees’ stock based compensation.
Stock-based compensation cost is measured at the grant date based on the fair value of the award and is recognized as an expense on a straight-line basis over the requisite service period, which is generally the vesting period. The valuation provisions of ASC 718 apply to new grants and to grants that were outstanding as of the effective date of ASC 718 and are subsequently modified. See Note 10 to the Consolidated Financial Statements for further information regarding our stock-based compensation assumptions and expense.
Income taxes
Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates in effect for the year in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. Valuation allowances are based on the “more likely than not” criteria.
The accounting for uncertain tax positions requires that we recognize the financial statement benefit of a tax position only after determining that the Company would more likely than not sustain the position following an audit. For tax positions meeting the more-likely-than-not threshold, the amount recognized in the financial statements is the largest benefit that has a greater than 50 percent likelihood of being realized upon ultimate settlement with the relevant tax authority.
Year ended December 31, 2011 compared to the year ended December 31, 2010
On January 15, 2010, the Company completed the sale of all the issued and outstanding stock of Five Star under the Stock Purchase Agreement between the Company and Merit dated November 24, 2009 and the results for Five Star have been treated as a discontinued operation.
For the year ended December 31, 2011, the Company had a loss from continuing operations before income taxes of $1,794,000 compared to a loss from continuing operations before income taxes of $3,374,000 for the year ended December 31, 2010. The reduced loss from operations is the result of reduced General and administrative expenses (“G&A”) of $1,584,000.
General and administrative expenses
For the year ended December 31, 2011, G&A was $1,812,000 as compared to $3,396,000 for the year ended December 31, 2010. The decreased G&A of $1,584,000 was primarily due to the following (in thousands):
Income taxes
For the year ended December 31, 2010, the Company recorded an income tax (benefit) from continuing operations of $(1,006,000), which substantially represented a potential recovery of Federal income tax paid in respect of 2009, as a result of a net operating loss carryback attributable to the loss from continuing operations in the year ended December 31, 2010.
For the year ended December 31, 2011, the income tax expense related to continuing operations of $257,000 substantially represents an approximately $190,000 correction of the tax benefit recorded in the year ended December 31, 2010 attributable to alternative minimum tax implications related to the net operating loss carryback.
Five Star is currently undergoing an income tax examination by the Internal Revenue Service for income tax filings for the years ended December 31, 2007 and 2008 and is being challenged with respect to the timing of certain tax deductions. As a result, a liability for uncertain tax positions was provided in the year ended December 31, 2010 and charged to discontinued operations. As of December 31, 2011, the liability related to Five Star included in the accompanying consolidated balance sheet amounted to approximately $313,000 for potential federal and state tax deficiencies and related interest, of which approximately $213,000 related to additional tax and approximately $100,000 related to interest. For the year ended December 31, 2011 an income tax benefit of approximately $100,000 together with a reduction of related interest and penalties of approximately $8,000 and $15,000, respectively, was credited to discontinued operations, representing a correction of the amounts recorded in 2010, due to a computation error. In addition, approximately $40,000 related to remaining penalties charged to other expense within loss from discontinued operations in 2010 were reduced to zero in 2011 based on the notice of deficiency received from the Internal Revenue Service in 2011. The Company intends to vigorously defend Five Star’s position with the Internal Revenue Service. The deficiency notice was issued on April 25, 2011. On May 17, 2011, Five Star Products Inc. and its subsidiary Five Star Group Inc. filed petitions for reorganization under Chapter 11 of the United States Bankruptcy code. On December 16, 2011, the Plan of Reorganization of TMG Liquidation Corp., Five Star Products Inc.’s parent corporation, was approved by the Bankruptcy Court. Under the Plan of Reorganization, the Internal Revenue Service is authorized to pursue the Plan Administrator, who is authorized to defend the deficiency letter issued to Five Star Products, Inc.
During the year ended December 31, 2011, New York State began examining the Company’s 2008 through 2010 tax returns. As a result of the examination, a liability for uncertain tax positions in the amount of $18,000 was provided and charged to continuing operations to account for a potential change to the Company’s capital base tax for the 2010 tax year. Additionally, during the year ended December 31, 2011, the Internal Revenue Service began examining the Company’s 2009 U.S. federal tax return. The Company does not anticipate any material impact to the financial statements due to these examinations.
For the year ended December 31, 2010, income tax expense of $877,000 charged to discontinued operations was due to the tax referred to above and the write-off of the deferred tax asset at December 31, 2009 attributable to the reversal of deductible temporary differences related to assets and liabilities held for sale at such date.
The effect of error corrections attributable to income tax and related items discussed above amounted to a net expense of approximately $67,000, which the Company determined was not material to either the 2010 or 2011 financial statements.
Financial condition, liquidity and capital resources
Liquidity and Capital Resources
At December 31, 2011, the Company had cash and cash equivalents totaling $27,247,000, which it intends to use to acquire interests in one or more operating businesses and to fund the Company’s general and administrative expenses.
Contractual Obligations and Commitments
The Company had guaranteed the lease for Five Star’s New Jersey warehouse. On January 15, 2010, the Company completed the sale to Merit of all the issued and outstanding stock of Five Star. Merit extended the New Jersey warehouse lease, which originally expired in September 2010 through March 2011 at which time the lease expired. Under the terms of the Five Star Stock Purchase Agreement, Merit is responsible for the first $25,000 of repairs and end of lease costs, and the Company is responsible for 75% of the remaining costs. The Company had been in negotiations with Merit regarding an allocation of financial responsibility for repairs to the New Jersey warehouse and end of lease costs. However, on May 17, 2011, Merit and its affiliates filed voluntary Chapter 11 petitions in the United States Bankruptcy Court for the District of South Carolina. As a result of the Chapter 11 filing, and the inability of the parties to come to an agreement on financial responsibility, the landlord drew down on a $128,000 letter of credit previously provided by GP Strategies Corporation (GP Strategies). GP Strategies had issued the letter of credit to the landlord in exchange for the landlord removing the GP Strategies guarantee for the New Jersey warehouse lease. As a result of the spin off of the Company from GP Strategies in November 2004, the Company had indemnified GP Strategies for any costs related to their guarantee of the Five Star lease, and therefore the Company reimbursed GP Strategies $128,000. The Company filed a claim with the bankruptcy court, but based on its initial analysis of the Chapter 11 filings believes it is unlikely that it will recover its claim. For the year ended December 31, 2011, the Company has recorded approximately $135,000 for its estimated share of the costs, which is included in Loss from discontinued operations.
In connection with the sale of Five Star, the Company is responsible for all activities necessary to achieve compliance with the Connecticut Transfer Act, including receipt of approval from the Connecticut Department of Environmental Protection (“CTDEP’) and implementation of a remediation plan, if required, with respect to environmental obligations related to Five Star’s Connecticut warehouse. For the year ended December 31, 2011, the Company has accrued an additional $40,000 for estimated costs associated with completing the Connecticut Transfer Act process with the CTDEP. Such amount is included in loss from discontinued operations. The Company has satisfied its remediation and environmental obligations with the New Jersey Department of Environmental Protection.
Item 7A.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
Not required.
Item 8.
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
Index to the Consolidated Financial Statements
Financial Statements of National Patent Development Corporation and Subsidiaries
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors and Stockholders of
National Patent Development Corporation:
We have audited the accompanying consolidated balance sheets of National Patent Development Corporation (the “Company”) as of December 31, 2011 and 2010 and the related consolidated statements of operations, comprehensive loss, cash flows and changes in stockholders’ equity for the years then ended. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these 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. We were not engaged to perform an audit of the Company's internal control over financial reporting. Our audits include 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 Company's 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 audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of National Patent Development Corporation as of December 31, 2011 and 2010, and the consolidated results of its operations and its cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States of America.
As discussed in Note 1 to the financial statements, on January 15, 2010, the Company completed the sale of Five Star Group, Inc., its remaining operating subsidiary and is actively continuing its efforts to acquire interests in one or more operating businesses.
EisnerAmper LLP
New York, New York
March 1, 2012
NATIONAL PATENT DEVELOPMENT CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
See accompanying notes to consolidated financial statements.
NATIONAL PATENT DEVELOPMENT CORPORATION
CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
(in thousands)
See accompanying notes to consolidated financial statements.
NATIONAL PATENT DEVELOPMENT CORPORATION
CONSOLIDATED BALANCE SHEETS
(in thousands, except share and per share data)
See accompanying notes to consolidated financial statements.
NATIONAL PATENT DEVELOPMENT CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
See accompanying notes to consolidated financial statements.
NATIONAL PATENT DEVELOPMENT CORPORATION
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY
YEARS ENDED DECEMBER 31, 2011 AND 2010
(in thousands, except share data)
See accompanying notes to consolidated financial statements
NATIONAL PATENT DEVELOPMENT CORPORATION
Notes to Consolidated Financial Statements
1. Description of activities
On January 15, 2010, after approval of its stockholders on January 14, 2010, National Patent Development Corporation (the “Company” or “National Patent”) completed the sale to The Merit Group, Inc. (“Merit”) of all of the issued and outstanding stock of National Patent’s wholly-owned subsidiary, Five Star Products, Inc., the holding company and sole stockholder of Five Star Group, Inc., for cash pursuant to the terms and subject to the conditions of an agreement dated as of November 24, 2009 (the “Five Star Sale”, see Note 3). As used herein, references to “Five Star” refer to Five Star Products Inc. or Five Star Group Inc., or both, as the context requires.
Upon the consummation of the Five Star Sale, the Company became a “shell company”, as defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended.
Prior to consummation of the Five Star Sale, the Company’s Board of Directors believed that, although the Company was not engaged primarily in the business of investing, reinvesting or trading in securities, and did not hold itself out as being primarily engaged in those activities, the Company could, upon consummation of the Five Star Sale, fall within the technical definition of “investment company” under Section 3(a)(1) of the Investment Company Act of 1940, as amended (the “Investment Company Act”). After the Five Star Sale, the Company’s Board of Directors has re-evaluated the characterization and valuation of its assets for purposes of the applicable definitions of the Investment Company Act and has concluded that the Company does not fall within the technical definition of “investment company” because the “investment securities” it holds constitute less than 40% of its total assets (exclusive of government securities and cash and certain cash equivalents). Accordingly, the Company was not required to take any affirmative steps, including developing or acquiring interests in one or more operating businesses prior to January 15, 2011, in order to avoid becoming an “investment company” for purposes of the Investment Company Act. However, the Company is actively continuing its efforts to acquire interests in one or more operating businesses on terms that the Company’s Board of Directors determines to be in the best interest of the Company and its stockholders.
Until such time as the liquid assets of the Company are so deployed into operating businesses, National Patent intends to continue to invest such assets in high-grade, short-term investments (such as cash equivalents) consistent with the preservation of principal, maintenance of liquidity and avoidance of speculation.
2. Discontinued Operation
Operations in 2010 and expenses and taxes in 2011 related to Five Star, have been accounted for as a discontinued operation in the accompanying consolidated statements of operations.
For the years ended December 31, 2011 and 2010 the components of loss from discontinued operations were as follows (in thousands):
3. Sale of Five Star
On January 15, 2010 (the “Closing Date”), the Company completed the sale to Merit of all of the issued and outstanding stock of Five Star for cash pursuant to an agreement, dated November 24, 2009 (the “Five Star Stock Purchase Agreement”).
The Five Star Stock Purchase Agreement provided for an aggregate purchase price (the “Purchase Price”) for the stock of $33,124,000, subject to certain adjustments to reflect (i) (A) changes in the outstanding balance of Five Star’s revolving indebtedness under its loan agreement with Bank of America (the “Revolving Indebtedness”) from the amount outstanding at March 31, 2009 compared to the amount outstanding on the Closing Date (the “Cash Flow Adjustment”) and (B) increases dollar for dollar if Five Star had positive net results, as defined, from March 31, 2009 to the Closing Date, or decreases if it had negative net results, as defined, during such period (the “Net Results Adjustment”) and (ii) a potential downward adjustment based on the value of certain designated inventory held by Five Star, less the value received for such inventory after the Closing Date (the “Inventory Adjustment”), to the extent such Inventory Adjustment post-closing exceeded $400,000 but was equal to or less than $1,000,000.
At the Closing Date (i) the Cash Flow Adjustment reduced the Purchase Price by $5,611,000, (ii) $15,178,000 of the Purchase Price was used to repay the Revolving Indebtedness (including related fees and expenses of $374,000); (iii) $900,000 of the Purchase Price was placed in escrow - $300,000 of which was held by the Escrow Agent to provide for indemnity payments which National Patent may be required to pay to Merit (the “Indemnity Escrow Deposit”) (included in prepaid expenses and other current assets in the accompanying consolidated balance sheet as of December 31, 2010) and $600,000 of which was held by the Escrow Agent to provide for payment of the Inventory Adjustment (the “Inventory Escrow Deposit”); and (iv) $970,000 of the Purchase Price was retained by Merit to fund severance payments to employees of Five Star. The $10,465,000 balance of the Purchase Price was remitted to National Patent at the Closing Date. Additionally, the Purchase Price was subject to post-closing adjustments as a result of the Net Results Adjustment and the Inventory Adjustment as discussed above.
In February, 2010, the Company notified Merit that the Purchase Price should be increased by approximately $188,000 based on the Company’s calculation of the Net Results Adjustment. On March 1, 2010, Merit notified the Company that based on Merit’s calculation of the Net Results Adjustment, the Purchase Price should be reduced by approximately $3,400,000. The Company did not agree with Merit’s calculation. Pursuant to the Five Star Stock Purchase Agreement, the dispute could have been submitted to binding arbitration by either Merit or the Company.
On May 14, 2010, the Company and Merit entered into a Settlement Agreement and Mutual Release (the “Settlement Agreement”). Pursuant to the Settlement Agreement, the parties mutually released and discharged each other (the “Releases”) from and against any and all claims or potential claims and/or causes of action in connection with the Stock Purchase Agreement and the Sale including, but not limited to, any and all such claims and/or causes of actions relating to the Cash Flow Adjustment, the Net Results Adjustment, the Inventory Adjustment or the Inventory Escrow Deposit, but excluding obligations and agreements by and among the parties identified as exclusions in the Settlement Agreement.
In consideration of the Releases, the parties agreed that the Purchase Price would be reduced by an aggregate of $1,050,000, which reduction was effected as follows: (i) the Inventory Escrow Deposit was released to Merit by the Escrow Agent, and (ii) the Company paid to Merit, by wire transfer, the amount of $450,000. The Indemnity Escrow Deposit of $300,000 was released to the Company in January 2011.
The gain on the sale of Five Star, after giving effect to the Settlement Agreement, amounted to $2,405,000, net of transaction costs, and is included in Loss from discontinued operations in the Consolidated Statement of Operations for the year ended December 31, 2010.
During the year ended December 31, 2011, the Company recorded in discontinued operations the following items: an additional $18,000 of interest expense, reduction of $55,000 of penalties and a $100,000 tax benefit related to Five Star’s current Internal Revenue Service examination (see Note 8). In addition, the Company recorded $175,000 for estimated costs related to certain end of lease obligations at Five Star’s East Hanover, New Jersey warehouse and certain environmental compliance issues at Five Star’s Newington Connecticut warehouse (see Note 12(a)).
Five Star’s assets sold and liabilities assumed, and gain on sale which has been reduced for estimated potential expenses which may be incurred under state environmental laws, discussed above were as follows (in thousands):
4. Summary of significant accounting policies
Principles of consolidation.
The consolidated financial statements include the accounts of the Company and its subsidiaries. All significant 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 reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reported period. Actual results could differ from these estimates.
Cash and cash equivalents
Cash equivalents represent short-term, highly liquid investments, which are readily convertible to cash and have maturities of three months or less at time of purchase. Cash equivalents, which are carried at cost plus accrued interest, which approximates fair value, consist of an investment in a money market fund which invests in treasury bills and amounted to approximately $27,152,000 and $27,900,000 at December 31, 2011 and 2010, respectively.
Cash equivalents are classified within level 1 of the fair value hierarchy because they are valued using quoted market prices in active markets.
Investments
The Company holds 19.9% equity investments in certain privately-held companies which acquired the assets of its former subsidiary, which was engaged in the plastic molding and precision coating businesses. These investments are included in other assets and accounted for at cost of $275,000. The Company monitors these investments for impairment by considering current factors, including the economic environment, market conditions, operational performance and other specific factors relating to the business underlying the investment, and records impairments in carrying values when necessary.
Basic and diluted loss per share
Basic and diluted loss per share for the years ended December 31, 2011 and 2010, respectively, is calculated based on 17,580,000 and 17,569,000 weighted average outstanding shares of common stock. Options for 3,300,000 and 3,250,000 shares of common stock were not included in the diluted computation in 2011 and 2010, respectively, as their effect would be anti-dilutive since the Company has losses from continuing operations for both years.
Employees’ stock based compensation.
Stock-based compensation cost is measured at the grant date based on the fair value of the award and is recognized as an expense on a straight-line basis over the requisite service period, which is generally the vesting period. See Note 10 for further information regarding our stock-based compensation assumptions and expense.
Income taxes
Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to carryforwards and to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates in effect for the year in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date.
The accounting for uncertain tax positions guidance requires that the Company recognize the financial statement benefit of a tax position only after determining that the Company would more likely than not sustain the position following an audit. For tax positions meeting the more-likely-than-not threshold, the amount recognized in the financial statements is the largest benefit that has a greater than 50 percent likelihood of being realized upon ultimate settlement with the relevant tax authority. The Company recognizes interest and penalties on uncertain tax positions as interest and other expenses, respectively.
Concentrations of credit risk
Financial instruments that potentially subject the Company to significant concentrations of credit risk consist principally of cash investments. The Company places its cash investments with high quality financial institutions.
Policies applicable to discontinued operations (see Note 2):
Inventories
Inventories related to discontinued operations were valued at the lower of cost, using the first-in, first-out method, or market. Vendor allowances reduced the carrying cost of inventory unless they were specifically identified as a reimbursement for promotional programs and/or other services provided. Any such allowances received in excess of the actual cost incurred also reduce the carrying cost of inventory.
Valuation of accounts receivable
Provisions for doubtful accounts related to discontinued operations were made based on consideration of the Company’s historical loss experience, judgments about customer credit risk, and the need to adjust for current economic conditions.
Property, plant and equipment
Property, plant and equipment were carried at cost, net of allowance for depreciation. Major additions and improvements were capitalized while maintenance and repairs which did not extend the lives of the assets were expensed as incurred. Gain or loss on the disposition of property, plant and equipment was recognized in operations when realized. Depreciation was provided on a straight-line basis over estimated useful lives of 5 to 40 years for buildings and improvements and 3 to 7 years for machinery, equipment and furniture and fixtures.
Impairment of long-lived tangible assets
Long-lived tangible assets with finite lives were tested for impairment whenever events or changes in circumstances indicated that the carrying amount of an asset may not be recoverable. Recoverability of long-lived tangible assets to be held and used was measured by a comparison of the carrying amount of the asset to future undiscounted net cash flows expected to be generated by the asset. If the carrying amount was not considered to be recoverable, the impairment to be recognized was measured by determining the amount by which the carrying amount exceeds the fair value of the asset. Assets to be disposed of were reported at the lower of their carrying amount or fair value less cost of sale.
Revenue recognition
Revenue on product sales related to discontinued operations was recognized at the point in time when the product had been shipped, title and risk of loss had been transferred to the customer, and the following conditions were met: persuasive evidence of an arrangement existed, the price was fixed and determinable, and collectability of the resulting receivable was reasonably assured. Allowances for estimated returns and discounts were recognized when sales were recorded.
5. Comprehensive loss
Effective June 30, 2008, Five Star entered into an interest rate swap to manage exposures resulting from fluctuations in interest rates on its short-term borrowings with Bank of America, which was designated as a cash flow hedge. Cumulative losses on the hedge were included in accumulated other comprehensive loss net of related tax benefit. Any ineffective portion of the hedge was recognized in earnings. Under the interest rate swap arrangement, effective June 30, 2008 and until June 30, 2011, Five Star was to pay a fixed interest rate of 3.62% to Bank of America on notional principal of $20,000,000. In return, Bank of America was to pay to Five Star a floating rate, namely, LIBOR, on the same notional principal amount. The interest rate swap was being recognized in the balance sheet at fair value. Changes in the fair value of the interest rate swap were recognized in other comprehensive income.
In connection with the sale of Five Star, the outstanding balance of the bank loan of $14,804,000, including accrued interest, was fully repaid to Bank of America from the sale proceeds (see Note 2). Accordingly, the $803,000 unrecognized loss on the interest rate swap together with the $321,000 related tax benefit was reclassified from accumulated other comprehensive loss to loss from discontinued operations during the year ended December 31, 2010.
6. Contingent rights
Effective April 18, 2007 (the “Indevus Effective Time”), all of the outstanding common stock of Valera Pharmaceuticals, Inc. (“Valera”), a Delaware corporation in which the Company had owned 2,070,670 shares of common stock at such time, was acquired by Indevus Pharmaceuticals, Inc. (“Indevus”), a biopharmaceutical company engaging in the acquisition, development, and commercialization of products to treat urological, gynecological, and men’s health conditions. The transaction was effected pursuant to the terms and conditions of an Agreement and Plan of Merger, dated as of December 11, 2006 (the “Valera Merger Agreement”). As a result of the transaction, the 2,070,670 shares of Valera common stock held by the Company immediately preceding the Indevus Effective Time were converted into an aggregate of 2,347,518 shares of Indevus common stock as of the Indevus Effective Time. These shares of Indevus common stock were sold by the Company in 2007.
Following the Indevus Effective Time and prior to March 23, 2009, the Company was entitled to two additional contingent tranches of shares of Indevus common stock (the “Contingent Rights”), to the extent of the achievement of certain milestones with respect to specific product candidates, namely FDA approval of certain drug applications.
On March 23, 2009, Indevus filed a Current Report on Form 8-K with the SEC announcing the completion of an Agreement and Plan of Merger with Endo Pharmaceuticals Holdings Inc., a Delaware corporation (“Endo”), and BTB Purchaser Inc., a Delaware corporation and wholly-owned subsidiary of Endo, pursuant to which Endo acquired all of the issued and outstanding shares of the common stock of Indevus (the “Endo Merger”). As a result of the Endo Merger, the Contingent Rights were converted into the right to receive $4.50 per Indevus share of common stock that such former Valera shareholder would have received if FDA approval of the Octreotide implant for the treatment for acromegaly is achieved on or before April 18, 2012 (Octreotide Approval), plus contractual rights to receive up to an additional $3.00 per Indevus share of common stock that such former Valera shareholder would have received in contingent cash consideration payments upon the approval of the Aveed™ product. The Aveed™ amount would only be payable to former Valera shareholders if there were Octreotide Approval. The cash payments upon Octreotide Approval would be approximately $3,100,000 and if Aveed™ is approved by the FDA, an additional approximately $2,100,000 would be received by the Company. The Company would recognize an additional gain on the date that the above approvals are achieved. Two parties related to the Company at the time of the original transaction in which the Company received the Contingent Rights (one of which continues to be a related party) would be entitled to receive a portion of any such cash payments received by the Company (see Note 13 (a)).
On November 11, 2011, Endo announced that it had decided to terminate the development of its Octreotide implant for the treatment of acromegaly. The decision was made by Endo after conducting an in-depth review of their research and development activities, including an analysis of research and development priorities, focus and available resources for current and future projects and the commercial potential for the product. Therefore the Company does not anticipate receiving any contingent cash consideration, since the Aveed™ contingent consideration was contingent upon receiving Octreotide approval.
7. Accounts payable and accrued expenses
Accounts payable and accrued expenses consist of the following:
8. Income taxes
The components of income tax expense (benefit) are as follows (in thousands):
The difference between the benefit for income taxes computed at the statutory rate and the reported amount of tax expense (benefit) from continuing operations is as follows:
The tax effects of temporary differences between the financial reporting and tax bases of assets and liabilities from continuing operations are summarized as follows (in thousands):
As of December 31, 2011, the Company has a federal net operating loss carryforward of approximately $4.7 million, which expires in 2030 and 2031 and various State and local net operating loss carryforwards ranging from approximately $6.9 million to $8.6 million, which begins to expire between 2016 and 2030.
A valuation allowance is provided when it is more likely than not that some portion of deferred tax assets will not be realized. The valuation allowance increased by approximately $718,000 and $919,000 respectively, during the years ended December 31, 2011 and 2010 due to increases of net operating loss carryforwards and other deferred tax assets.
For the year ended December 31, 2010, the Company recorded an income tax (benefit) from continuing operations of $(1,006,000), which substantially represented a potential recovery of Federal income tax paid in respect of 2009, as a result of a net operating loss carryback attributable to the loss from continuing operations in the year ended December 31, 2010. For the year ended December 31, 2011, the income tax expense related to continuing operations of $257,000 substantially represents an approximately $190,000 correction of the tax benefit recorded in the year ended December 31, 2010 attributable to alternative minimum tax implications related to the net operating loss carryback.
Five Star is currently undergoing an income tax examination by the Internal Revenue Service for income tax filings for the years ended December 31, 2007 and 2008 and is being challenged with respect to the timing of certain tax deductions. As a result, a liability for uncertain tax positions was provided in the year ended December 31, 2010 and charged to discontinued operations. As of December 31, 2011, the liability related to Five Star included in the accompanying consolidated balance sheet amounted to approximately $313,000 for potential federal and state tax deficiencies and related interest, of which approximately $213,000 related to additional tax and approximately $100,000 related to interest. For the year ended December 31, 2011 an income tax benefit of approximately $100,000 together with a reduction of related interest and penalties of approximately $8,000 and $15,000, respectively, was credited to discontinued operations, representing a correction of the amounts recorded in 2010, due to a computation error. In addition, approximately $40,000 related to remaining penalties charged to other expense within loss from discontinued operations in 2010 were reduced to zero in 2011 based on the notice of deficiency received from the Internal Revenue Service in 2011. The Company intends to vigorously defend Five Star’s position with the Internal Revenue Service. The deficiency notice was issued on April 25, 2011. On May 17, 2011, Five Star Products Inc. and its subsidiary Five Star Group Inc. filed petitions for reorganization under Chapter 11 of the United States Bankruptcy code. On December 16, 2011, the Plan of Reorganization of TMG Liquidation Corp., Five Star Products Inc.’s parent corporation, was approved by the Bankruptcy Court. Under the Plan of Reorganization, the Internal Revenue Service is authorized to pursue the Plan Administrator, who is authorized to defend the deficiency letter issued to Five Star Products, Inc.
Pursuant to the Five Star Stock Purchase Agreement, the Company and Merit agreed to jointly make an election under Section 338 (h) (10) of the Internal Revenue Code to treat the sale of the Five Star stock as a sale of the Five Star assets and liabilities. For the year ended December 31, 2010, income tax expense of $877,000 charged to discontinued operations was due to the tax for uncertain tax positions referred to above and the write-off of the deferred tax asset at December 31, 2009 attributable to the reversal of deductible temporary differences related to Five Star’s assets and liabilities held for sale at such date.
The effect of error corrections attributable to income tax and related items discussed above amounted to a net expense of approximately $67,000, which the Company determined was not material to either the 2010 or 2011 financial statements.
The Company files a consolidated federal income tax return with its subsidiaries. Prior to July 2008, Five Star was less than 80% owned by the Company and filed its own consolidated federal return with its holding company parent. The Company and Five Star filed separate state and local tax returns. For federal income tax purposes, the 2008 through 2011 tax years remain open for examination by the tax authorities under the normal three year statute of limitations. For state tax purposes, the 2007 through 2011 tax years remain open for examination by the tax authorities under a four year statute of limitations.
During the year ended December 31, 2011, New York State began examining the Company’s 2008 through 2010 tax returns. As a result of the examination, a liability for uncertain tax positions in the amount of $18,000 was provided and charged to continuing operations to account for a potential change to the Company’s capital base tax for the 2010 tax year. Additionally, during the year ended December 31, 2011, the Internal Revenue Service began examining the Company’s 2009 U.S. federal tax return. The Company does not anticipate any material impact to the financial statements due to these examinations.
A reconciliation of the unrecognized tax benefits for the years ended December 31, 2011 and 2010 follows (in thousands):
As of December 31, 2011, to reflect the increase in the Company’s net operating loss carry forward related to the future deductibility of tax deductions which gave rise to the unrecognized tax benefit, the Company recognized deferred tax assets in respect of the above unrecognized tax benefits, which are fully reserved for. If and when such unrecognized tax benefits are realized, the Company's effective tax rate would be affected.
9. Capital Stock
The Company’s Board of Directors, without any vote or action by the holders of common stock, is authorized to issue preferred stock from time to time in one or more series and to determine the number of shares and to fix the powers, designations, preferences and relative, participating, optional or other special rights of any series of preferred stock.
On December 15, 2006, the Board of Directors authorized the Company to repurchase up to 2,000,000 shares, or approximately 11%, of its outstanding shares of common stock from time to time either in open market or privately negotiated transactions. On August 13, 2008, the Company’s Board of Directors authorized an increase of 2,000,000 common shares to be repurchased, and on March 29, 2011 the Company’s Board of Directors authorized an increase of an additional 1,000,000 shares to be repurchased. At December 31, 2011 and 2010, the Company had repurchased 1,791,821 shares of its common stock and a total of 3,208,179 and 2,208,179 shares, respectively, remained available for repurchase. In the year ended December 31, 2010, the Company repurchased 500 shares of common stock for $665. There were no common stock repurchases made by or on behalf of the Company during the year ended December 31, 2011.
10. Incentive stock plans and stock based compensation
The Company had initially adopted a stock-based compensation plan for employees and non-employee members of its Board of Directors in November 2003 (the “2003 Plan”), which was subsequently amended in March 2007 (the “2003 Plan Amendment”). In December 2007, the Company adopted the National Patent Development Corporation 2007 Incentive Stock Plan (the “2007 NPDC Plan”). The plans provide for up to 3,500,000 and 7,500,000 awards for shares under the 2003 Plan Amendment and 2007 NPDC Plan, respectively in form of discretionary grants of stock options, restricted stock shares, and other stock-based awards to employees, directors and outside service providers. The Company’s plans are administered by the Compensation Committee of the Board of Directors, which consists solely of non-employee directors. The term of any option granted under the plans will not exceed ten years from the date of grant and, in the case of incentive stock options granted to a 10% or greater holder of total voting stock of the Company, three years from the date of grant. The exercise price of any option granted under the plans may not be less than the fair market value of the common stock on the date of grant or, in the case of incentive stock options granted to a 10% or greater holder of total voting stock, 110% of such fair market value.
In March 2010, the Company issued 100,000 options to a director, who subsequently resigned in September 2010 and whose options were cancelled at that time. In April 2010, the Company issued 100,000 options to each of two directors, and 250,000 options to its Chairman and Chief Executive Officer. The options were issued under the 2007 NPDC Plan and were issued at an exercise price equal to market value at the date of the grants. The weighted average grant-date fair value of the options was $0.52, which was estimated on the date of grant using the Black-Scholes option pricing model using the following assumptions:
In February 2011, the Company granted 50,000 options to its Chief Operating Officer. The options were issued at an exercise price equal to market value at the date of the grant. The weighted average grant-date fair value of the options was $0.57, which was estimated on the date of grant using the Black-Scholes option pricing model using the following assumptions:
The Company recorded compensation expense related to option grants of $89,000 and $229,000 for the years ended December 31, 2011 and 2010, respectively. As of December 31, 2011 the number of shares reserved and available for award under the 2007 NPDC Plan is 7,000,000 and under the 2003 Plan Amendment is 700,000.
Information with respect to the Company’s stock options for 2010 and 2011 is presented below.
*
The intrinsic value of a stock option is the amount by which the market value of the underlying stock exceeds the exercise price of the option.
As of December 31, 2011, there was $120,000 of total unrecognized compensation cost related to non-vested options. This cost is expected to be recognized over the vesting periods of the options, which on a weighted-average basis is approximately 1.6 years.
11. Other benefit plan
The Company maintains a 401(k) Savings Plan (the “Plan”), for full time employees who have completed at least one hour of service coincident with the first day of each month. The Plan permits pre-tax contributions by participants. The Company matched up to 50% of the participants’ first 7% of compensation contributed. The Company also matched participants’ contributions in shares of Company common stock through August 28, 2008, and subsequent to that date, matched in cash, which totaled $12,000 and $9,000 in 2011 and 2010, respectively.
12. Commitments and Contingencies
(a)
The Company had guaranteed the lease for Five Star’s New Jersey warehouse. On January 15, 2010, the Company completed the sale to Merit of all the issued and outstanding stock of Five Star. Merit extended the New Jersey warehouse lease, which originally expired in September 2010 through March 2011 at which time the lease expired. Under the terms of the Five Star Stock Purchase Agreement, Merit is responsible for the first $25,000 of repairs and end of lease costs, and the Company is responsible for 75% of the remaining costs. The Company had been in negotiations with Merit regarding an allocation of financial responsibility for repairs to the New Jersey warehouse and end of lease costs. However, on May 17, 2011, Merit and its affiliates filed voluntary Chapter 11 petitions in the United States Bankruptcy Court for the District of South Carolina. As a result of the Chapter 11 filing, and the inability of the parties to come to an agreement on financial responsibility, the landlord drew down on a $128,000 letter of credit previously provided by GP Strategies Corporation (GP Strategies). GP Strategies had issued the letter of credit to the landlord in exchange for the landlord removing the GP Strategies guarantee for the New Jersey warehouse lease. As a result of the spin off of the Company from GP Strategies in November 2004, the Company had indemnified GP Strategies for any costs related to their guarantee of the Five Star lease, and therefore the Company reimbursed GP Strategies $128,000. The Company has filed a claim with the bankruptcy court, but based on its initial analysis of the Chapter 11 filings believes it is unlikely that it will recover its claim. Therefore, for the year ended December 31, 2011, Company has recorded approximately $135,000 for its estimated share of the costs, which is included in loss from discontinued operations the year ended December 31, 2011.
In connection with the sale of Five Star, the Company is responsible for all activities necessary to achieve compliance with the Connecticut Transfer Act, including receipt of approval from the Connecticut Department of Environmental Protection (“CTDEP’) and implementation of a remediation plan, if required, with respect to environmental obligations related to Five Star’s Connecticut warehouse. For the year ended December 31, 2011, the Company has accrued an additional $40,000, for estimated costs associated with completing the Connecticut Transfer Act process with the CTDEP. Such amount is included in loss from discontinued operations. The Company has satisfied its remediation and environmental obligations with the New Jersey Department of Environmental Protection.
(b)
In connection with its investment in undeveloped property, the Company has certain ownership interests in several dams and related reservoirs located in the State of Connecticut. Under relevant Connecticut law, the Company is responsible for maintaining the safety of these dams. In 2007, the Company was notified by certain landowners adjoining one of the reservoirs that the water level in the reservoir has decreased; allegedly causing harm to such landowners. The Company does not presently know the cause of the decrease in water level. Further, the Company cannot presently determine the extent of its legal liability, if any, with respect to the landowners. The Company has not received any claims with respect to any of the other reservoirs. The Company cannot reasonably estimate at this time the costs which may be incurred with respect to this matter in the future, however the Company has no reason to believe that such costs could be material. No amounts have been provided for this matter in the accompanying financial statements.
(c)
On or about December 14, 2011, the Official Committee of Unsecured Creditors of TMG Liquidation Corp on behalf of the estates of debtors created as a result of filing under Chapter 11 by Merit filed an adversary proceeding against the Company with the United States Bankruptcy Court for the District of South Carolina, seeking to void the sale of Five Star to Merit. Management believes the claim is without merit and the Company intends to vigorously defend this matter.
13.
Related party transactions
a)
On November 12, 2004, the Company entered into an agreement to borrow approximately $1,022,000 from Bedford Oak Partners, which is controlled by Harvey P. Eisen, Chairman, Chief Executive Officer and a director of the Company, and approximately $568,000 from Jerome I. Feldman, who was at the time Chairman and Chief Executive Officer of the Company, which was utilized to exercise an option held by the Company to purchase Series B Convertible Preferred shares of Valera (see Note 6). In January 2005, the Company prepaid the loans and all accrued interest in full. As further consideration for making these loans, Bedford Oak Partners and Mr. Feldman became entitled to a portion of the consideration received by the Company on the sale of certain Valera shares. As a result of the acquisition of Valera by Indevus, this obligation related to the sale of Indevus shares by the Company. The November 12, 2004 agreement also provides for Bedford Oak Partners and Mr. Feldman to participate in 50% of the profits earned on 19.51% of shares of Indevus common stock received by the Company upon conversion of the Contingent Rights, if any, at such time as such shares are sold by the Company.
As a result of the consummation of the merger between Indevus and Endo in 2009, the Company has a contingent right to receive from Endo certain cash payments. The two related parties would receive the following portions of the Company’s cash payments upon the occurrence of the following events: (i) $303,000 upon FDA approval of Octreotide and (ii) $202,000 upon FDA approval of Aveed™. The Aveed™ amount would only be payable to the Company and therefore the related parties if there were Octreotide Approval.
As described in Note 6, on November 11, 2011, Endo decided to terminate the development of its Octreotide implant for the treatment of acromegaly. Therefore the Company does not anticipate receiving any contingent cash consideration, since the Aveed™ contingent consideration was contingent upon receiving Octreotide approval.
b)
In March 2010, the Company paid Bedford Oak Advisors, LLC, an entity controlled by Mr. Eisen, an aggregate of $150,000 for consulting services rendered through February 28, 2010 by two individuals (together, the “Consultants”), each of whom served as consultants to Bedford Oak Advisors, LLC. Such consulting services included advice on investment company matters and related issues, the evaluation of potential acquisition and business development opportunities for the Company and capital raises and other financings undertaken by the Company (the “Consulting Services”).
As of March 1, 2010, the Consultants terminated their services with Bedford Oak Advisors, LLC and were retained by the Company to provide the Consulting Services to the Company on a month-to-month basis at a rate of $35,000 per month payable to one individual and $25,000 per month payable to the other individual. The Company or either Consultant had the right to terminate the agreement at any time upon thirty days prior written notice to the other party. The agreement with the individual at the rate of $35,000 per month was terminated by the Company as of May 15, 2010 and the agreement with the individual at the rate of $25,000 per month was terminated by the Company as of June 30, 2010. Total expenses incurred by the Company from March 1, 2010 though termination of the services provided by the Consultants are $187,000.
c)
Effective June 1, 2010, the Company relocated its headquarters to the offices of Bedford Oak Advisors, LLC in Mount Kisco, New York. The Company is subleasing a portion of the space and has access to various administrative support services on a month-to-month basis at the rate of approximately $19,700 per month. General and administrative expenses for the year ended December 31, 2011 and 2010 includes $236,000 and $138,000, respectively, related to the sublease arrangement.
d)
On February 24, 2011, Thomas J. Hayes was appointed Chief Operating Officer of the Company. Mr. Hayes is also a Managing Director of Bedford Oak Advisors, LLC
Item 9.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.
None.
Item 9A.
Item 9A. Controls and Procedures.
“Disclosure controls and procedures” are the controls and other procedures of an issuer that are designed to ensure that information required to be disclosed by the issuer in the reports filed or submitted by it under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms. These controls and procedures are designed to ensure that information required to be disclosed by an issuer in its Exchange Act reports is accumulated and communicated to the issuer’s management, including its principal executive and financial officers, as appropriate, to allow timely decisions regarding required disclosure.
The Company’s principal executive officer and principal financial officer, with the assistance of other members of the Company’s management, have evaluated the effectiveness of the Company’s disclosure controls and procedures pursuant to the Exchange Act Rule 13a-15(e) as of December 31, 2011. Based on such evaluation, the Company’s principal executive officer and principal financial officer have concluded that the Company’s disclosure controls and procedures were effective as of such time.
The Company’s principal executive officer and principal financial officer have also concluded that there have not been any changes in the Company’s internal control over financial reporting during the quarter ended December 31, 2011 that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.
Management’s Report on Internal Control over Financial Reporting
Management of the Company is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)). The Company’s internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Management of the Company, including its principal executive officer and principal financial officer, assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2011. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in Internal Control - Integrated Framework.
Based on their assessment using those criteria, management concluded that, as of December 31, 2011, the Company’s internal control over financial reporting is effective.
This annual report does not include an attestation report of the Company's registered public accounting firm regarding internal control over financial reporting. Management's report was not subject to attestation by the Company's registered public accounting firm pursuant to rules of the SEC that permit the Company to provide only management's report in this annual report.
Item 9B.
Item 9B. Other Information
None
PART III
Item 10.
Item 10. Directors, Executive Officers and Corporate Governance.
The information required by this item is incorporated by reference to the Company’s definitive proxy statement to be filed pursuant to Regulation 14A within 120 days after the Company’s fiscal year end of December 31, 2011, for its annual stockholders’ meeting for 2012 (the “Proxy Statement”) under the captions “Directors and Executive Officers”, “Corporate Governance”, “Compliance with Section 16(a) of the Exchange Act”, “Code of Ethics” and “Audit Committee.”
Item 11.
Item 11. Executive Compensation.
The information required by this item is incorporated by reference to the Company’s Proxy Statement for its 2012 Annual Meeting of Stockholders under the caption “Executive Compensation.”
Item 12.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
Additional information required by this item is incorporated by reference to the Company’s Proxy Statement for its 2012 Annual Meeting of Stockholders under the caption “Stock Ownership of Management and Principal Stockholders”.
Item 13.
Item 13. Certain Relationships and Related Transactions, and Director Independence.
This information required by this item is incorporated by reference to the Company’s Proxy Statement for its 2012 Annual Meeting of Stockholders under the captions “Certain Transactions with Management” and “Director Independence”.
Item 14.
Item 14. Principal Accounting Fees and Services.
The information regarding principal accountant fees and services and the Company’s pre-approval policies and procedures for audit and non-audit services provided by the Company’s independent accountants is incorporated by reference to the Company’s Proxy Statement for its 2012 Annual Meeting of Stockholders under the caption “Principal Accountant Fees and Services.”
PART IV
Item 15.
Item 15. Exhibits and Financial Statement Schedules.
(a)(1) The following financial statements are included in Part II, Item 7. Financial Statements and Supplementary Data:
(a)(2)
Schedules have been omitted because they are not required or are not applicable, or the required information has been included in the financial statements or the notes thereto.
(a)(3)
See accompanying Index to Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature
Capacity
Date
/s/ HARVEY P. EISEN
Chairman, President and Chief Executive Officer
March 2, 2012
Harvey P. Eisen
(Principal Executive Officer)
/s/ LAWRENCE G. SCHAFRAN
Director
March 2, 2012
Lawrence G. Schafran
/s/ SCOTT N. GREENBERG
Director
March 2, 2012
Scott N. Greenberg
/s/ IRA J. SOBOTKO
Vice President, Chief Financial Officer
March 2, 2012
Ira J. Sobotko
(Principal Financial and Accounting Officer)
EXHIBIT INDEX
___________________________
*
Filed herewith.
# Management contract or compensatory plan or arrangement.