Note
5 - Restatement of Financial Data as of December 31, 2005 and for
the Three and Six Months then Ended
The
financial data as of December 31, 2005 and for the three and six months periods
ended December 31, 2005, as presented in the condensed consolidated financial
statements, have been restated and corrected for errors relating to (1) the
amortization of a customer list; (2) the deferral of revenue recognition
associated with certain twelve month service contracts; (3) the improper accrual
of audit fees; (4) the issuance and cancellation of common stock in regard to
non-performance by a consultant under its consulting agreement with the Company;
(5) the timing of the recording of directors' fees; (6) the timing of the
recording of bad debt expense, and (7) the deferral of previously recorded
revenue.
Customer List Am
ortization
The
Company was amortizing customer lists aggregating approximately $611,000 (which
were purchased in various acquisitions) over estimated useful lives of 10-15
years until July 2001, when the net book value was $422,728, at which time the
Company stopped amortizing the same. The Company has reassessed its position and
has determined that the customer lists should have continued to be amortized, in
accordance with SFAS No. 142, "Goodwill and Other Intangible Assets", which
states that intangible assets must be amortized over their estimated useful life
unless that useful life is determined to be indefinite. Accordingly, the Company
has recognized additional amortization expense of $10,513 and $21,026 for the
three and six month periods ended December 31, 2005,
respectively.
Service Contract Revenue
Deferral
In the
ordinary course of business, the Company offers a twelve month service contract
related to residential customers' heating equipment. The Company's policy is to
defer the revenue associated with these contracts, recognizing the revenue over
the life of the respective contracts. However, the Company's policy was not
applied correctly. The Company has recorded the deferrals required at the
various reporting dates and the impact has been to increase revenue by $192,621
and $196,617 for the three and six month periods ended December 31, 2005,
respectively.
Audit Fee
Accrual
Previously,
the Company recorded an accrual for audit fees that it estimated would be
incurred subsequent to the date of the consolidated financial statements as of
June 30, 2005. The Company subsequently determined that the accrual for the
audit services which had not yet been performed was improper. The $31,337
of audit fees that were reversed as of June 30, 2005, were recorded during the
six months ended December 31, 2005.
Cancellation of Stock Due to
Non Performance by Consultant
During
March 2005, the Company issued common stock to a consultant pursuant to the
terms of a consulting agreement. Subsequently, the Company determined that the
consultant did not perform in accordance with the consulting agreement and the
Company has filed suit demanding that the shares be returned. The Company's
position is that the share issuance has been cancelled
ab initio
, as if the shares
were never issued. Accordingly, selling, general and administrative expense was
decreased by $22,727 and $12,987 for the three and six month periods
ended December 31, 2005, respectively. Previously, the 142,857 shares
issued to the consultant were treated as cancelled as of October 1, 2005 (See
note 18 and 22).
Timing of the Recording of
Directors
’
Fees
During
the quarterly period ended March 31, 2006, the Company recorded a charge for
Directors' fees, a portion of which it subsequently
determined
should have been recorded in prior periods. Accordingly, adjustments have been
reflected to record charges of $42,886 and $85,772 during the three and six
month periods ended December 31, 2005, respectively.
Timing of Recording of Bad
Debt Exp
ense
During
the quarterly period ended December 31, 2005, the Company recorded a charge for
bad debt expense; a portion of which it subsequently determined should have been
recorded in a prior period. Accordingly, an adjustment has been reflected to
record a charge of $49,461 in the quarterly period ended September 30, 2005 with
an offsetting $49,461 credit to the charge previously recorded during the
quarterly period ended December 31, 2005.
Deferral of Previously
Recorded Revenue
During
the quarterly period ended December 31, 2005, the Company recognized revenue
which was primarily related to a gain which had been deferred from the December
1998 sale of Able Oil Company Montgomery, Inc. The Company subsequently
determined that the deferred gain did not yet qualify for recognition until
December 2006 when the Company purchased the Horsham Franchise (See Note 20).
Accordingly, $79,679 of revenue was reversed from the three and six months ended
December 31, 2005.
The
adjustments reflected in the restated financial data as of December 31, 2005 and
for the three and six months ended December 31, 2005, as presented in the
condensed consolidated financial statements, also correct the condensed
consolidated balance sheet as of December 31, 2005, which is not presented in
these condensed consolidated financial statements.
Cumulative Effect of the
Adjustments Described Above on Accumulated Deficit
The
cumulative effect of the adjustments described above increased the accumulated
deficit as of June 30, 2005 in the amount of $371,978.
Reclassification of Related
Party Receivable
s
Related
party receivables in the amount of $1,897,500 were reclassified from assets to
notes and loans receivable–related parties, a contra-equity
account.
Impact
The
following summarizes the effect of the adjustments discussed above on the
previously reported condensed consolidated balance sheet as of December 31, 2005
and statements of operations for the three and six months ended December 31,
2005:
|
|
|
December
31, 2005
|
|
|
|
|
|
|
|
Total
assets as previously reported
|
|
$
|
19,027,838
|
|
|
Adjustments
|
|
|
(2,138,186
|
)
|
|
Restated
total assets
|
|
$
|
16,889,652
|
|
|
|
|
|
|
|
|
Total
liabilities as previously reported
|
|
$
|
14,864,854
|
|
|
Adjustments
|
|
|
165,451
|
|
|
Restated
total liabilities
|
|
$
|
15,030,305
|
|
|
|
|
|
|
|
|
Total
stockholders' equity
|
|
|
|
|
|
as
previously reported
|
|
$
|
4,162,984
|
|
|
Adjustments
|
|
|
(2,303,637
|
)
|
|
Restated
total stockholders' equity
|
|
$
|
1,859,347
|
|
|
|
|
For
the Three Months
Ended
December 31,
2005
|
|
|
For
the Six Months Ended
December
31,
2005
|
|
|
|
|
|
|
|
|
|
|
Total
revenues as previously reported
|
|
$
|
22,340,176
|
|
|
$
|
35,471,589
|
|
|
Adjustments
|
|
|
115,286
|
|
|
|
116,938
|
|
|
Restated
total revenues
|
|
$
|
22,455,462
|
|
|
$
|
35,588,527
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross
profit as previously reported
|
|
$
|
2,026,410
|
|
|
$
|
2,949,579
|
|
|
Adjustments
|
|
|
369,842
|
|
|
|
570,164.0
|
|
|
Restated
gross profit
|
|
$
|
2,396,252
|
|
|
$
|
3,519,743
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
expenses as previously reported
|
|
$
|
2,421,298
|
|
|
$
|
4,284,061
|
|
|
Adjustments
|
|
|
94,262
|
|
|
|
363,644
|
|
|
Restated
operating expemses
|
|
$
|
2,515,560
|
|
|
$
|
4,647,705
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
income (expemse) as previously reported
|
|
$
|
(1,505,619
|
)
|
|
$
|
(1,908,057
|
)
|
|
Adjustments
|
|
|
189,303
|
|
|
|
240,701
|
|
|
Restated
other income (expemse)
|
|
$
|
(1,694,922
|
)
|
|
$
|
(2,148,758
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss as previously reported
|
|
$
|
(1,900,507
|
)
|
|
$
|
(3,242,539
|
)
|
|
Adjustments
|
|
|
86,277
|
|
|
|
(34,181
|
)
|
|
Restated
net loss
|
|
$
|
(1,814,230
|
)
|
|
$
|
(3,276,720
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Basic
and diluted loss per share:
|
|
|
|
|
|
|
|
|
|
As
previously reported
|
|
$
|
(0.74
|
)
|
|
$
|
(1.25
|
)
|
|
Adjustments
|
|
|
0.03
|
|
|
|
(0.05
|
)
|
|
As
restated
|
|
$
|
(0.71
|
)
|
|
$
|
(1.30
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Basic
and diluted average number of
|
|
|
|
|
|
|
|
|
|
common
shares outstanding:
|
|
|
|
|
|
|
|
|
|
As
previously reported
|
|
|
2,579,754
|
|
|
|
2,584,826
|
|
|
Adjustments
|
|
|
(9,689
|
)
|
|
|
(73,003
|
)
|
|
As
restated
|
|
|
2,570,065
|
|
|
|
2,511,823
|
|
Note
6 – Net Loss per Share
Basic net
loss per common share is computed based on the weighted average number of shares
outstanding during the periods presented. Common stock equivalents, consisting
of stock options, warrants, and convertible debentures and notes as further
discussed in the notes to the condensed consolidated financial statements, were
not included in the calculation of diluted loss per share because their
inclusion would have been anti-dilutive.
The total
common shares issuable upon the exercise of stock options and warrants, and
conversion of convertible debentures and notes, along with related accrued
interest, was 6,760,826 and 5,707,782 for the six months ended December 31, 2006
and 2005, respectively.
Note
7 - Inventories
Inventories
consisted of the following:
|
|
|
December
31, 2006
|
|
|
June
30, 2006
|
|
|
|
|
|
|
|
(Audited)
|
|
|
#2
heating oil
|
|
$
|
1,777,553
|
|
|
$
|
335,485
|
|
|
Diesel
fuel
|
|
|
44,419
|
|
|
|
42,567
|
|
|
Kerosene
|
|
|
43,290
|
|
|
|
9,125
|
|
|
Propane
|
|
|
24,757
|
|
|
|
33,444
|
|
|
Parts,
supplies and equipment
|
|
|
233,414
|
|
|
|
255,366
|
|
|
Total
|
|
$
|
2,123,433
|
|
|
$
|
675,987
|
|
Note
8 - Notes Receivable
On March
1, 2004, the Company entered into two notes receivable totaling $1.4 million
related to the sale of its subsidiary, Able Propane LLC. The notes are secured
by substantially all the assets of Able Propane LLC. One note for $500,000 bears
interest at a rate of 6% per annum and the other note for $900,000 is
non-interest bearing. Principal payments on the $900,000 are payable in
four annual installments which began on the first anniversary of the note.
Principal payment on the $500,000 note was due on March 1, 2008 and has been
paid. Interest on such note is being paid in quarterly installments through the
maturity date. The balance outstanding of these two notes as of December 31,
2006 was $950,000.
The
Company had a note from Able Oil Montgomery, Inc. ("Able Montgomery") and Andrew
Schmidt (the owner of Able Montgomery) related to the sale of Able Montgomery
and certain assets to Mr. Schmidt. The note was dated June 15, 2000 for
$170,000. The note bore interest at 9.5% per annum and payments commenced
October 1, 2000. The note was secured by the stock of Able Montgomery, Able
Montgomery's assets, as well as a personal guarantee of Mr.
Schmidt. On December 13, 2006, the Company purchased the assets of
Able Montgomery and the note was applied against a portion of the purchase price
(See Note 21).
The
Company has a note receivable related to the sale of oil delivery trucks to an
independent driver. This independent driver also delivers oil for the Company.
The note bears interest at the rate of 12% per annum. This note was issued in
February 1999 and is payable in eight monthly installments each year during
the period from September through April 2007, the oil delivery season. The
balance on this note at December 31, 2006 was $3,047
Maturities
of the notes receivable at December 31, 2006 are as follows:
|
For
the Year
|
|
Principal
|
|
|
Ending
December 31,
|
|
Amount
|
|
|
|
|
|
|
|
2007
|
|
$
|
228,047
|
|
|
2008
|
|
|
725,000
|
|
|
Total
|
|
$
|
953,047
|
|
Note
9 - Intangible Assets
Intangible
assets were comprised of the following:
|
|
|
December 31, 2006
|
|
|
June 30, 2006
|
|
|
|
|
|
|
|
(Audited)
|
|
|
Customer
lists
|
|
$
|
1,308,025
|
|
|
$
|
610,850
|
|
|
Website
development costs
|
|
|
2,394,337
|
|
|
|
2,394,337
|
|
|
|
|
$
|
3,702,362
|
|
|
$
|
3,005,187
|
|
|
Less:
Accumulated amortization
|
|
|
(2,727,431
|
)
|
|
|
(2,678,529
|
)
|
|
Intangible
assets, net
|
|
$
|
974,931
|
|
|
$
|
326,658
|
|
The
estimated future amortization of customer lists and website development costs as
of December 31, 2006 is as follows:
|
For
the Years
Ending
December
31,
|
|
Total
|
|
|
Customer
Lists
|
|
|
Website
development
costs
|
|
|
2007
|
|
$
|
136,277
|
|
|
$
|
88,272
|
|
|
$
|
48,005
|
|
|
2008
|
|
|
126,236
|
|
|
|
88,272
|
|
|
|
37,964
|
|
|
2009
|
|
|
87,988
|
|
|
|
86,943
|
|
|
|
1,045
|
|
|
2010
|
|
|
84,287
|
|
|
|
84,287
|
|
|
|
-
|
|
|
2011
|
|
|
77,942
|
|
|
|
77,942
|
|
|
|
-
|
|
|
Thereafter
|
|
|
462,201
|
|
|
|
462,201
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
974,931
|
|
|
$
|
887,917
|
|
|
$
|
87,014
|
|
Information
related to intangible assets for the six months ended December 31,
2006:
|
Opening
balance - June 30, 2006
|
|
$
|
326,658
|
|
|
Amounts
capitalized
|
|
|
697,175
|
|
|
Amortization
for the period
|
|
|
(48,902
|
)
|
|
Closing
balance - December 31, 2006
|
|
$
|
974,931
|
|
The
$697,175 of amounts capitalized during the six months ended December 31, 2006
represents customer lists acquired in the purchase of the Horsham Franchise (See
Note 21). The amount is being amortized over a 15 year period which represents
management’s best, current estimate of the life of the asset, based on long
standing, and established industry practice. Under the guidelines
found in SFAS No. 144, "Accounting for the Impairment or
Disposal
of Long-Lived Assets," intangible assets
with finite lives are tested
for impairment whenever events or changes in
circumstances indicate that the carrying amount may not be recoverable.
Management will periodically review and test the value of this asset in
accordance with the guidance provided by SFAS No. 144.
Amortization
expense for intangible assets was $26,388 and $11,550 for the three months ended
December 31, 2006 and 2005, respectively, and $48,902 and $132,089 for the six
months ended December 31, 2006 and 2005, respectively.
At
December 31, 2006, the
weighted average remaining life of the intangible assets is 11.75 years and has
no residual value.
Note
10 – Derivative Instruments
During
the period from July 28, 2006 to August 15, 2006, the Company entered into
futures contracts for #2 heating oil (“fuel derivative contracts”) to hedge a
portion of its forecasted heating season requirements. The Company purchased 40
contracts with a series of maturities between October 2006 and April 2007. The
contracts total 1,680,000 gallons of #2 heating oil at an average call price of
$2.20 per gallon. In accordance with the guidance found in SFAS No. 133 and SFAS
No. 149, the Company is accounting for the contracts as a cash flow
hedge. Through December 31, 2006, the Company has deposited a total
of $1,033,934 in margin requirements with the broker. The Company has a realized
loss on 24 of the 40 contracts in the amount of $525,660. The balance of
$509,198 on deposit with the broker at December 31, 2006 is included in due
from broker. The realized loss of $525,660 is recorded in cost
of goods sold in these condensed consolidated financial statements, of which,
$210,213 relates to contracts for which fuel had not been delivered as of
December 31, 2006; however this amount is included in cost of goods sold
since such loss is not expected to be recovered in the applicable future period.
The estimated fair value of open futures contracts as of December 31,
2006 resulted in an unrealized loss of $383,065 which is recorded as fuel
derivative contracts with a corresponding amount recorded in accumulated other
comprehensive loss in these condensed consolidated financial statements (See
Note 17). During the period subsequent to December 31, 2006, the Company
continued to experience losses on the remaining 16 contracts.
Note
11 - Property and Equipment
Property
and equipment was comprised of the following:
|
|
|
December
31, 2006
|
|
|
June
30, 2006
|
|
|
|
|
|
|
|
(Audited)
|
|
|
Land
|
|
$
|
479,346
|
|
|
$
|
479,346
|
|
|
Buildings
|
|
|
1,662,955
|
|
|
|
1,656,106
|
|
|
Bulding
improvements
|
|
|
539,414
|
|
|
|
251,401
|
|
|
Trucks
|
|
|
3,929,718
|
|
|
|
3,826,414
|
|
|
Machinery
and equipment
|
|
|
1,028,769
|
|
|
|
1,028,769
|
|
|
Office
furniture, fixtures
|
|
|
|
|
|
|
|
|
|
and
equipment
|
|
|
224,778
|
|
|
|
219,778
|
|
|
Fuel
tanks
|
|
|
923,260
|
|
|
|
872,096
|
|
|
Cylinders
- propane
|
|
|
459,177
|
|
|
|
385,450
|
|
|
|
|
$
|
9,247,417
|
|
|
$
|
8,719,360
|
|
|
Less:
accumulated depreciation
|
|
|
(4,504,725
|
)
|
|
|
(4,305,309
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Property
and equipment, net
|
|
$
|
4,742,692
|
|
|
$
|
4,414,051
|
|
At
December 31, 2006, the Company had equipment under capital leases with a net
book value of approximately $1,065,000.
Depreciation
and amortization expense of property and equipment was $127,566 and
$149,886 for the three months ended December 31, 2006 and 2005,
respectively. Depreciation and amortization expense of property and
equipment was $276,389 and $301,502 for the six months ended December 31, 2006
and 2005, respectively.
Note
12 – Deferred Financing Costs and Debt Discounts
The
Company incurred deferred financing costs in conjunction with the sale of
convertible debentures on July 12, 2005 and August 8, 2006 (See Note 16),
notes payable on May 13, 2005 (See Note 14), and a line of credit on May 13,
2005 (See Note 13) and a convertible note payable on July 5, 2006 (See Note
16). These costs were capitalized to deferred financing costs and are being
amortized over the term of the related debt. Amortization of deferred financing
costs was $202,762 and $207,136 for the three months ended December 31, 2006 and
2005, respectively. Amortization of deferred financing costs was $763,890 and
$240,701 for the six months ended December 31, 2006 and 2005,
respectively. These amounts include $175,000 and $715,000 for the
three and six month periods ended December 31, 2006, respectively, that were
reclassed/restated to amortization of deferred financing costs, originally
presented as part of contra equity, since the financing did not
occur. This reclass/restatement in the amount of $715,000 reduced
assets from $16,007,624 to $15,292,624, stockholders’ equity from $463,296 to
$(251,704) and increased amortization of deferred financing costs from $48,890
to $763,890 and net loss from $(3,102,272) to $(3,817,272) in the six month
period ended December 31, 2006.
In
accordance with EITF 00-27, "Application of Issue 98-5 to Certain Convertible
Instruments", the Convertible Debentures issued on July 12, 2005 and August 8,
2006, as well as a convertible note issued July 5, 2006 were considered to have
a beneficial conversion premium feature. The Company recorded debt discounts of
$5,500,000 related to the beneficial conversion features and warrants
issued in connection with the financings. The Company amortized $274,285
and $1,207,004 of the debt discount during the three months ended December 31,
2006 and 2005, respectively. The Company amortized $470,194 and $1,485,537
of the debt discounts during the six months ended December 31, 2006 and 2005,
respectively.
Note
13 - Line Of Credit
On May
13, 2005, the Company entered into a $1,750,000 line-of-credit agreement with
Entrepreneur Growth Capital, LLC (“EGC”). The loan is secured by accounts
receivable, inventory and certain other assets as defined in the agreement. The
line carries interest at Citibank's prime rate, plus 4% per annum (11.25% at
December 31, 2006) not to exceed 24% with a minimum interest of $11,000 per
month. The line also requires an annual facility fee of 2% of the total
available facility limit and monthly collateral management fees equal to .025%.
The outstanding balance fluctuates over time. The balance due as of December 31,
2006 was $999,804 and approximately $750,000 was available under this credit
line.
Note
14 - Notes Payable
On May
13, 2005, the Company entered into a term loan with Northfield Savings Bank for
$3,250,000. Principal and interest are payable in monthly installments of
approximately $21,400 which commenced July 1, 2005. The initial interest rate is
6.25% per annum on the unpaid principal balance for the first five years, to be
reset every fifth anniversary date at 3% over the five year treasury rate, but
not
lower
than the initial rate; at that time the monthly payment will be reset. The
interest rate on default is 4% per annum above the interest
rate then
in effect. The note is secured by Company-owned real property located in
Rockaway, New Jersey and an assignment of leases and rents at such location. At
the maturity date of June 1, 2030, all remaining amounts are due. The balance
outstanding on this note at December 31, 2006 was approximately
$3,165,000.
On August
27, 1999, the Company entered into a note related to the purchase of equipment
and facilities from B & B Fuels, Inc. The total principal of the note
originally was $145,000. The note is payable in the monthly amount of principal
and interest of $1,721 with an interest rate of 7.5% per year through August 27,
2009. The note is secured by a mortgage granted by Able Energy New York, Inc. on
properties at 2 and 4 Green Terrace and 4 Horicon Avenue, Town of Warrensburg,
Warren County, New York. The balance due on this note at December 31, 2006 was
approximately $50,000.
On
December 7, 2006, the Company entered into a note with Ford Motor Credit for the
purchase of a Ford pick-up truck. The total principal of the note is $33,636.
The note is payable in the monthly amount of principal and interest of $757
through December 31, 2010 with an annual interest rate of 3.9%.
On
December 13, 2006, the Company entered into a 5 year note agreement relating to
the purchase of the Horsham Franchise in the amount of $345,615 (See Note
21). The interest rate is 7.0% per annum and principal and interest is payable
in monthly installments of $6,844 which commenced on January 13,
2007.
Maturities
of the notes payable as of December 31, 2006 are as follows:
|
For
the Year Ending
|
|
|
|
|
December
31,
|
|
Amount
|
|
|
2007
|
|
$
|
146,450
|
|
|
2008
|
|
|
156,386
|
|
|
2009
|
|
|
160,055
|
|
|
2010
|
|
|
156,435
|
|
|
2011
|
|
|
157,606
|
|
|
Thereafter
|
|
|
2,817,205
|
|
|
|
|
$
|
3,594,137
|
|
Note
15 - Capital Leases Payable
The
Company has entered into various capital leases for equipment expiring through
November 2011, with aggregate monthly payments of approximately $34,000. During
the three months ended December 31, 2006, the Company purchased equipment under
a capital lease for approximately $95,000.
The
following is a schedule by years of future minimum lease payments under capital
leases together with the present value of the net minimum lease payments as of
December 31, 2006:
|
For
the Year
|
|
|
|
|
Ending
December 31,
|
|
Amount
|
|
|
2007
|
|
$
|
372,911
|
|
|
2008
|
|
|
343,941
|
|
|
2009
|
|
|
193,452
|
|
|
2010
|
|
|
74,914
|
|
|
2011
|
|
|
21,501
|
|
|
Total
minimum lease payments
|
|
|
1,006,719
|
|
|
Less:
amounts representing interest
|
|
|
117,817
|
|
|
Present
value of net minimum lease payments
|
|
|
888,902
|
|
|
Less:
current portion
|
|
|
311,476
|
|
|
Long
- term portion
|
|
$
|
577,426
|
|
Note
16 - Convertible Debentures and Notes Payable
Convertible
Debentures
–
July
2005
On July
12, 2005, the Company consummated a financing in the amount of $2.5 million.
Under such financing, the Company sold debentures evidenced by a Variable Rate
Convertible Debenture (the "Convertible Debentures"). During the year ended June
30, 2006 $2,367,500 of principal plus accrued interest of $49,563 were converted
into 371,856 shares of the Company’s common shares. As of
December
31, 2006, the remaining outstanding balance of convertible debentures
totaled $132,500 plus accrued interest of $60,358. The amortization of discounts
on these Convertible Debentures was $15,883 and $1,207,004 for the three months
ended December 31, 2006
and 2005,
respectively. The amortization of discounts on these Convertible
Debentures was $31,766 and $1,485,537 for the six months ended December 31, 2006
and 2005, respectively and the unamortized portion was $38,602 at December 31,
2006.
Convertible Note Payable -
Laurus
On July
5, 2006, the Company closed a Securities Purchase Agreement entered into on June
30, 2006 whereby it sold a $1,000,000 convertible term note to the Laurus Master
Trust Fund, Ltd. (“Laurus”). The Company paid fees of $49,000 to Laurus and
received net proceeds of $951,000. The Company incurred escrow fees of $1,500.
Thereafter, the Company loaned $849,500 of the Laurus proceeds to All American
and in exchange for a note receivable in the amount of $905,000, which included
reimbursement of $50,500 of transaction fees. All American loaned the
net proceeds received from Able to CCI Group, Inc (“CCIG”, a 70% owned
subsidiary of All American) who utilized such funds toward the
development and operation of a project operated by CCIG’s subsidiary Beach
Properties Barbuda Limited (“BPBL”).
Commencing
August 1, 2006, the Company was required to pay interest on the note
monthly in arrears at a rate equal to the prime rate published in the Wall
Street Journal plus 2% (a total of 10.25% as of December 31, 2006),
calculated as of the last business day of the calendar month. Amortizing
payments of the principal amount of the note shall be made by the Company
commencing on June 30, 2007 and on the first business day of each succeeding
month thereafter in the amount of $27,778 through the maturity date of the note
on June 30, 2009. The note is convertible at the option of Laurus into
shares of the Company's common stock, at an initial fixed conversion price of
$6.50 per share. The conversion rate of the note is subject to certain
adjustments and limitations as set forth in the note.
In
connection with Laurus' purchase of the note, the Company granted Laurus a
warrant exercisable through June 30, 2011 to purchase 160,000 shares of the
Company's common stock at a price of $5.57 per share, subject to the adjustments
and limitations set forth in the warrant. These warrants were valued at
approximately $986,000, using the Black-Scholes model, applying an interest rate
of 5.19%, volatility of 98.4%, dividends of $0 and a contractual term of five
years.
In
accordance with EITF 00-27 “Application of Issue 98-5 to Certain Convertible
Instruments” and EITF 98-5, "Accounting for Convertible Securities with
Beneficial Conversion Features or Contingently Adjusted Conversion Ratios", on a
relative fair value basis, the warrants were recorded at a value of
approximately $472,000. The conversion feature, utilizing an effective
conversion price and market price of the common stock on the date
of issuance of $3.00 and $7.70, per share, respectively, was valued at
approximately $723,000 which was then limited to $528,000, the remaining
undiscounted value of the proceeds of the convertible term note. Accordingly,
the Company has recorded a debt discount related to the warrants of $472,000 and
the beneficial conversion feature of the convertible term note of $528,000,
which amounts are amortizable utilizing the interest method over the three year
term of the convertible term note. Amortization of debt discounts on this
note payable amounted to $84,326 and $164,070 for the three and six months
ended December 31, 2006 and the unamortized portion of these debt discounts was
$835,930 at December 31, 2006.
The
Company agreed that within sixty days from the date of issuance of the note
(September 3, 2006) and warrant that it would file a registration statement with
the SEC covering the resale of the shares of the Company's stock issuable upon
conversion of the note and the
exercise
of the warrant. This registration statement would also cover any additional
shares of stock issuable to Laurus as a result of any adjustment to the fixed
conversion price of the note or the exercise price of the warrant. As
of the date of this Report, the Company was not able to file a registration
statement, and Laurus has not yet waived its rights under this agreement. As a
result of its failure to comply with the registration rights provision, the
Company has included all the amounts due for the convertible term note as a
current liability in the condensed consolidated balance sheet as of December 31,
2006. There are no stipulated liquidated damages outlined in the Registration
Rights Agreement. Under the Agreement, the holder is entitled to exercise all
rights granted by law, including recovery of damages, and will be entitled to
specific performance of its rights under this agreement. Mr. Frank
Nocito, an officer and a stockholder and Mr. Stephen Chalk, a director, have
each provided a personal guarantee, of up to $425,000 each, in connection with
this financing.
The
Company received from Laurus a notice of a claim of default dated January 10,
2007. Laurus claimed default under section 4.1(a) of the Term Note as a result
of non-payment of interest and fees in the amount of $8,826 that were due on
January 5, 2007, and a default under sections 6.17 and 6.18 of the Securities
Purchase Agreement for failure to use best efforts (i) to cause CCIG to provide
Laurus on an ongoing basis with evidence that any and all obligations in respect
of accounts payable of the project operated by CCIG’s subsidiary BPBL, have been
met; and (ii) cause CCIG to provide within 15 days after the end of each
calendar month, unaudited/internal financial statements (balance sheet,
statements of income and cash flow) of BPBL and evidence that BPBL is current in
all of their ongoing operational needs. On March 7, 2007, Laurus notified the
Company that it waived the event of default and that Laurus had waived the
requirement for the Company to make the default payment of
$154,000.
Convertible Debentures
August 2006
On August
8, 2006, the Company issued $2,000,000 of convertible debentures to certain
investors which are due on August 8, 2008. The convertible debentures are
convertible into shares of the Company's common stock at a conversion price of
$6.00 per share, which was the market value of the Company's common stock on the
date of issuance. The Company received net proceeds of $1,820,000 and incurred
expenses of legal fees of $40,000 and broker fees of $140,000 in connection with
this financing that were recorded as deferred financing costs and amortized on a
straight-line basis over the two year term of the convertible debentures. The
convertible debentures bear interest at the greater of either LIBOR (5.4% as of
December 31, 2006) plus 6.0%, or 12.5%, per annum, and such interest is payable
quarterly to the holder at the option of the Company, either in cash or in
additional convertible debentures.
At any
time, the holder may convert the convertible debenture into shares of common
stock at $6.00 per share, or into 333,333 shares of common stock which
represents a conversion at the face value of the convertible
debenture.
On May
30, 2007, upon consummation by the Company of the business combination
transaction with All American (See Note 19), the Company may redeem the
convertible debentures at a price of 120% of the face amount, plus any accrued
but unpaid interest and any unpaid liquidated damages or under certain
conditions, the Company may redeem the amount at 120% of the face amount in
cash, or redeem through the issuance of shares of common stock at the lower
of the existing conversion price or 90% of the volume weighted average price, as
stipulated in the agreement.
The
investors may elect to participate in up to 50% of any subsequent financing of
the Company by providing written notice of intention to the
Company.
The
investors also were issued 333,333, 166,667 and 172,667 five-year warrants to
purchase additional shares of the Company's common stock at $4.00, $6.00 and
$7.00 per share, respectively. These warrants were valued at $3,143,000 using
the Black-Scholes model, applying an interest rate of 4.85%, volatility of
98.4%, dividends of 0% and a term of five years. In accordance with EITF
00-27 and EITF 98-5, on a relative fair value basis, the warrants were recorded
at a value of approximately $1,222,000.
The
beneficial conversion feature, utilizing an effective conversion price and
market price of the common stock on the date of issuance of $2.00 and $6.00, per
share, respectively, was valued at approximately $1,333,000 which was then
limited to $778,000, the remaining undiscounted value of the convertible term
note. Accordingly, the Company has recorded a debt discount related to the
warrants of $1,222,000 and a beneficial conversion feature of the convertible
term note of $778,000, which amounts are amortizable over the two year term of
the convertible debentures. Amortization of debt discounts was
$174,078 and $274,361 for the three and six months ended December 31, 2006,
respectively, and the unamortized portion was $1,725,639 at December 31,
2006.
The
Company had agreed to file a registration statement within forty-five days or
September 22, 2006, covering the resale of the shares of common stock underlying
the convertible debentures and warrants issued to the investors, and by October
15, 2006, to have such registration statement declared effective. The
registration rights agreement with the investors provides for partial liquidated
damages in the case that these registration requirements are not met. From the
date of violation, the Company is obligated to pay liquidated damages of 2% per
month of the outstanding amount of the convertible debentures, up to a total
obligation of 24% of such obligation. The Company has not yet filed a
registration statement regarding these securities. As a result of its failure to
comply with the registration rights provision, the Company has included all
amounts due on the convertible debentures as a current liability in the
condensed consolidated balance sheet as of December 31, 2006. Also, as of
December 31, 2006, the Company has estimated the fair value of the liquidated
damages obligation including interest of approximately $366,000. The expense is
included as registration rights penalty on the condensed consolidated statement
of operations and the corresponding liability in accounts payable and accrued
expenses on the condensed consolidated balance sheet. The Company is obligated
to continue to pay 18% interest per annum on any damage amount not paid in full
within 7 (seven) days. As of the date of this Report, the Company was not able
to file a registration statement and the holder
has not
yet waived its rights under this agreement, and the Company had not received a
default notice from the lender on these matters. EITF 05-04 view (C) allows the
Company to account for the value of the warrants as equity and separately record
the fair value of the registration right as a derivative liability. Until these
liquidated damages are cured, the incurred liquidated damages and an estimate of
future amount will be accounted for as a derivative liability by the Company
under view (C).
The
obligations of the Company in this financing transaction are secured by a first
mortgage on certain property owned by the Company in Warrensburg, New York, a
pledge of certain rights the Company has in securities of CCIG, guarantees by
the Company's subsidiaries and liens on certain other property.
Note
17- Stockholders’ Deficiency
Increase in Common Shares
Authorized
On August
29, 2006, the stockholders approved an increase in authorized shares of common
stock from 10,000,000 to 75,000,000 shares.
Accumulated
O
ther
C
omprehensive
L
oss
Accumulated
other comprehensive loss of $383,065 represents changes in the effective portion
of the Company’s open fuel contracts (See Note 10).
Stock
O
ptions
A summary
of the Company's stock option activity, and related information for the six
months ended December 31, 2006 is as follows:
|
|
|
Number
of
Options
|
|
|
Weighted
Average
Exercise
Price
|
|
|
Outstanding,
June 30, 2006
|
|
|
91,500
|
|
|
$
|
5.92
|
|
|
Granted
|
|
|
50,000
|
|
|
|
4.55
|
|
|
Cancelled
|
|
|
(50,000
|
)
|
|
|
4.55
|
|
|
Exercised
|
|
|
(12,500
|
)
|
|
|
4.36
|
|
|
Outstanding,
December 31, 2006
|
|
|
79,000
|
|
|
$
|
6.17
|
|
On July
31, 2006, an option was granted to Frank Nocito, a Vice President and
stockholder of the Company, to purchase 50,000 shares of common stock of the
Company at a price of $4.55 per share. Thereafter, in error, the Company issued
the shares to Mr. Nocito. Mr. Nocito had not formally exercised the option, nor
had he paid Able the cash consideration for the shares. Mr. Nocito returned the
stock certificates to the Company and the shares were cancelled by the transfer
agent. On October 7, 2006, Mr. Nocito and the Company agreed to
cancel the option and further, Mr. Nocito agreed in writing to waive any and all
rights that he had to the option. The option was then cancelled and deemed
null and void and the statements reflect no expense related to the
cancelled grant.
On August
25, 2006, Steven Vella, the Company's former Chief Financial Officer, elected to
exercise 12,500 options with an exercise price of $4.36 that were granted to him
on June 23, 2006, as part of a negotiated severance package. As
a result
of the option exercise, the
Company
received proceeds of $54,500. Black Scholes variables used were 3
year term, risk free interest rate of 5.23% and volatility of
86.9%.
There
were no other options granted during the six months ended December 31,
2006.
The
Company incurred $106,006 and $123,843 of stock–based compensation expenses for
the three and six months ended December 31, 2006, respectively, from
amortization of deferred compensation expenses related to the previous issuance
of stock options.
Options
exercisable are as follows:
|
|
|
Number
of
Options
|
|
|
Weighted
Average
Exercise
Price
|
|
|
|
|
|
|
|
|
|
|
December
31, 2006
|
|
|
79,000
|
|
|
$
|
6.17
|
|
The
following is a summary of stock options outstanding and exercisable at December
31, 2006 by exercise price range:
|
Exercise
Price Range
|
|
|
Number
of
options
|
|
|
Weighted
Average
Remaining
Contractual
Life
(Years)
|
|
|
Weighted
Average
Exercise
Price
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
2.55
- $3.16
|
|
|
|
30,000
|
|
|
|
2.0
|
|
|
$
|
2.86
|
|
|
$
8.09
- $8.32
|
|
|
|
49,000
|
|
|
|
4.1
|
|
|
|
8.20
|
|
|
|
|
|
|
|
79,000
|
|
|
|
3.3
|
|
|
$
|
6.17
|
|
Warrants
A summary
of the Company’s stock warrant activity and related information for the six
months ended December 31, 2006 is as follows:
|
|
|
Number
of
Warrants
|
|
|
Weighted
Average
Price
|
|
|
Outstanding
June 30, 2006
|
|
|
5,332,309
|
|
|
$
|
7.49
|
|
|
Granted
|
|
|
832,667
|
|
|
|
5.32
|
|
|
Outstanding
September 30, 2006
|
|
|
6,164,976
|
|
|
$
|
7.20
|
|
Voluntary NASDAQ
Delisting
On
October 4, 2006, the Company announced its intention to voluntarily delist the
Company's common stock from the NASDAQ Capital Market, effective as of the start
of trading on October 13, 2006. The Company's common stock is currently quoted
on the Pink Sheets. The management of the Company has indicated that the Company
will apply for listing on the OTC Bulletin Board as soon as
practicable
following the filing this December 31, 2006 Report on Form 10-Q/A as well
as Form 10-Q’s for the periods ended March 31, 2007, September 30, 2007 and
December 31, 2007, as well as Form 10-K for the year ended June 30,
2007.
Note
18 - Commitments and Contingencies
Purchase
Commitments
The
Company is obligated to purchase #2 heating oil under various contracts with its
suppliers. As of December 31, 2006, total open commitments under these
contracts, which expire at various dates through April
2007, were approximately $3,413,000. See Note 22 for
additional
contracts entered into subsequent to December 31, 2006.
Litigation
The
Company is subject to laws and regulations relating to the protection of the
environment. While it is not possible to quantify with certainty the
potential impact of actions regarding environmental matters, in the opinion of
management, compliance with the present environmental protection laws will not
have a material adverse effect on the consolidated financial condition,
competitive position, or capital expenditures of the Company.
Following
an explosion and fire that occurred at the Company's Facility in Newton, NJ on
March 14, 2003, and through the subsequent clean up efforts, the Company has
cooperated fully with all local, state and federal agencies in their
investigations into the cause of this accident.
A lawsuit
(known as
Hicks vs.
Able Energy, Inc.
) was filed against the Company by residents who
allegedly suffered property damages as a result of the March 14, 2003 explosion
and fire. The Company's insurance carrier is defending the Company as it related
to compensatory damages. The Company has retained separate legal counsel to
defend the Company against the punitive damage claim. On June 13, 2005, the
Court granted a motion certifying a plaintiff class action which is defined as
"All Persons and Entities that on and after March 14, 2003, residing within a
1,000 yard radius of Able Oil Company's fuel depot facility and were damaged as
a result of the March 14, 2003 explosion". As of the date of this Report, this
lawsuit is still in the discovery phase. The class certification is limited to
economic loss and specifically excludes claims for personal injury from the
Class Certification. The Company believes that the Class
Claims
for compensatory damages is within the available limits of its insurance. On
September 13, 2006, the plaintiffs counsel made a settlement demand of
$10,000,000, which the Company believes to be excessive and the methodology upon
which is fundamentally flawed. The Company intends to vigorously defend the
claim.
Relating
to the Hicks action, a total of 227 claims have been filed against the Company
for property damages and 222 claims have been settled by the Company's insurance
carrier. In addition to the Hicks action, four property owners, who were unable
to reach satisfactory settlements with the Company's insurance carrier, have
filed lawsuits for alleged property damages suffered as a result of the March
14, 2003 explosion and fire. The Company's insurance carrier is defending the
Company as it relates to the Hicks action and remaining four property damage
claims. The Company's counsel is defending punitive damage claims. The Company
believes that compensatory damage claims are within the available limits of
insurance and reserves for losses have been established, as deemed appropriate,
by the insurance carrier. The Company believes the remaining five unsettled
lawsuits will not have a material adverse effect on the Company's consolidated
financial condition or operations.
The
Company has been involved in non-material lawsuits in the normal course of
business. These matters are handled by the Company's insurance carrier. The
Company believes that the outcome of the above mentioned legal matters will not
have a material effect on the Company's condensed consolidated financial
statements.
USA
Biodiesel LLC Joint
Venture
On August
9, 2006, the Company entered into a joint venture agreement with BioEnergy of
America, Inc. ("BEA"), a privately-held Delaware corporation, for the purpose of
producing biodiesel fuel using BEA's exclusive production process at plants to
be constructed at truck stop plazas, home heating depots and terminals used to
house petroleum products for distribution or resale. The joint venture will
operate through USA Biodiesel LLC ("USA"), a New Jersey limited liability
company in which the Company and BEA will each have a 50% membership interest.
Each plant, when fully operational, will produce approximately 15 million
gallons of biodiesel fuel per year. USA will pay all of the operating,
production and processing expenses for each plant, including an annual use fee
to the Company for use of the plant in the amount of $258,000, payable
quarterly, commencing ninety days after the plant is fully operational. USA will
operate the plants and the Company shall have the exclusive right to purchase
all bio-diesel fuel produced at the plants.
The
Company's initial contribution to USA will be: (i) the costs of construction of
each of the plants (estimated to be $1.5 million each) and related equipment
necessary for operating the plants, all of which, after construction of the
plants shall be owned by the Company; (ii) initial capital by means of a loan to
USA for funding the operations of USA; (iii) the facilities at which the plants
are to be constructed; and (iv) office facilities and access to office
technology for the Company. BEA's initial contribution to USA will be: (i) the
license design, engineering plans and technology and related costs and expenses
necessary to construct and operate the plants at the
facilities;
(ii) access to equipment supplier purchase agreements for equipment for the
plants; (iii) access to soy oil, methanol and other material purchasing
agreements; (iv) for each plant constructed, six months of training consisting
of three months during the construction of each of the plants and three months
during initial full production; and (v) exclusive territorial rights to the
manufacturing process to be used at the plants. There were no costs incurred by
the Company through the date of this Report, and the Company has been advised
that BEA is no longer in business.
Oth
er
Contingencies
Related
to its 1999 purchase of the property on Route 46 in Rockaway, New Jersey, the
Company settled a lawsuit with a former tenant of the property and received a
lump sum settlement of $397,500. This sum was placed in an attorney's escrow
account for payment of all environmental remediation costs. Through December 31,
2006, the Company has been reimbursed for approximately $290,000 of costs and
another approximately $87,000 are un-reimbursed and are included in prepaid
expenses and other current assets in the accompanying condensed consolidated
balance sheet at December 31, 2006 and must be presented to the attorney for
reimbursement. The environmental remediation is still in progress on this
property. The majority of the free standing product has been extracted from the
underground water table. The remainder of the remediation will be completed over
the course of the next eight to ten years using natural
attenuation
and possible bacterial injection, and based upon the information available to
the Company as of the date of this Report, in the opinion of the Company's
management, the amount remaining available in the trust is sufficient to fund
the remaining remediation.
On
September 26, 2006, the New Jersey Department of Environmental Protection
("NJDEP") conducted a site update inspection, which included a review of the
Route 46 site and an update of the progress of the approved remediation. The
NJDEP Northern Office director who conducted the inspection, concluded that the
remediation progress was proceeding appropriately and that the NJDEP approved of
the Company's continued plan to eliminate the remaining underground
product.
During
the year ended June 30, 2006, certain officers of the Company exercised stock
options for the purchase of 100,000 shares of the Company’s stock at an exercise
price of $6.68 per share that would have resulted in additional compensation to
them if, at the time of exercise, the stock was either not subject to a
substantial risk of forfeiture or transferable. The Company has
concluded that the stock received upon exercise was subject to a substantial
risk of forfeiture and not transferable until the time of sale. Since the sales
price of the stock was less than the exercise price, the Company has further
concluded that there is no additional compensation that would be subject to
income tax withholdings for inclusion in payroll tax returns. There can be no
assurance that the Internal Revenue Service (“IRS”) will agree with the
Company’s position. In the event that the IRS does not agree, the
Company estimates that its maximum exposure for income tax withholdings will not
exceed approximately $85,000 excluding any potential interest and
penalties. In addition, the Company has not yet filed certain SEC
filings related to these option exercises.
On
December 8, 2006, the Company commenced an action in the Superior Court of
California, for the County of Los Angeles against Summit Ventures, Inc.
(“Summit”), Mark Roy Anderson (“Anderson”), the principal of Summit and four
other companies controlled by Anderson, Camden Holdings, Inc., Summit Oil and
Gas, Inc. d/b/a Nevada Summit Oil and Gas, Harvest Worldwide LLC and Harvest
Worldwide, Inc. seeking to compel the return of 142,857 shares (the “Shares”) of
the Company’s common stock issued to Summit. The shares were issued
to Summit in connection with a consulting agreement the Company had entered into
with Summit in January 2005 (also See Note 5). The complaint also sought damages
as a result of Summit’s and Anderson’s breach of contract, fraud, and
misrepresentation with respect to the consulting agreement. On June
28, 2007, Summit and Anderson interposed a cross-complaint against the Company,
Greg Frost, the Company’s Chief Executive Officer and Chairman, Chris Westad,
the Company’s President, Frank Nocito, Vice President of Business Development
for the Company, Stephen Chalk, a Director of the Company and Timothy
Harrington, the former Chief Executive Officer of the Company. The Company has
recently settled the Anderson Litigation (see Note 22).
SEC Formal Order of Private
Investigation
On
September 7, 2006, the Company received a copy of a Formal Order from the SEC
pursuant to which the Company, certain of its officers and a director were
served with subpoenas requesting certain documents and information. The Formal
Order authorizes an investigation of possible violations of the anti-fraud
provisions of the federal securities laws with respect to the offer, purchase
and sale
of the
Company's securities and the Company's disclosures or failures to disclose
material information. The Company believes that it did
not
violate any securities laws and intends to cooperate fully with and assist the
SEC in its inquiry. The scope, focus and subject matter of the SEC investigation
may change from time to time and the Company may be unaware of matters under
consideration by the SEC. The Company has produced and continues to produce
responsive documents and intends to continue cooperating with the SEC in
connection with the investigation.
Note
19 - Related Party Transactions
Acquisition of Assets of All
American
The
Company entered into an Asset Purchase Agreement dated as of June 16, 2005
(which was originally contemplated as a stock purchase agreement) ("Purchase
Agreement") with all of the stockholders (and then with All American with
respect to the Purchase Agreement) (the "Sellers") of All American in connection
with the Company's acquisition of substantially all the operating assets (not
including real estate properties) of All American. This transaction was approved
on August 29, 2006 at a special meeting of the Company's stockholders and was
consummated on May 30, 2007. In accordance with applicable Delaware law, the
transaction was approved by at least two-thirds (2/3) of the disinterested
stockholders of the Company. Under the terms of the Purchase
Agreement, upon closing, the Company issued an aggregate of 11,666,667 shares of
the Company’s unregistered and restricted common stock. Of the
approximately 11.67 million shares, 10 million shares were issued directly to
All American and the remaining 1,666,667 shares were issued in the name of All
American in escrow pending the decision by the Company’s Board of Directors
relating to the All American Secured Debentures described in the paragraph
below. The Company purchased the operating businesses of eleven truck stop
plazas owned and operated by All American. The acquisition included all assets
comprising the eleven truck plazas other than the underlying real estate and the
buildings thereon. The Company also assumed all liabilities related to the
operations of those truck stops. The Company did not assume any liabilities
related to the underlying real estate. In addition, the obligations of All
American to the Company relating to the notes and other amounts as described in
these condensed consolidated financial statements survive the business
combination. The financial information related to the assets acquired and
liabilities assumed is not yet available. The shares of the Company
were valued at a fixed price of $3.00 per share for purposes of the Purchase
Agreement. The share price of the Company’s common stock as of May
30, 2007 as listed on the Pink Sheets was $1.65.
Please
see Note 21 for the unaudited proforma income statement representing
consolidated results of operations for the Company had the acquisition of All
American occurred at the beginning of the earliest period
presented.
All American
Financing
On June
1, 2005, All American completed a financing that may impact the Company.
Pursuant to the terms of the Securities Purchase Agreement (the "Agreement")
among All American and certain purchasers ("Purchasers"), the Purchasers loaned
All American an aggregate of $5,000,000, evidenced by Secured Debentures dated
June 1, 2005 (the "Debentures"). The Debentures were due and payable on June 1,
2007, subject to the occurrence of an event of default, with interest payable at
the rate per annum equal to LIBOR for the applicable interest period, plus 4%
payable on a quarterly basis on April 1st, July 1st, October 1st and
January 1st, beginning on the first such date after the date of issuance of the
Debentures. As of the date of this Report, the Company's Board has not
approved the transfer of the debt that would also require the transfer of
additional assets from All American as consideration for the Company to assume
the debt. Should the Company’s Board approve the transfer of the debt, the
Debentures will be convertible into shares of the Company's common stock at a
conversion rate of the lesser of (i) the purchase price paid by the Company for
each share of All American common stock in the acquisition, or (ii) $3.00,
subject to further adjustment as set forth in the agreement.
The loan
is secured by real estate property owned by All American in Pennsylvania and New
Hampshire. Pursuant to the Agreement, these Debentures are in default, as All
American did not complete the merger with the Company prior to the expiration of
the 12-month anniversary of the Agreement. Pursuant to the Additional Investment
Right (the "AIR Agreement") among All American and the Purchasers, the
Purchasers may loan All American up to an additional $5,000,000 of secured
convertible debentures on the same terms
and
conditions as the initial $5,000,000 loan, except that the conversion price will
be $4.00 if the Company’s Board approves the transfer of debt, upon such
assumption, the Company will assume the obligations of All American under the
Agreement, the Debentures and the AIR Agreement through the execution of a
Securities Assumption, Amendment and Issuance Agreement, Registration Rights
Agreement, Common Stock Purchase Warrant Agreement and Variable Rate Secured
Convertible Debenture Agreement, each between the Purchasers and the Company
(the "Able Energy Transaction Documents"). Such documents provide that All
American shall cause the real estate collateral to continue to secure the loan,
until the earlier of full repayment of the loan upon expiration of the
Debentures or conversion by the Purchasers of the Debentures into shares of the
Company's common stock at a conversion rate of the lesser of (i) the purchase
price paid by the Company for each share of All American common stock in the
acquisition, or (ii) $3.00 (the "Conversion Price"), subject to further
adjustment as set forth in the Able Energy Transaction Documents. However, the
Conversion Price with respect to the AIR Agreement shall be $4.00. In addition,
the Purchasers shall have the right to receive five-year warrants to purchase
2,500,000 of the Company's common stock at an exercise price of $3.75 per
share.
In the
event the Company’s Board of Directors does approve the transfer of debt
and pursuant to the Able Energy Transaction Documents, the Company
shall also have an optional redemption right (which right shall be mandatory
upon the occurrence of an event of default) to repurchase all of the Debentures
for 125% of the face amount of the Debentures plus all accrued and outstanding
interest, as well as a right to repurchase all of the Debentures in the event of
the consummation of a new financing in which the Company sells securities at a
purchase price that is below the Conversion Price. The stockholders of All
American have placed 1,666,667 shares of Able common stock in escrow to satisfy
the conversion of the $5,000,000 in outstanding Debentures in full should the
Company’s Board
approve
the transfer of debt.
Notes and Loans to All
American
The
Company loaned All American $1,730,000 as evidenced by a promissory note dated
July 27, 2005. As of December 31, 2006, this note is still outstanding with a
maturity date of August 15, 2007. Interest income related to this note for the
three and six months ended December 31, 2006 was $41,452 and $82,850,
respectively, and accrued interest receivable as of that date is $153,425. The
note and accrued interest receivable in the amount of $1,883,425 have been
classified as contra-equity on the Company’s condensed consolidated balance
sheet as of December 31, 2006.
On May
19, 2006, the Company entered into a letter of interest agreement with
Manns Haggerskjold of North America, Ltd. ("Manns"), for a bridge loan to the
Company in the amount of $35,000,000 and a possible loan in the amount of $1.5
million based upon the business combination with All American ("Manns
Agreement"). The terms of the letter of interest provided for the payment of a
commitment fee of $750,000, which was non-refundable to cover the due-diligence
cost incurred by Manns. On June 23, 2006, the Company advanced to Manns $125,000
toward the Manns Agreement due diligence fee. During the period from July 7,
2006 through November 17, 2006, the Company advanced an additional $590,000
toward the Manns Agreement due diligence fee. The amount outstanding relating to
these advances as of December 31, 2006 was $715,000. As a result of
not obtaining the financing (see below), $175,000 and $715,000 was expensed to
amortization of deferred financing costs for the three and six month periods
ended December 31, 2006, respectively.
As a
result of the Company receiving a Formal Order from the SEC on September 22,
2006, the Company and Manns agreed that the commitment to fund being sought
under the Manns Agreement would be issued to All American, since the
stockholders had approved an acquisition of All American by Able and since the
collateral for the financing by Manns would be collateralized by real estate
owned by All American. Accordingly, on September 22, 2006, All American agreed
that in the event Manns funds a credit facility to All American rather than the
Company, upon such funds being received by All American, it will immediately
reimburse the Company for all expenses incurred and all fees paid to Manns in
connection with the proposed credit facility from Manns to the
Company. On or about February 2,
2007, All
American received a term sheet from UBS Real Estate Investments, Inc. (“UBS”)
requested by Manns as co-lender to All American. All American rejected the UBS
offer as not consistent with the Manns’ commitment of September 14, 2006. All
American subsequently demanded that Manns refund all fees paid to Manns by Able
and All American. In order to enforce its rights in this regard All American has
retained legal counsel. The Company and All American intend to pursue their
remedies against Manns. All recoveries and fees and costs of the litigation will
be allocated between the Company and All American in proportion to the amount of
the Manns due diligence fees paid.
On July
5, 2006, the Company loaned $905,000 of the Laurus proceeds to All American (See
Note 16). Interest income on the note for the three months and
six months ended December 31, 2006 was $24,284 and $47,600,
respectively. The note and accrued interest of $938,881 have been
classified as contra-equity on the Company's condensed consolidated balance
sheet as of December 31, 2006.
In
consideration for the loan, All American has granted the Company an option,
("the option") exercisable in the Company's sole discretion, to acquire 80% of
the CCIG stock All American acquired from CCIG pursuant to a Share Exchange
Agreement. In addition, in the event that the Company exercises the Option, 80%
of the outstanding principal amount of the All American note will be cancelled
and shall be deemed fully paid and satisfied. The remaining principal
balance of the All American note and all outstanding and accrued interest on the
loan shall be due and payable one year from the exercise of the Option. The
Option must be exercised in whole and not in part and the Option expires
on July 5, 2008. In the event the Company does not exercise the Option, the
All American note shall be due in two years, on July 6, 2008, unless the Company
has issued a declaration of intent not to exercise the Option, in which case the
All American note shall be due one year from such declaration. The Company has
determined, that given the lack of liquidity in the shares of CCIG and the lack
of information in regard to the financial condition of CCIG, that this option
has no value and has not been recorded by the Company.
On August
14, 2006, the Company loaned All American $600,000. On August 30, 2006, All
American repaid the $600,000 plus interest in the amount of $2,684.
Note Receivable
–
Related
Party
In
connection with two loans entered into by the Company in May 2005, fees in
the amount of $167,500 were paid to Unison Capital Corporation ("Unison"),
a company controlled by Mr. Nocito, an officer of the Company. This
individual also has a related-party interest in All American. Subsequent to
the payments being made and based on discussions with Unison, it was
determined the $167,500 was to be reimbursed to the Company over a
twelve month period beginning in October 2005. As of December 31, 2006, no
payments have been made and this note is still outstanding. The maturity date of
the note has been extended to August 15, 2007 and has been personally guaranteed
by Mr. Nocito. Interest income related to this note for the three and six months
ended December 31, 2006 was $2,533 and $5,066, respectively, and accrued
interest receivable as of that date is $16,796. The note and accrued interest in
the amount of $184,296 have been classified as contra-equity in the
accompanying condensed consolidated balance sheet as of December 31,
2006.
Note Payable Related
Part
y
On
February 22, 2005, the Company borrowed $500,000 from Able Income Fund, LLC
("Able Income"), which is partially-owned by the Company's former CEO, Timothy
Harrington. The note from Able Income bore interest at the rate of 14% per annum
payable interest only in the amount of $5,833 per month with the principal
balance and any accrued unpaid interest due and payable on May 22, 2005. The
note was secured by a mortgage on property located in Warrensburg Industrial
Park, Warrensburg, New York, owned by Able
Energy
New York, Inc. Able Income agreed to surrender the note representing this loan
on October 14, 2005 in exchange for 57,604 shares of Able common stock (based on
a conversion price equal to 80% of the average closing price of our common stock
during the period October 3, 2005 to October 14, 2005). Interest
expense related to the note payable paid to Able Income during the three and six
months ended December 31, 2005 was zero and $17,500, respectively.
Fuel Supply
Contract
In
December 2006, the Company entered into a Fuel Purchase agreement with All
American. Under the agreement, the Company pre-paid $350,000 to All American in
exchange for fuel purchased pursuant to this agreement to be provided by All
American at a $.05 per gallon discount from the Newark, New Jersey daily spot
market price. All American has satisfied $52,941and $338,942 of its obligations
under this agreement as of December 31, 2006 and June 30, 2007, respectively.
The prepaid balance under the agreement at December 31, 2006 was $297,059 and is
included as receivable from a related party in the condensed consolidated
balance sheet at December 31, 2006.
Change in Officers
Status
On
September 28, 2006, Gregory Frost, gave notice to the Board of
Directors that he was taking an indefinite leave of absence as Chief Executive
Officer of the Company and resigned as Chairman of the Board. Mr.
Christopher P. Westad, the acting Chief Financial Officer of the Company, was
designated by the Board to serve as acting Chief Executive Officer. In
connection with Mr. Westad's service as acting Chief Executive Officer, Mr.
Westad stepped down, temporarily, as acting Chief Financial Officer. The Board
designated Jeffrey S. Feld, the Company's Controller, as the acting Chief
Financial Officer. Mr. Feld has been with the Company since September 1999. Mr.
Frost resumed his duties as Chief Executive Officer effective May 24,
2007. Mr. Westad remains the President of the Company and Mr. Feld is
continuing in his role as acting Chief Financial Officer. The Company had
further management changes on September 24, 2007 (See Note 22).
Note
20 - Product Information
The
Company sells several types of products and provides services.
The following are revenues by product groups and services for the three and
six months ended December 31, 2006 and 2005:
|
|
|
Three
Months Ended
|
|
|
Six
Months Months Ended
|
|
|
|
|
December
31,
|
|
|
December
31,
|
|
|
|
|
2006
|
|
|
2005
|
|
|
2006
|
|
|
2005
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
# 2
heating oil
|
|
$
|
13,744,041
|
|
|
$
|
15,419,974
|
|
|
$
|
19,851,312
|
|
|
$
|
21,230,872
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gasoline,
diesel fuel,
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
kerosene,
propane and lubricants
|
|
|
4,683,600
|
|
|
|
6,025,663
|
|
|
|
10,795,320
|
|
|
|
12,632,114
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equipment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
sales,
sevices and installation
|
|
|
838,375
|
|
|
|
1,009,825
|
|
|
|
1,454,937
|
|
|
|
1,725,541
|
|
|
Net
Sales
|
|
$
|
19,266,016
|
|
|
$
|
22,455,462
|
|
|
$
|
32,101,569
|
|
|
$
|
35,588,527
|
|
Note
21 – Purchase of Horsham Franchise
On
December 13, 2006, the Company purchased certain of the assets and assumed
certain liabilities of its Horsham franchise from Able Oil Montgomery, Inc., a
non-related party, for $764,175. Able Oil Montgomery is a full service retail
fuel oil and service company located in Horsham, Pennsylvania, which until
this acquisition, was a franchise operation of the Company and an entity to whom
the Company sold #2 heating oil.
The
purchase price allocation, as shown below, has not been finalized and represents
management’s preliminary estimate:
|
Description
|
|
Amount
|
|
|
|
|
|
|
|
HVAC
parts and tools
|
|
$
|
28,000
|
|
|
Furniture
and fixtures
|
|
|
5,000
|
|
|
Vehicles
|
|
|
34,000
|
|
|
Customer
list - fuel distribution
|
|
|
500,000
|
|
|
Customer
list - HVAC business
|
|
|
197,175
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
764,175
|
|
|
|
|
|
|
|
|
The
purchase price was paid as follows:
|
|
|
|
|
|
|
|
|
Down
payment
|
|
$
|
128,000
|
|
|
Note
to seller
|
|
|
345,615
|
|
|
Note
payable to seller
|
|
|
269,480
|
|
|
Accounts
receiveable from seller
|
|
|
21,080
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
764,175
|
|
The
impact due to the purchase of the Horsham Franchise on the results of operations
of the Company is immaterial, therefore no supplemental pro forma information is
included in the footnotes to these condensed consolidated financial
statements.
The
customer lists are included in the intangible assets on the condensed
consolidated balance sheet as of December 31, 2006 and are being amortized over
a 15 year period (See Note 9).
The
purchase agreement called for a down payment by the Company of $128,000, a 5
year, 7.0% per annum note in favor of the seller in the amount of $345,615 and
the offset of money owed by the seller to the buyer of $290,560. In addition,
the seller paid to the Company $237,539 of monies collected in advance by Able
Oil Montgomery relating to customer pre-purchase payments.
In
addition, Able entered into a consulting agreement with Drew Schmidt, the owner
of Able Oil Montgomery Inc., to assist Able with the transition and on-going
development of the Horsham business. The term of this agreement was from
December 13, 2006 to April 14, 2007 at a rate of $6,000 per month.
The
following unaudited proforma income statement represents consolidated results of
operations of the Company had the acquisition of All American Plazas and Able
Oil Montgomery Inc. occurred at the beginning of the earliest period
presented:
|
|
|
Three
months ended:
|
|
|
Six
months ended:
|
|
|
|
|
December
31, 2006
|
|
|
December
31, 2005
|
|
|
December
31, 2006
|
|
|
December
31, 2005
|
|
|
Net
Revenue
|
|
$
|
63,886,016
|
|
|
$
|
70,634,462
|
|
|
$
|
131,505,451
|
|
|
$
|
126,324,582
|
|
|
Net
loss
|
|
$
|
(3,209,995
|
)
|
|
$
|
(2,375,828
|
)
|
|
$
|
(3,714,468
|
)
|
|
$
|
(3,173,916
|
)
|
|
Basic
and Diluted Earnings (loss) per Share
|
|
$
|
(0.22
|
)
|
|
$
|
(0.17
|
)
|
|
$
|
(0.25
|
)
|
|
$
|
(0.22
|
)
|
The above
proforma information does not purport to be indicative of what would have
occurred had the acquisitions been made as of such date or the results which may
occur in the future.
Note
22 - Subsequent Events
Change of
Officers
On
September 24, 2007, the Company’s Board of Directors appointed (i) Richard A.
Mitstifer, the former President of All American as President of the Company;
(ii) William Roger Roberts, the former Chief Operating Officer of All American,
as the Company’s Chief
Operating
Officer; (iii) Daniel L. Johnston, the former Controller of All American, as
Chief Financial Officer of the Company; and (iv) Louis Aponte, the President of
All American Industries, Inc. and all American Realty and Construction Corp.,
which are affiliates of All American specializing in real estate
development and construction, as the Company’s Vice-President of Special
Projects. The Board also promoted Frank Nocito, the Company’s Vice-President of
Business Development, to Executive Vice President and expanded his duties to
include heading the Company’s expansion into alternative and clean energy fuels
and products. Mr. Nocito is the controlling person of the Cheldnick Family
Trust, the largest shareholder of the Company. Messrs. Mitstifer, Roberts and
Aponte were officers of All American in June 2005 when the Company entered into
an asset purchase agreement with All American, pursuant to which the Company
agreed to acquire substantially all of All American’s assets and assume all
liabilities of All American other than mortgage debt liabilities. They were also
officers of All American at the time the transaction closed in May 2007.
Effective September 24, 2007, Christopher P.
Westad
stepped down as President of the Company and Jeffrey Feld stepped down as Acting
Chief Financial Officer of the Company. The Board subsequently appointed Mr.
Westad as the President of the Company’s home heating oil subsidiaries, namely
Able Oil, Inc., Able Energy New York, Inc. and Able Oil Melbourne,
Inc.
Credit Card Receivable
Financing
On March
20, 2007, the Company entered into a credit card receivable advance agreement
with Credit Cash, LLC ("Credit Cash") whereby Credit Cash agreed to loan the
Company $1.2 million. The loan is secured by the Company's existing and future
credit card collections. Terms of the loan call for a repayment of $1,284,000,
which includes the one-time finance charge of $84,000, which is payable over a
seven-month period. This finance charge payment will be accomplished
through Credit Cash withholding 18% of credit card collections of Able Oil
Company and 10% of credit card collections of PriceEnergy.com, Inc. over the
seven-month period beginning March 21, 2007. There are certain provisions in the
agreement which allows Credit Cash to increase the withholding, if the
amount withheld by Credit Cash over the seven-month period is not sufficient to
satisfy the required repayment of $1,284,000.
On July
18, 2007, August 3, 2007, November 9, 2007, December 28, 2007, January 18, 2008,
February 4, 2008 and February 14, 2008, the Company, in accordance with its
agreement with Credit Cash, refinanced the loan in the amounts of $250,000,
$300,000, $1,100,000, $250,000, $500,000, $250,000 and $500,000, respectively.
The outstanding Credit Cash loan as of March 6, 2008 was $699,000.
Prior to
the business combination between the Company and All American (now known as All
American Properties, Inc.), All American entered into a loan agreement with
Credit Cash, which was an advance against credit card receivables at the truck
stop plazas then operated by All American. As a result of the
business combination this obligation was assumed by the Company’s wholly-owned
subsidiary, All American Plazas, Inc. (“Plazas”) as it became the operator of
the truck stop plazas. Credit Cash, while acknowledging the business
combination, has continued to obligate both Properties and Plazas in their loan
documents as obligors of the loan. Accordingly, on July 16, 2007, Credit Cash
agreed to extend further credit of $400,000 secured by the credit card
receivables at the truck stops operated by All American.
This July
16, 2007 extension of credit agreement was in addition to and supplemented all
previous agreements with Credit Cash. Terms of the original loan and extensions
called for repayment of $1,010,933 plus accrued interest which will be repaid
through Credit Cash withholding 15% of credit card collections from the
operations of the truck stop plazas until the loan balance is paid in full. The
interest rate is prime plus 3.75% (12% at September 30, 2006). There are certain
provisions in the agreement, which allows the Lender to increase the
withholding, if the amount it is withholding is not sufficient to satisfy the
loan in a timely manner. The outstanding balance of the loan as of October 31,
2007 was $321,433 plus accrued interest. However, on November 2, 2007 and again
on January 18, 2008, Credit Cash again agreed to extend an additional credit in
the amount of $1,100,000 and $600,000 respectively. Terms of the agreement are
the same as the prior July 16, 2007 financing. The Credit Cash loan
balance as of January 18, 2008 was $1,376,804.
Accounts Receivable
Financing
On
January 8, 2007, All American entered into an Account Purchase Agreement with
Crown Financial (“Crown”) whereby Crown advanced $1,275,000 to All American in
exchange for certain existing accounts receivables and taking ownership of new
accounts originated by All American.
Repayment
of the loan is to be made from the direct payments to Crown from the accounts it
purchased from All American and a fee equal to 2.5% of the outstanding advance
for the preceding period payable on the 15
th
and
30
th
day of each month.
The Crown
loan is secured by the mortgages on the real property and improvements thereon
owned by All American known as the Strattanville and Frystown Gables truck stop
plazas and a personal guarantee by Frank Nocito.
Subsequent
to the May 2007 closing of the business combination between the Company and All
American, on July 1, 2007 the Account Purchase Agreement between All American
and Crown Financial has been amended and modified from “Eligible Accounts having
a 60 day aging” to a “90 day aging that are not reasonably deemed to be doubtful
for collections” and the fee of 2.5% payable on the 15
th
and
30
th
day of each month has been modified to 1.375%. The Company has assumed this
obligation based on the business combination; however, All American has agreed
to continue to secure this financing with the aforementioned real estate
mortgages.
Related Party
Transactions
On
December 10, 2007, All American Properties Inc, concluded a refinancing allowing
them to repay approximately $910,000 on their
note to
the Company (see Note 19 on related party note).
Purchase Commi
tments
The
Company is obligated to purchase #2 heating oil under various contracts with its
suppliers. Subsequent to September 30, 2006, the Company entered into
additional contracts in the amount of approximately $3,299,000, through May
2008.
Fuel
Financing
On
October 17, 2007, the Company entered into a loan agreement with S&S NY
Holdings, Inc. for $500,000 to purchase #2 heating fuel. The term of the
agreement is for 90 days with an option to refinance at the end of the 90 day
period for an additional 90 days. The repayment of the principal amount will be
$.10 cents per gallon of fuel sold to the Company’s customers excluding
pre-purchase gallons. An additional $.075 per gallon will be paid as interest.
The agreement also provides that in each 30 day period the interest amount can
be
no less
than $37,500.00. As of January 17, 2008 the Company had repaid
approximately $100,000 and exercised its right to refinance the amount until
March 31, 2008. The company is still negotiating the final terms of
this refinancing.
On
December 20, 2007, the Company entered in to a second loan agreement with
S&S NY Holdings, Inc for $500,000 to purchase #2 heating
fuel. The term of the agreement is thru March 31,
2008. The repayment of principle is not due until the maturity
date. An additional $.075 per gallon will be paid as interest. The
agreement also provides that in each 30 day period the interest amount can be no
less than $37,500.00.
On
October 5, 2007, All American reclassified all outstanding trade payables with
TransMontaigne, a supplier of fuel to a note payable in the amount of
approximately $15,000,000. Interest at the rate of 8% is being
accrued on all past due amounts as of October 5, 2007. In addition,
an amount of $1,550,000.00 was added to the note to begin a prepaid purchase
program whereby All American will prepay for its fuel prior to
delivery. Repayment of this note is to commence on or about March 15,
2008 with a 25 year amortization schedule with a maturity of November 15, 2009.
If a threshold payment is made on or before March 15, 2008 and before August 15,
2008 (after initial 25 year amortization begins) in the amount of $3,000,000
then a new 25 year amortization schedule will commence effective July 31, 2009
and mature on March 31, 2011. Collateral on this note are certain
properties owned by All American Properties Inc.
On
February 22, 2008, the Company increased an existing credit line by executing a
Fuel Purchase Loan (“FPL”) agreement with EGC. The increase, in the
amount of $0.5 million, is a further extension of credit under an existing May
13, 2005 agreement between the Company and EGC (the “Loan Agreement”) (See Note
13). In addition to the general terms of the Loan Agreement, under
the repayment terms of the FPL, EGC will reduce the loan amount outstanding by
applying specific amounts from the Company’s availability under the Loan
Agreement. These amounts start at $2,500 per business day, commencing
March 1, 2008, gradually increasing to $10,000 per business day on June 1, 2008
and thereafter until the FPL is paid in full. In further
consideration for making the FPL, commencing February 22, 2008, EGC shall be
entitled to receive a revenue share of four cents ($0.04) per gallon of fuel
purchased with the FPL funds, subject to a $5,000 per week minimum during the
first seven weeks of the program.
Litigation
On June
26, 2007, the Company and its affiliate, All American (together with the Company
the “Claimants”), filed a Demand for Arbitration and Statement of Claim in the
Denver, Colorado office of the American Arbitration Association against Manns
Haggerskjold of North America, Ltd. (“Manns”), Scott Smith and Shannon Coe
(collectively the “Respondents”), Arbitration Case No. 77 148 Y 00236 07 MAV.
The Statement of Claim filed seeks to recover fees of $1.2 million paid to Manns
to obtain financing for the Company and All American. The Claimants commenced
the Arbitration proceeding based upon the Respondents breach of the September
14, 2006 Commitment letter from Manns to All American that required Manns to
loan All American $150 million. The Statement of Claim sets forth claims for
breach of contract, fraud and misrepresentation and lender liability. On July
23, 2007, Respondents filed their answer to the Statement of Claim substantially
denying the allegations asserted therein and interposing counterclaims setting
forth claims against
the
Company for breach of the Non-Circumvention Clause, breach of the Exclusivity
Clause and unpaid expenses. Respondents also assert counterclaims for fraudulent
misrepresentation and unjust enrichment. On Respondents’ counterclaim for breach
of the Non-Circumvention Clause, Respondents claim damages of $6,402,500. On
their counterclaim for breach of the Exclusivity Clause, Respondents claim
damages of $3,693,750, plus an unspecified amount related to fees on loans
exceeding $2,000,000 closed by All American or the Company over the next five
years. Respondents do not specify damages relative to their other
counterclaims.
On August
7, 2007, the Claimants filed their reply to counterclaims denying all of
Respondents material allegations therein. Respondents’ counterclaims were based
on the false statement that the Claimants had, in fact, received the financing
agreed to be provided by Manns from a third party. The parties have
selected an Arbitrator and are presently engaged in discovery, which will be
followed by the taking of a limited number of depositions. The hearing of the
parties’ claims is scheduled to commence before the Arbitrator on April 7,
2008.
On
October 10, 2007, the Company entered into a Stipulation settling the action it
had commenced against Mark Roy Anderson, Camden Holdings, Inc., Summit Oil and
Gas, Inc., Summit Ventures, Inc., Harvest Worldwide, LLC and Harvest Worldwide,
Inc. in the Superior Court of California for the County of Los Angeles, Case No.
BC363149, as well as the counterclaims asserted therein by Summit Ventures, Inc.
and Mark Anderson against the Company and certain of its present and former
directors and officers, Gregory Frost, Tim Harrington, Christopher Westad,
Timothy Harrington and Frank Nocito. The Stipulation provides that in
consideration of the parties discontinuing with prejudice all their claims
against each other, Summit Ventures, Inc. will return its stock certificate
evidencing its ownership of 142,857 shares of the Company’s common stock and
upon such return it will be issued a new certificate for such shares free of any
restrictive legend. Upon execution of the Stipulation of Settlement the parties
exchanged general releases of all claims they had or may have had against each
other to the date of the releases.
On
October 1, 2007, the Company and its Chief Executive Officer (“CEO”) filed an
action in New York state court against Marcum & Kliegman, LLP (the Company’s
former auditors) and several of its partners for numerous claims, including
breach of contract, gross negligence and defamation. The Company and
its CEO are seeking compensatory damages in the amount of at least $1 million
and punitive damages of at least $20 million. The claims asserted by the Company
and its CEO arise out of Marcum & Kliegman’s conduct with respect to the
preparation and filing of the Company’s SEC Reports. On November 26,
2007, Marcum & Kliegman and its partners
filed a
motion to dismiss the complaint on the ground that it fails to state a claim for
relief as a matter of law. As of the date of this Report, the court
has not ruled on this motion to dismiss.
Consulting
Agreement
On August
27, 2007 the Company entered into a service agreement with Axis Consulting
Services LLC. The agreement calls for Axis Consulting to develop a marketing
plan (phase 1) and manage (phase 2) “The Energy Store” (an e-commerce retail
sales portal for energy products and services). During phase 1, the terms are
$2,750 per month and once phase 2 commences an amount of $5,600 per month. This
agreement ends on December 31, 2008. Axis Consulting’s President (Joe
Nocito) has a direct relationship as the son of the Company’s Executive Vice
President Frank Nocito.
SEC Formal Order of Private
Investigation
On August
31, 2007, the Company was served with a second subpoena
duces tecum
(the “Second
Subpoena”) from the Securities and Exchange Commission (“SEC”) pursuant to the
Formal Order of Investigation issued by the SEC on September 7, 2006 (see note
17). The Company continues to gather, review and produce documents to the SEC
and is cooperating fully with the SEC in complying with the Second Subpoena. As
of the date of this Report, the Company has produced documents in response to
the Second Subpoena and the Company expects to produce additional documents in
response to the Second Subpoena as soon as practicable. As of the date of this
Report, the Company is not aware of any information that has been discovered
pursuant to the Formal Order of Investigation which would indicate that the
Company or any of its officers and directors was guilty of any
wrongdoing.
Changes in Registrant's
Certifying Account
ant
On August
13, 2007, the Company dismissed Marcum & Kliegman LLP as its independent
registered public accounting firm. The report of Marcum & Kliegman LLP on
the Company's financial statements for the fiscal year ended June 30, 2006 (“FY
2006”) was modified as to uncertainty regarding (1) the Company’s ability to
continue as a going concern as a result of, among other factors, a working
capital deficiency as of June 30, 2006 and possible failure to meet its short
and long-term liquidity needs, and (2) the impact on the Company’s financial
statements as a result of a pending investigation by the SEC of possible federal
securities law violations with respect to the offer, purchase and sale of the
Company’s securities and the Company’s disclosures or failures to disclose
material information.
The
Company’s Audit Committee unanimously recommended and approved the decision to
change independent registered public accounting firms.
In
connection with the audit of the Company’s financial statements for FY 2006, and
through August 13, 2007, there have been no disagreements with Marcum &
Kliegman LLP on any matter of accounting principles or practices, financial
statement disclosure or auditing scope or procedure, which disagreements, if not
resolved to the satisfaction of Marcum & Kliegman LLP would have caused it
to make reference to the subject matter of such disagreements in connection with
its audit report. There were no reportable events as defined in Item
304(a)(1)(v) of Regulation S-K. On August 24, 2007, Marcum & Kliegman
LLP sent a responsive letter to the Current Report on Form 8-K dated August 13,
2007, filed by the Company, which discussed the Company’s termination of Marcum
and Kliegman LLP as its auditors. This responsive letter claimed that there were
two reportable events. The Company filed an amended
Form 8-K
Report acknowledging one reportable event that Marcum and Kliegman LLP had
advised the Company of material weaknesses in the Company’s internal controls
over financial reporting. The Company added disclosure in the Amended 8-K to
reflect this reportable event. This reportable event occurred in conjunction
with Marcum & Kliegman’s audit of the consolidated financial statements for
the year ended June 30, 2006 and not, as stated in the Auditor’s Letter, in
conjunction with Marcum & Kliegman’s “subsequent reviews of the Company’s
condensed consolidated financial statements for the quarterly periods ended
September 30, 2006 and December 31, 2006.” In June 2007, when Marcum &
Kliegman began its review of the Company quarterly financial statements for the
periods ended September 30, 2006 and December 31, 2006, the Company had already
disclosed the material weakness in its internal controls over financial
reporting in the Company’s annual Report on Form 10-K for the year ended June
30, 2006 (filed on April 12, 2007). Further, no such advice of these material
weaknesses over internal controls was discussed, in writing or orally, with the
Company by representatives of Marcum & Kliegman during the review of such
quarterly financial statements.
The
Company engaged Lazar Levine & Felix LLP (“LLF”) as its new independent
registered public accounting firm as of September 21, 2007. Prior to its
engagement, LLF had been and continues to act as independent auditors for All
American, an affiliate and the largest stockholder of the Company.
On
Monday, January 7, 2008, the Company, its Chief Executive Officer, Gregory D.
Frost, and its Vice-President of Business Development, Frank Nocito, were served
with a summons and complaint in a purported class action complaint filed in the
United States District Court, District of New Jersey. This action, which seeks
class certification, was brought by shareholders of CCI Group, Inc. (“CCIG”).
The complaint relates to a Share Exchange Agreement (the “Share Exchange
Agreement”), dated July 7, 2006, between All American Properties (f/k/a All
American Plazas, Inc.) (“All American”) with CCIG, pursuant to which seventy
percent (70%) of the outstanding and issued shares of CCIG were exchanged into
618,557 shares of the Company which were owned by All American of which 250,378
shares were to be distributed to the shareholders of CCIG and the balance of the
shares were to be used to pay debts of CCIG. Neither the Company nor
Messrs. Frost or Nocito were parties to the Share Exchange Agreement. All
American remains the largest shareholder of the Company. The Share Exchange
Agreement was previously disclosed by the Company in its Current Report on Form
8-K filed with the SEC on July 7, 2006 as part of a disclosure of a loan by the
Company to All American.
Each of
the Company and Messrs. Frost and Nocito believes it/he has defenses against the
alleged claims and intends to vigorously defend itself/himself against this
action and have filed a motion to dismiss the compliant. As of the
date of this Report, the time within which the plaintiffs may respond to the
motion has not expired.
Sale of Able Melbourne
Assets
On
February 8, 2008, Able Oil Melbourne, Inc. (“Able Melbourne”), a wholly owned
subsidiary of the Company, executed an Asset Purchase Agreement (“APA”) with
Able Oil of Brevard, Inc. (“Able Brevard”), a Florida corporation, owned by a
former employee of Able Melbourne. For consideration in the amount of
$375,000, the APA provided for the sale to Able Brevard of all of the tangible
and intangible assets (excluding corporate books and records), liabilities and
lease obligations of Able Melbourne, as is, on the closing date.
The
Company is in the process of assembling the information required to determine
the reportable impact, if any, of the sale of the Able Melbourne assets on the
results of operations of the Company. Therefore, no supplemental pro
form information is included in the footnotes to these condensed consolidated
financial statements.
ITEM
2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS.
Statements
in this Quarterly Report on Form 10-Q concerning the Company's outlook or future
economic performance, anticipated profitability, gross billings, expenses or
other financial items, and statements concerning assumptions made or exceptions
to any future events, conditions, performance or other matters are "forward
looking statements," as that term is defined under the Federal Securities Laws.
Forward-looking statements are subject to risks, uncertainties, and other
factors that would cause actual results to differ materially
from
those stated in such statements. Such risks, and uncertainties and factors
include, but are not limited to: (i) changes in external competitive market
factors or trends in the Company's results of operation; (ii) unanticipated
working capital or other cash requirements and (iii) changes in the Company's
business strategy or an inability to execute its competitive factors that may
prevent the Company from competing successfully in the marketplace.
OVERVIEW
Able
Energy Inc. ("Able") was incorporated in Delaware in 1997. Able Oil, a
wholly-owned subsidiary of Able, was established in 1989 and sells both
residential and commercial heating oil and complete HVAC service to its heating
oil customers. Able Energy NY, a wholly-owned subsidiary of Able, sells
residential and commercial heating oil, propane, diesel fuel, and kerosene to
customers around the Warrensburg, NY area. Able Melbourne, a wholly-owned
subsidiary of Able, was established in 1996 and sells various grades of diesel
fuel around the Cape Canaveral, Florida area. PriceEnergy.com, Inc., a majority
owned subsidiary of Able, was established in 1999 and has developed an internet
platform that has extended the Company's ability to sell and deliver liquid
fuels and related energy products.
Management's
Discussion and Analysis of Financial Condition and Results of Operation contains
forward-looking statements, which are based upon current expectations and
involve a number of risks and uncertainties. In order for us to utilize the
"safe harbor" provisions of the Private Securities Litigation Reform Act of
1995, investors are hereby cautioned that these statements may be affected by
the important factors, among others, set forth below, and consequently,
actual operations and results may differ materially from those expressed in
these forward-looking statements. The important factors include:
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Customers
Converting to Natural Gas
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Alternative
Energy Sources
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Winter
Temperature Variations (Degree
Days)
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Customers
Moving Out of The Area
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The
Availability (Or Lack of) Acquisition
Candidates
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The
Success of Our Risk Management
Activities
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The
Effects of Competition
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Changes
in Environmental Law
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General
Economic, Market, or Business
Conditions
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We
undertake no obligation to update or revise any such forward-looking
statements.
CRITICAL
ACCOUNTING POLICIES
We
consider the following policies to be the most critical in understanding the
judgments involved in preparing the condensed consolidated financial
statements and the uncertainties that could impact our results of operations,
financial condition and cash flows.
REVENUE
RECOGNITION, UNEARNED REVENUE AND CUSTOMER PRE-PURCHASE PAYMENTS
Sales of
fuel and heating equipment are recognized at the time of delivery to the
customer, and sales of equipment are recognized at the time of
installation. Revenue from repairs and maintenance service is recognized
upon completion of the service. Payments received from customers for
heating equipment service contracts are deferred and amortized into income
over the term of the respective service contracts, on a straight-line
basis, which generally do not exceed one year. Payments received from
customers for the pre-purchase of fuel is recorded as a current liability
until the fuel is delivered to the customer, at which time it is recognized
as revenue by the Company.
DEPRECIATION,
AMORTIZATION AND IMPAIRMENT OF LONG-LIVED ASSETS
We
calculate our depreciation and amortization based on estimated useful
lives and salvage values of our assets. When assets are put into service,
we make estimates with respect to useful lives that we believe are
reasonable. However, subsequent events could cause us to change our
estimates, thus impacting the future calculation of depreciation and
amortization.
Additionally,
we assess our long-lived assets for possible impairment whenever events or
changes in circumstances indicate that the carrying value of the assets may
not be recoverable. Such indicators include changes in our business plans,
a change in the extent or manner in which a long-lived asset is being used
or in its physical condition, or a current expectation that, more
likely than not, a long-lived asset that will be sold or otherwise disposed
of significantly before the end of its previously estimated useful life. If
the carrying value of an asset exceeds the future undiscounted cash flows
expected from the asset, an impairment charge would be recorded for the
excess of the carrying value of the asset over its fair value.
Determination as to whether and how much an asset is impaired would
necessarily involve numerous management estimates. Any impairment reviews
and calculations would be based on assumptions that are consistent with our
business plans and long-term investment decisions.
ALLOWANCE
FOR DOUBTFUL ACCOUNTS
We
routinely review our receivable balances to identify past due amounts
and analyze the reasons such amounts have not been collected.
In many
instances, such uncollected amounts involve billing delays and
discrepancies or disputes as to the appropriate price or volumes of oil
delivered, received or exchanged. We also attempt to monitor changes in the
creditworthiness of our customers as a result of developments related to
each customer, the industry as a whole and the general economy. Based on
these analyses, we have established an allowance for doubtful accounts that
we consider adequate, however, there is no assurance that actual amounts
will not vary significantly from estimated amounts.
INCOME
TAXES
As part
of the process of preparing consolidated financial statements,
the Company is required to estimate income taxes in each of the
jurisdictions in which it operates. Significant judgment is required in
determining the income tax expense provision. The Company recognizes
deferred tax assets and liabilities based on differences between the
financial reporting and tax bases of assets and liabilities using the
enacted tax rates and laws that are expected to be in effect when the
differences are expected to be recovered. The Company assesses the
likelihood of our deferred tax assets being recovered from future taxable
income. The Company then provides a valuation allowance for deferred
tax assets when the Company does not consider realization of such assets to
be more likely than not. The Company considers future taxable income
and ongoing prudent and feasible tax planning strategies in assessing the
valuation allowance. Any decrease in the valuation allowance could have a
material impact on net income in the year in which such determination is
made.
RECENT
ACCOUNTING PRONOUNCEMENTS
In June
2005, the Financial Accounting Standards Board (FASB) published Statement of
Financial Accounting Standards No. 154, “Accounting Changes and Error
Corrections” (“SFAS 154”). SFAS 154 establishes new standards on accounting for
changes in accounting principles. Pursuant to the new rules, all such changes
must be accounted for by retrospective application to the financial statements
of prior periods unless it is impracticable to do so. SFAS 154 completely
replaces Accounting Principles Bulletin No. 20 and SFAS 3, though it carries
forward the guidance in those pronouncements with respect to accounting for
changes in estimates, changes in the reporting entity, and the correction of
errors. The requirements in SFAS 154 are effective for accounting changes made
in fiscal years beginning after December 15, 2005. The Company will apply these
requirements to any accounting changes after the implementation date. The
application of this pronouncement did not have an impact on the Company's
condensed consolidated financial position, results of operations or cash
flows.
EITF
Issue No. 05-4 “The Effect of a Liquidated Damages Clause on a Freestanding
Financial Instrument Subject to EITF Issue No.
00-19,
Accounting for Derivative Financial Instruments Indexed to, and Potentially
Settled in, a Company's Own Stock” (“EITF No. 05-4”) addresses financial
instruments, such as stock purchase warrants, which are accounted for under EITF
00-19 that may be issued at the same time and in contemplation of a registration
rights agreement that includes a liquidated damages clause. The consensus of
EITF No. 05-4 has not been finalized. In July and August 2006, the Company
entered into two private placement agreements for convertible
debentures
and a note payable, a registration rights agreement and issued warrants in
connection with the private placement (See Note
16).
Based on the interpretive guidance in EITF Issue No. 05-4, view C, since the
registration rights agreement includes provisions for uncapped liquidated
damages, the Company determined that the registration rights is a derivative
liability.
In
February 2006, the FASB issued SFAS No. 155 “Accounting for Certain Hybrid
Financial Instruments”, which eliminates the exemption from applying SFAS 133 to
interests in securitized financial assets so that similar instruments are
accounted for similarly regardless of the form of the instruments. SFAS 155 also
allows the election of fair value measurement at acquisition, at issuance, or
when a previously recognized financial instrument is subject to a remeasurement
event. Adoption is effective for all financial instruments acquired or issued
after the beginning of the first fiscal year that begins after September 15,
2006. Early adoption is permitted. The adoption of SFAS 155 is not expected to
have a material effect on the Company's consolidated financial position, results
of operations or cash flows.
In March
2006, the FASB issued SFAS No. 156, “Accounting for Servicing of Financial
Assets”, which amended SFAS No. 140, “Accounting for Transfers and Servicing of
Financial Assets and Extinguishments of Liabilities”, with respect to the
accounting for separately recognized servicing assets and servicing
liabilities. SFAS 156 permits an entity to choose either the
amortization method or the fair value measurement method for each class of
separately recognized servicing assets or servicing liabilities. The
application of this statement is not expected to have an impact on the Company’s
consolidated financial statements.
In July
2006, the FASB issued FASB Interpretation No. 48, "Accounting for Uncertainty in
Income Taxes - an interpretation of FASB Statement No. 109" ("FIN 48"), which
clarifies the accounting for uncertainty in tax positions. This interpretation
requires that the Company recognize in its consolidated financial statements,
the impact of a tax position, if that position is more likely than not of being
sustained on audit, based on the technical merits of the position. The
provisions of FIN 48 are effective as of July 1, 2007, with the cumulative
effect of the change in accounting principle recorded as an adjustment to
opening retained earnings. The Company is currently evaluating the impact of
adopting FIN 48 on its consolidated financial statements.
In
September 2006, the FASB issued SFAS No.157, "Fair Value Measurements", which
defines fair value, establishes a framework for measuring fair value in United
States generally accepted accounting principles and expands disclosures about
fair value measurements. Adoption is required for fiscal years beginning after
November 15, 2007, and interim periods within those fiscal years. Early adoption
of SFAS 157 is encouraged. The Company is currently evaluating the impact of
SFAS 157 and the Company will adopt SFAS 157 in the fiscal year beginning July
1, 2008.
In
September 2006, the staff of the Securities and Exchange Commission (“SEC”)
issued Staff Accounting Bulletin ("SAB") No. 108, which provides interpretive
guidance on how the effects of the carryover or reversal of prior year
misstatements should be considered in quantifying a current year misstatement.
SAB 108 becomes effective in fiscal 2007. Adoption of SAB 108 did not have a
material impact on the Company's condensed consolidated financial position,
results of operations or cash flows.
In
September 2006, the FASB issued SFAS no. 158, “Employers Accounting for Defined
Pension and Other Postretirement Plans-an amendment of FASB No.’s 87, 88, 106
and 132(R).” SFAS 158 requires an employer and sponsors of one or
more single employer defined plans to recognize the funded status of a benefit
plan; recognize as a component of other comprehensive income, net of tax, the
gain or losses and prior service costs or credits that may arise during the
period; measure defined benefit plan assets and obligations as of the employer’s
fiscal year; and, enhance footnote disclosure. For fiscal years
ending after December 15, 2006, employers with equity securities that trade on a
public market are required to initially recognize the funded status of a defined
benefit postretirement plan and to provide the enhanced footnote
disclosures. For fiscal years ending after December 15, 2008,
employers are required to measure plan assets and benefit
obligations. Management of the Company is currently evaluating the
impact of adopting this pronouncement on the consolidated financial
statements.
In
December 2006, the FASB issued FASB Staff Position ("FSP") EITF 00-19-2
"Accounting for Registration Payment Arrangements" ("FSP EITF 00-19-2"), which
specifies that the contingent obligation to make future payments or otherwise
transfer consideration under
a
registration payment arrangement should be separately recognized and measured in
accordance with SFAS No. 5, "Accounting for Contingencies." Adoption of FSP EITF
00-19-02 is required for fiscal years beginning after December 15, 2006, and
is not expected to have a material impact on the Company's condensed
consolidated financial position, results of operations or cash
flows.
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 permits entities to choose to measure many financial instruments and
certain other items at fair value. The fair value option established by this
Statement permits all entities to choose to measure eligible items at fair value
at specified election dates. A business entity shall report unrealized gains and
losses on items for which the fair value option has been elected in earnings at
each subsequent reporting date. Adoption is required for fiscal years beginning
after November 15, 2007. Early adoption is permitted as of the beginning of a
fiscal year that begins on or before November 15, 2007, provided the entity also
elects to apply the provisions of SFAS Statement No. 157, Fair Value
Measurements. The Company is currently evaluating the expected effect of SFAS
159 on its condensed consolidated financial statements and is currently not yet
in a position to determine such effects.
In
December 2007, the FASB issued SFAS No. 160. “Noncontrolling Interests in
Consolidated Financial Statements–an amendment of ARB No. 51.” SFAS
160 establishes accounting and reporting standards pertaining to ownership
interests in subsidiaries held by parties other than the parent, the amount of
net income attributable to the parent and to the noncontrolling interest,
changes in a parent’s ownership interest and the valuation of any retained
noncontrolling equity investment when a subsidiary is
deconsolidated. This statement also establishes disclosure
requirements that clearly identify and distinguish between the interests of the
parent and the interests of the noncontrolling owners. SFAS 160 is
effective for fiscal years beginning on or after December 15,
2008. The Company is in the process of evaluating the effect that the
adoption of SFAS 160 will have on its consolidated results of operations,
financial position and cash flows.
In
December 2007, the FASB issued SFAS No. 141 (revised 2007), “Business
Combinations” (SFAS 141R). SFAS 141R
establishes principles and requirements for how an acquirer
recognizes and measures in it’s financial statements the identifiable assets
acquired, the liabilities assumed, any noncontrolling interest in the acquiree
and the goodwill acquired. SFAS 141R also establishes disclosure
requirements to enable the evaluation of the nature and financial effects of the
business combination. SFAS 141R is effective for financial statements
issued for fiscal years beginning after December 15, 2008. The
Company is currently evaluating the potential impact of adoption of SFAS 141R on
its consolidated financial statements.
RESULTS OF OPERATIONS
Three
Months Ended December 31, 2006 Compared To Three Months Ended December 31,
2005
Revenue
for the three months ended December 31, 2006 decreased approximately $3.2
million or 14.2% compared to the three months ended December 31, 2005. This
decrease can be attributed primarily to a drop in #2 heating oil gallons sold
due to the unusual warm weather and a decrease in our commercial
sales.
Gross
profit for the three months ended December 31, 2006 decreased approximately
$673,000 or 28.1%. The decrease in gross profit was due to
the drop in sales noted above and a decrease in gross margin percentage from
10.6% to 8.9%. The decrease in profit margin was primarily the result of an
approximately $460,000 loss incurred on #2 heating oil futures
contracts.
Selling,
general and administrative expenses for the three months ended December 31, 2006
increased by approximately $225,000 or 9.6% compared to the three months ended
December 31, 2005. The Company attributes this change primarily to an increase
in professional fees of approximately $220,000 related to consultants engaged to
assist the Company with its SEC compliance matters and filings.
Depreciation
and amortization expense for the three months ended December 31, 2006 decreased
by approximately $7,000 or 4.6% compared to the three months ended December
31, 2005. This decrease was primarily related to a reduction in
depreciation on machinery and equipment.
Operating
loss for the three months ended December 31, 2006 was approximately $1,010,000
compared to operating loss of approximately $119,000 for the three months ended
December 31, 2005. The net increase in the operating loss for the current
period of approximately $900,000 was primarily related to the drop in
gross profit of approximately $673,000 and the increase in selling, general and
administrative expenses $225,000.
Other
expenses-net decreased to a net expense of approximately $0.6 million for
the three months ended December 31, 2006 from approximately $1.7 million in the
three months ended December 31, 2005. The decrease in other expenses–net is
primarily related to a decrease in the amortization of debt discounts on
convertible debenture and notes payable of $933,000, a decrease in note
conversion expense of $125,000, an increase in interest and other income of
$127,000 and an increase in interest income related parties of $57,000, offset
by an increase in registration rights penalty of
approximately $165,000.
Net loss
for the three months ended December 31, 2006 approximately $1.6 million compared
to a net loss of approximately $1.8 million for the three months ended December
31, 2005. The results are directly related to a decrease in gross margin of
$673,000 and an increase in selling, general and administrative expenses of
$225,000, offset by a reduction in other expenses–net of $1.1
million.
Six
Months Ended December 31, 2006 Compared To Six Months Ended December 31,
2005
Revenue
for the six months ended December 31, 2006 decreased approximately $3.5 million
or 9.8% over the six months ended December 31, 2005. This decrease can be
attributed primarily to a drop in #2 heating oil gallons sold due to the unusual
warm weather and a decrease in our commercial sales.
Gross
profit decreased $603,000 or 17.1% for the six months ended December 31, 2006
compared to the prior period. The decrease in gross profit was due to the
drop in sales noted above and a decrease in gross margin percentage from 9.9% to
9.1%. The decrease in gross margin is primarily a result of an
approximately $526,000 loss incurred on #2 heating oil futures
contracts.
Selling,
general and administrative expenses for the six months ended December 31, 2006
increased by approximately $654,000 or 15.5% compared to the six months ended
December 31, 2005. The Company attributes this increase primarily to an increase
in
professional
fees of approximately $667,000 related to consultants engaged to assist the
Company with its SEC compliance matters and filings
Depreciation
and amortization expense for the six months ended December 31, 2006 decreased by
approximately $108,000 or 25.0%
compared
to the six months ended December 31, 2005. This decrease was primarily related
to a decrease in depreciation of machinery and equipment and a decrease in the
amortization of website development costs.
Operating
loss for the six months ended December 31, 2006 was approximately $2.3 million
compared to approximately $1.1 million for the six months ended December 31,
2005, an unfavorable variance of approximately $1.2 million, or 109.1%. The net
increase in the operating loss for the period was directly related to the loss
of gross margin relating to the drop in sales volume of approximately $3.5
million, a further decrease in gross margin primarily resulting from losses on
futures contracts of approximately $526,000, and an increase in selling, general
and administrative expenses related to an increase in professional fees of
approximately $667,000.
Other
expenses - net decreased to a net expense of approximately $1.5 million in the
six months ended December 31, 2006 from approximately $2.1 million in the six
months ended December 31, 2005. The change is primarily related to a decrease in
amortization of
debt
discounts on convertible debentures and notes payable of $1.0 million,
a decrease in note conversion expense of $125,000 and an increase
in interest and other income of $248,000 partially offset by an
increase in registration rights penalty of $366,000 and an increase in
amortization of deferred financing costs of approximately
$523,000.
Net loss
of approximately $3.8 million for the six months ended December 31, 2006 was
comparable to a net loss of $3.3 million in the six months ended December 31,
2005. The impact of a decrease in gross profit of $603,000 and increase in
selling, general and administrative expenses of $654,000 was substantially
offset by a reduction in depreciation and amortization expense and a reduction
in the amortization of debt discounts on convertible securities and notes
payable of approximately $1.0 million and decrease in note conversion expenses
of $125,000 offset by an increase in registration rights penalty of
$366,000.
LIQUIDITY
AND CAPITAL RESOURCES
During
the three and six months ended December 31, 2006, we incurred a net loss of
approximately $1.6 million and $3.8 million respectively, used cash in
operations of approximately $1.4 million for the six month period and had a
working capital deficiency of approximately $3.3 million at December 31, 2006.
Our principal sources of working capital have been the proceeds from private
placements of securities, primarily consisting of convertible debentures and
notes payable. There were no financings consummated during the three months
ended December 31, 2006. During the six months ended December 31, 2006, the
Company has secured financings of approximately $3 million from the proceeds of
convertible debentures and a note payable and approximately $55,000 in proceeds
from option exercises. Out of such proceeds, approximately $1.9 million was
expended for advances to related parties, repayment of loans, purchase of
investments and hedging transactions with the balance used for day-to-day
operations of the
Company
for the six month period ended December 31, 2006.
We had a
working capital deficiency of approximately $3.3 million at December 31, 2006
compared to a working capital deficiency of approximately $432,000 at June 30,
2006. The working capital decrease of approximately $2.9 million was primarily
due to an increase in customer pre-purchase payment liability of approximately
$2.1 million, unrealized loss on futures contracts of approximately $383,000
and a decrease in cash of approximately $900,000, offset by an increase in
inventories of approximately $1.5 million.
As of
January 31, 2008, the Company had a cash balance of approximately $2.5 million,
$0.6 million of available borrowings through its credit line facility and
approximately $1.8 million in obligations for funds received in advance under
the pre-purchase fuel program. In order to meet our liquidity requirements, the
Company is negotiating a second mortgage on our oil terminal located on Route 46
in Rockaway, New Jersey, through which the Company believes it may borrow an
additional funds.
On May
30, 2007, the Company completed its previously announced business combination
between All American Plazas, Inc. (“All American”) and the Company whereby the
Company, in exchange for an aggregate of 11,666,667 shares of the Company’s
restricted common stock, purchased the operating businesses of eleven truck stop
plazas owned and operated by All American. The acquisition included all assets
comprising the eleven truck plazas other than the underlying real estate and the
buildings thereon. Information related to assets acquired and liabilities
assumed has not been finalized as of the date of this filing. Accordingly, the
effect of the acquisition on the liquidity of the Company is not readily
determinable. However, the Company anticipates that the business combination
will result in
greater
net revenue and reduce overall operational expenses by consolidating positions
and overlapping expenses. The Company also expects that the
combination will result in the expansion of the Company’s home heating business
by utilizing certain of the truck plazas as additional distribution points for
the sale of the Company’s products. Additionally, the Company expects that the
business combination will lessen the impact on seasonality on the Company’s cash
flow since the combined Company will generate year-round revenues. The Company
also plans to utilize certain of the truck plazas for the construction of
bio-diesel producing facilities and the distribution of those fuels which should
further increase the Company’s revenues.
In order
to conserve its capital resources, the Company will continue to issue, from time
to time, common stock and stock options to compensate employees and
non-employees for services rendered. The Company is also focusing on its
core business by expanding distribution programs and new customer relationships
to increase demand for its products. In addition, the Company is pursuing other
lines of business, which include expansion of its current commercial business
into other products and services such as bio-diesel, solar energy and other
energy related home services. The Company is also evaluating all of its
product lines for cost reductions, consolidation
of
facilities and efficiency improvements.
On July
5, 2006, the Company closed a Securities Purchase Agreement entered into on June
30, 2006 whereby it sold a $1,000,000 convertible term note to Laurus Master
Fund, Ltd. ("Laurus"). The Company paid fees of $49,000 to Laurus and received
net proceeds of $951,000, of which $905,000 was advanced in the form of a note
to All American. The Company incurred escrow fees of $1,500, which in the
aggregate will be capitalized as deferred financing costs and amortized on a
straight-line basis over the three year term of the convertible term note. The
Company will pay interest on the note monthly in arrears commencing on August 1,
2006 at a rate equal to the prime rate published in the Wall Street Journal plus
two percent (2.0%), calculated as of the last business day of the calendar
month. Amortizing payments of the principal amount of the note shall be made by
the Company commencing on June 30, 2007 and on the first business day of each
succeeding month thereafter in the amount of $27,778 through the maturity
date of the note on June 30, 2009.
The note
is convertible at the option of Laurus into shares of the Company's common
stock, at an initial fixed conversion price of $6.50 per share. The conversion
rate of the note is subject to certain adjustments and limitations as set forth
in the note. In connection with Laurus' purchase of the note, the Company
granted Laurus a warrant exercisable through June 30, 2011 to purchase 160,000
shares of the Company's common stock at a price of $5.57 per share, subject to
the adjustments and limitations set forth in the warrant.
The
Company agreed that within sixty days from the date of issuance of the note
(September 3, 2006) and warrant that it would file a registration statement with
the SEC covering the resale of the shares of the Company's stock issuable upon
conversion of the note and the exercise of the warrant. This registration
statement would also cover any additional shares of stock issuable to Laurus as
a result of any
adjustment
to the fixed conversion price of the note or the exercise price of the
warrant. As of the date of this Report, the Company is not able to
file a registration statement and Laurus has not yet waived its rights under
this agreement. As a result of its failure to comply with the registration
rights provision, the Company has included all the amounts due for the
convertible term note as a current liability in
the
condensed consolidated balance sheet as of December 31, 2006. There are no
stipulated liquidated damages outlined in the Registration Rights Agreement.
Under the agreement, the holder is entitled to exercise all rights granted by
law, including recovery of damages, and will be entitled to specific performance
of its rights under this agreement. Mr. Frank Nocito, an officer and a
stockholder and Mr. Stephen Chalk, a director have each provided a personal
guarantee, of up to $425,000 each, in connection with this
financing.
The
Company's obligations to Laurus under the Securities Purchase Agreement, the
convertible term note and other related agreements are guaranteed by the
following subsidiaries of the Company: Able Oil Co.; Able Propane Co, LLC; Able
Energy New York, Inc.; Able Oil Melbourne, Inc.; Able Energy Terminal, Inc.;
Priceenergy.com, Inc.; and, Priceenergy.com Franchising, LLC.
As
discussed above, on July 5, 2006, the Company loaned to All American the sum of
$905,000 from the $1 million the Company received for the sale of the
convertible term note to Laurus. All American subsequently loaned the $905,000
received from Able to CCI Group, Inc (“CCIG”, a 70% owned subsidiary of all
American), who utilized such funds toward the development and operation of a
project
operated by CCIG's subsidiary, Beach Properties Barbuda Limited
("BPBL”).
On
January 10, 2007, the Company received from Laurus a notice of a claim of
default. Laurus claimed default under section 4.1(a) of the Term Note as a
result of non-payment of interest and fees in the amount of $8,826 that were due
on January 5, 2007, and a default under sections 6.17 and 6.18 of the Securities
Purchase Agreement for "failure to use best efforts” (i) to cause CCIG to
provide Laurus on an ongoing basis with evidence that any and all obligations in
respect of accounts payable of the project operated by BPBL, have been met; and
(ii) cause CCIG to provide within 15 days after the end of each calendar month,
unaudited/internal financial statements (balance sheet, statements of income and
cash flow) of the Beach House and evidence that BPBL and the Beach House are
current in all of their ongoing operational needs. In connection with the claim
of default, Laurus claimed an acceleration of maturity of the principal amount
of the note of $1,000,000 and approximately $154,000 default payment ("Default
Payment") as well as accrued interest and fees of approximately
$12,000.
The
aforementioned interest and fees were paid by the Company on January 11,
2007. Further, the Company attempted to cause CCIG to provide reports and
information to Laurus as provided for in the Securities Purchase Agreement. On
March 7, 2007, Laurus notified the Company that it waived the event of default
and that Laurus had waived the requirement for the Company to make the default
payment.
On August
8, 2006, the Company issued $2,000,000 of convertible debentures to certain
investors which are due on August 8, 2008. The
convertible
debentures are convertible into shares of the Company's common stock at a
conversion price of $6.00 per share, which was the market value of the Company's
common stock on the date of issuance. The Company received net proceeds of
$1,820,000 and incurred expenses of legal fees of $40,000 and broker fees
of $140,000 in connection with this financing that will be charged to
deferred issuance costs and amortized on a straight-line basis over the two year
term of the convertible debenture. The debentures bear interest at the greater
of either LIBOR (5.4% at December 31, 2006) plus 6.0%, or 12.5%, per annum, and
such interest is payable quarterly to the holder either in cash or in additional
convertible debentures.
The
investors also were issued 333,333, 166,667 and 172,667 five-year warrants to
purchase additional shares of the Company's common stock at $4.00, $6.00 and
$7.00 per share, respectively.
On May
30, 2007, upon consummation by the Company of the business combination
transaction with All American, the Company may redeem the convertible debentures
at a price of 120% of the face amount, plus any accrued but unpaid interest and
any unpaid liquidated
damages
or under certain conditions, the Company may redeem the amount at 120% of the
face amount in cash, or redeem through the issuance of shares of common stock at
the lower of the existing conversion price or 90% of the volume weighted average
price, as stipulated in the agreement.
At any
time, the holder may convert the convertible debenture into shares of common
stock at a conversion price of $6.00 per share, or
into
333,333 shares of common stock which represents a conversion at the face value
of the convertible debenture. These warrants were valued at $3,143,000, using
the Black-Scholes model, applying an interest rate of 4.85%, volatility of
98.4% dividends of 0% and a term of five years. The Company has recorded a debt
discount related to the value of the beneficial conversion feature of the
convertible term note of $778,000 which is amortizable on the interest method
over the two year term of the debenture. In accordance with EITF 98-5,
"Accounting for Convertible Securities with Beneficial Conversion Features or
Contingently Adjustable Conversion Ratios" ("EITF 98-5") and EITF 00-27,
"Application of Issue No. 98-5 to Certain Convertible Instruments" ("EITF
00-27"), on a relative fair value basis, the warrants were recorded at a value
of approximately $1,222,000. The conversion feature, utilizing an effective
conversion price and market price of the common stock on the date of issuance of
$2.00 and $6.00, per share, respectively, were valued at approximately
$1,333,000 which was then limited to $778,000, the remaining undiscounted value
of the proceeds from the convertible term note. Accordingly, the Company has
recorded a debt discount related to the warrants of $1,222,000, the beneficial
conversion feature of the convertible term note of $778,000 and for issuance
costs of $140,000, which amounts are amortizable utilizing the interest method
over the two year term of the convertible term note. The amortization
of debt discounts related to the convertible debentures for the three and
six
months ended December 31, 2006 was $174,078 and $274,361 respectively. The
amortization of deferred financing costs related to the convertible debentures
for the three and six months ended December 31, 2006 was $15,649 and $24,665,
respectively.
The
Company had agreed to file a registration statement within forty-five days which
was September 22, 2006, covering the resale of the shares of common stock
underlying the convertible debentures and warrants issued to the investors, and
by October 15, 2006, to have such registration statement declared
effective. The registration rights agreement with the investors provides for
partial liquidated damages in the case that these registration requirements
are not met. From the date of violation, the Company is obligated to pay
liquidated damages of 2.0% per month of the outstanding amount of the
convertible debentures, up to a total obligation of 24.0% of such obligation.
The Company has not yet filed a registration statement regarding these
securities. Accordingly, through February 16, 2008, the Company has incurred a
liquidated damages and related interest obligation of approximately $556,000,
none of which has been paid. The Company is obligated to pay 18.0% interest per
annum on any liquidated damages amount not paid in full within 7 (seven) days.
As of the date of this Report, the Company is not able to file a registration
statement and the holder has not yet waived its rights under this agreement.
However, the Company, as of the date of this Report, has not received a notice
of default regarding these matters. EITF 05-04, The Effect of a Liquidated
Damages Clause on a Freestanding Financial Instrument Subject to EITF Issue
No.00-19, "Accounting for Derivative Financial Instruments Indexed to, and
Potentially Settled in, a Company's Own Stock" ("EITF 05-4"), view (C) allows
Able to account for the value of the warrants as equity and separately record
the fair value of the registration right as a derivative liability. Accordingly,
in determining whether the transaction was recorded properly, Able followed view
(C) to measure the amount of the registration rights derivative liability.
Unless these liquidated damages are cured, the incurred liquidated damages and
an estimate of future amount will be accounted for as a derivative liability by
the Company.
The
obligations of the Company in this financing transaction are secured by a first
mortgage on certain property owned by the Company in Warrensburg, New York, a
pledge of certain rights the Company has in securities of CCIG, guarantees by
the Company's subsidiaries and liens on certain other property.
On
September 8, 2006, the Company entered into a five year lease, treated as a
capital lease, for five new oil delivery trucks, that were delivered during
December 2006, for an aggregate purchase price of approximately
$506,000.
On
December 13, 2006, the Company purchased the assets of its Horsham franchise
from Able Oil Montgomery, Inc., a non-related party, for $764,175. Able Oil
Montgomery is a full service retail fuel oil and service company located in
Horsham, Pennsylvania. Pursuant to the agreement, the Company paid cash at
closing of $128,000, issued a 5 year note payable bearing interest at a rate of
7% per annum in the amount of $345,615 and forgave an amount of $290,560 due
from the seller to the Company. In addition, the seller paid to the Company
$237,359 for monies collected in advance by Able Oil Montgomery from its
customers.
On March
20, 2007, the Company entered into a credit card receivable advance agreement
with Credit Cash, LLC ("Credit Cash") whereby Credit Cash agreed to loan the
Company $1.2 million. The loan is secured by the Company's existing and future
credit card collections. Terms of the loan call for a repayment of
$1,284,000, which includes the one–time finance charge of $84,000, over a
seven-month period. This will be accomplished through Credit Cash withholding
18% of Credit Card collections of Able Oil Company and 10% of Credit Card
collections of PriceEnergy.com, Inc. over the seven-month period beginning March
21, 2007. There are certain provisions in the agreement which allows Credit Cash
to increase the withholding, if the amount withheld by Credit Cash over the
seven-month period is not sufficient to satisfy the required repayment of
$1,284,000.
On July
18, 2007, August 3, 2007, November 9, 2007, December 28, 2007 and January 18,
2008, the Company, in accordance with its agreement with Credit Cash, refinanced
the loan in the amounts of $250,000, $300,000, $1,100,000, $250,000 and
$500,000, respectively. The outstanding Credit Cash loan as of January 22, 2008
was $997,315.
Prior to
the business combination between the Company and All American (now known as All
American Properties, Inc.), All American entered into a loan agreement with
Credit Cash, which was an advance against credit card receivables at the truck
stop plazas
then
operated by All American. As a result of the business combination
this obligation was assumed by the Company’s newly formed, wholly-owned
subsidiary, All American Plazas, Inc. (“Plazas”) as it became the operator of
the truck stop plazas. Credit Cash, while acknowledging the business
combination, has continued to obligate both All American and Plazas in their
loan documents as obligors of the loan. Accordingly, on July 16, 2007, Credit
Cash agreed to extend further credit of $400,000 secured by the credit card
receivables at
the truck
stops operated by Plazas.
This July
16, 2007 extension of credit agreement was in addition to and supplemented all
previous agreements with Credit Cash. Terms of the original loan and extensions
called for repayment of $1,010,933 plus accrued interest which will be repaid
through Credit Cash withholding 15% of credit card collections from the
operations of the truck stop plazas until the loan balance is paid in full. The
interest rate is prime plus 3.75%. There are certain provisions in the
agreement, which allows the Lender to increase the withholding, if the amount it
is withholding is not sufficient to satisfy the loan in a timely manner. On
November 2, 2007 and again on January 18, 2008, Credit Cash agreed to extend an
additional credit in the amount of $1,100,000 and $600,000, respectively. Terms
of the agreement are the same as the prior July 16, 2007
financing. The Credit Cash loan balance as of January 18, 2008 was
$1,376,804.
Our net
loss for the three and six months ended December 31, 2006 was approximately
$1,462,000 and $3,102,000, respectively, including non-cash charges totaling
approximately $622,000 and $1,022,000, respectively. The Company has been
funding its operations
through
an asset-based line of credit, the issuance of convertible debentures and notes
payable and the proceeds from the exercise of options and warrants. The Company
will need some combination of the collection of All American notes receivable,
new financing, restructuring of existing financing, improved receivable
collections and/or improved operating results in order to maintain adequate
liquidity over the course of this 2007 fiscal year.
The
Company is pursuing other lines of business, which include expansion of its
current commercial business into other products and services such as bio-diesel,
solar energy and other energy related home services. The Company is also
evaluating all of its business segments for cost reductions, consolidation of
facilities and efficiency improvements. There can be no assurance that we will
be successful in our efforts to enhance our liquidity
situation.
The
Company has incurred a net loss during the year ended June 30, 2006 of
approximately $6,242,000. Net cash used in operations during the year ended June
30, 2006 was approximately $1,712,000. During the three and six months ended
December 31, 2006, we incurred a net loss of approximately $1.6 million and $3.3
million respectively and used cash in operations of approximately $1.4 million
during the six months ended December 31, 2006. These factors raise substantial
doubt about the Company's ability to continue as a going concern. These
condensed consolidated financial statements do not include any adjustments
relating to the recoverability of the recorded assets or the classification of
the liabilities that may be necessary should the Company be unable to continue
as a going concern.
On June
1, 2005, All American completed a financing that may impact the Company.
Pursuant to the terms of the Securities Purchase
Agreement
(the "Agreement") among All American and certain purchasers ("Purchasers"), the
Purchasers loaned All American an aggregate of $5,000,000, evidenced by secured
debentures dated June 1, 2005 (the "Debentures"). The Debentures were due and
payable on June 1, 2007, subject to the occurrence of an event of default, with
interest payable at the rate per annum equal to LIBOR for the applicable
interest period, plus 4% payable on a quarterly basis on April 1st, July 1st,
October 1st and January 1st, beginning on the first such date after the date of
issuance of the Debentures. As of the date of this Report, the Company's Board
has not approved the transfer of the debt that would also require the transfer
of additional assets from All American as consideration for the Company to
assume the debt. Should the Company’s Board approve the transfer of the debt,
the Debentures will be convertible into shares of the Company's common stock at
a conversion rate of the lesser of (i) the purchase price paid by the Company
for each share of All American common stock in the acquisition, or (ii) $3.00,
subject to further adjustment as set forth in the agreement.
The loan
is secured by real estate property owned by All American in Pennsylvania and New
Hampshire. Pursuant to the Agreement, these Debentures are in default, as All
American did not complete the merger with the Company prior to the expiration of
the 12-month anniversary of the Agreement. Pursuant to the Additional Investment
Right Agreement (the "AIR Agreement") among All American and the Purchasers, the
Purchasers may loan All American up to an additional $5,000,000 of secured
convertible debentures on the same terms and conditions as the initial
$5,000,000 loan, except that the conversion price will be $4.00.
If
the Company assumes the obligations of All American under the Agreement, the
Debentures and the AIR Agreement through the execution of a Securities
Assumption, Amendment and Issuance Agreement, Registration Rights Agreement,
Common Stock Purchase Warrant Agreement and Variable Rate Secured Convertible
Debenture Agreement, each between the Purchasers and the Company (the "Able
Energy Transaction Documents"). Such documents provide that All American shall
cause the real estate collateral to continue to secure the loan, until the
earlier of full repayment of the loan upon expiration of the Debentures or
conversion by the Purchasers of the Debentures into shares of the Company's
common stock at a conversion rate of the lesser of (i) the purchase price paid
by the Company
for each
share of All American common stock in the acquisition, or (ii) $3.00 (the
"Conversion Price"), subject to further adjustment as set forth in the Able
Energy Transaction Documents. However, the Conversion Price with respect to the
AIR Agreement shall be $4.00. In addition, the Purchasers shall have the right
to receive five-year warrants to purchase 2,500,000 of the Company's common
stock at an exercise price of $3.75 per share.
In the
event the Company’s Board of Directors does approve the transfer of debt
and pursuant to the Able Energy Transaction Documents, the Company
shall also have an optional redemption right (which right shall be mandatory
upon the occurrence of an event
of
default) to repurchase all of the Debentures for 125% of the face amount of the
Debentures plus all accrued and outstanding interest, as well as a right to
repurchase all of the Debentures in the event of the consummation of a new
financing in which the Company sells securities at a purchase price that is
below the Conversion Price. The stockholders of All American have placed
1,666,667 shares of Able common stock in escrow shares to satisfy the conversion
of the $5,000,000 in outstanding Debentures in full should the Company’s
Board
approve the transfer of the debt.
On May
19, 2006, the Company entered into a letter of interest agreement with Manns
Haggerskjold of North American, Ltd. ("Manns"), for a bridge loan to the Company
in the amount of $35,000,000 and a possible loan in the amount of $1.5 million
based upon the business combination with All American ("Manns Agreement"). The
terms of the letter of interest provided for the payment of a commitment fee of
$750,000, which was non-refundable to cover the due-diligence cost incurred by
Manns. On June 23, 2006, the Company advanced to Manns $125,000 toward the Manns
Agreement due diligence fee. During the period July 7, 2006 through November 17,
2006, the Company advanced an additional $590,000 toward the Manns Agreement due
diligence fee. Amounts outstanding relating to these advances as of December 31,
2006 were $715,000 and have been expensed on the Company's condensed
consolidated income statement as of December 31, 2006, as a result of not
obtaining the financing.
As a
result of the Company receiving a Formal Order of Investigation from the SEC on
September 22, 2006, the Company and Manns
agreed
that the commitment to fund being sought under the Manns Agreement would be
issued to All American, since the stockholders had approved an acquisition of
All American by Able and since the collateral for the financing by Manns would
be collateralized by real estate owned by All American. Accordingly, on
September 22, 2006, All American agreed that in the event Manns funds a credit
facility to All American rather than the Company, upon such funds being received
by All American, it will immediately reimburse the Company
for all
expenses incurred and all fees paid to Manns in connection with the proposed
credit facility from Manns to the Company. On or about February 2,
2007, All American received a Term Sheet from UBS Real Estate Investments,
Inc. (“UBS”) requested by Manns as co-lender to All American. All American
rejected the UBS offer as it was not consistent with the Manns’ commitment of
September 14, 2006. All American subsequently demanded that Manns refund all
fees paid to Manns by Able and All American.
On June
26, 2007, the Company and its affiliate, All American (together with the Company
the “Claimants”), filed a Demand for Arbitration and Statement of Claim in the
Denver, Colorado office of the American Arbitration Association against Manns
Haggerskjold of North America, Ltd. (“Manns”), Scott Smith and Shannon Coe
(collectively the “Respondents”), Arbitration Case No. 77 148 Y 00236 07 MAV.
The Statement of Claim filed seeks to recover fees of $1.2 million paid to Manns
to obtain financing for the Company and All American. The Claimants commenced
the Arbitration proceeding based upon the Respondents breach of the September
14, 2006 Commitment letter from Manns to All American that required Manns to
loan All American $150 million. The Statement of Claim sets forth claims for
breach of contract, fraud and misrepresentation and lender liability. On July
23, 2007, Respondents filed their answer to the Statement of Claim substantially
denying the allegations asserted therein and interposing counterclaims setting
forth claims against the Company for breach of the Non-Circumvention Clause,
breach of the Exclusivity Clause and unpaid expenses. Respondents also
assert
counterclaims for fraudulent misrepresentation and unjust enrichment. On
Respondents’ counterclaim for breach of the Non-Circumvention Clause,
Respondents claim damages of $6,402,500. On their counterclaim for breach of the
Exclusivity Clause, Respondents claim damages of $3,693,750, plus an unspecified
amount related to fees on loans exceeding $2,000,000 closed by All American or
the Company over the next five years. Respondents do not specify damages
relative to their other counterclaims.
On August
7, 2007, the Claimants filed their reply to counterclaims denying all of
Respondents material allegations therein. Respondents’ counterclaims were based
on the false statement that the Claimants had, in fact, received the financing
agreed to be provided by Manns from a third party.
On August
13, 2007, the Company dismissed Marcum & Kliegman LLP (“M&K”) as its
independent registered public accounting firm. The report of M&K on the
Company's financial statements for the fiscal year ended June 30, 2006 (“FY
2006”) was modified as to uncertainty regarding (1) the Company’s ability
to continue as a going concern as a result of, among other factors, a working
capital deficiency as of June 30, 2006 and possible failure to meet its short
and long-term liquidity needs, and (2) the impact on the Company’s financial
statements as a result of a pending investigation by the SEC of possible federal
securities law violations with respect to the offer, purchase and sale of the
Company’s securities and the Company’s disclosures or failures to disclose
material information.
The
Company’s Audit Committee unanimously recommended and approved the decision to
change independent registered public accounting firms.
On August
31, 2007, the Company was served with a second subpoena
duces tecum
(the “Second
Subpoena”) from the Securities and Exchange Commission (“SEC”) pursuant to the
Formal Order of Investigation issued by the SEC on September 7, 2006 (see note
17).
The
Company continues to gather, review and produce documents to the SEC and is
cooperating fully with the SEC in complying with the Second Subpoena. As of
November 30, 2007, the Company has produced documents in response to the Second
Subpoena and the Company expects to produce additional documents in response to
the Second Subpoena as soon as practicable. As of the date of this Report, the
Company is not aware of any information that has been discovered pursuant to the
Formal Order of Investigation which would indicate that the Company or any of
its officers and directors was guilty of any wrongdoing.
The
Company engaged Lazar Levine & Felix LLP (“LLF”) as its new independent
registered public accounting firm as of September 21, 2007. Prior to its
engagement, LLF had been and continues to act as independent auditors for All
American, an affiliate and the largest stockholder of the Company.
On
September 24, 2007, the Company’s Board of Directors appointed (i) Richard A.
Mitstifer, the former President of All American as President of the Company;
(ii) William Roger Roberts, the former Chief Operating Officer of All American,
as the Company’s Chief Operating Officer; (iii) Daniel L. Johnston, the former
Controller of All American, as Chief Financial Officer of the Company; and (iv)
Louis Aponte, the President of All American Industries, Inc. and all American
Realty and Construction Corp., which are affiliates of All American
specializing in real estate development and construction, as the Company’s
Vice-President of Special Projects. The Board also promoted Frank Nocito, the
Company’s Vice-President of Business Development, to Executive Vice President
and expanded his duties to include heading the Company’s expansion into
alternative and clean energy fuels and products. Mr. Nocito is the controlling
person of the Cheldnick Family Trust, the largest shareholder of the Company.
Messrs. Mitstifer, Roberts and Aponte were officers of All American in June 2005
when the Company entered into an asset purchase agreement with All American,
pursuant to which the Company agreed to acquire substantially all of All
American’s assets and assume all liabilities of All American other than mortgage
debt liabilities. They were also officers of All American at the time the
transaction closed in May 2007. Effective September 24, 2007, Christopher P.
Westad stepped down as President of the Company and Jeffrey Feld stepped down as
Acting Chief Financial Officer of the Company. The Board subsequently appointed
Mr. Westad as the President of the Company’s home heating oil subsidiaries,
namely Able Oil, Inc., Able Energy New York, Inc. and Able Oil Melbourne,
Inc.
On
January 8, 2007, All American entered into an Account Purchase Agreement with
Crown Financial (“Crown”) whereby Crown advanced $1,275,000 to All American in
exchange for certain existing accounts receivables and taking ownership of new
accounts originated by All American. Repayment of the loan is to be made from
the direct payments to Crown from the accounts it purchased from All American
and a fee equal to 2.5% of the outstanding advance for the preceding period
payable on the 15
th
and
30
th
day of each month.
The Crown
loan is secured by the mortgages on the real property and improvements thereon
owned by All American known as the Strattanville and Frystown Gables truck stop
plazas and a personal guarantee by Frank Nocito.
Subsequent
to the May 2007 closing of the business combination between the Company and All
American, on July 1, 2007 the Account Purchase Agreement between All American
and Crown Financial has been amended and modified from “Eligible Accounts having
a 60 day aging” to a “90 day aging that are not reasonably deemed to be doubtful
for collections” and the fee of 2.5% payable on the 15
th
and
30
th
day of each month has been modified to 1.375%. The Company has assumed this
obligation based on the business combination; however, All American has agreed
to continue to secure this financing with the aforementioned real estate
mortgages.
On
October 5, 2007, All American reclassified all outstanding trade payables with
TransMontaigne to a note payable in the amount of approximately
$15,000,000. Interest at the rate of 8% is being accrued on all past
due amounts as of October 5, 2007. In addition, an amount of
$1,550,000 was added to the note to begin a prepaid purchase program whereby All
American will prepay for its fuel prior to delivery. Repayment of this note is
to commence on or about March 15, 2008 with a 25 year amortization schedule with
a maturity of November 15, 2009. If a threshold payment is made on or before
March 15, 2008 and before August 15, 2008 (after initial 25 year amortization
begins) in the amount of $3,000,000 then a new 25 year amortization schedule
will commence effective July 31, 2009 and mature on March 31,
2011. Collateral for this note are certain properties owned by All
American.
On
October 17, 2007, the Company entered into a loan agreement with S&S NY
Holdings, Inc. for $500,000 to purchase #2 heating fuel. The term of the
agreement is for 90 days with an option to refinance at the end of the 90 day
period for an additional 90 days. The repayment of the principal amount will be
$.10 cents per gallon of fuel sold to the Company’s customers excluding
pre-purchase gallons. An additional $.075 per gallon will be paid as interest.
The agreement also provides that in each 30 day period the interest amount can
be no less than $37,500.00. As of January 17, 2008 the Company had repaid
approximately $100,000 and exercised its right to refinance the amount until
March 31, 2008.
On
December 20, 2007, the Company entered in to a second loan agreement with
S&S NY Holdings, Inc for $500,000 to purchase #2 heating
fuel. The term of the agreement is thru March 31,
2008. The repayment of principle is not due until the maturity
date. An additional $.075 per gallon will be paid as interest. The
agreement also provides that in each 30 day period the interest amount can be no
less than $37,500.
The
Company must also bring current each of its SEC filings as part of a plan to
raise additional capital. In addition to the filing of this Form 10-Q/A for the
quarter ended December 31, 2006, the Company must also complete and file its
Form 10-Q for the quarters ended
March 31,
2007, September 30, 2007 and December 31, 2007 and the Company’s Annual Report
on Form 10-K for the year ended June 30, 2007.
There can
be no assurance that the financing or the cost saving measures as identified
above will be satisfactory in addressing the short-term liquidity needs of the
Company. In the event that these plans can not be effectively realized, there
can be no assurance that the Company will be able to continue as a going
concern.
CONTRACTUAL
OBLIGATIONS
The
following schedule summarizes our contractual obligations as of December 31,
2006 in the periods indicated:
|
|
|
|
|
|
Less
Than
|
|
|
|
|
|
|
|
|
More
then
|
|
|
Contractual
Obligation
|
|
Total
|
|
|
1
Year
|
|
|
1-3
Years
|
|
|
3-5
years
|
|
|
5
years
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long
term debt
|
|
$
|
7,726,418
|
|
|
$
|
1,473,201
|
|
|
$
|
3,121,994
|
|
|
$
|
314,041
|
|
|
$
|
2,817,182
|
|
|
Capital
lease obligations
|
|
|
889,556
|
|
|
|
311,476
|
|
|
|
487,380
|
|
|
|
90,699
|
|
|
|
-
|
|
|
Operating
leases
|
|
|
495,201
|
|
|
|
223,113
|
|
|
|
272,089
|
|
|
|
-
|
|
|
|
-
|
|
|
Unconditional
purchase obligations
|
|
|
3,412,979
|
|
|
|
3,412,979
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
Other
long term obligations
|
|
|
335,975
|
|
|
|
335,975
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
Total
contractual obligations
|
|
$
|
12,860,129
|
|
|
$
|
5,756,744
|
|
|
$
|
3,881,463
|
|
|
$
|
404,740
|
|
|
$
|
2,817,182
|
|
Excluded
from the table above are estimated interest payments on long-term debt and
capital leases of approximately $623,000, $719,000, $380,000 and $1,942,000 for
the periods less than 1 year, 1-3 years, 3-5 years and more than 5 years,
respectively. In addition, excluded from above are unconditional purchase
obligations of approximately $3,299,000 that the Company entered into subsequent
to December 31, 2006.
As of
December 31, 2006, there were no other off balance sheet
arrangements.
SEASONALITY
Approximately
65% of the Company's revenues are earned and received from October through
March, and the overwhelming majority of such revenues are derived from the sale
of home heating oil. During the spring and summer months, revenues from the sale
of diesel and gasoline fuels increase due to the increased use of
automobiles and construction apparatus.
Each of
the Company's divisions is seasonal. From May through September, Able Oil
experiences considerable reduction of retail heating oil sales.
Able
Energy NY's propane operation can experience up to 80% decrease in heating
related propane sales during the months of April to September, which is offset
somewhat by an increase of pool heating and cooking fuel.
Over 90%
of Able Melbourne's revenues are derived from the sale of diesel fuel for
construction vehicles, and commercial and recreational sea-going vessels during
Florida's fishing season, which begins in April and ends in November. Only a
small percentage of Able Melbourne's revenues are derived from the sale of home
heating fuel. Most of these sales occur from December through March,
Florida's
cooler months.