<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM 10
GENERAL FORM FOR REGISTRATION OF SECURITIES
PURSUANT TO SECTION 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934
FRM NEXUS, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3754422
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
271 North Avenue New Rochelle, NY 10801
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (914) 636-0188
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, Par Value $.10 Per Share
(Title of Class)
<PAGE> 2
ITEM 1. BUSINESS
Formation of the Company
FRM NEXUS, INC. (the "Company" or "Nexus") was incorporated in the
State of Delaware on November 17, 1993 under the name of PSI Settlement Corp.
pursuant to a Stipulation of Settlement dated as of November 15, 1993 (the
"Stipulation") filed in the United States District Court for the Southern
District of New York (the "Federal Court") in a shareholder Class Action,
Sandler v. Programming and Systems Incorporated ("PSI") et al, 92 Civ 5292 (the
"Class Action"). Prior to 1994 PSI was engaged in the business of owning and
operating vocational schools in twelve cities in the United States, principally
teaching computer programming and maintenance.
The Class Action was commenced on July 16, 1992 against the defendants
for damages sustained by shareholders of PSI by reason of alleged understatement
of net income for the fiscal year ended February 28, 1989 and the alleged
overstatement of net income for the fiscal years ended February 28, 1990 and
1991, which were alleged to be violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, the Rules promulgated thereunder and the common
law.
After certain discovery and independent investigation by plaintiff's
counsel into the facts and circumstances relevant to the allegations in the
Class Action, the parties entered into the Stipulation, which released the
defendants from all claims which the Class Members asserted, or could have
asserted, in the Class Action in consideration of the payment by PSI of (i)
$1,400,000 and (ii) the transfer to the Company of the non-vocational-school
assets of PSI and the delivery to Escrow Agents of all outstanding shares of the
Company to hold for the benefit of the shareholders of PSI.
The assets transferred by PSI to the Company in payment of the
settlement included all of the Wendy's Restaurants assets, the real estate
investments held by PSI and all of the outstanding capital stock of the
wholly-owned subsidiaries which owned restaurant and real estate assets.
Initially the Stipulation contemplated that the Company would liquidate these
assets and distribute the proceeds to the PSI shareholders. However on April 28,
1995 the Stipulation was amended to provide that the Company could continue to
operate rather than liquidate provided the escrowed shares of Nexus were
delivered out to PSI shareholders by June 12, 1977 and listed for trading on
NASDAQ. It was anticipated that the shares of the Company's stock would be
released from escrow, registered pursuant to Section 12(g) of The Securities
Exchange Act of 1934 (the "Exchange Act") and followed by an application to list
the common stock on NASDAQ.
On November 17, 1993 Judge Sweet signed his Order granting preliminary
approval of the Settlement and ordered a Settlement Hearing to be held on
January 5, 1994, pursuant to the
- 1 -
<PAGE> 3
Federal Rules of Civil Procedure ("FRCP"), to determine whether the Settlement
is fair, reasonable and adequate and should be approved by the Court. Notice of
the Settlement Hearing was given to all PSI shareholders and after all persons
having any objection to the proposed Settlement had been given an opportunity to
present such objections to the Court, Judge Sweet signed the Final Judgment and
Order on January 21, 1994 approving the Settlement Stipulation.
The same procedure under the FRCP was followed with respect to the
Amendment to the Settlement Stipulation signed on April 28, 1995. The Hearing
was held on June 12, 1995 and the Court signed the Order Amending the Final
Judgment and Order on June 12, 1995.
On February 23, 1996, the Company amended its certificate of
incorporation to change its corporate name to FRM Nexus, Inc. and to change its
authorized capital stock to 2,000,000 shares of common stock of the par value of
ten (10 cent(s)) cents per share. On July 23, 1996 Judge Sweet signed the
Stipulation and Order authorizing the Escrow Agents to release 1,211,635 shares
of Nexus' common stock to the holders of record of PSI common stock in the ratio
of one share of Nexus common stock for each three shares of PSI common stock. On
or about August 12, 1996 the said shares were released to 1,186 record holders
of PSI common stock representing about 2,500 beneficial owners of the Company's
shares.
On November 14, 1996 an annual meeting of stockholders of Nexus was
held pursuant to Section 211 of the Delaware General Corporation Law and the
Order of the Court of Chancery of the State of Delaware (New Castle County)
dated October 10, 1996. At that meeting the five persons named herein were
elected as Directors of Nexus and are still serving until the next Annual
Meeting of Stockholders to be held in November, 1997. None of the five Directors
was an officer, director or employee of PSI prior to November 15, 1993 and none
of them has been an officer, director or employee of PSI since they were elected
as Directors of Nexus on November 14, 1996. Three of the five Directors of Nexus
were never an officer, director or employee of PSI and the other two, Seth
Grossman and Jed Schutz, were directors only of PSI during the period that the
Escrow Agents held the Company's shares for the benefit of the Company's present
shareholders.
Description of Business
The FRM in the Company's name stands for the three markets in which
Nexus is presently engaged - Food Services, Real Estate Development and Medical
Financing.
THE FOOD SERVICES DIVISION presently consists of sixteen Wendy's
restaurants, eight in West Virginia and eight in New York owned by Wendclark
Corp. and Wendcello Corp., wholly owned subsidiaries of Nexus. The restaurants
are operated by two management corporations, in which Nexus has no interest,
under franchise agreements with Wendy's International, the
- 2 -
<PAGE> 4
public company listed on the New York Stock Exchange. The management agreements
provide for the sharing of the operating profits of the restaurants and certain
proceeds of the sale or refinancing of the restaurants. This division commenced
business in 1990, when it was part of PSI, with the purchase of eleven
restaurants. Since 1990 five additional restaurants were constructed or acquired
with the funds and credit of the two Nexus subsidiaries and the management
companies. This division has usually been profitable, although just as the
economy has fluctuated, so too have the results of operations of the
restaurants. Since February 28, 1997 sales and net income of this division has
improved, as has Wendy's franchisees generally.
THE REAL ESTATE DEVELOPMENT DIVISION of the Company presently conducts
its operations through PSI Capital Corp and Yolo Equities Corp., wholly-owned
subsidiaries which own and/or control the fee interests in a variety of parcels
of real estate, in which co-investors also have interests. Nexus controls the
development, for residential and commercial use, of this real estate which is
located in New York and Connecticut. See Note 5 of Notes to Consolidated
Financial Statements for the fair market values of these properties or the
values that were carried on the Company's Balance Sheet, if less than fair
market value at the respective Balance Sheet dates.
A brief description of each parcel follows:
Goshen, New York. A subdivision plan for the development of 165 single family
homes in the Village of Goshen, Orange County, New York, was recently agreed
upon in settlement of a lawsuit between the Company and the Village of Goshen.
The lawsuit had been commenced by the Company to enforce a previously approved
subdivision plan for the property. Participating in the settlement was Windemere
in the Pines at Goshen, Inc., a part of the Windemere Group of construction
companies, in which Jed Schutz, a director of Nexus, is an officer, director and
shareholder ("Windemere"). Nexus has agreed with Windemere for the joint
development of the parcel on terms which will assure Nexus of a specified profit
on its land, with the financing to be provided by Windemere and a sharing of the
profits or losses to be realized in the joint construction and sale of the
homes.
In February and August, 1996, Nexus sold the 165 building lots to
Windemere for $2,499,150 to be paid principally from construction loan funding
plus an additional $2,499,750 contingent on the amount of profit to be realized
on the construction and sale of the homes to be built on the lots. The sale was
accounted for using the installment method resulting in a deferral of income as
to the non-contingent payment. The contingent profit has not been reflected in
the Company's net income because of its contingent nature. See Notes 5C and 9D2
of Notes to Consolidated Financial Statements.
East Granby, Connecticut. The Company owned a partially built two-story office
building located at 2 Gateway Boulevard in East Granby, Connecticut which was
carried at the value of $900,000 on February 28, 1995. In the fiscal year ended
February 29, 1996, the Company spent about $1,300,000 in developing the site and
improving a portion of the building. In February 1996, the property was sold to
Gateway Granby, LLC. ("Gateway") for $4,800,000, of which $2,900,000 has since
been paid and $1,900,000, as reduced by amortization, is held
- 3 -
<PAGE> 5
by the Company pursuant to a purchase money second mortgage. The Company
realized a profit on the sale and retained a lease on the first floor of the
building for sublease to a subtenant. See Notes 5F and 9D1 of Notes to
Consolidated Financial Statements.
Nexus sold the building in order to realize the $2,900,000 of cash
proceeds. It retained the leasehold of the unfinished space in order to make the
sale at the negotiated price, and have the risk and benefit of subleasing the
first floor to an occupant. In June 1997 a major tenant signed an agreement to
lease the entire first floor commencing September 1, 1995. The construction and
landscaping costs were completed by that tenant and the Company's contribution
was $559,750. The rental payable by the major tenant for Nexus' benefit for the
first five years exceeds the rental payable under Nexus' retained leasehold. If
the renewal option is exercised at the then market value this excess to Nexus
may be greater in the remaining 3 1/2 years of the Company's retained leasehold
(it cannot be reduced). Gateway is owned and managed by investors, unrelated to
the officers and directors of Nexus, except that Daniel Elstein, who has 10.5%
interest in Gateway, became a director of Nexus in November 1996, after the sale
of the property by Nexus to Granby.
Hunter, New York. Nexus controls the fee interest in various properties in
Hunter, New York, in which it owns the principal co-investment interest. The
properties consist of undeveloped acreage in an area known as Hunter Highlands,
which is adjacent to the Hunter Mountain Ski Slopes in the town of Hunter,
Greene County, New York. The undeveloped acreage, which Nexus plans to develop,
is zoned for single family residences, condominium units and a hotel site. There
is already constructed on the property a water treatment plant, a clubhouse with
restaurant, tennis courts and swimming pool, a small office building and 8
unsold condominium units. Adjoining the site are some 200 condominium units
owned by unrelated persons, who purchased their resort homes from prior owners
of Hunter Highlands.
Hunter, New York has been depressed economically in recent years, which
gave rise to the Company's acquisition of this property through the mortgage
foreclosure process. Management believes that these properties have a present
value in excess of the cost of $1,097,897 carried on its balance sheet at
February 28, 1997 and have potential for profitable development if there is
recovery in the market for second homes in that area. See Note 5 of Notes to
Consolidated Financial Statements.
Brookfield, Connecticut. Nexus owns the fee interest in two parcels of
undeveloped land in Brookfield, Connecticut which is carried on the balance
sheet at $476,472, which is the face value of the mortgage which the Company
foreclosed to acquire its fee title plus foreclosure costs and capitalized
costs. The $476,472 is believed to be less than fair market value. Nexus plans
to develop both parcels for commercial use unless it receives an acceptable
offer to purchase either or both of them.. One parcel is on Federal Road, across
from the popular Stew Leonards' Supermarket. The other is a short distance from
this location. Nexus has obtained approval to develop a 23,000 square foot
retail building on the first parcel and plans to seek approval for a restaurant
or office structure on the second parcel.
- 4 -
<PAGE> 6
Middletown, Connecticut. Nexus formerly owned several parcels of improved land
in Middletown, Connecticut. These parcels were not readily available for
profitable development and have been sold.
Pound Ridge, New York. This parcel consisted of an unimproved 4 acre lot zoned
for one family residence in Pound Ridge, New York. It has been sold for
$225,000, the price at which it was carried on the Company's balance sheet.
Other Properties. Nexus, alone or with co-investors and joint ventures, intends
to acquire other lands for development of residential, commercial and office
structures, when management identifies opportunities for enhancement of
shareholder values.
THE MEDICAL FINANCING DIVISION of the Company conducts its operations
through a wholly-owned subsidiary, Medical Financial Corp. ("MFC"), a start-up
company with its first full year of operations included in the fiscal year ended
February 28, 1996. MFC purchases insurance company receivables, paying cash to
the medical provider in return for a negotiated fee. For its clients, MFC
delivers valuable services and increased liquidity, which is normally
unavailable to medical groups from traditional lenders. MFC's services include
an organized, efficient collection of the customers' receivables and management
information systems reports of their clients' practices. The profitability of
this division in the current and future fiscal years will depend on management's
ability to obtain favorable contracts with additional clients and employ its
resources at fuller capacity. In the Company's current fiscal year the value of
contracts currently in force increased from financing approximately $600,000 per
month at March 1, 1997 to about $1,100,000 per month at August 31, 1997.
Marketing
The Company's Wendy's Restaurants participate in Wendy's national
advertising campaigns pursuant to the franchise agreements with Wendy's
International. National advertising includes network television, radio and print
media. The Company's restaurants supplement the franchisor's national efforts
with local and regional newspapers, TV, radio and outdoor advertising, where
appropriate to the locale. See Note 9A to the Consolidated Financial Statements.
The Company's marketing in its real estate activities has been limited
in the past, and for the present, to working with real estate brokerage firms in
connection with the sale and leasing of properties. Development of the homes in
Goshen, NY is expected to commence in 1998 and Nexus is planning to employ a
marketing firm to assist it in pricing, advertising and selling the one-family
homes during the construction phases of the development.
- 5 -
<PAGE> 7
The Medical Financing Division has heretofore marketed its services to
medical groups through its own individual employees and consultants. MFC
recently retained a marketing firm to design a brochure for a direct mail and
personal recruiting campaign scheduled for Winter 1997-1998.
Competition
The Company's restaurant business is highly competitive, with the many
stores in the diverse fast food service field, particularly the McDonalds and
Burger King franchisees which are members of larger national restaurant chains.
The Company's presently owned real estate held for development and sale
(i) for its own account is located in Hunter, New York and Brookfield,
Connecticut and (ii) in joint venture with Windemere is located in Goshen, New
York. The real estate markets in those communities have been depressed in the
past years, so that competition has not been a factor. With the expectation of
improved demand and financing for purchasers, the Company will be competing with
many owners and developers in the locale to market properties which it presently
owns and which will be developed and built for sale or lease.
MFC competes with a wide variety of financial service companies,
including banks, and other lending and factoring companies which provide
financial assistance and bill collection services to medical providers. The
Company's services are designed to serve a niche market and in its focus on
purchasing and collecting insured receivables of certain medical groups, the
competition is limited to only a few companies of which it is aware.
Trademarks
The Company's use of the tradename, trademark and logo for Wendy's is
pursuant to franchise agreements with Wendy's International for each of its 16
restaurants. These agreements have terms extending many years and there is no
reason to expect that the franchises will not be renewed whenever they expire.
The day to day operations of the Wendy's subsidiaries, Wendcello Corp. and
Wendclark Corp. are managed by two management companies, whose principals have
similar agreements with other Wendy's franchisees. Their experience and
performance as franchise managers has forged a mutually respected relationship
with Wendy's International which has enabled Wendclark and Wendcello to grow the
number of restaurants in their region and to foster the expectation of
continuing cooperation. See Notes 9A and 8 to the Consolidated Financial
Statements.
- 6 -
<PAGE> 8
Employees
As of September 2, 1997 the Company had 540 employees in its Wendy's operations,
9 employees at MFC and 4 employees in its real estate and parent company
operations. None of the Company's employees is represented by a union and Nexus
considers its relationship with its employees to be good.
Regulatory Laws
The Company is in compliance with all environmental laws relating to hazardous
substances in real property. Future compliance with such environmental laws is
not expected to have a material effect on its business. In addition the Company
must comply with health and occupancy regulatory laws of the federal, state and
municipal governments relating to the Wendy Restaurants and the regulations of
said governments relating to businesses generally. The cost of such compliance
is important but continued compliance is not expected to have a material effect
on its business.
- 7 -
<PAGE> 9
ITEM 2. FINANCIAL INFORMATION.
In addition to the information included in the Consolidated Financial
Statements filed as part of this registration statement, the Company provides
the following financial information.
SELECTED CONSOLIDATED FINANCIAL DATA
INCOME STATEMENT DATA
<TABLE>
<CAPTION>
Three Months Ended
Fiscal Year Ended February 28, May 31, (Unaudited)
------------------------------------------- ---------------------
1995 1996 1997 1996 1997
--------- --------- -------- ------- -------
(In Thousands Except Per Share Data)
<S> <C> <C> <C> <C> <C>
Total revenue $ 14,524 $ 15,140 $ 20,194 $ 4,633 $ 4,507
========= ========= ======== ======= =======
Earnings (Loss) before
income taxes $ 448 $ (201) $ 1,811 $ 63 $ (47)
========= ========= ======== ======= =======
Net income (loss) $ 417 $ ($143) $ 1,720 $ 34 $ (38)
========= ========= ======== ======= =======
Net income (loss) per
common share
primary and fully
diluted(a) $ .34 $ (.12) $ 1.42 $ .03 $ (.03)
========= ========= ======== ======= =======
</TABLE>
BALANCE SHEET DATA
<TABLE>
<CAPTION>
Three Months Ended
As of February 28, As of May 31,(Unaudited)
--------------------------------------- ------------------------
1995 1996 1997 1996 1997
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Working capital $ 319 $ (278) $ 1,473 $ (1,941) $ 1,473
======== ======== ======== ======== ========
Total assets $ 5,428 $ 12,202 $ 13,750 $ 12,105 $ 13,909
======== ======== ======== ======== ========
Long-Term debt $ 144 $ 646 $ 2,162 $ 604 $ 2,213
======== ======== ======== ======== ========
Stockholders' equity $ 4,304 $ 5,701 $ 7,411 $ 5,732 $ 7,373
======== ======== ======== ======== ========
Common Shares outstanding(a) 1,212 1,212 1,212 1,212 1,212
======== ======== ======== ======== ========
</TABLE>
- --------
(a) 1,211,635 shares outstanding were used in computing the primary and
fully diluted per share earnings. 1,211,625 common shares were
outstanding at all Balance Sheet dates and at February 28, 1995 have
been restated to give effect to recapitalization. Selected Consolidated
Financial Data for the February 28, 1994 date is provided as shown in
the Index to Financial Statements herein.
- 8 -
<PAGE> 10
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
All statements contained herein that are not historical facts,
including but not limited to, statements regarding future liquidity,
expenditures to develop real estate owned by the Company, future borrowing,
capital requirements and the Company's future development plans are based on
current expectations. These statements are forward looking in nature and involve
a number of risks and uncertainties. Actual results may differ materially. Among
the factors that could cause actual results to differ materially are the
following: changes in the business of the Company's medical provider clients,
changes in the real estate, fast food and financial markets, and other risk
factors described in the Company's reports filed and to be filed from time to
time with the Commission.
The discussion and analysis below is based on the Company's
Consolidated Financial Statements and related Notes thereto included herein and
incorporated herein by reference.
OVERVIEW
Nexus generates revenues from three business segments: food services,
real estate and medical financing. The following selected segment data for the
three years ended February 28, 1995, 1996 and 1997 is derived from the Company's
audited consolidated financial statements.
<TABLE>
<CAPTION>
Three Months
Ended May 31,
Fiscal Year Ended February 28, (Unaudited)
---------------------------------------- ------------------------
1995 1996 1997 1996 1997
-------- -------- -------- -------- --------
(In Thousands)
Operating revenue:
<S> <C> <C> <C> <C> <C>
Food services $ 14,524 $ 14,536 $ 16,263 $ 3,852 $ 4,269
Real estate 0 350 3,714 777 76
Medical financing 0 254 217 3 162
-------- -------- -------- -------- --------
Total revenue $ 14,524 $ 15,140 $ 20,194 $ 4,632 $ 4,507
======== ======== ======== ======== ========
Operating profit (loss):
Food services $ 622 $ (60) $ 99 $ (27) $ 125
Real estate (123) (220) 1,706 94 (171)
Medical Financing (12) 138 78 (4) (1)
-------- -------- -------- -------- --------
Total Profit (Loss) $ 487 $ (142) $ 1,883 $ 63 $ (47)
======== ======== ======== ======== ========
</TABLE>
- 9 -
<PAGE> 11
RESULTS OF OPERATIONS
COMPARISON OF RESULTS FOR THE QUARTER ENDED MAY 31, 1997 TO THE QUARTER ENDED
MAY 31, 1996.
Revenues
Total revenues of the Company in the three months ended May 31, 1997 decreased
$125,000 from $4,622,000 in the prior quarter to $4,507,000 in the quarter ended
May 31, 1997. The decrease of $701,000 in revenues from the real estate division
was offset by increase of $417,000 in food services revenues and $159,000 in
medical financing revenues, resulting in the Company wide decrease of $125,000
for the three months.
Operating Profit or Loss
The Company's operating profit decreased $110,000 from a profit of $63,000 in
the three months ended May 31, 1996 to an operating loss of $47,000 in the three
months ended May 31, 1997. The increase in the operating profit in the food
services division was more than offset by the operating loss in the real estate
division of $171,000 from a prior quarter profit of $94,000, which was due to
the fact that costs and expenses in that division were not offset by sales of
real estate in that quarter.
COMPARISON OF RESULTS FOR THE YEAR ENDED FEBRUARY 28, 1997 TO THE YEAR ENDED
FEBRUARY 29, 1996.
REVENUES
Total revenues increased 33% from 15.1 million in fiscal 1996 to $20.2 million
in fiscal 1997. This increase resulted from greater revenues realized on the
sale of real estate which increased from $350,000 in fiscal 1996 to $3.7 million
in 1997 and from increased sales at the Company's Wendy restaurants which rose
from $14.5 million in fiscal 1996 to $16.2 million in fiscal 1997. Revenues from
the medical financing division declined $37,000 from $254,000 in fiscal 1996 to
$217,000 in fiscal 1997.
COSTS AND EXPENSES
Direct costs in the food services division increased from $5 million in fiscal
1996 to $5.7 million in fiscal 1997 and selling, general and administrative
expenses increased from $9.3 million to $9.8 million. The total revenue increase
in the food services division of $1.7 million was offset by these total
increases of $1.2 million plus the additional interest expense, depreciation,
amortization and other expense increases of $341,000, resulting in an increase
in operating
- 10 -
<PAGE> 12
income of the food services division of $159,000 from an operating loss $60,000
in fiscal 1996 to an operating profit of $99,000 in fiscal 1997.
Direct costs in the real estate division increased from $137,000 in fiscal 1996
to $926,000 in fiscal 1997 an increase of $789,000 and operating expenses
increased a total of $635,000. The total revenue increase in the real estate
division of $3.35 million was offset by total expense increase of $1.42 million,
resulting in an increase in the operating profit of $1.93 million, from an
operating loss of $20,000 in fiscal 1996 to an operating profit of $1.71 million
in fiscal 1997.
Operating expenses of the medical financing division increased $97,000 in fiscal
1997 over fiscal 1996, while the revenues increased $37,000, resulting in a
reduction of $60,000 in operating profit, from $138,000 in fiscal 1996 to
$78,000 in fiscal 1997. This was attributable to gearing up on staff and systems
in anticipation of increased volume in fiscal 1998, which has occurred by August
31, 1997.
See Note 10 of Notes to Consolidated Financial Statements with respect to income
taxes.
COMPARISON OF RESULTS FOR THE YEAR ENDED FEBRUARY 28, 1996 TO THE YEAR ENDED
FEBRUARY 28, 1995.
REVENUES.
Total revenues increased $616,000 from $14,524,000 in fiscal 1995 to $15,140,000
in fiscal 1996. This was attributable to increased revenues of $350,000 and
$254,000 in the real estate division and medical finance division which had no
revenues in fiscal 1995, and also to a small increase of $12,000 in revenues of
the food service division.
COSTS AND EXPENSES
In the food service division, the direct costs increased $119,000 from
$4,854,000 in fiscal 1995 to $4,973,000 in fiscal 1996 and $575,000 in all other
expenses, a total expense increase of $694,000. Since this was offset by only a
$12,000 increase in revenues, there was a $682,000 drop in operating profit,
from a profit $622,000 in fiscal 1995 to a loss of $60,000 in fiscal 1996. This
result was due to lower margins relating to food sales and larger expenses
relating to restaurant improvements which did not produce increases in sale
volume until the following year.
Total costs in the real estate division increased $447,000 in fiscal 1996 over
fiscal 1995 and since revenues increased $350,000, there was a $97,000 reduction
in operating profit from a loss of $123,000 in fiscal 1995 to a loss of $220,000
in fiscal 1996.
- 11 -
<PAGE> 13
Total operating expenses of the medical financial division were $104,000 higher
in fiscal 1996 compared with fiscal 1995 so that the revenue increase of
$254,000 produced an increase of $150,000 in operating profit, from a loss of
$12,000 in final 1995 to a profit of $138,000 in fiscal 1996.
For Nexus combined, there was a $629,000 reduction in operating profit from a
profit of $487,000 in fiscal 1995 to a loss of $142,000 in fiscal 1996,
attributable principally to the decline in the operating profits of the food
service division described above.
See Note 10 of the Notes to Consolidated Financial Statements with respect to
income taxes.
LIQUIDITY AND CAPITAL RESOURCES
The Company's operating activities in fiscal 1998 including investments
in the purchase of insured medical receivables will result in cash used by
operations this year. The Company expects this trend to continue with the growth
of its medical finance division. The funds for those needs are expected to be
provided from financing activities such as asset-based borrowing on the
Company's mortgages and accounts receivable.
The Company anticipates that cash will be provided from its food
service operations in fiscal 1998, which has shown improvement in operating
profit in the first six months ended August 31, 1997. The real estate division
is not expected to be a significant user of cash flow from operations after
August 31, 1998 by reason of the receipt of rental income from the sublease of
formerly vacant space in East Granby, Connecticut property which commenced on
September 1, 1997. The rental income from that lease exceeds the rent which the
Company had been, and will continue to be, paying for that space.
The Company's real estate assets in Hunter, N.Y. and Brookville, CT are
owned free and clear of mortgages. Further development of those properties, at
any significant cost, is expected to be funded by asset-based financing.
The Company believes that its present cash resources and the cash
available from financing activities will be sufficient on a short-term basis and
over the next 12 months to fund continued expansion of its medical financing
business, its company-wide working capital needs and expected investments in
property and equipment. The Company intends to pace its growth in the medical
financing division to its capacity to provide the funds from its financing
activities. The Company has no present intention of increasing its capital from
the sale of common stock, but that may be an option it will explore in the
future should management decide that it will assist its goal of increasing the
per-share value of the Company's outstanding shares.
- 12 -
<PAGE> 14
ITEM 3. PROPERTIES.
In addition to the real property held for development and sale as set
forth in Item 1 above, Nexus owns certain property, land and equipment utilized
in its Wendy's operations which are described in Notes 4 and 7A to the
Consolidated Financial Statements herein, which secure, to the extent described
in Note 7B, the four separate notes payable by Wendcello Corp.
and Wendclark Corp.
The Wendy's restaurants are tenants in the various restaurant operating
leases described in Note 9B to the Consolidated Financial Statements herein.
Nexus' lease for its offices in New Rochelle, New York, which also
house MFC's operations, expires on February 28, 1998 and will be the subject of
renewal negotiations in the Fall of 1997.
All of the space leased by the Company is leased from unaffiliated
third parties.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table sets forth information regarding the beneficial
ownership of Nexus common stock as of September 18, 1997 by (i) each person who
owns beneficially more than 5% of Nexus Common Stock to the extent known to
management and (ii) each executive officer and director of Nexus and (iii) all
directors and executive officers, as a group. Unless otherwise indicated, the
named persons exercise sole voting and investment power over the shares that are
shown as beneficially owned by them.
- 13 -
<PAGE> 15
<TABLE>
<CAPTION>
Beneficially Owned
Name Number Percent
<S> <C> <C>
Seth Grossman (a)(b) 101,777 8.4%
Jed Schutz (2) 101,777 8.4%
Joseph Dolan (c) -- --
Daniel Elstein(3) -- --
Allan Kornfeld(3) -- --
Deborah Knowlton(2) -- --
Lester Tanner(d) 118,493 9.8%
All directors and executive
officers as a group (6 persons) 203,554 16.8%
</TABLE>
- --------
(a) Includes all shares owned by Seymour Grossman Pension Trust of which Seth
Grossman is sole Trustee and beneficiary of 50% thereof.
(b) The addressed of Seth Grossman, Jed Schutz and Deborah Knowlton is 271 North
Avenue, Suite 520, New Rochelle, N.Y. 10801.
(c) The address of Joseph Dolan is 35 Huckleberry Lane, East Hampton, NY 11937.
The address of Daniel Elstein is 325 University Avenue, Syracuse, NY 13210. The
address of Allan Kornfeld is 5 Patterson Square, Newtown Sqaure, PA 19073.
(d) Includes all shares owned by Tanner & Gilbert P.C. Retirement Plan Trust, of
which Lester Tanner is the sole Trustee and beneficiary of the shares in his
segregated account. The address of Lester Tanner is 99 Park Avenue, New York,
NY 10016. Seth Grossman is the son of Lester Tanner's wife, Dr. Anne-Renee
Testa. Lester Tanner previously served as a director of the Company and is
currently counsel to Nexus.
- 14 -
<PAGE> 16
ITEM 5. DIRECTORS AND EXECUTIVE OFFICERS.
The executive officers and directors of Nexus are:
Name Age Position
- ---- --- --------
Seth Grossman 29 Mr. Grossman has been President and Chief
Executive Officer of Nexus since January 1,
1997 and a Director of Nexus since January
1994. He is a director of M & A London, LLC,
of New York, NY, which provides corporate
development services to mid-range public and
private companies. In 1991, Mr. Grossman
founded a transportation company which he
sold in 1994.
Jed Schutz 38 Mr. Schutz has been Chairman of the Board of
Nexus since January 1, 1997 and a Director
of Nexus since January 1994. He is a 50%
owner and President of Windemere Development
Corp. of Hauppauge, NY, which builds one-
family homes in New York State by itself and
with affiliated companies. He has been in
the real estate business for more than five
years.
Joseph Dolan 59 Mr. Dolan recently retired from Dun &
Bradstreet, Inc. where he worked for 31
years rising to a senior management
position in D & B's marketing division. He
was elected a Director of Nexus in November
1996. Mr. Dolan is a consultant to, and a
director of, unaffiliated real estate
companies in East Hampton, New York.
Daniel Elstein 64 Dr. Elstein is a practicing orthopedic
surgeon in Syracuse, NY. He was elected a
Director of Nexus in November, 1996. He has
been the manager and participant for more
than 25 years in the development and
ownership of commercial and residential
real estate throughout the United States. He
is the operating manager of Gateway Granby,
LLC, the company to which Nexus sold the
East Granby, Connecticut office building in
February 1996 for $4,800,000.
Allan Kornfeld 59 Mr. Kornfeld, a certified public accountant
and attorney, was elected a Director of
Nexus in November 1996. He was an accountant
and audit partner at Ernst & Young from
1960-1975, a comptroller, Vice President and
Senior Vice President of Ametek, Inc. (NYSE)
from 1975-1986 and then Chief Financial
Officer and Executive Vice President
- 15 -
<PAGE> 17
of Ametek from 1986-1994. Presently Mr.
Kornfeld is an independent consultant on
financial matters.
Deborah Knowlton 46 Ms. Knowlton was elected Secretary
-Treasurer of Nexus in June 1997 and is
presently serving as Chief Financial
Officer. Previously she has worked with
Kenneth Fuld, President of Medical Financial
Corp., on accounting matters for other
companies in which Mr. Fuld was an executive
officer.
ITEM 6. EXECUTIVE COMPENSATION
The following table shows for the years ended February 28, 1997, 1996
and 1995, compensation paid by Nexus, including salaries, bonuses and certain
other compensation, to the only persons who were executive officers in those
periods:
<TABLE>
<CAPTION>
Name and Fiscal Salary Bonus Other Annual
Principal Position Year $ $ Compensation(a)
- ------------------ ----- --------- ------- ---------------
<S> <C> <C> <C> <C>
Peter Barotz 1997 121,530(b) - 22,000
President and CEO 1996 111,537 60,000 21,000
until 12/31/96 1995 101,539 - 20,000
Bridget Dewsnap, 1997 60,000 - -
Treasurer, Secretary 1996 58,000 - -
and CFO until 6/1/97 1995 56,000 - -
Seth Grossman, 1997 6,000 - -
President and CEO 1996 - - -
1/1/97 - 2/28/97 1995 -
Jed Schutz, Chairman 1997 6,000
of the Board 1996 - - -
1/1/97 - 2/28/97 1995 - - -
</TABLE>
- --------
(a) The amounts in this column represent automobile allowances and certain
unaccountable and reasonable expense allowances.
(b) Peter Barotz's salary during his incumbency as President of Nexus in the
period from March 1, 1994 to December 31, 1996 is shown above and includes for
the two months, from January 1, 1997 to February 28, 1997, the compensation for
his employment contract and consulting agreement with Nexus, which continues
until December 31, 1997. See Note 9C of Notes to Consolidated Financial
Statements.
- 16 -
<PAGE> 18
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
Since March 1, 1996 Nexus, through its subsidiary PSI Capital Corp.,
sold building lots in Goshen, NY to Windemere in the Pines at Goshen, Inc., a
part of the Windemere Group of construction companies, in which Jed Schutz, a
director of Nexus, is an officer, director and shareholder ("Windemere"). The
total selling price for the Goshen lots, sold in February and August 1996, was
$2,499,150 resulting in a deferred profit of $1,860,270. In addition the Company
received a debenture for $2,499,750 with payment contingent on, and related to,
50% of the profits to be realized on the construction and sale of the homes to
be built on the 165 lots. This $2,499,750 has not been reflected in the
Company's net income nor is it carried as an asset on the balance sheet, because
of its contingent nature. It is management's opinion that this transaction would
be at the same terms had Jed Schutz not been a director of Nexus at the time it
took place.
In February 1996 Nexus sold the property in East Granby, to Gateway
Granby, LLC (see Item 1 herein) at a time when Lester Tanner was a director of
Nexus. Shari Stack, the 44 year old daughter of Lester Tanner, owned then and
now a 24% interest in Gateway Granby, LLC.
ITEM 8. LEGAL PROCEEDINGS
The Company's Yolo subsidiaries filed an action for breach of contract
and conversion in Supreme Court of New York, Westchester County against the
former managing agent of its real property in Hunter N.Y., and corporate
entities controlled by the agent, after the expiration of the agent's option to
purchase the property had expired. The defendants have counterclaimed seeking
damages of over $2,000,000 for not permitting exercise of the option. The option
price was then, and is now, more than twice the total of the value of the
property carried on the books ($1,097,897) and the defendants were not then, and
are not now, able to pay the option price (See Note 5 of the Notes to
Consolidated Financial Statements). The Company had negotiated to sell the
Hunter real estate to the defendants for much less than the option price before
the option had expired, but the defendants were unable to raise the financing
for the purchase. Discovery in the lawsuit has been completed and it is expected
that the matter will be placed on the trial calendar shortly. Company counsel
believes that the counterclaims of the defendants will be dismissed.
On March 25, 1992, PSI Capital Corp. filed in Connecticut for relief
under Chapter 11 of the Bankruptcy Code because RTC, which had taken over the
first mortgage positions of two Connecticut banks, was about to foreclose on the
properties, wiping out the value of the second mortgages held by PSI Capital
Corp. The stay in the Chapter 11 proceeding provided sufficient time to purchase
the first mortgages on the real estate (one of which was the building in East
Granby and the other in Greenwich) for less than the outstanding principal
amount and thereby protect PSI Capital's second mortgage position in the real
estate. A Plan of reorganization has been filed in the Chapter 11 proceeding and
it is expected that PSI Capital Corp will emerge from Chapter 11 by October 31,
1997.
- 17 -
<PAGE> 19
ITEM 9. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
RELATED STOCKHOLDER MATTERS.
The registrant is unaware of any significant transfers of its common
stock, sales or trading since August 1996 when the shares were released from
escrow. The Company does not know of anyone making a market for its common
stock. After this application has been reviewed by the SEC, the Company plans to
send an Information Statement to its shareholders containing the financial
statements and information in this Form 10 and to seek market makers,
preliminary to its application to list the common stock for trading on NASDAQ.
The Company has never paid dividends on the common stock and there is
no present intention to do so in the foreseeable future.
ITEM 10. RECENT SALES OF UNREGISTERED SECURITIES
The only securities issued by the registrant within the past three
years were the 1,211,635 shares of its common stock issued to shareholders of
PSI pursuant to the Orders of the Federal Court, as described in Item 1 above.
As set forth in the opinion filed herewith as Exhibit 3.10, which was Exhibit
(g) to PSI's Current Report (Form 8-K) dated August 7, 1996, the shares were
exempt from registration under the Securities Act of 1933, as amended, pursuant
to Section 3(a)(10) thereof.
ITEM 11. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The only authorized capital stock of the Company consists of 2,000,000
shares of common stock, $.10 par value. These are the securities to be
registered. There are issued and outstanding 1,211,635 shares held of record by
1,186 shareholders since August 1996.
The Company believes that it will meet the requirements for listing the
common stock on NASDAQ at such time as the market prices at which the common
stock will have traded in the over-the-counter market will permit, but there is
no assurance that this will occur.
There is no cumulative voting and each share of common stock has one
vote on all matters brought before the shareholders for a vote. There are no
preemption rights in the holders of common stock.
-18-
<PAGE> 20
ITEM 12. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VII of the Company's By-Laws provides indemnification by the
Company for its directors, officers, employees, agents and other persons who may
be indemnified pursuant to the provisions of Section 145 of the General
Corporation Law of the State of Delaware (the "Indemnitee").
Nexus shall, and is obligated to, indemnify and advance the expenses of
the Indemnitee in every situation where it is obligated to do so pursuant to the
aforesaid statutory provisions provided Nexus had made the determination that
the Indemnitee has acted in good faith and in a manner such Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company, and, in the case of any criminal action or proceeding, had not
reasonable cause to believe that such Indemnitee's conduct was unlawful.
See the text of Article VII in the By-laws filed as an Exhibit herein.
ITEM 13. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
All financial statements required by Regulation S-X and the
supplementary financial information required by Item 302 of Regulation S-K has
been furnished by the Company's independent accountants and is included in the
financial statements listed in Item 15 and filed as part of this registration
statement.
ITEM 14. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
Nexus has had the same independent accountants since its incorporation
and there have been no disagreements with them on accounting or financial
matters.
ITEM 15. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements
-19-
<PAGE> 21
The response to this portion of Item 15 is submitted as a
separate "Index to Financial Statements and Schedules" which precedes the
Independent Auditor's Report herein.
(b) Exhibits: All of the following exhibits were filed with the
original Form 10, dated June 27, 1997, except Exhibit 10.04
which is filed with this Amendment No. 1.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
3.01 Certificate of Incorporation of the Company.
3.02 Certificate of Amendment of Certificate of Incorporation of the Company.
3.03 Amended By-Laws of the Company.
3.04 Settlement Stipulation dated November 17, 1993.
3.05 Court Order dated November 17, 1993
3.06 Final Judgment and Order Approving Settlement.
3.07 Amendment to Settlement Stipulation.
3.08 Court Order Amending Final Judgment and Order.
3.09 Stipulation and Order Authorizing Release of Shares From Escrow.
3.10 Opinion re release of shares.
4.01 Specimen Common Stock Certificate
5.01 Opinion re legality of common stock.
10.01 Agreement for sale of lots in Goshen, NY to Windemere in the Pines at Goshen,
Inc.
10.03 Management Agreement for Wendy's Restaurants.
10.04 Employment and Consulting Agreement of Peter Barotz.
19.01 Letter to shareholders dated January 5, 1996.
19.02 Letter to shareholders dated July 26, 1996.
23.01 Consent of Michael, Adest & Blumenkrantz.
</TABLE>
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly cause this amendment to the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
FRM NEXUS, INC.
(Registrant)
By /s/ Seth Grossman
----------------------------------
September 19, 1997 Seth Grossman, President
-20-
<PAGE> 22
Index to Financial Statements and Schedules of FRM Nexus
--------------------------------------------------------
<TABLE>
<CAPTION>
Unaudited
- ---------
<S> <C> <C>
Selected Consolidated Financial Data for the Four Fiscal Years
Ended February 28, 1997 (the Company was incorporated on
November 17, 1993) and as of February 28, 1994, 1995, 1996
and 1997 .......................................................... 1 page
Unaudited Selected Quarterly Consolidated Financial Data for the
four quarters of the Fiscal Year Ended February 28, 1997 .......... 1 page
Consolidated Balance Sheets as of May 31, 1996 and 1997 ............ 2 pages
Consolidated Income Statements for the Three Months Ended
May 31, 1996 and 1997 ............................................. 1 page
Consolidated Statements of Stockholders' Equity For the Three
Months Ended May 31, 1996 and 1997 ................................ 1 page
Audited
- -------
Consent of Independent Certified Public Accountants ................ 1 page
Independent Auditors' Reports ...................................... 5 pages
Consolidated Balance Sheets as of February 28, 1997 and
February 29, 1996 ................................................. 2 pages
Consolidated Income Statements For the Three Years Ended
February 28, 1997 ................................................. 1 page
Consolidated Statement of Stockholders' Equity for the Three Years
Ended February 28, 1997 ........................................... 1 page
Statements of Cash Flows For The Three Years Ended
February 28, 1997.................................................. 2 pages
Notes 1 through 12 to Consolidated Financial Statements for the
Three Years Ended February 28, 1997 ............................... 18 pages
Schedules:
- ----------
I - Condensed financial information of registrant ............... does not
apply
II - Valuation and qualifying accounts ........................... 1 page
III - Real Estate and Accumulated Depreciation .................... 1 page
IV - Mortgage Loans on Real Estate ............................... 1 page
</TABLE>
<PAGE> 23
FRM NEXUS, INC. AND SUBSIDIARIES
SELECTED CONSOLIDATED FINANCIAL DATA
<TABLE>
<CAPTION>
Fiscal Year Ended
February 28, February 29, February 28, February 28,
1997 1996 1995 1994
---- ---- ---- ----
<S> <C> <C> <C> <C>
Income Statement Data:
Total Revenue $20,194,078 $15,139,750 $14,523,900 $ 14,216,221
=========== =========== =========== ============
Earnings Before Interest
and Taxes $ 1,810,906 $ (200,718) $ 447,524 $ (473,764)
=========== =========== =========== ============
Net Income (loss) $ 1,720,273 $ (142,732) $ 417,217 $ (582,805)
=========== =========== =========== ============
Net income (loss) per common
share primary and fully
diluted (a) $ 1.420 $ (.118) $ .344 $ (4.81)
=========== =========== =========== ============
Number of shares used in
computation of primary
and fully diluted
earnings (a) 1,211,635 1,211,635 1,211,635 1,211,635
=========== =========== =========== ============
</TABLE>
<TABLE>
<CAPTION>
As of
February 28, February 29, February 28, February 28,
1997 1996 1995 1994
---- ---- ---- ----
<S> <C> <C> <C> <C>
Balance Sheet Data:
Working Capital $ 1,473,212 $ (277,994) $ 319,070 $ (222,561)
=========== ============ ========== ===========
Total Assets $13,749,593 $ 12,201,580 $5,428,496 $ 5,158,298
=========== ============ ========== ===========
Long-Term Debt $ 2,162,064 $ 645,925 $ 144,133 $ 125,697
=========== ============ ========== ===========
Stockholders' Equity $ 7,410,507 $ 5,700,550 $4,304,209 $ 3,886,992
=========== ============ ========== ===========
Common Shares
Outstanding (a) 1,211,635 1,211,635 1,211,635 1,211,635
=========== ============ ========== ===========
</TABLE>
(a) Common shares outstanding at February 28, 1995 have been restated to
give effect to recapitalization.
<PAGE> 24
FRM NEXUS, INC. AND SUBSIDIARIES
SUPPLEMENTAL FINANCIAL INFORMATION
UNAUDITED SELECTED QUARTERLY FINANCIAL DATA
<TABLE>
<CAPTION>
Quarter
First Second Third Fourth
----- ------ ----- ------
<S> <C> <C> <C> <C>
Year Ended
February 28, 1997:
Net sales $ 4,632,400 $ 7,405,962 $ 4,195,461 $ 3,960,255
=========== =========== ============ ===========
Gross profit $ 2,950,921 $ 5,594,087 $ 2,544,697 $ 2,490,959
=========== =========== ============ ===========
Net Income (loss) $ 33,927 $ 2,283,312 $ (195,150) $ (401,816)
=========== =========== ============ ===========
Primary and fully
diluted earnings
per share $ .068 $ 1.844 $ (.161) $ (.331)
=========== =========== ============ ===========
</TABLE>
<PAGE> 25
FRM NEXUS, INC.
AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
ASSETS
<TABLE>
<CAPTION>
May 31, May 31,
1997 1996
------------ ------------
<S> <C> <C>
CURRENT ASSETS
Cash & cash equivalents $ 1,645,824 $ 2,155,248
Mortgage and notes receivable 211,753 144,078
Finance receivables, net 1,568,100 595,373
Inventories at cost 110,483 113,328
Deferred tax asset -- 20,346
Other current assets 271,202 130,770
----------- -----------
TOTAL CURRENT ASSETS 3,807,362 3,159,143
----------- -----------
FIXED ASSETS
Property, land and equipment 5,508,866 3,350,075
Less: Accumulated depreciation 1,988,462 1,533,462
----------- -----------
NET BOOK VALUE 3,520,404 1,816,613
----------- -----------
OTHER ASSETS
Real estate held for development and sale 1,429,739 1,966,839
Mortgage and notes receivable 4,125,441 4,107,324
Loans receivable 88,526 87,226
Unamortized leasehold costs 574,812 582,363
Technical assistance fees 243,180 264,332
Other 119,182 120,928
----------- -----------
TOTAL OTHER ASSETS 6,580,880 7,129,012
----------- -----------
TOTAL ASSETS $13,908,646 $12,104,768
=========== ===========
</TABLE>
<PAGE> 26
FRM NEXUS, INC.
AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
LIABILITIES & STOCKHOLDER'S EQUITY
<TABLE>
<CAPTION>
May 31, May 31,
1997 1996
----------- -----------
<S> <C> <C>
CURRENT LIABILITIES
Accounts payable and Accrued expenses $ 963,503 $ 1,938,680
Notes payable - current maturities 147,000 612,923
Due to finance customers 1,156,470 372,054
Taxes payable -- 11,379
Deferred income -- 2,163,109
Other current liabilities 67,738 1,953
----------- -----------
Total current liabilities 2,334,711 5,100,098
----------- -----------
Other liabilities
Notes payable - less current maturities 2,213,332 604,164
Deferred taxes payable 53,584 --
Deferred income 1,910,624 614,602
Other 23,604 53,735
----------- -----------
Total other liabilities 4,201,144 1,272,501
----------- -----------
Total liabilities 6,535,855 6,372,599
----------- -----------
Stockholder's equity
Common stock - $.10 par value;
Authorized - 2,000,000 shares; Issued and
outstanding 1,211,635 121,164 121,164
Capital in excess of par value 5,887,706 5,887,706
Retained earnings 1,363,921 (276,707)
----------- -----------
Total stockholder's equity 7,372,791 5,732,169
----------- -----------
Total liabilities and Stockholder's equity $13,908,646 $12,104,768
=========== ===========
</TABLE>
<PAGE> 27
FRM NEXUS, INC.
AND SUBSIDIARIES
CONSOLIDATED INCOME STATEMENT
(UNAUDITED)
<TABLE>
<CAPTION>
Three months ended
----------------------
May 31, May 31,
1997 1996
---------- ----------
<S> <C> <C>
REVENUE
Restaurant food sales $4,268,935 $3,852,127
Sale of real estate - 712,266
Interest from mortgages 76,218 64,987
Income from the purchase of
accounts receivable 161,538 3,120
---------- ----------
Total income 4,506,691 4,632,500
---------- ----------
COST OF SALES
Restaurants 1,432,438 1,352,835
Real estate 68,569 328,744
========== ==========
Total costs of sales 1,501,007 1,681,579
---------- ----------
Gross profit 3,005,684 2,950,921
---------- ----------
OPERATING EXPENSES
Selling, general & administrative -
Restaurants 2,550,327 2,387,996
Other 352,265 354,845
Interest expense 56,195 30,287
Depreciation and amortization 109,115 120,186
---------- ----------
Total costs and expenses 3,067,902 2,893,314
---------- ----------
Income (Loss) from operations
before income taxes and
other items (62,218) 57,607
Interest income 15,523 5,133
---------- ----------
Income (Loss) before income taxes (46,695) 62,740
Provision for (benefit from)
income taxes (8,979) 28,813
---------- ----------
Net income $ (37,716) $ 33,927
========== ==========
Net income per common share and
common share equivalents
Primary and fully diluted $ (.031) $ .028
========== ==========
Number of shares used in computation
of primary and fully diluted earnings 1,211,635 1,211,635
========== ==========
</TABLE>
<PAGE> 28
FRM NEXUS, INC.
AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
FOR THE THREE MONTHS ENDED
MAY 31, 1997 AND 1996
(UNAUDITED)
<TABLE>
<CAPTION>
Total
Additional Retained Stock-
Common Paid-In Earnings holder's
Stock Capital (Deficit) Equity
-------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Balances
March 1, 1997 $121,164 $5,887,706 $1,401,637 $7,410,507
-------- ---------- ---------- ----------
Net income (loss) for the
three months ended
May 31, 1997 - - (37,716) (37,716)
-------- ---------- ---------- ----------
Balances
May 31, 1997 $121,164 $5,887,706 $1,363,921 $7,372,791
======== ========== ========== ==========
Balances
March 1, 1996 $121,164 $5,887,706 $ (308,320) $5,700,550
Net income (loss) for the
three months ended
May 31, 1996 - - 33,927 33,927
Dividend paid to then
parent - - (2,308) (2,308)
-------- ---------- ---------- ----------
Balances
May 31, 1996 $121,164 $5,887,706 $ (276,701) $5,732,169
======== ========== ========== ==========
</TABLE>
<PAGE> 29
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form 10 (File No. 0-29346) of FRM Nexus, Inc. and Subsidiaries of our report
dated May 9, 1997, on our audits of the financial statements and schedules of
FRM Nexus, Inc. and Subsidiaries as of February 28, 1997, February 29, 1996 and
for the three fiscal years ended February 28, 1997, 1996 and 1995, which report
is included in this Registration Statement on Form 10.
/s/ Michael, Adest & Blumenkrantz
Michael, Adest & Blumenkrantz,
Certified Public Accountants, P.C.
New York, New York
September 17, 1997
<PAGE> 30
[MICHAEL, ADEST & BLUMENKRANTZ LETTERHEAD]
INDEPENDENT AUDITOR'S REPORT
To the Board of Directors and Stockholders
of FRM Nexus, Inc. and Subsidiaries:
We have audited the accompanying consolidated balance sheets of FRM Nexus, Inc.
and Subsidiaries as of February 28, 1997 and February 29, 1996, and the related
consolidated statements of income, shareholders' equity and cash flows for each
of the three years in the period ended February 28, 1997. These consolidated
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audits. We did not audit the financial statements of
Wendclark Corporation and Wendcello Corporation, wholly owned subsidiaries,
which statements reflect total assets of $4,998,033 and $3,423,936 as of
February 28, 1997 and February 29, 1996, respectively, and total revenues of
$16,263,323, $14,536,291 and $14,523,900 for each of the three years in the
period ended February 28, 1997. Those statements were audited by another auditor
whose report has been furnished to us, and our opinion, insofar as it relates to
the amounts included for Wendclark Corporation and Wendcello Corporation, is
based solely on the report of the other auditor.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, based on our audits and the report of the other auditor, the
financial statements referred to in the first paragraph present fairly, in all
material respects, the financial position of FRM Nexus, Inc. and Subsidiaries as
of February 28, 1997 and February 29, 1996, and the results of their operations
and their cash flows for the three years then ended, in conformity with
generally accepted accounting principles.
/s/ Michael, Adest & Blumenkrantz
MICHAEL, ADEST & BLUMENKRANTZ
Certified Public Accountants, P.C.
New York, New York
May 9, 1997
(Except for Note 9B, as to which the date is June 20, 1997)
<PAGE> 31
[ERIC L. WESTON LETTERHEAD]
INDEPENDENT AUDITOR'S REPORT
The Board of Directors
Wendcello Corp.
27 Central Avenue
Cortland, New York 13045
I have audited the accompanying balance sheet of Wendcello Corp. (an
indirect wholly-owned subsidiary of Programming and Systems, Incorporated) as
of February 23, 1997 and February 25, 1996, and the related statements of
operations, stockholder's equity and cash flows for the years then ended. These
financial statements are the responsibility of the Company's management. My
responsibility is to express an opinion on these financial statements based on
my audit.
I conducted my audit in accordance with generally accepted auditing
standards. Those standards require that I plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. I believe that my audit provides a reasonable basis for
my opinion.
In my opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of Wendcello Corp. as
of February 23, 1997 and February 25, 1996, and the results of its operations
and its cash flows for the years then ended in conformity with generally
accepted accounting principles.
/s/ Eric L. Weston
CERTIFIED PUBLIC ACCOUNTANT
Westbury, New York
March 25, 1997
<PAGE> 32
[ERIC L. WESTON LETTERHEAD]
INDEPENDENT AUDITOR'S REPORT
The Board of Directors
Wendcello Corp.
27 Central Avenue
Cortland, New York 13045
I have audited the accompanying balance sheet of Wendcello Corp. (an
indirect wholly-owned subsidiary of Programming and Systems, Incorporated) as
of February 25, 1996 and February 26, 1995, and the related statements of
income, stockholder's equity and cash flows for the years then ended. These
financial statements are the responsibility of the Company's management. My
responsibility is to express an opinion on these financial statements based on
my audit.
I conducted my audit in accordance with generally accepted auditing
standards. Those standards require that I plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. I believe that my audit provides a reasonable basis for
my opinion.
In my opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of Wendcello Corp. as
of February 25, 1996 and February 26, 1995, and the results of its operations
and its cash flows for the years then ended in conformity with generally
accepted accounting principles.
/s/ Eric L. Weston
CERTIFIED PUBLIC ACCOUNTANT
Westbury, New York
March 25, 1996
<PAGE> 33
[Eric L. Weston Letterhead]
INDEPENDENT AUDITOR'S REPORT
The Board of Directors
Wendclark Corp.
27 Central Avenue
Cortland, New York 13045
I have audited the accompanying balance sheet of Wendclark Corp. (an
indirect wholly-owned subsidiary of Programming and Systems, Incorporated) as
of February 23, 1997 and February 25, 1996, and the related statements of
income, stockholder's equity and cash flows for the years then ended. These
financial statements are the responsibility of the Company's management. My
responsibility is to express an opinion on these financial statements based on
my audit.
I conducted my audit in accordance with generally accepted auditing
standards. Those standards require that I plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. I believe that my audit provides a reasonable basis for
my opinion.
In my opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of Wendclark Corp. as
of February 23, 1997 and February 25, 1996, and the results of its operations
and its cash flows for the years then ended in conformity with generally
accepted accounting principles.
/s/ Eric L. Weston
CERTIFIED PUBLIC ACCOUNTANT
Westbury, New York
March 25, 1997
<PAGE> 34
[Eric L. Weston Letterhead]
INDEPENDENT AUDITOR'S REPORT
The Board of Directors
Wendclark Corp.
27 Central Avenue
Cortland, New York 13045
I have audited the accompanying balance sheet of Wendclark Corp. (an
indirect wholly-owned subsidiary of Programming and Systems, Incorporated) as
of February 25, 1996 and February 26, 1995, and the related statements of
income, stockholder's equity and cash flows for the years then ended. These
financial statements are the responsibility of the Company's management. My
responsibility is to express an opinion on these financial statements based on
my audit.
I conducted my audit in accordance with generally accepted auditing
standards. Those standards require that I plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. I believe that my audit provides a reasonable basis for
my opinion.
In my opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of Wendclark Corp. as
of February 25, 1996 and February 26, 1995, and the results of its operations
and its cash flows for the years then ended in conformity with generally
accepted accounting principles.
/s/ Eric L. Weston
CERTIFIED PUBLIC ACCOUNTANT
Westbury, New York
March 25, 1996
<PAGE> 35
FRM NEXUS, INC.
AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
February 28, February 29,
1997 1996
---- ----
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash & cash equivalents $ 1,861,219 $ 1,170,713
Mortgage and notes receivable 141,718 2,848,477
Finance receivables, net 1,238,891 484,073
Inventories at cost 97,210 88,669
Deferred tax asset -- 20,346
Other current assets 275,078 344,135
----------- -----------
TOTAL CURRENT ASSETS 3,614,116 4,956,413
----------- -----------
FIXED ASSETS
Property, land, and equipment 5,351,679 3,316,145
Less: Accumulated depreciation 1,897,197 1,429,387
----------- -----------
NET BOOK VALUE 3,454,482 1,886,758
----------- -----------
OTHER ASSETS
Real estate held for
development and sale 1,429,369 2,021,360
Mortgage and notes receivable 4,216,352 2,318,225
Loans receivable 92,526 87,226
Unamortized leasehold costs 548,685 592,809
Technical assistance fees 248,490 269,747
Other 145,573 69,042
----------- -----------
TOTAL OTHER ASSETS 6,680,995 5,358,409
----------- -----------
TOTAL ASSETS $13,749,593 $12,201,580
=========== ===========
</TABLE>
See Notes to Consolidated Financial Statements
<PAGE> 36
FRM NEXUS, INC.
AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
February 28, February 29,
1997 1996
---- ----
<S> <C> <C>
LIABILITIES & STOCKHOLDER'S EQUITY
CURRENT LIABILITIES
Accounts payable and
Accrued expenses $ 888,410 $ 2,086,329
Notes payable - current maturities 244,441 109,182
Due to finance customers 957,585 267,322
Taxes payable - income 14,357 14,751
Deferred income -- 2,685,175
Other current liabilities 36,111 71,648
----------- ------------
Total current liabilities 2,140,904 5,234,407
----------- ------------
Other liabilities
Notes payable - less current
maturities 2,162,064 645,925
Deferred taxes payable 66,076 --
Deferred income 1,910,624 567,363
Other 59,418 53,335
----------- ------------
Total other liabilities 4,198,182 1,266,623
----------- ------------
Total liabilities 6,339,086 6,501,030
----------- ------------
Stockholder's equity
Common stock - $.10 par value;
Authorized - 2,000,000 shares;
Issued and outstanding 1,211,635 121,164 121,164
Capital in excess of par value 5,887,706 5,887,706
Retained earnings 1,401,637 (308,320)
----------- ------------
Total stockholder's equity 7,410,507 5,700,550
----------- ------------
Total liabilities and
Stockholder's equity $13,749,593 $ 12,201,580
=========== ============
</TABLE>
See Notes to Consolidated Financial Statements
<PAGE> 37
FRM NEXUS, INC.
AND SUBSIDIARIES
CONSOLIDATED INCOME STATEMENTS
FOR THE YEARS ENDED
<TABLE>
<CAPTION>
February 28, February 29, February 28,
1997 1996 1995
------------ ------------ ------------
<S> <C> <C> <C>
REVENUE
Restaurant food sales $ 16,263,323 $ 14,536,291 $ 14,523,900
Sale of real estate 3,398,360 313,832 --
Rental income -- 21,458 --
Interest from mortgages 315,874 14,312 --
Income from the purchase of
accounts receivable 216,521 253,857 --
------------ ------------ ------------
Total income 20,194,078 15,139,750 14,523,900
------------ ------------ ------------
COST OF SALES
Restaurants 5,687,138 4,973,113 4,854,252
Real estate 926,276 136,805 --
------------ ------------ ------------
Total costs of sales 6,613,414 5,109,918 4,854,252
------------ ------------ ------------
Gross profit 13,580,664 10,029,832 9,669,648
------------ ------------ ------------
OPERATING EXPENSES
Selling, general & administrative -
Restaurants 9,794,793 9,298,403 8,705,224
Other 1,231,115 448,839 136,164
Interest expense 207,164 46,098 16,384
Depreciation and amortization 536,686 437,210 364,352
------------ ------------ ------------
Total costs and expenses 11,769,758 10,230,550 9,222,124
------------ ------------ ------------
Income (loss) from operations before
income taxes and other items 1,810,906 (200,718) 447,524
Interest income 72,077 59,094 39,697
------------ ------------ ------------
Income (loss) before income taxes 1,882,983 (141,624) 487,221
Provision for income taxes 162,710 1,108 70,004
------------ ------------ ------------
Net income (loss) $ 1,720,273 $ (142,732) $ 417,217
============ ============ ============
Net income per common share and
common share equivalents (a)
Primary and fully diluted $ 1.420 $ (.118) $ .344
============ ============ ============
Number of shares used in computation
of primary and fully diluted
earnings (a) 1,211,635 1,211,635 1,211,635
============ ============ ============
</TABLE>
(a) Common shares outstanding at February 28, 1995 have been restated to
give effect to recapitalization.
See Notes to Consolidated Financial Statements
<PAGE> 38
FRM NEXUS, INC.
AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
<TABLE>
<CAPTION>
Total
Additional Retained Stock-
Common Paid-In Earnings holder's
Stock Capital (Deficit) Equity
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Balances,
February 28, 1994 $ 10,000 $ 4,459,797 $ (582,805) $ 3,886,992
Net income for the
year ended
February 28, 1995 -- -- 417,217 417,217
----------- ----------- ----------- -----------
Balances,
February 28, 1995 10,000 4,459,797 (165,588) 4,304,209
Recapitalization 111,164 (111,164) -- --
Transfer of assets
from then parent -- 1,487,631 -- 1,487,631
Transfer of Yolo
Capital Corp. and Yolo
Equities Corp. -- 51,442 -- 51,442
Net income (loss) for the
year ended
February 29, 1996 -- -- (142,732) (142,732)
----------- ----------- ----------- -----------
Balances
February 29, 1996 121,164 5,887,706 (308,320) 5,700,550
Net income for the
year ended
February 29, 1997 -- -- 1,720,273 1,720,273
Costs incurred on behalf
of PSI -- -- (10,316) (10,316)
----------- ----------- ----------- -----------
Balances
February 29, 1997 $ 121,164 $ 5,887,706 $ 1,401,637 $ 7,410,507
=========== =========== =========== ===========
</TABLE>
See Notes to Consolidated Financial Statements
<PAGE> 39
FRM NEXUS, INC.
AND SUBSIDIARIES
STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED
<TABLE>
<CAPTION>
February 28, February 29, February 28,
1997 1996 1995
----------- ----------- -----------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) $ 1,720,273 $ (142,732) $ 417,217
Adjustments to reconcile net income to net
Cash provided by operating activities:
Depreciation and amortization 536,686 437,210 364,352
Gain on sale of assets (3,166,472) (1,535,363) --
Deferred income tax expense (benefit) 86,422 (13,529) (6,817)
(Increase) decrease in inventory (8,541) (12,231) 97
Acquisition of real estate held
for development and sale (49,334) (22,400) (3,462)
Proceeds from sale of real estate
held for development and sale 410,753 259,000 164,189
(Increase) decrease in prepaid expenses
misc. receivables, and other assets 34,710 477,705 8,145
Increase (decrease) in accounts payable,
accrued expenses and taxes (1,198,313) 1,351,330 (136,601)
Increase (decrease) in deferred income 127,354 -- --
Increase (decrease) in other liabilities (29,454) (6,198) (9,239)
----------- ----------- -----------
Net cash provided (used) by
operating activities (1,535,916) 792,792 797,881
----------- ----------- -----------
Cash flows from investing activities:
Capital expenditures & intangible assets (2,075,117) (797,207) (300,092)
Loans to officer (5,300) (16,886) (14,617)
Increase in finance receivables (882,172) (309,561) (174,512)
Increase in due to finance customers 690,263 210,960 71,678
Principal payments on notes receivable 2,857,666 75,000 --
Cash received in transfer of Yolo -- 4,190 --
----------- ----------- -----------
Net cash provided (used) by
investing activities 585,340 (833,504) (417,543)
----------- ----------- -----------
Cash flows from financing activities:
Proceeds of notes payable, banks 1,780,000 550,000 --
Principal payments on notes payable (128,602) (58,696) (298,473)
Increase (Decrease) in due to then Parent -- (71,678) 56,362
Cost incurred on behalf of PSI (10,316) -- --
----------- ----------- -----------
Net cash provided (used) by
financing activities 1,641,082 419,626 (242,111)
----------- ----------- -----------
</TABLE>
See Notes to Consolidated Financial Statements Cont'd
<PAGE> 40
FRM NEXUS, INC.
AND SUBSIDIARIES
STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED
<TABLE>
<CAPTION>
February 28, February 29, February 28,
1997 1996 1995
------------ ---------- ----------
<S> <C> <C> <C>
Net increase (decrease) in cash 690,506 378,914 138,227
Cash, beginning of year 1,170,713 791,799 653,572
------------ ---------- ----------
Cash, end of year $ 1,861,219 $1,170,713 $ 791,799
============ ========== ==========
Additional cash flow information:
Interest expense paid $ 196,841 $ 34,652 $ 16,384
============ ========== ==========
Income taxes paid $ 49,322 $ -- $ 68,783
============ ========== ==========
Non-cash investing and financing activities:
Assets acquired under capital lease $ -- $ 94,549 $ 124,254
============ ========== ==========
Transfer of assets from then parent $ -- $1,487,631 $ --
============ ========== ==========
Transfer of Yolo subsidiaries $ -- $ 51,442 $ --
============ ========== ==========
Purchase money note given on realty
acquisition $ -- $ -- $ 45,000
============ ========== ==========
Notes receivable from purchasers on
real estate sold $ 2,055,130 $5,241,702 $ --
============ ========== ==========
</TABLE>
See Notes to Consolidated Financial Statements
<PAGE> 41
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 1: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
A. PRINCIPLES OF CONSOLIDATION:
The consolidated financial statements include the accounts of FRM Nexus,
Inc. (the "Company" or "Nexus") and all of its subsidiaries. All significant
intercompany accounts and transactions have been eliminated.
B. BUSINESS ACTIVITIES OF THE COMPANY:
The Company was incorporated in November 1993 under the laws of the State of
Delaware to settle a class action (See Note 9E) against Programming and
Systems, Inc. (PSI), in order to liquidate certain assets in favor of the
shareholder class in settlement of the class action (See Note 11). However,
pursuant to Court Order Nexus is no longer under the obligation to
liquidate. Nexus intends to list its common stock on NASDAQ and operate as
an ongoing entity. The assets transferred to Nexus included PSI Capital
Corp. and PSI Food Services, Inc. which in turn own all of the stock of
Wendcello Corp., and Wendclark Corp. In 1995, an additional subsidiary,
Medical Financial Corp. was formed.
In 1996, the shares of Yolo Capital Corp. and Yolo Equities Corp. were
transferred to Nexus from the prior owner, who was also an officer of Nexus.
The controlling interest in the underlying assets of these corporations was
already received from PSI.
On February 26, 1996, the Company amended its certificate of incorporation
as follows:
1) The Company changed its name from PSI Settlement Corp. to FRM Nexus, Inc.
2) The Company increased authorized capital stock from 75,000 shares, par
value $1.00 per share, to 2,000,000 shares common stock of the par value
of ten cents (.10) per share.
All of the outstanding shares of stock of the Corporation, consisting of
10,000 shares of stock of PSI Settlement Corp., of the par value of $1 per
share, registered in the name of one shareholder, be changed into such
number of shares of common stock of FRM Nexus, Inc. of the par value of .10
per shares as shall be determined by the Board of Directors of the
Corporation, namely 1,211,635 shares of common stock. These shares had been
held in escrow for the benefit of the shareholders of PSI since the
settlement of the class action in January 21, 1994. On August 12, 1996, the
shares were released from escrow to shareholders of PSI.
1) The Food Services Companies consist of Wendclark Corp. and Wendcello
Corp.
Wendclark Corp. was incorporated in West Virginia on March 22, 1990.
Wendcello Corp. was incorporated in New York on June 25, 1990. The food
service companies were formed to acquire, own and operate eleven
existing Wendy's Old Fashioned Hamburger Restaurants in West Virginia
and the Hudson Valley, New York area. Six of the restaurants were
acquired from a franchisee of Wendy's International and five were
acquired from a subsidiary of Wendy's International. In addition, the
companies constructed 3 new restaurants which opened between December
1990 and November 1992. During fiscal 1996, two additional restaurants
were opened.
<PAGE> 42
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 1: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONT'D)
On June 21, 1996, Wendclark Corp. exercised its option to purchase the
land and buildings of the four restaurants it was leasing from Wendy's
International (See Note 7B-4).
The Food Service Companies' day-to-day operations are managed by
Management Corporations, which are affiliated to the extent set forth in
Note 8A.
2) The real estate business is conducted by PSI Capital Corp, Yolo Capital
Corp. and Yolo Equities Corp. PSI Capital Corp. was incorporated in
April, 1989 for the purpose of extending first and subordinate real
estate mortgages. These mortgages were subsequently foreclosed and the
properties were sold except for two parcels in Brookfield, Connecticut
(See Note 5). Yolo Capital Corp. and Yolo Equities Corp. hold beneficial
interest in trusts, own real estate and hold mortgages on real estate
parcels in Hunter, New York. The properties in Hunter, New York and
Brookfield, Connecticut are currently held for development and sale.
3) Medical Financial Corp was incorporated in New York on January 12, 1995.
The Company purchases the insurance claims receivable of medical
practices.
C. REVENUE RECOGNITION:
1) Food Service Companies:
The accrual method of accounting is used to record all income.
2) Real Estate:
The full accrual method is used on the sale of real estate if the profit
is determinable and the Company is not obligated to perform significant
activities after the sale to earn the profit. If the buyers initial and
continuing investments are inadequate to demonstrate a commitment to pay
for the property, the installment method is used, resulting in the
deferral of income.
The minimum initial investment is as follows:
Land held for commercial or residential development 20%
Commercial property with start-up situations 25%
Primary residential property 5%
Secondary residential property 10%
3) Purchase of Accounts Receivable:
Income is recognized from the purchase of accounts receivable in
proportion to the receivables that were collected. This method allows for
income to be recognized over the periods in which services are rendered.
D. RECEIVABLES:
1) Real Estate:
The Company evaluates the credit positions on its notes receivable and
the value of the related collateral on an on going basis. The Company
estimates that all of its notes receivable are fully collectible and the
collateral is in excess of the related receivables.
<PAGE> 43
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 1: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONT'D)
D. RECEIVABLES (Cont'd):
2) Purchase of Accounts Receivable:
Allowance for loan losses is increased by charges to income and decreased
by charge off (net of recoveries). Management's periodic evaluation of
the adequacy of the allowance is based on the Company's past loan loss
experience, known and inherent risks in the portfolio, adverse situations
that may affect the customer's ability to repay, the estimated value of
any underlying collateral and current economic conditions. After a
specified amount of time in each contract, the receivable is returned,
reducing the amount due to the customer.
E. INVENTORIES:
Inventories of food and supplies are stated at the lower of cost or market.
Amounts are relieved from inventory using the FIFO basis.
F. PROPERTY, LAND, EQUIPMENT AND DEPRECIATION:
Property, Land and equipment are stated at cost. Depreciation is provided by
application of the straight-line method over estimated useful lives as
follows:
Buildings 39 years
Land improvements 15 years
Leasehold improvements 10-22 years
Restaurant equipment 7 years
Computer equipment 5 years
Transportation equipment 5 years
G. REAL ESTATE HELD FOR DEVELOPMENT AND SALE:
Property and mortgages are carried at the lower of cost or market, less the
costs to sell. The methods for valuing property and mortgages where current
appraisals are unobtainable, is based on management's best judgements
regarding the economy and market trends. These factors cannot be precisely
quantified and verified. As a result, estimates may change based on ongoing
evaluation of future economic and market trends.
H. LEASES:
Leases which transfer substantially all of the risks and benefits of
ownership are classified as capital leases, and assets and liabilities are
recorded at amounts equal to the lesser of the present value of the minimum
lease payments or the fair value of the leased properties at the beginning
of the respective lease terms. Such assets are depreciated in the same
manner as owned assets. Interest expense relating to the lease liabilities
is recorded to effect constant rates of interest over the terms of the
leases. Leases which do not meet such criteria are classified as operating
leases and the related rentals are charged to expense as incurred.
I. LEASEHOLD COSTS:
The Company has capitalized the applicable costs and related expenses of
acquiring the leases for its various restaurants and is amortizing them over
the terms of the applicable leases, ten to twenty years.
<PAGE> 44
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 1: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONT'D)
J. TECHNICAL ASSISTANCE FEES:
Technical Assistance Fees, represented initial franchise fees paid to
Wendy's International at the inception of each franchised location, are
capitalized and amortized on a straight-line basis over fifteen to twenty
years, the term of the franchise.
K. INCOME TAXES:
Deferred income taxes are recognized for all temporary differences between
the tax and financial reporting bases of the Company's assets and
liabilities based on enacted tax laws and statutory tax rates applicable to
the periods in which the differences are expected to affect taxable income.
The Company accounts for such deferred taxes pursuant to Financial
Accounting Standards Board Statement No. 109.
L. CASH AND CASH EQUIVALENTS:
For purposes of the statement of cash flows, the company considers all
highly-liquid, short-term investments with an original maturity of three
months or less to be cash equivalents.
M. CONCENTRATION OF RISK:
Financial instruments which potentially subject the Company to
concentrations of credit risk consist principally of cash, commercial paper
maturing in less than 90 days and trade and notes receivables.
As of February 28, 1997, the Company had concentrations of cash in bank
balances totaling approximately $463,000 located at one bank, under two
different accounts which exposes the Company to concentrations of credit
risk.
All trade receivables arise from the purchase of insurance claims receivable
from several medical groups in the New York City area. The insurance claims
are from various insurance companies.
All note receivables are from the sale of real estate in New York and
Connecticut. Two purchasers account for approximately 53% and 43% of the
total notes receivable (See Note 2).
The Company's restaurant operations are all located in West Virginia and the
Hudson Valley area of New York.
N. USE OF ESTIMATES:
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
<PAGE> 45
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 2: NOTES RECEIVABLE
The Company has notes and mortgages receivable arising from the sale of real
estate (See Notes 5 and 8C). These notes have various terms for payments of
principal and interest and are collateralized by the underlying real estate.
These notes bear interest ranging from 6% to 14%. The Company recognizes
interest income on these notes on the accrual basis. These notes mature as
follows:
<TABLE>
<S> <C>
1998 $ 141,718
1999 2,469,520
2000 89,288
2001 77,156
2002 83,664
Thereafter 1,496,724
-----------
$ 4,358,070
===========
</TABLE>
As of February 28, 1997 and February 29, 1996, all notes receivable were
performing. There is no allowance for loss because the market value of the
collateral, less costs to sell is greater than the related notes receivable.
The notes receivable consist of the following:
<TABLE>
<S> <C>
Goshen, NY $ 2,310,000
Granby, CT 1,854,834
Pound Ridge, NY 150,000
Middletown, CT 43,236
-----------
$ 4,358,070
===========
</TABLE>
NOTE 3: FINANCE RECEIVABLES AND ALLOWANCE FOR CREDIT LOSSES
Finance receivables consists of the following:
<TABLE>
<CAPTION>
February 28, February 29,
1997 1996
----------- -----------
<S> <C> <C>
Purchase of accounts receivable $ 1,511,463 $ 629,291
Allowance for credit losses (145,218) (145,218)
Deferred finance income (127,354) --
----------- -----------
Finance receivables, net $ 1,238,891 $ 484,073
=========== ===========
</TABLE>
NOTE 4: PROPERTY, LAND AND EQUIPMENT
Property, Land and equipment consists of the following assets:
<TABLE>
<CAPTION>
February 28, February 29,
1997 1996
----------- -----------
<S> <C> <C>
Land $ 740,000 $ 50,000
Land improvements 296,600 90,100
Buildings 790,000 --
Restaurant equipment 2,571,281 2,336,106
Leasehold improvements 683,210 588,204
Computer equipment 47,985 29,132
Register systems under capital leases 218,803 218,803
Transportation 3,800 3,800
----------- ----------
Total 5,351,679 3,316,145
Less: Accumulated depreciation 1,897,197 1,429,387
----------- ----------
Property and equipment, net $ 3,454,482 $ 1,886,758
=========== ===========
</TABLE>
<PAGE> 46
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 4: PROPERTY, LAND AND EQUIPMENT (CONT'D)
Substantially all of the above assets are utilized in the food service
subsidiaries.
NOTE 5: REAL ESTATE HELD FOR DEVELOPMENT AND SALE
The borrowers on several mortgages defaulted on their loan payments and the
Real Estate Division (the division) successfully foreclosed on the
underlying properties. These properties have been capitalized at the value
of the mortgage debt. Some of the properties have been written down to fair
market value where the capitalized value exceeded the fair market value.
The foreclosed properties are shown net of co-investors. Co-investors were
used to finance the original mortgages receivable. Upon foreclosure, when
the recovery is for a lesser amount than the principal amount of the
mortgage, the division agreed that the first 10-15% of the losses, if any,
upon the liquidation of the collateral, shall be borne by it.
The following properties are included in real estate held for development
and sale:
<TABLE>
<CAPTION>
February 28, February 29,
1997 1996
----------- -----------
<S> <C> <C>
A. Hunter, NY $ 1,097,897 $ 1,072,897
B. Brookfield, CT 476,472 455,559
C. Goshen, NY -- 306,304
D. Pound Ridge, NY -- 225,000
E. Middletown, CT -- 186,600
F. Granby, CT -- --
----------- -----------
1,574,369 2,246,360
Less: Due to co-investors (145,000) (225,000)
----------- -----------
$ 1,429,369 $ 2,021,360
=========== ===========
</TABLE>
There has been no allowance for losses since February 28, 1994, when all of
the real estate was written down to the lower of cost or market, less costs
to sell.
A. HUNTER, NY
These are condominium units and land held for development and sale at the
base of Hunter Mountain in Greene County, New York (See Note 9F).
B. BROOKFIELD, CT
These are two parcels of land in Brookfield, Connecticut. The original
mortgage of $430,000 was held, less $70,000 due to co-investors. The Company
foreclosed upon the property. Current appraisals for the two parcels of land
are for $290,000 and $225,000. The property is valued at the face value of
the mortgage plus foreclosure costs and capitalized costs on the balance
sheet because this amount is less than its fair market value.
<PAGE> 47
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 5: REAL ESTATE HELD FOR DEVELOPMENT AND SALE (CONT'D)
C. GOSHEN, NY
A first mortgage was held on 90% of a parcel of land in Goshen, New York,
and a second mortgage on 10% of this same property. The property had been
foreclosed upon and was owned by the division. An action was instituted
against the village of Goshen to enforce a subdivision plan for the
property. During fiscal year 1994 this property had been written down to
$380,000 which represented its fair market value as vacant land. During
fiscal year 1996, 32 lots of the 165 lots were sold for $484,800, reducing
the $380,000 to $306,304 representing the amount at which the remaining 133
lots are included above. During fiscal 1997, the remaining lots were sold
for $2,014,950 (See Notes 2 and 9D).
The consideration received did not satisfy the initial investment criteria
which would be required in order to use the full accrual method of profit
recognition. The sale was accounted for using the installment method,
resulting in a deferral of income until the initial and continuing
investment criteria is sufficient (See Note 1D and 8C). The balance of
long-term deferred income at February 28, 1997 and February 29, 1996 was
$2,317,248 and $567,363, respectively. For the years ended February 28, 1997
and February 29, 1996, $152,950 and $36,200 was collected which resulted in
the recognition of income in the amounts of $110,385 and $30,372,
respectively.
D. POUND RIDGE, NY
The division held the first mortgage on four acres of residential land in
Pound Ridge, New York. During fiscal 1994 this property had been written
down to $225,000 based upon an appraisal. This property was sold during
fiscal 1997 for $225,000 (See Note 2).
E. MIDDLETOWN, CT
The division held the first mortgage on seven parcels of land in Middletown,
Connecticut, and the third mortgage on the home of the borrower. The amount
of the mortgages were for $550,000, less $40,000 due to participants. Based
upon appraisals this property had been written down to $300,000. It was then
owned by the division as a result of the foreclosure of the mortgages.
During fiscal year 1996, two properties were sold, leaving a balance of
$186,600. During fiscal 1997, the remaining property was sold.
F. GRANBY, CT
This was a partially built office building in Granby, Connecticut, which FRM
owned as a result of the foreclosure of the first mortgage on the property
which was acquired for approximately $1,000,000. Based on a current
appraisal the property had been written down to $900,000 during fiscal 1994.
This property was sold during fiscal 1996 for $4,800,000 (See Notes 2, 9D-1,
and 9H). The consideration received in fiscal 1996 did not satisfy the
initial investment criteria which would be required in order to use the full
accrual method of profit recognition. The sale was accounted for using the
installment method, resulting in a deferral of income (See Note 1D). The
balance of deferred income from this transaction at February 29, 1996 was
$2,685,175. In fiscal 1997, $2,845,168 was collected from the buyer,
resulting in the recognition of the balance of deferred income.
<PAGE> 48
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 6: LOANS RECEIVABLE OFFICER
Wendcello Corp. has made certain loans to its President who is not an
officer or director of Nexus. At February 28, 1997 and February 29, 1996
$92,526 and $87,226 were outstanding. Included in this amount was $5,300 of
interest accrued at 9% per annum. The loans have no specific repayment terms
and are accordingly reported as non-current.
NOTE 7: NOTES PAYABLE
The Food Service Companies entered into the following notes and capital
leases payable:
A. CAPITAL LEASES PAYABLE:
1) In January 1995, they entered into a lease for new cash register systems.
Sixty payments of $2,442 commenced April 1995. At the conclusion of the
lease, the equipment may be purchased for $12,150. This lease was
capitalized including the purchase option utilizing an imputed interest
rate of 9.37%.
2) In May 1995, additional new cash register systems were leased. Sixty
payments of $1,936 commenced June 1995. At the conclusion of the lease,
the equipment may be purchased for $8,797. This lease was capitalized
including the purchase option utilizing an imputed interest rate of
10.8%.
Minimum lease payments including imputed interest and principal through
maturity are as follows:
<TABLE>
<CAPTION>
Year-Ending Minimum Amounts Representing
February Lease-Payments Interest Principal
----------- -------------- --------- ---------
<S> <C> <C> <C>
1998 $ 52,535 $ 13,977 $ 38,558
1999 52,535 9,944 42,591
2000 52,535 5,486 47,049
2001 27,798 451 27,347
--------- --------- ---------
Total $ 185,403 $ 29,858 $ 155,545
========= ========= =========
</TABLE>
B. NOTES PAYABLE:
1) Bank:
A loan for $350,000 was used to finance the renovations and equipment of
a restaurant in Chester, New York. This loan is for a term of five years
and is payable in monthly principal payments of $4,167 plus interest at
1% above prime through September 29, 2000 at which time a balloon payment
of $100,000 plus accrued interest is due. The loan is secured by all the
inventory, furniture, fixtures and equipment of Wendcello and is
guaranteed by the three executive officers.
2) Bank:
On May 1, 1995, a loan for $200,000 from a local bank pursuant to a
promissory note and term loan agreement. The note is for a term of ten
years, bearing interest at one percent above the prime rate. Monthly
principal payments of $2,755 including interest commenced June 1, 1995.
The note is secured by all the personal property at the new Martinsville,
West Virginia restaurant and is guaranteed by the Wendclark's Chairman,
President and Vice President.
<PAGE> 49
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 7: NOTES PAYABLE (CONT'D)
3) Purchase Money Note Payable:
The consideration for the land purchased to extend a Wendy's parking lot
was $50,000, of which $5,000 was paid in cash and the balance by delivery
of five-year, 5%, $45,000 purchase money note secured by a deed of trust.
The note is payable in five annual installments of $10,394 on April 1,
1995 through 1999.
4) Mortgage Payable:
In June 1996, a loan was obtained for new financing in the aggregate
amount of $1,680,000. The loan was used to exercise the option to
purchase the land and buildings of the four restaurants leased from
Wendy's (See Note 9B). The loan bears interest at 9.25% over its term and
requires 60 monthly payments of $15,387 including principal and interest
calculated on a 20 year amortization basis. A balloon payment will be
required after five years. The loan, which required an $8,400 origination
fee in addition to other closing costs aggregating $41,913, is secured by
a first deed of trust on the realty of and the equipment at the four
restaurants and is guaranteed by Wendclark's three executive officers.
The loan agreement imposes various affirmative and negative covenants
upon Wendclark relating to the conduct of business, maintenance of
insurance, submission of financial statements of Wendclark and its
guarantors, compliance with certain financial ratios, restrictions on
dividends, management fees and the sale of Wendclark's outstanding
capital stock.
5) Medical Financial Corp., Bank:
A $300,000 line of credit was obtained from a bank. The line expires on
August 30, 1997 and bears interest at the rate of prime plus 1.5%. The
line is collateralized by a blanket lien on all of Medical Financial
Corp's assets and is guaranteed by FRM. The bank may withdraw this line,
if at any time the bank determines the collateral to be inadequate, deems
itself insecure or at any time after the occurrence of an event of
default. There were no commitment fees paid in connection with this line
of credit.
The amounts outstanding on all of the capital leases and notes payable were as
follows:
<TABLE>
<CAPTION>
February 28, February 29,
1997 1996
---------- ----------
<S> <C> <C>
Capital leases $ 155,545 $ 191,852
Bank loans-term 460,570 526,539
Bank loan-Credit line 100,000 --
Purchase money note 28,219 36,716
Mortgaged real estate 1,662,171 --
---------- ----------
2,406,505 755,107
Less current maturities 244,441 109,182
---------- ----------
Long-term debt $2,162,064 $ 645,925
========== ==========
</TABLE>
<PAGE> 50
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 7: NOTES PAYABLE (CONT'D)
Annual principal maturities for all of these notes as referred to above for the
years ended February 28, are as follows:
<TABLE>
<S> <C>
1998 $ 205,883
1999 111,159
2000 116,956
2001 200,434
2002 1,536,370
Thereafter 80,158
----------
$2,250,960
==========
</TABLE>
NOTE 8: RELATED PARTY TRANSACTIONS
A. MANAGEMENT AGREEMENT:
The day-to-day operations of the Food Service Division are managed by Cello
and Clark Management Corps., respectively. The management companies are
affiliated with the subsidiaries in that certain of its officers and/or
directors (none of whom are officers or directors of Nexus) are also
officers and/or directors of the subsidiaries. The management agreement took
effect upon the purchase of the restaurants and is to remain in effect as
long as the subsidiaries continue to own the restaurants.
The management agreement grants the management company complete authority
with respect to day-to-day operations, all of which is carried out under the
subsidiaries' name. Any non-routine matters such as the purchase or sale of
real property or fixed assets, assignment or sublease of a lease, any
proposed borrowing or financing or participation in a joint venture
including the exercise of the purchase option granted by the seller or
Wendy's requires the joint approval of the subsidiaries' and the management
company.
The management agreement provides for a basic fee equal to thirty percent in
Wendcello and forty percent in Wendclark of pre-tax cash flow determined
annually and paid on an estimated basis quarterly to be adjusted when annual
results are known. The management fees were $ 68,600 in 1997, $117,500 in
1996 and $178,000 in 1995. The agreement further provides for an incentive
fee equal to thirty and forty percent of the pre-tax proceeds of the sale or
refinancing of any assets owned or later acquired by the subsidiaries less
any amounts used to buy replacement assets or to pay off any refinanced
obligations. Whenever basic or incentive fees are paid, the subsidiaries
must pay a dividend to its parent equal to two and one-third times and one
and one-half times the amount of the fee paid to Cello and Clark Management
Corps., respectively.
The agreement further provides that in the event the subsidiaries exercise
the purchase option for the real property granted by Wendy's International,
the parent Company and the management company shall share in the capital
funding thereof (that is, for the portion which cannot be financed through
third parties). For any period in which cash flow is negative, working
capital advances shall be made to the subsidiaries by its parent and
management company in the ratio of 7 to 3 and 3 to 2 for Wendcello and
Wendclark, respectively.
<PAGE> 51
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 8: RELATED PARTY TRANSACTIONS (CONT'D)
B. CONSULTING AGREEMENT:
Wendclark has a three-year consulting contract with its Chairman (who is not
an officer or director of Nexus) renewed in 1996 through March 31, 1999
providing for a monthly fee of $1,150 plus reasonable expenses. For fiscal
1997, 1996 and 1995, $13,650, $12,600 and $12,550 were incurred pursuant to
this contract. At expiration, the agreement is automatically renewable for
as long as Wendclark remains in business at not less than the current fee.
C. NOTES RECEIVABLE:
The transaction involving the sale of land in Goshen, NY (See Notes 1C and
5C) and the related note receivable (See Note 2) was with Windemere in the
Pines at Goshen, Inc., a part of the Windemere Group of construction
companies, in which Jed Schutz, a director of Nexus, is an officer, director
and shareholder. This sale was accounted for using the installment method
(See Note 1C-2). The selling price of this land was $2,014,950 in fiscal
1997 and $484,200 in fiscal 1996, resulting in a deferred profit of
$1,453,646 in fiscal 1997 and $406,624 in fiscal 1996 (See Note 9D-2).
$110,385 of the deferred profit was recognized in fiscal 1997 and $30,372
was recognized in fiscal 1996. The balance of the notes receivable at
February 28, 1997 and February 29, 1996 were $2,310,000 and $448,000,
respectively. It is management's opinion that this transaction would be at
the same terms had the parties not been related.
NOTE 9: COMMITMENTS AND CONTINGENCIES
A. FRANCHISE AGREEMENT COMMITMENTS:
The food service subsidiaries are the franchisees for the sixteen Wendy's
Restaurants it owns and operates. The franchise agreements obligates the
subsidiaries to pay to Wendy's International a monthly royalty equal to 4%
of the gross sales of each restaurant during the month, or $250, whichever
is greater.
Additionally, the subsidiaries must contribute to Wendy's National
Advertising Program 2.5% of the gross sales and spend not less than 1.5% of
the gross sales of each restaurant for local and regional advertising. These
advertising costs are expensed as incurred.
B. MINIMUM OPERATING LEASE COMMITMENTS:
The Wendy's restaurants entered into various leases, with various clauses
relating to real estate taxes, common charges, renewals and percentage rent
with certain minimum payments.
Rent expense for these restaurants, were as follows:
<TABLE>
<CAPTION>
February 28, February 29, February 28,
1997 1996 1995
---------- ---------- ----------
<S> <C> <C> <C>
Base rentals $ 729,000 $ 665,750 $ 638,750
Contingent rentals 277,607 324,717 347,900
---------- ---------- ----------
Total $1,006,607 $ 990,467 $ 986,650
========== ========== ==========
</TABLE>
<PAGE> 52
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 9: COMMITMENTS AND CONTINGENCIES (CONT'D)
B. MINIMUM OPERATING LEASE COMMITMENTS (Cont'd):
In June, 1996 the division exercised its option to purchase the land and
buildings of the four restaurants it was leasing from Wendy's for $1,680,000
(See Note 7B-4). The purchase option agreement required Wendy's to be given
the right of first refusal, for a period of twenty years, in the event the
properties are resold.
In July, 1994 Nexus moved its executive offices to office facilities that
are leased under a three year and eight month lease expiring on February 28,
1998.
Subject to annual real estate adjustments, and additional rent in excess of
base sales, the following is a schedule of future minimum rental payments
required under the above operating leases as of February 28,:
<TABLE>
<CAPTION>
Year Ending
February
-----------
<S> <C>
1998 $ 739,436
1999 711,230
2000 714,851
2001 710,180
2002 714,346
Thereafter 6,001,419
-----------
Total $ 9,591,462
===========
</TABLE>
On March 1, 1996, pursuant to an agreement for the sale of real estate Nexus
leased back 50% of the building that was sold for a period of ten years. The
Company is obligated to pay for construction and landscaping costs necessary
to complete the building. The lease calls for monthly rent payable in the
period from March 1, 1996 throughout April 1, 1998, on the first day of each
such month in said period, shall be determined by the following formula: the
sum of (i) $10,500, (ii) the monthly payments due in said month for
principal and interest on the first and purchase money notes, namely $34,833
(See Note 2) and (iii) the operating expenses payable by the landlord for
said month pursuant to this lease and an existing lease on the remainder of
the building, less, (iv) the rent receivable from the existing lease for
said month under that lease. Commencing May 1, 1998 and for the balance of
the term, the annual base rent on a monthly basis is $35,290.33 per month.
On June 20, 1997, the Company sublet the entire space covered under the
lease, with any profit accruing to the Company. The sublease is part of the
Real Estate Division of the Company.
C. CONTRACTS:
1) The Company has a three year employment contract with one of its
executive officers commencing January 1, 1995 through December 31, 1997.
The base salary for this executive is $120,000 in 1996, and $130,000 in
1997 plus an unaccountable expense allowance of $5,000 per year, plus any
other reasonable expenses. In, addition he received a bonus of $60,000 in
1996.
<PAGE> 53
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 9: COMMITMENTS AND CONTINGENCIES (CONT'D)
C. CONTRACTS (Cont'd):
2) The Food Service Division subsidiaries have three-year consulting
contracts with one of its executives and another consultant renewed in
1993 providing for a total fee of approximately $1,750 per month, plus
reasonable expenses. At expiration, the agreements are automatically
renewable thereafter for as long as these subsidiaries remain in business
at not less than the current fee. For fiscal 1997, 1996 and 1995 $29,500,
$27,000 and $27,000 was incurred pursuant to this contract.
D. SALE OF REAL ESTATE:
1) Upon full collection of the note receivable as referred to in Note 2 for
Granby in the amount of $1,854,834, an additional liability will be due
and payable to the co-investors of the original mortgage for
approximately $150,000. If the note is not collected in full, an amount
substantially less will be paid. An accrual is not included for this
amount because there is no obligation to pay the co-investors until full
payment of the note is received.
2) The Company received additional consideration for the land sold in
Goshen, N.Y., which is not included among the notes receivable (See Notes
2, 5C and 8C). This was a purchase money debenture payable to PSI Capital
Corp. for $2,499,750 which matures on February 28, 2002 together with
interest at the rate of 6% per annum payable at maturity, but subject to
increase or decrease, as set forth below, contingent on the sale of the
single family residences to be built on the 165 lots which were sold.
There is no interest income being accrued on this debenture. The
collection of this purchase money debenture is contingent upon the sale
of single family residences at a profit, therefore, none of this amount
is included in income.
Prior to the maturity date, the principal sum of this debenture shall be
prepaid as each of the single family residences constructed on the real
estate are conveyed to the end purchaser, each such prepayment to be
equal to at least 50% of the net profit to the buyer with respect to said
sale. The buyer agrees to take such action as is necessary to construct
and sell the one family residences and the buyer shall not sell any
portion of the real estate except to an end purchaser of said residences.
Upon the sale of the last residence that is built or could be built on
the real estate, the parties shall compute the amount of the buyer's net
profit on all residences constructed on the real estate (the "final net
profit of the buyer"). If 50% of the final net profit of the buyer is (i)
more that $2,499,750, the excess shall be paid to the seller at the time
or (ii) less than $2,499,750, the deficiency shall not be payable by the
buyer and the debenture shall be deemed fully paid. At that date the
interest shall be adjusted to reflect the actual principal sum of the
debenture already paid.
<PAGE> 54
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 9: COMMITMENTS AND CONTINGENCIES (CONT'D)
E. FORMATION OF FRM NEXUS (FORMERLY PSI SETTLEMENT CORP):
In 1993, Shareholders of Programming and Systems, Inc. (PSI) brought a class
action against PSI and certain of its officers in the United States District
Court for the Southern District of New York, which was settled by a
Stipulation of Settlement dated as of November 15, 1993(the "Stipulation"),
pursuant to which PSI Settlement Corp. (Nexus) was formed. On January 21,
1994 Judge Robert Sweet signed the Order confirming the Stipulation.
Pursuant to that Stipulation (i) the eligible shareholders of PSI received a
pro-rata distribution of $1,400,000, after deduction of the fees and
expenses of the class action, which amounted to fifty cents per share, and
(ii) all the shares of Nexus were delivered to Escrow Agents to hold for the
benefit of all shareholders of PSI. Pursuant to the Orders of Judge Sweet,
PSI transferred certain assets to Nexus as specified in the Stipulation and
the Court's Orders. These payments, including the shares of Nexus, fully
settled all of the claims by PSI shareholders that could have been asserted
against PSI and the other defendants in the class action.
On June 12, 1995 Judge Sweet signed an Order approving an amendment of the
Stipulation which permitted Nexus to operate as an ongoing entity rather
than liquidating its assets, provided the escrowed shares of Nexus were
delivered out to PSI shareholders by June 12, 1997 and listed for trading on
NASDAQ.
In addition to settling the class action and making payment to shareholders,
PSI has now settled the action by the Securities and Exchange Commission
against it and resolved the material claims and lawsuits which arose out of
its discontinued vocational school operations. At the present time, PSI is
indebted to (i) the United States for $1,000,000 by reason of the fraudulent
conduct of a former chief executive officer, (ii) to the Internal Revenue
Service for $416,000 representing excess refunds of income taxes made by IRS
to PSI plus interest thereon and (iii) to a former landlord of a PSI school
for $98,621. While PSI may not be able to pay its debts in full, Nexus is
not responsible for their payment, will defend against any claim that may be
instituted and management believes it will be successful.
F. LITIGATION:
The Yolo Capital subsidiary (Yolo) filed an action against the former
management for breach of management agreements and for conversion of monies
resulting from cutting wood on its property in Hunter, NY. The defendants
have counterclaimed against Yolo for breach of contract, interference with
contract, conversion and conspiring to interfere with their contracts. The
defendants are seeking damages amounting to over $2,000,000. Yolo's legal
counsel believes that the counterclaims will be dismissed.
<PAGE> 55
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 9: COMMITMENTS AND CONTINGENCIES (CONT'D)
G. BANKRUPTCY:
On March 25, 1992, PSI Capital Corp. filed for relief under Chapter 11 of
the Bankruptcy Code. This filing was done in order to protect second
mortgage positions on two of the properties. This action provided PSI
Capital Corp., with sufficient time to negotiate with the holders of prior
mortgages and secure PSI Capital Corp's interest in the properties. A plan
of reorganization has been filed and PSI Capital Corp. expects to complete
the Chapter 11 proceeding by the fiscal year ending February 28, 1998.
H. LOAN GUARANTY:
The Company received the unpaid balance of its $1,900,000 purchase money
note when the purchaser of the property in Granby, Ct. refinanced the
mortgage with a bank in the amount of $1,900,000. As part of the
refinancing, Nexus guaranteed payment of this mortgage. Payments include
interest and principal over the term of 25 years.
The interest rate was fixed at closing based upon the five-year U.S.
Treasury Note Constant Maturity Yield plus 2.75% and continues at that
rate for the first five years of the loan. Then repricing at the fifth,
tenth, fifteenth and twentieth year anniversaries at a rate equal to the
then 5-year U.S. Treasury Note Constant Maturity Yield rate on said
anniversary date plus 2.75%. The Interest rate will have a ceiling of 12%
and a floor of 7% for the first adjustment (year 6) only.
NOTE 10: INCOME TAXES
The provision for (benefit from) income taxes consist of the following:
<TABLE>
<CAPTION>
February 28, February 29, February 28,
1997 1996 1995
------------ ------------ ------------
<S> <C> <C> <C>
Currently payable:
Federal $ 0 $ 0 $ 0
State 76,288 14,637 76,821
-------- -------- --------
Total currently payable 76,288 14,637 76,821
-------- -------- --------
Deferred:
Federal $ 0 $ 0 $ 0
State 86,422 (13,529) (6,817)
-------- -------- --------
Total deferred 86,422 (13,529) (6,817)
-------- -------- --------
Total $162,710 $ 1,108 $ 70,004
======== ======== ========
</TABLE>
Nexus filed consolidated federal tax return with PSI through August 12,
1996, which has no federal tax liability due to current and prior year net
operating losses. After August 12, 1996, Nexus and its subsidiaries will
file a consolidated tax return without PSI (See Note 1B).
<PAGE> 56
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 10: INCOME TAXES (CONT'D)
Significant components of deferred tax liabilities (assets) were as
follows:
<TABLE>
<CAPTION>
February 28, February 29, February 28,
1997 1996 1995
----------- ----------- -----------
<S> <C> <C> <C>
Property, plant and
equipment $ 5,764 $ -- $ --
Installment sale of
real estate 60,312 -- --
----------- ----------- -----------
Gross deferred tax
liabilities 66,076 -- --
----------- ----------- -----------
Tax loss carryforwards 176,007 1,869,712 1,817,195
Property, plant and
equipment -- 20,346 (6,817)
----------- ----------- -----------
176,007 1,890,058 1,810,378
Less Valuation allowance (176,007) 1,869,712 1,817,195
----------- ----------- -----------
Gross deferred tax
assets -- 20,346 (6,817)
----------- ----------- -----------
$ 66,076 $ 20,346 $ (6,817)
=========== =========== ===========
</TABLE>
The following is a reconciliation of the statutory federal and effective
income tax rates for the years ended:
<TABLE>
<CAPTION>
February 28, February 29, February 28,
1997 1996 1995
------------ ------------ ------------
% of % of % of
Pretax Pretax Pretax
Income Income Income
------------ ------------ ------------
<S> <C> <C> <C>
Statutory federal income
tax expense rate 34.0% 0% 34.0%
State taxes, less federal
tax effect 6.6 0 7.0
Permanent differences 0 -- 1.8
Utilization of prior net
operating losses (32.0) (0) (28.4)
----- -- -----
8.6% 0% 14.4%
===== == =====
</TABLE>
As required under SFAS 109, the Company must provide for the future
benefits of its net operating loss (NOL) carryforwards. The Company,
however, has taken a 100% valuation allowance against all NOL
carryforwards. A 100% valuation allowance was taken due to a history of
operating losses and the uncertainty of generating profits in the
foreseeable future.
<PAGE> 57
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 10: INCOME TAXES (CONT'D)
The Company has a pre-tax loss of approximately $518,000 from August
12, 1996 to February 28, 1997 (See Note 1B). These losses will be
available for future years, expiring February 28, 2012. The Company has
taken a 100% valuation allowance against this NOL carryforward, for the
same reasons as stated above.
NOTE 11: TRANSFER OF ASSETS FROM PARENT
Pursuant to Court Order as discussed in Note 1B, the following assets and
subsidiaries were transferred from PSI TO Nexus during the year ended
February 29, 1996:
<TABLE>
<S> <C>
Shares of PSI Subsidiaries $ 534,419
Cash value of Officers' Life Insurance 58,875
Real estate held for development and sale 869,413
Misc. receivables 24,924
----------
Total $1,487,631
==========
</TABLE>
<PAGE> 58
FRM NEXUS, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 1997, FEBRUARY 29, 1996 AND FEBRUARY 28, 1995
NOTE 12: BUSINESS SEGMENT INFORMATION
The following analysis provides segment information for the three industries in
which the Company operates:
<TABLE>
<CAPTION>
Food Medical
1 9 9 7 Service Real Estate Financing Total
--------- ----------- ----------- ----------- --------
<S> <C> <C> <C> <C>
Net Sales $16,263,323 $ 3,714,234 $ 216,521 $20,194,078
=========== =========== =========== ===========
Operating Profit $ 99,075 $ 1,706,070 $ 77,838 $ 1,882,983
=========== =========== =========== ===========
Identifiable Assets $ 4,965,638 $ 7,314,057 $ 1,469,898 $13,749,593
=========== =========== =========== ===========
Capital Expenditures $ 376,264 $ - $ 18,853 $ 395,117
=========== =========== =========== ===========
Depreciation and
Amortization $ 532,909 $ - $ 3,777 $ 536,686
=========== =========== =========== ===========
<CAPTION>
Food Medical
1 9 9 6 Service Real Estate Financing Total
--------- ----------- ----------- ----------- --------
Net Sales $14,536,291 $ 349,602 $ 253,857 $15,139,750
=========== =========== =========== ===========
Operating Profit (Loss) $ (60,083) $ (220,085) $ 138,544 $ (141,624)
=========== =========== =========== ===========
Identifiable Assets $ 3,491,533 $ 8,123,560 $ 586,487 $12,201,580
=========== =========== =========== ===========
Capital Expenditures $ 797,207 $ - $ - $ 797,207
=========== =========== =========== ===========
Depreciation and
Amortization $ 437,210 $ - $ - $ 437,210
=========== =========== =========== ===========
<CAPTION>
1 9 9 5 Service Real Estate Financing Total
--------- ----------- ----------- ----------- --------
Net Sales $14,523,900 $ - $ - $14,523,900
=========== =========== =========== ===========
Operating Profit (Loss) $ 621,746 $ (123,030) $ (11,495) $ 487,221
=========== =========== =========== ===========
Identifiable Assets $ 3,104,880 $ 2,121,898 $ 201,718 $ 5,428,496
=========== =========== =========== ===========
Capital Expenditures $ 300,092 $ - $ - $ 300,092
=========== =========== =========== ===========
Depreciation and
Amortization $ 364,352 $ - $ - $ 364,352
=========== =========== =========== ===========
</TABLE>
All revenue is generated in the eastern portion of the United States.
<PAGE> 59
FRM NEXUS,
INC.
AND SUBSIDIARIES
CONSOLIDATED FINANCIAL STATEMENT SCHEDULES
FEBRUARY 28, 1997
Schedule I - Condensed financial information of registrant
DOES NOT APPLY
Schedule II - Valuation and qualifying accounts
<TABLE>
<CAPTION>
Column A Column B Column C Column D Column E
Additions
-----------------------
Description Balance Deductions Balance
at Charged Charged at
beginning to to end of
of costs and other period
period expenses accounts
describe
<S> <C> <C> <C> <C> <C>
February 29, 1996:
Allowance for
credit losses $145,218 $ - $ - $ - $145,218
======== ======== ========= ========= ========
February 28, 1997:
Allowance for
credit losses $145,218 $ - $ - $ - $145,218
======== ======== ========= ========== ========
</TABLE>
<PAGE> 60
FRM NEXUS, INC. AND SUBSIDIARIES
CONSOLIDATED FINANCIAL STATEMENT SCHEDULES
FEBRUARY 28, 1997
Schedule III -- Real Estate and Accumulated Depreciation
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
Column Column Column Column
A B C D
Cost capitalized
Initial cost to subsequent to
Encumbrances Company acquisition
Descriptions 2 ------------ ---------------------- --------------------
Land Buildings Improve- Carrying
and ments costs
improvements
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Partial investment
in condominium
development;
Hunter; NY $ -- $ -- $1,097,897 $ -- $ --
Unimproved land;
Brookfield, CT -- 426,579 -- -- 49,893
------------ --------- ---------- -------- -------
Total $ -- $426,579 $1,097,897 $ -- $49,893
============ ========= ========== ======== =======
</TABLE>
<TABLE>
<CAPTION>
Column Column Column Column Column
E F G H I
Life
Gross amount on which
at which carried depre-
at close of period ciation
-------------------------------- Accumu- in latest
Buildings lated Date of income
and depre- const- Date statements
Land improvements Total ciation ruction acquired is computed
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Partial investment
in condominium
development;
Hunter; NY $ -- $1,097,897 $1,097,897 $ -- $ -- 2/29/96 N/A
Unimproved land;
Brookfield, CT 476,472 -- 476,472 $ -- $ -- 5/11/92 N/A
-------- ---------- ---------- ---- ----
Total $476,472 $1,097,897 $1,574,369 $ -- $ --
======== ========== ========== ==== ====
</TABLE>
The following is a reconciliation of the total amount at which real estate
was carried for the years ended:
<TABLE>
<CAPTION>
February 28, February 29, February 28,
1997 1996 1995
----------------------- ------------------------- -----------------------
<S> <C> <C> <C> <C> <C> <C>
Balance at begin-
ning of period: $2,246,360 $2,287,975 $2,484,513
Additions during period:
Acquisitions through
foreclosure $ -- $ -- $ --
Other acquisitions 25,000 1,072,897 --
Improvements, etc. -- -- --
Capitalized carrying
costs 24,334 49,334 22,400 1,095,297 3,462 3,462
------- ---------- ---------- ---------- -------- ----------
2,295,694 3,383,272 2,487,975
Deductions during period:
Cost of real
estate sold 721,325 1,136,912 200,000
Other (Describe) -- -- --
------- ---------- --------
721,325 1,136,912 200,000
---------- ---------- ----------
Balance at close
of period $1,574,369 $2,246,360 $2,287,975
========== ========== ==========
</TABLE>
<PAGE> 61
FRM NEXUS, INC. AND SUBSIDIARIES
CONSOLIDATED FINANCIAL STATEMENT SCHEDULES
FEBRUARY 28, 1997
Schedule IV -- Mortgage Loans on Real Estate
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Column Column Column Column Column Column Column Column
A B C D E F G H
Description Interest Final Periodic Prior Face Carrying Principal
rate maturity payment liens amount amount amount
date term of of of
mortgages mortgages loans subject
to delinquent
principal
or interest
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
First Mortgages:
Interest
Unimproved land; only to
Goshen, NY 6% 2/28/99 maturity None $2,310,000 $2,310,000 $ --
$75,000
Unimproved land; per
Pound Ridge, NY 8% 6/19/98 annum None 150,000 150,000 --
Single Family 12% through -- -- 130,736 43,236 --
residential; to 8/8/99
three mortgages 14%
under $20,000
each
Purchase Money Note:
$17,417
Office building; per
Granby, CT 8.25% 2/28/16 month to None 1,900,000 1,854,834 --
maturity ---------- ---------- --------
$4,490,736 $4,358,070 $ --
========== ========== ========
</TABLE>
The following is a reconciliation of the total amount at which mortgage loans
were carried for the years ended:
<TABLE>
<CAPTION>
February 28, February 29, February 28,
1997 1996 1995
------------------------ -------------------------- -------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance at beginning
of period $5,166,702 $ -- $ --
Additions during period:
New Mortgage loans $2,049,034 $5,241,702 $ --
Other (describe) 2,049,034 -- 5,241,702 -- --
---------- ---------- ---------- --------- ------------- ---------
7,215,736 5,241,702 --
Deductions during period:
Collection of
principal 2,857,666 75,000 --
Foreclosures --
Cost of mortgage sold --
Amortization of premium --
Other (Describe) -- 2,857,666 -- 75,000 -- --
---------- ---------- ---------- --------- ------------- ---------
Balance at close of period $4,358,070 $5,166,702 $ --
========== ========== =========
</TABLE>
<PAGE> 62
Exhibit Index
-------------
(b) Exhibits: All of the following exhibits were filed with the
original Form 10, dated June 27, 1997, except Exhibit 10.04
which is filed with this Amendment No. 1.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
3.01 Certificate of Incorporation of the Company.
3.02 Certificate of Amendment of Certificate of Incorporation of the Company.
3.03 Amended By-Laws of the Company.
3.04 Settlement Stipulation dated November 17, 1993.
3.05 Court Order dated November 17, 1993
3.06 Final Judgment and Order Approving Settlement.
3.07 Amendment to Settlement Stipulation.
3.08 Court Order Amending Final Judgment and Order.
3.09 Stipulation and Order Authorizing Release of Shares From Escrow.
3.10 Opinion re release of shares.
4.01 Specimen Common Stock Certificate
5.01 Opinion re legality of common stock.
10.01 Agreement for sale of lots in Goshen, NY to Windemere in the Pines at Goshen,
Inc.
10.03 Management Agreement for Wendy's Restaurants.
10.04 Employment and Consulting Agreement of Peter Barotz.
19.01 Letter to shareholders dated January 5, 1996.
19.02 Letter to shareholders dated July 26, 1996.
23.01 Consent of Michael, Adest & Blumenkrantz.
</TABLE>
<PAGE> 1
EXHIBIT 10.04
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
--------------------
Agreement dated as of January 2, 1997 by and between FRM Nexus,
Inc.
(formerly known as PSI Settlement Corp., 271 North Avenue, New Rochelle, New
York 10801 ("Company") and Peter Barotz, 271 North Avenue, New Rochelle, New
York 10801 ("Executive").
WHEREAS, by Agreement made effective January 1, 1995 ("Employment
Agreement") Programming and Systems, Inc. agreed to employ Executive as its
chief executive officer and agreed to certain compensation arrangements, and
WHEREAS, Company assumed the obligations of the Company by resolution
of its Board of Directors adopted on October 7, 1995, and
WHEREAS, the parties wish to modify the Employment Agreement,
NOW, THEREFORE, in consideration of the promises contained herein, the
parties agree as follows:
1. Effective January 2, 1997 Executive shall resign as chief
operating officer of Company. However, Executive shall continue to be employed
by Company as an advisor/consultant to the new President and Chief Operating
Officer of Company and its subsidiary Medical Financial Corp. ("MFC").
Executive shall devote a substantial portion of his time to the business of
Company and shall, inter alia, consult with, advise, educate and assist the
management of Company in its operations. Executive shall assist new management
during the transition period and gradually devote less efforts to Company and
more to MFC, as Company's new management team determines.
2. All other terms of the Employment Agreement shall remain in
effect.
IN WITNESS WHEREOF, the parties have agreed as of the date first above written.
FRM NEXUS, INC.
By: /s/ Seth Grossman
-----------------------------
Seth Grossman, President
/s/ Peter Barotz
-------------------------------
Peter Barotz
<PAGE> 2
EMPLOYMENT AGREEMENT
The Agreement made effective January 1, 1995 by and between PROGRAMMING
AND SYSTEMS, INC., a corporation organized under the laws of the State of New
York (the "Company") and Peter Barotz (the "Executive");
WHEREAS, the Company desires to retain the services of the Executive as
its chief executive officer, reporting to the Board of Directors of the
Company, and
WHEREAS, the Company desires to assure itself of the availability of
the Executive's services initially for a period of three years, and
WHEREAS, the Executive is agreeable to accepting employment by the
Company on the terms and conditions hereinafter set forth,
NOW, THEREFORE, it is mutually agreed as follows:
1. Term and Duties.
The Company agrees to employ the Executive as its chief executive
officer for a period commencing January 1, 1995 and ending December 31,
1997. In such capacity the Executive shall perform such duties,
appropriate and related to the function of such office, as the Board of
Directors of the Company shall from time to time direct.
The Executive hereby accepts such employment and agrees to devote a
substantial amount of his business time and attention thereto, but not
his full time, all on terms and conditions herein below set forth. In
the event the Executive shall cease to be an employee of the Company
prior to the scheduled expiration date of the term hereof as a result of
a breach by the Company in any of its obligations hereunder, the Company
shall pay the Executive all of the compensation herein provided for
until the earlier of such scheduled expiration date or his acceptance of
other comparable employment. For purposes hereof comparable employment
shall be deemed to mean employment in a chief executive capacity at a
level of compensation comparable to that provided for herein with a
company of a size and stature similar to that of the Company. The
Company acknowledges that the Executive shall be free to reject without
prejudice to his rights hereunder any offer of employment which in his
sole discretion does not constitute comparable employment as herein
defined.
1
<PAGE> 3
2. Compensation.
a. In consideration of the services to be rendered to the Company hereunder,
including any and all services which may be rendered to any subsidiaries of the
Company, the Company will pay or cause to be paid to the Executive a base salary
as follows:
For calendar year:
1995 - $110,000.00 per annum
1996 - $120,000.00 per annum
1997 - $130,000.00 per annum
b. The Executive shall receive an unaccountable expense allowance of $5,000.00
per annum.
c. In the event the Company enters into a new venture, program or business
activity (including without limitation an acquisition) the Company and the
Executive shall negotiate an appropriate incentive and/or bonus arrangement for
the Executive.
3. Situs of Employment.
The Executive's regular place of employment shall be at the principal offices
of the Company presently located in New Rochelle, New York.
4. Expenses.
All travel and other reasonable expenses incident to the rendering of services
by the Executive hereunder will be paid by the Company. The Company recognizes
that in rendering such services the Executive will be required to entertain
various persons and representative of the Company and organizations with which
it has or seeks to develop business relationships. The Company will reimburse
the Executive on presentation of expense accounts for any such entertainment
expenses in accordance with the usual account procedures of the Company. In
order to facilitate such entertainment the Company agrees to pay or reimburse
the Executive for one half the cost of maintaining a membership in a country
club to be selected by him. If any such expenses are paid in the first instance
by the Executive the Company will promptly reimburse him therefore on
presentation of receipts or other evidences.
The Company agrees to continue to provide the Executive with an automobile and
during the term of this agreement, and to replace said automobile with another
automobile of comparable quality approximately every two years.
2
<PAGE> 4
5. Service.
The Executive may, during the term of this Agreement, including renewals,
engage in other business activities including without limitation the ownership
and/or serving as chief executive officer of such businesses and continue to
utilize the Corporate premises for these purposes. During the term of this
Agreement the Executive shall be entitled to reasonable vacations.
6. Disability.
If the Executive fails because of illness or other incapacity for a period of
six consecutive months to render substantial time and services to the Company
of the character required hereunder, the Board of Directors of the Company may
determine that he has been disabled. In such event, the Executive will continue
to render such advisory and consultatory services as may reasonably be
requested of him and during the period of such disability shall receive
compensation hereunder at the rate of one half of the salary provided for
herein, during the unexpired term of this agreement and any renewals thereof.
7. Death.
If the Executive dies during the term of this Agreement the Company shall pay
to his widow if she survives him, or if the Executive dies without leaving a
spouse surviving him then to his Estate within 120 days after his death the
lump sum of $25,000 in addition to his accrued salary to the date of his death.
8. Medical Benefits.
The Executive shall receive full medical and dental benefits from the Company.
He may participate in the hospitalization, medical and insurance plans now in
force or in any other benefit plan or program which will be to the best
interests of the Executive and the Company and which will provide the Executive
with a benefit plan acceptable to him.
9. Automatic Renewal.
The term of this Agreement shall be automatically extended for consecutive
additional one year periods unless either party shall notify the other of his
or its intention not to renew the Agreement not less than 120 days prior to the
scheduled expiration date of this Agreement or any such renewal thereof. Any
such notice shall be in writing and sent to the other party by certified mail.
3
<PAGE> 5
10. Breach.
A breach of any provision of this Agreement shall not constitute a breach
of the entire Agreement. A waiver by the Company or by the Executive of a
breach of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach by either.
11. Successors and Assigns.
This Agreement shall be binding upon and enure to the benefit of any
successor of the Company (including any corporation which may acquire all
or substantially all of the Company's operations or assets and business or
with or into which the Company may be consolidated or merged), including
without limitation any company distributed to the shareholders of the
Company. Any successor shall be deemed substituted for the Company under
the terms hereof.
12. Amendment.
This Agreement may not be amended, modified or supplemented except by
subsequent written agreement.
13. Arbitration of Disputes.
Any controversy of claim arising out of or relating to this Agreement or
the breach thereof shall be settled by arbitration in the City of White
Plains, New York in accordance with the rules then obtaining of the
American Arbitration Association and judgment upon the award rendered may
be entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties thereunto duly authorized have caused this
Agreement to be executed on the 23rd day of November, 1994.
PROGRAMMING AND SYSTEMS, INC.
By: /s/ Bridgit Dewsnap
--------------------------
Bridgit Dewsnap, Secretary
EXECUTIVE
/s/ Peter Barotz
--------------------------
Peter Barotz
4
