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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-K
ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended April 30, 1998 Commission File No. 000-23250
MARKET AMERICA, INC.
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(Exact Name of Registrant as Specified in its Charter)
North Carolina 56-1784094
- ------------------------------- -------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
7605-A Business Park Drive
Greensboro, NC 27409
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(Address of Principal Executive (Zip Code)
offices)
(910) 605-0040
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(Registrant's Telephone Number, Including Area Code)
Securities Registered under Section 12(b) of the Exchange Act:
None
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(Title of Class)
Securities Registered under Section 12(g) of the Exchange Act:
Common Stock, par value $.00001 per share
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(Title of Class)
Check if the registrant (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act of 1934 during the preceding 12 months
(or for such shorter period as the registrant was required to file such
reports), and (2) has been subject to such filing requirements for the past 90
days. Yes |X| No |_|
Check if disclosure of delinquent filers in response to Item 405 of Regulation
S-K is not contained herein and no such disclosure will be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. |_|
The aggregate market value of shares of Common Stock of the registrant held by
non-affiliates (based on the July 28, 1998 closing sale price of $5.125) was
$26,329,431 million. The Common Stock is traded over-the-counter and quoted
through the OTC Bulletin Board. As of July 28, 1998, 19,950,000 shares of the
Common Stock were outstanding.
Documents Incorporated by Reference:
Certain information from the Notice and Information Statement for the
registrant's annual meeting of stockholders, scheduled to be held September 15,
1997, is incorporated by reference in Part III, Items 10, 11, 12 and 13 of this
report.
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<PAGE>
Item 1. Business
Introduction
Market America, Inc. is a six-year-old product brokerage and one-to-one
marketing company that sells an assortment of consumer-oriented products and
services, including automotive lubricants, enzyme-activated cleaning and soil
conditioning products, biologically activated hydrocarbon remediation products,
water filters, household cleaning products, frozen gourmet meals, flower
arrangements, dietary and nutritional supplements, vitamins, photographic
services, personal protection devices, jewelry, a full line of custom-blended
cosmetics and a separate line of cosmetics developed especially for teenagers,
personal care products including skin and hair care products and bath products,
personal development products and various marketing support materials. The
Company operates through a network of approximately 60,000 independent
distributors.
The Company has attempted to position itself as a leader in a relatively new
distribution trend, the mass customization of products and services. Mass
customization refers to utilizing information and technology to produce high
volumes of customized or differentiated products at an affordable cost to the
end consumer. Market America, Inc. considers itself a leader in mass
customization. The Company has thus far introduced its customized Motives(TM)
cosmetics line, a customized gourmet food line and a recruiting system which
assists its distributors by customizing and focusing upon those characteristics
which are likely to produce new distributors with improved communication skills
and performance within a distributor's sales organization and in the recruitment
of prospective distributors.
Market America also considers itself a leading edge marketing and distribution
company. The Company believes it has taken the best attributes of existing
distribution systems and combined them into a unique marketing plan, referred to
as an UnFranchise(TM). The Market America UnFranchise(TM) system is not a
franchise, not a retail store, not a mail order business and not a traditional
multi-level/direct sales company. Market America is a product brokerage company
that combines the power of direct selling with the blueprint for success often
associated with the franchising industry without the costs and charges normally
associated with franchising. Market America is a hybrid between franchising and
direct selling. It is like franchising because of the systemization and required
methods of doing business. Within this structured environment, Market America
applies the power of direct selling by developing one-to-one relationships but
taking this concept to a new level by focusing upon share of customer through
mass customization.
The Company's principal executive offices and national distribution center are
located at 7605-A Business Park Drive, Greensboro, North Carolina 27409. The
telephone number at that address is (336) 605-0040.
Products and Manufacturing
Market America offers a wide variety of market driven products and services.
These products and services are presented in a unique marketing environment
known as the Market America "Mall without Walls(TM)." The Company presents its
products within this virtual Mall atmosphere in a broad assortment of "stores".
These stores do not constitute market segments but, rather, represent a
positioning of the products for marketing purposes.
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In the fiscal year ended April 30, 1998, the only product or class of similar
products or services whose sales exceeded 15% of the Company's gross revenue was
OPC-3, or Oligomeric Proanthocyanidins, which grew to 34.2% of sales from 25.4%
in fiscal year 1997 and 13.7% in fiscal year 1996. Sales volume for the
Company's former leading seller, Thermochrome 5000, an energy and weight
management product, remained stable in fiscal year 1998, but declined as a
percentage of total sales to less than 15%. In fiscal years 1997 and 1996, sales
of Thermochrome 5000 constituted 17.1% and 30.9%, respectively, of total sales.
Sales of the Company's products are primarily dependent upon the efforts of the
Company's independent distributors and preferred customers. Distributor growth
is vital to continued success in the direct selling industry. The Company had
59,298, 48,597 and 34,046 active distributors at April 30, 1998, 1997 and 1996,
respectively. In order to qualify as an "active" distributor, individuals must
meet certain sales, reporting and management requirements. Management expects
the number of active distributors to continue to grow as the Company's product
lines expand and as distributor recruitment increases.
Distributor commissions are calculated and paid weekly based on business volume,
which is a cumulative measure of distributor or wholesale cost of goods
purchased and sold by distributors. Commissions are the Company's most
significant expense and represent approximately 44.68% of net sales volume.
Management believes distributor commissions as a percent of net sales will
remain consistent for the year ending April 30, 1999.
As a product brokerage company, the Company does not engage in manufacturing
activities. All products sold by the Company are purchased from unrelated
suppliers. All of the Company's products are sold under trade names that are
exclusive to the Company under contracts that protect the trade names and
prevent them from being used by other direct sales companies. This strategy
provides flexibility in introducing new products and withdrawing products from
the market, and minimizes capital investment and product liability exposure. One
supplier, Purity Technologies Inc. (formerly Isotonix Corporation), a
manufacturer of vitamin and nutritional products, supplies the Company with
vitamin compounds and nutritional supplements, including OPC-3, that accounted
for 49.3% of the Company's gross sales in fiscal year 1998, 37.5% in fiscal year
1997 and 25.0% in fiscal year 1996, under a contract dating from 1993. In order
to reduce the risk of reliance on a single manufacturer, the Company is
continually in the process of identifying alternative sources for its products.
New Product Status
The Company continually searches for new cutting edge products and services. It
seeks out emerging trends in consumer-oriented products and services and
innovative product breakthroughs. The management team, in response to
suggestions from distributors in the field, analyzes sales trends, meets with
manufacturers' research and development departments and attempts to maintain
optimum levels of inventory from a mix and volume perspective. The Company is
currently pursuing through its membership in the textile industry's research and
development center, Textile Clothing Technology Company, or TC(2), a line of
customized apparel. Successful implementation of distribution through the
Company's one-to-one marketing approach of this mass customization concept in
the textile apparel industry will represent a seminal breakthrough in the
industry's efforts to successfully market such individualized products.
The Year 2000 Issue
The Company believes that it will not incur any material additional costs to
modify computer hardware or software to make the Company's internal-use software
application systems "Year 2000" compliant.
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<PAGE>
Employees
At April 30, 1998 the Company employed 168 persons at the Greensboro, North
Carolina corporate headquarters and distribution center. Unions do not represent
any of the Company's employees.
Seasonality
The Company's revenues and business operations have not experienced significant
seasonal fluctuations, and management does not expect this to be a concern in
the future.
Trademarks and Patents
"Market America, Inc." is registered as the Company's service mark. The Company
has also obtained trademark registrations for its "Unfranchise" marketing system
and its "Mall without Walls" marketing logo. The Company also has various
product trademarks, including its "Motives" customized cosmetics, "Thermochrome
5000" nutritional supplement, and "Royal Spa" personal care products.
The Company regards its marketing plan as proprietary and has implemented
protective measures of both a legal and a practical nature to ensure that it
retains that status. The Company derives such protection by contract with
distributors and by keeping its software program confidential. Access to the
Company's proprietary marketing plan software is limited to those with a need to
know. The Company also seeks to protect its official literature under copyright
and/or trade secret protection acts. The Company aggressively pursues anyone who
violates these rights. Litigating hazards will always exist in the protection of
such rights. The Company also believes that such factors as innovation,
expertise and market responsiveness are more of equal importance with the legal
protections described above.
Competition
The direct selling industry is highly competitive and sensitive to consumer
demand and distributor retention. The Company must compete with both retail
outlets and other direct selling companies for many of its sales and
distributors. Many of the Company's products compete with national brand-name
items that have much more consumer recognition. There are many competitors for
both sales and distributors with substantially greater financial resources than
the Company. Therefore, to attract and retain distributors the Company has
attempted to distinguish itself from competitors with a unique sales and
compensation plan and innovative products, including customized products.
However, no assurance can be given that similar products and marketing plans
will not be developed and adopted by competitors in the near future.
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<PAGE>
Regulation and Compliance with Environmental Laws
As a distributor without any manufacturing processes, the Company has avoided
material capital expenditures to comply with Federal, State, or local
environmental discharge regulations. The Company does not expect this to change
in the foreseeable future.
The distribution, packaging, labeling, advertising, and sale of the Company's
products are subject to regulation by numerous governmental agencies. As a
distributor of consumer durable goods, the Company and its products are subject
to extensive government regulations. The Food and Drug Administration ("FDA"),
Federal Trade Commission ("FTC"), Environmental Protection Agency ("EPA"), and
Consumer Product Safety Commission are a few of the governmental agencies
responsible for regulating and monitoring many aspects of the Company's
operations. Product labeling, distribution, packaging, advertising, and content
are all subject to intense laws and regulations. The Company believes it is in
compliance with all laws and regulations, but there is no assurance that
legislation or regulations adopted in the future will not adversely affect the
Company's operations.
Markets
The Company's primary markets have been in the United States, Canada, and most
U.S. possessions. Less than 2.0% of the Company's sales have been outside the
United States.
Risk Factors
Important factors that may cause results of the Company's operations to differ
from expectations include the following:
Increased Government Regulation and Changes in Government Regulations. Any of
the government agencies that regulate aspects of the Company's operations could
enact new rules that prohibit the sale or distribution of Company products or
require changes in operating practices which could have a material adverse
effect on the sales and results of operations of the Company. The Company is not
aware of any pending legislation or any other regulatory changes that would have
a material effect on the Company.
Product Liability. By acting as a product broker and distributor of consumer
durable goods, the Company is subject to the risk of product liability claims.
To protect itself from these possible claims, the Company maintains $20.0
million of product liability insurance. To date, the Company has paid no product
liability claims and its insurers have paid only two immaterial claims.
Management believes that given the Company's stringent supplier
4
<PAGE>
selection process and substantial insurance coverage, the Company is well
protected from a material, adverse product liability judgment.
Risk of Loss of Key Management Personnel. Jim Ridinger, Chief Executive Officer
and Chairman of the Board, is vital to the success and growth of the Company.
His recognition and marketing appeal contributes significantly to the Company's
success. The Company's dependence on Mr. Ridinger means that his loss could have
a material adverse effect on the Company's financial position and results of
operations.
Reliance on Independent Distributors. The recruitment and retention of
independent distributors is vital to the long-term success of the Company.
Management devotes considerable time and effort to the marketing of the
Company's business plan and products. The Company's annual convention,
leadership schools, moving up seminars, and various sales tapes and videos are
marketing tools utilized by the Company. None of these things, however, can
provide full assurance that current distributors will not leave the business.
Reliance on Key Manufacturers. Due to the unique nature of several of the
Company's products, the Company relies upon exclusive manufacturing
arrangements. There will always be a risk of unexpected contingencies affecting
these manufacturers which could adversely affect the Company. The Company
continues to pursue arrangements to minimize these risks.
Forward-Looking Information
Certain discussions in this report contain forward-looking statements within the
meaning of the federal securities laws. Although the Company believes that the
expectations reflected in these forward-looking statements are based upon
reasonable assumptions, there can be no assurance that these expectations will
be realized. Factors that could cause actual results to differ materially from
current expectations include decreases in sales volume or number of
distributors, materially unfavorable regulatory action, loss of key personnel
and changes in economic conditions.
Item 2. Properties
The Company currently leases a 40,000 square foot building, in Greensboro, North
Carolina on a month-to-month basis. The building contains both corporate offices
and the Company's primary distribution center. The rent is $ 25,217 per month.
Management is evaluating the Company's need for a larger facility, and currently
is renegotiating a short-term lease for the current facility while it
investigates building sites for construction of a new facility. The Company has
several outstanding options on land relatively close to the present facility. To
date, no option has been accepted and there can be no assurance that one will be
accepted.
The Company also leases office space in Miami for use by corporate officers and
a small amount of space in Canada used as a distribution center.
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<PAGE>
Item 3. Legal Proceedings
The Company previously has reported the pendency of an investigation by the
staff of the US Securities & Exchange Commission that affects the Company. The
SEC staff informed the Company in the Spring of 1998 that it is considering
recommending institution of a civil injunctive enforcement action against the
Company and certain individuals associated with the Company. The Company does
not believe that any enforcement action against the Company or persons
associated with the Company is warranted. At the present time, however, the
Company is unable to predict the outcome of the investigation or whether it
might result in civil proceedings involving the Company or its associates.
Item 4. Submission Of Matters To A Vote Of Security Holders
No matters were submitted to a vote of the Company's security holders during the
fourth quarter of the fiscal year covered by this report.
Item 5. Market For Registrant's Common Equity And Related Stockholder Matters
The Company's common stock is traded in the over-the-counter market under the
symbol MARK. Quotations are published through the OTC Bulletin Board. The
following table reflects the actual reported range of high and low bid
quotations for the Company's common stock for each quarter within the fiscal
years ended April 30, 1998 and 1997 and as of a recent date. These quotations
reflect inter-dealer prices, without retail mark-up, mark-down or commission and
may not represent actual transactions.
April 30, 1998 April 30, 1997
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High Low High Low
---- --- ---- ---
First Quarter $7-3/4 $4-1/8 $12 $8-1/2
Second Quarter 8 5-5/8 10-1/4 6
Third Quarter 6-1/4 5 8-1/4 5-1/8
Fourth Quarter 6-1/4 5-1/4 7-1/8 4
The closing sale price for the Company's common stock on July 28,1998 was
$5.125. As of that date, there were 412 holders of record of the Company's
common stock. The Company has never declared or paid any dividends on its Common
Stock since its inception. Management has no plans to declare any dividends in
the near future but may re-evaluate the Company's dividend policy as various
factors change.
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Item 6. Selected Financial Data
Income Statement Data:
<TABLE>
<CAPTION>
-------------------------------Year Ended April 30,------------------------------------
1998 1997 1996 1995 1994
---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Operating Revenues $87,531,005 $66,281,671 $42,479,911 $19,592,056 $9,391,946
Income from Operations 17,341,615 13,276,603 8,220,599 1,345,915 319,487
Income before Income Taxes 18,783,209 14,275,790 8,505,110 1,328,566 319,487
Net Income 10,840,540 8,471,221 5,153,227 794,767 212,210
Net Income Per Share 0.54 0.43 0.26 0.04 0.01
</TABLE>
Balance Sheet Data:
<TABLE>
<CAPTION>
-------------------------------Years Ended April 30,------------------------------------
1998 1997 1996 1995 1994
----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Working Capital $24,496,643 $14,172,686 $ 5,751,385 $1,123,745 $ (27,686)
Inventories 1,468,321 1,244,586 1,020,117 450,182 185,394
Total Assets 33,584,430 21,691,428 12,238,284 3,619,045 1,274,761
Current Ratio 4.1 3.1 2.0 1.5 1.0
Quick Ratio 3.9 2.9 1.8 1.3 0.8
Long-Term Debt 164,315 281,707 324,355 128,290 24,595
Shareholders' Equity 25,481,510 14,640,970 6,169,749 1,016,522 221,755
Return on Shareholders' 54.0% 81.4% 143.4% 128.4% 183.5%
Equity (1)
</TABLE>
(1) Net income divided by average shareholders' equity.
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<PAGE>
Item 7. Management's Discussion And Analysis Of Financial Condition And
Results Of Operations
Results of Operations
The following table summarizes the Company's operating results for the three
most recent fiscal years. All amounts are in millions of dollars, except for the
earnings per share data.
<TABLE>
<CAPTION>
Fiscal Year Ending April 30, 1998 April 30,1997 April 30, 1996
<S> <C> <C> <C> <C> <C> <C>
Sales Revenue $87.5 100.00% $66.3 100.00% $42.5 100.00%
Cost of Sales 19.2 21.94 15.9 23.98 11.0 25.88
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Gross Profit 68.3 78.06 50.4 76.02 31.5 74.12
Selling Expenses
Commissions 39.1 44.68 29.6 44.65 18.6 43.77
Sales Tax 2.0 2.29 .4 .60 .2 .47
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Total Selling Expenses 41.1 46.97 30.0 45.25 18.8 44.24
General and Administrative
Expense
Salaries 4.2 4.80 3.0 4.52 1.7 4.00
Consulting .1 .11 .4 .60 .9 2.12
Other Operating Expenses 5.5 6.29 3.7 5.59 1.9 4.47
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Total General and
Administrative Expenses 9.8 11.20 7.1 10.71 4.5 10.59
Income From Operations 17.4 19.89 13.3 20.06 8.2 19.29
Other Income (Expense) 1.4 1.60 1.0 1.51 .3 .71
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Net Income before
Income Taxes 18.8 21.49 14.3 21.57 8.5 20.00
Income Taxes 8.0 9.14 5.8 8.75 3.3 7.76
Net Income $10.8 12.34% $ 8.5 12.82% $ 5.2 12.24%
Earnings per share $ .54 $ .43 $ .26
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</TABLE>
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Sales revenue and net income increased for the sixth consecutive year. For the
years ended April 30, 1998, 1997 and 1996, sales were $87.5, $66.3 and $42.5
million respectively. This represents a $23.8 million (56%) sales growth from
1996 to 1997 and a $21.2 million (32%) sales growth from 1997 to 1998. The
growth in sales revenue is directly related to the 42.7% growth (from 34,046 to
48,597) in the number of active independent distributors during fiscal year 1997
and the 22% growth (from 48,597 to 59,298) during fiscal year 1998 and revenue
generated by newly introduced products.
Cost of goods sold has increased from $11.0 million for the year ended April 30,
1996 to $15.9 million for the year ended April 30, 1997 to $19.2 million for the
year ended April 30, 1998. However, as a percentage of sales cost of goods sold
actually decreased 1.9% and 2.0% from 1996 to 1997 and from 1997 to 1998,
respectively. The decreases in cost of goods sold as a percentage of sales were
mainly due to increased purchasing power resulting in lower product cost and the
increased availability of operating cash flow allowing the Company to take
advantage of vendor discounts.
Commissions remained constant as a percentage of sales during the most recent
three fiscal years. As a percentage of sales, commissions were 44.68% and 44.65%
and 43.77% for the years ended April 30, 1998, 1997 and 1996, respectively.
Management anticipates that commission expense will range from 43% to 46% during
fiscal 1999.
Salary expense increased from $1.3 million during 1996 to $3.0 million (76.5%
increase) during 1997 to $4.2 million (40.0% increase) during 1998. As a
percentage of sales, salary expense increased from 4.00% during 1996 to 4.52%
during 1997 to 4.80% during 1998. This increase was not only due to the rapid
growth of the Company but also to the commitment to improve human resources
within the company in order to better serve the needs of the Company's
distributors. Management expects salary expense to level off in 1999 as a
percentage of sales.
Freight expense totaled $3.4 million during 1998, an increase of approximately
$600,000 or 21.4% from the $2.8 million incurred during 1997. This represented a
percentage to sales of 3.88% and 4.22% for the respective periods. The increase
in the amount expended for freight costs can be attributed to the growth in
sales revenue of 32% experienced by the Company during 1998. However, freight
expense decreased as a percentage of sales from 4.22% during 1997 to 3.88%
during 1998 primarily as a result
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<PAGE>
of the Company negotiating a decrease in its second day air rate with its
primary freight service provider. The increase of freight expense as a
percentage of sales from 1996 (4.0%) to 1997 (4.22%) was due to higher rates
from the Company's primary freight service provider as a result of a change in
the classification of direct sales company shipments from "commercial" to
"residential" delivery. Management expects to reap benefits from the increased
competition in the package delivery sector during the coming year.
Consulting expenses were approximately $138,000, $377,000, and $872,000 for the
years ended April 30, 1998, 1997 and 1996 respectively. The decreases from year
to year are primarily attributed to a commitment by management to improve human
resources within the Company, which has reduced the need for external
consultants.
Sales tax expense totaled $1,985,462 during 1998; an increase of $1,601,856 from
the $383,606 incurred in fiscal year 1997. This significant increase is the
result of an agreement reached with the North Carolina Department of Revenue
whereby North Carolina agreed not to seek to impose sales tax on shipments out
of state by common carrier to or for the benefit of independent distributors.
This encouraged the Company to initiate voluntary remission of prior sales taxes
to applicable states and resulted in substantial payments of tax to those
states. During the fiscal year ending April 30, 1998, the Company paid
approximately $1,416,000 in prior year sales taxes. Management believes that
these payments and the sales tax liabilities provided for in the April 30, 1998
balance sheet substantially cover all past taxes due. Management expects that
the final resolution of this matter will not have a material effect on the
Company's earnings.
Other operating expenses consist primarily of rent, depreciation and
amortization, convention expenses, professional fees, advertising, payroll
taxes, other taxes, licenses fees, repairs and maintenance, and various types of
insurance. Other operating expenses increased from $1.9 million to $3.7 million
to $5.5 million during the years ended April 30, 1996, 1997 and 1998 as a
percentage of sales also. The amount expended by the Company relating to
operating expenses has increased from year to year as a direct result of the
growth of the business. The increase in other operating expenses as a percentage
of sales were due to periodic increases in the square footage under lease;
expenses relating to the number of computers, office equipment and supplies
being utilized; increased levels of insurance and various employee related costs
and benefits associated with larger employment levels.
Net income after taxes rose 27%, or $2.3 million, to $10.8 million for the year
ended April 30, 1998 from $8.5 million for the year ended April 30, 1997, after
having risen 38%, or $3.2 million, to $8.5 million for the year ended April 30,
1997 from $5.2 million for the year ended April 30, 1996. The increases in net
income are primarily attributed to increased gross profits as a result of the
decrease in cost of sales as a percentage of sales, as previously discussed. As
a result, earnings per common share increased $0.11 per share for the year ended
April 30, 1998 over the year ended April 30, 1997 (from $0.43 per share to $0.54
per share); an increase of 25.6%.
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<PAGE>
Liquidity And Capital Resources
The Company's primary source of funds is the cash generated from operating
activities. For the year ended April 30, 1998, cash provided by operating
activities was $11.7 million compared to $9.7 million and $8.1 million in 1997
and 1996, respectively. The Company's consistent sales growth and solid profit
margins have fueled these increases.
Working capital at April 30, 1998 was $24.5 million compared to $14.2 million
and $5.8 million at April 30, 1997 and 1996 respectively. This increase is due
primarily due to the increase in cash from continued strong growth. Management
is exploring opportunities to change the Company's investment strategy to
increase returns on investments in 1999.
The Company invested $280,546 in 1998 for property and equipment purchases
compared to $258,067 and $170,433 in 1997 and 1996 respectively. Sales growth
and higher inventory levels have required the Company to invest in more computer
and warehouse equipment. Management plans to evaluate its current computer
system in 1999 and may find that greater efficiencies can be achieved with a new
system. Management does not expect that investments in new computer equipment,
if necessary, to exceed $500,000.
During 1999, working capital may be reduced substantially by a decision to
construct a new warehouse and corporate office facility for the Company.
Management continues to evaluate whether the Company will be better served
leasing warehouse and office space or constructing a facility. If management
decides to move forward with the construction of a facility, the expectation is
that the investment will not exceed $6.0 million. Currently, no decision has
been made as to whether the Company will construct a new facility or explore
leasing options.
The Company believes that its current level of cash and cash equivalents and its
cash provided by operations will provide sufficient resources for operations in
the next 12 months. In the event that the Company's operating environment
becomes adverse, there can be no assurance that additional financing would not
be required. Additional financing also may be considered if the Company's
investment rates exceed current commercial loan rates.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Not applicable
Item 8. Financial Statements And Supplementary Data
Included immediately after signature page.
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Item 9. Changes In And Disagreements With Accountants On Accounting And
Financial Disclosure
Not applicable.
PART III
Item 10. Directors And Executive Officers Of The Registrant
Information relating to Item 10 is incorporated herein by reference to
the Company's Notice and Information Statement to be filed on or about August
28, 1998.
Item 11. Executive Compensation
Information relating to Item 11 is incorporated herein by reference to
the Company's Notice and Information Statement to be filed August 28, 1998.
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Item 12. Security Ownership of Certain Beneficial Owners and Management
Information relating to Item 12 is incorporated herein by reference to
the Company's Notice and Information Statement to be filed on or about August
28, 1998.
Item 13. Certain Relationships and Related Transactions
Information relating to Item 13 is incorporated herein by reference to
the Company's Notice and Information Statement to be filed on or about August
28, 1998.
Item 14. Exhibits, Financial Statement Schedules And Reports On Form 8-K
(a)(1) Financial Statements
The following financial statements are included in this report.
Balance Sheets as of April 30, 1998 and 1997
Statements of Income for the Years Ended April 30, 1998, 1997, and
1996
Statements of Changes in Stockholders' Equity for the Years Ended
April 30, 1998, 1997, and 1996
Statements of Cash Flows for the Years ended April 30, 1998, 1997,
and 1996
Notes to Financial Statements
(a)(2) Financial Statement Schedules
Not Applicable.
(a)(3) Exhibits
The exhibits to this report are identified in the Exhibit Index, which
appears immediately after the signature page and is incorporated in this Item 14
by this reference.
(b) Reports on Form 8-K
No reports on Form 8-K were filed by the Company during the last
quarter of the fiscal year covered by this report.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Greensboro, State of North Carolina, on August 13, 1998.
MARKET AMERICA, INC.
BY: /s/
-----------------------------------
James H. Ridinger
President & Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, this report has been signed below by the following persons on behalf of
the registrant and in the capacities and on the dates included.
/s/ August 13, 1998
- ----------------------------------
James H. Ridinger
President, Chief Executive Officer & Director
(Principal Executive, Financial & Accounting Officer
/s/ August 13, 1998
- ----------------------------------
Loren A. Ridinger
Senior Vice President
/s/ August 13, 1998
- ----------------------------------
Dennis Franks
Executive Vice President & Director
/s/ August 13, 1998
- ----------------------------------
Martin Weissman
Executive Vice President & Director
14
<PAGE>
MARKET AMERICA, INC.
FINANCIAL STATEMENTS
Years Ended April 30, 1998, 1997 and 1996
<PAGE>
MARKET AMERICA, INC.
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TABLE OF CONTENTS
Page No.
--------
INDEPENDENT AUDITORS' REPORT................................................ 1
FINANCIAL STATEMENTS
Balance Sheets.......................................................... 2
Statements of Income.................................................... 3
Statements of Changes in Stockholders' Equity........................... 4
Statements of Cash Flows................................................ 5
Notes to Financial Statements........................................... 7
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors
Market America, Inc.
Greensboro, North Carolina
We have audited the accompanying balance sheets of Market America, Inc. as of
April 30, 1998 and 1997 and the related statements of income, changes in
stockholders' equity and cash flows for the years then ended. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits. The financial statements of Market America, Inc. as of and for the
year ended April 30, 1996, were audited by another auditor whose report dated
July 5, 1996 expressed an unqualified opinion on those statements.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits 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, the 1998 and 1997 financial statements referred to above present
fairly, in all material respects, the financial position of Market America, Inc.
as of April 30, 1998 and 1997, and the results of its operations and its cash
flows for the years then ended in conformity with generally accepted accounting
principles.
Greensboro, North Carolina
June 1, 1998
________
Page 1
<PAGE>
MARKET AMERICA, INC.
BALANCE SHEETS
April 30, 1998 and 1997
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<TABLE>
<CAPTION>
ASSETS 1998 1997
-------------- ----------
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents (Note 1) $ 18,379,127 $ 2,323,943
Short-term investments (Notes 1 and 2) 12,415,465 17,294,869
Advances to related parties (Note 5) 62,445 -
Notes receivable, employees 51,919 58,095
Inventories (Note 1) 1,468,321 1,244,586
Other current assets 57,971 19,263
-------------- ---------------
TOTAL CURRENT ASSETS 32,435,248 20,940,756
-------------- ---------------
PROPERTY AND EQUIPMENT (Notes 1 and 3)
Furniture and equipment 983,959 839,057
Software 259,199 128,840
Leasehold improvements 6,370 2,570
-------------- ---------------
1,249,528 970,467
Less accumulated depreciation 462,036 294,553
-------------- ---------------
787,492 675,914
-------------- ---------------
OTHER ASSETS
Restricted cash (Note 3) 79,018 74,077
Other 282,672 681
-------------- ---------------
361,690 74,758
-------------- ---------------
$ 33,584,430 $ 21,691,428
============== ===============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Current portion of long-term debt (Note 3) $ 152,476 $ 250,254
Accounts payable - trade 1,066,274 1,550,609
Commissions payable 2,755,776 1,516,365
Sales tax payable (Note 8) 802,786 239,414
Income taxes payable 1,863,132 1,866,021
Other accrued liabilities 202,886 320,066
Unearned revenue (Note 4) 1,095,275 1,026,022
-------------- ---------------
TOTAL CURRENT LIABILITIES 7,938,605 6,768,751
-------------- ---------------
LONG-TERM DEBT (Note 3) 164,315 281,707
-------------- ---------------
COMMITMENTS AND CONTINGENCIES (Notes 6 and 8)
STOCKHOLDERS' EQUITY
Common stock, $.00001 par value; 800,000,000 shares
authorized; 19,950,000 issued and outstanding 199 199
Additional paid-in capital 39,801 39,801
Retained earnings 25,441,510 14,600,970
-------------- ---------------
25,481,510 14,640,970
$ 33,584,430 $ 21,691,428
============== ===============
</TABLE>
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The accompanying notes are an integral Page 2
part of the financial statements.
<PAGE>
MARKET AMERICA, INC.
STATEMENTS OF INCOME
Years Ended April 30, 1998, 1997 and 1996
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<TABLE>
<CAPTION>
1998 1997 1996
-------------- -------------- --------------
<S> <C> <C> <C>
Sales $ 87,531,005 $ 66,281,671 $ 42,479,911
Cost of Sales 19,272,329 15,913,272 11,019,370
-------------- -------------- --------------
GROSS PROFIT 68,258,676 50,368,399 31,460,541
Selling Expenses
Commissions 39,061,225 29,645,933 18,643,914
Sales tax (Note 8) 1,985,462 383,606 238,868
-------------- -------------- --------------
41,046,687 30,029,539 18,882,782
-------------- -------------- --------------
General and Administrative Expenses
Salaries 4,184,478 2,973,809 1,624,651
Consulting 137,636 377,234 885,345
Rents (Note 5 and 6) 695,507 389,862 239,387
Depreciation and amortization 167,483 122,839 75,315
Other expenses 4,685,270 3,198,513 1,532,462
-------------- -------------- --------------
9,870,374 7,062,257 4,357,160
-------------- -------------- --------------
INCOME FROM OPERATIONS 17,341,615 13,276,603 8,220,599
Other Income (Expense)
Interest income 1,073,582 595,651 232,855
Interest expense (93,752) (40,707) (33,515)
Gain (loss) on disposals of assets 500 (6,808) (4,507)
Miscellaneous income 461,264 451,051 89,678
-------------- -------------- --------------
1,441,594 999,187 284,511
-------------- -------------- --------------
INCOME BEFORE TAXES 18,783,209 14,275,790 8,505,110
Income Taxes (Note 7) 7,942,669 5,804,569 3,351,883
-------------- -------------- --------------
NET INCOME $ 10,840,540 $ 8,471,221 $ 5,153,227
============== ============== ==============
Basic earnings per common share (Note 1) $ .54 $ .43 $ .26
============== ============== ==============
Weighted average number of common shares outstanding 19,950,000 19,950,000 19,950,000
============== ============== ==============
</TABLE>
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The accompanying notes are an integral Page 3
part of the financial statements.
<PAGE>
MARKET AMERICA, INC.
STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
Years Ended April 30, 1998, 1997 and 1996
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<TABLE>
<CAPTION>
Common Stock Additional
----------------------------- Paid-In Retained
Shares Amount Capital Earnings Total
------ ------ ------- -------- -----
<S> <C> <C> <C> <C> <C>
BALANCE, April 30, 1995 19,950,000 $ 199 $ 39,801 $ 976,522 $ 1,016,522
Net income - - - 5,153,227 5,153,227
------------ ------------- ------------- ------------ -------------
BALANCE, April 30, 1996 19,950,000 199 39,801 6,129,749 6,169,749
Net income - - - 8,471,221 8,471,221
------------ ------------- ------------- ------------ -------------
BALANCE, April 30, 1997 19,950,000 199 39,801 14,600,970 14,640,970
Net income - - - 10,840,540 10,840,540
------------ ------------- ------------- ------------ -------------
BALANCE, April 30, 1998 19,950,000 $ 199 $ 39,801 $ 25,441,510 $ 25,481,510
============ ============= ============= ============ =============
</TABLE>
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The accompanying notes are an integral Page 4
part of the financial statements.
<PAGE>
MARKET AMERICA, INC.
STATEMENTS OF CASH FLOWS
Years Ended April 30, 1998, 1997 and 1996
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
1998 1997 1996
-------------- -------------- --------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $ 10,840,540 $ 8,471,221 $ 5,153,227
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 167,483 122,839 75,315
(Gain) loss on disposal of assets (500) 6,808 4,507
Increase in inventories (223,735) (224,469) (569,935)
(Increase) decrease in other current assets (38,708) 8,401 (21,427)
Increase in other assets (281,991) (681) -
Increase (decrease) in accounts payable - trade (484,335) 526,180 310,617
Increase (decrease) in income taxes payable (2,889) 493,043 1,105,530
Increase (decrease) in commissions payable 1,239,411 (326,441) 1,340,007
Increase in sales tax payable 563,372 239,414 -
Increase (decrease) in other accrued liabilities (117,180) (290,195) 246,652
Increase in unearned revenue 69,253 668,921 44,901
Increase in note payable (settlement) - - 400,000
Decrease in interest payable - - (7,109)
-------------- -------------- --------------
NET CASH PROVIDED BY
OPERATING ACTIVITIES 11,730,721 9,695,041 8,082,285
-------------- -------------- --------------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of property and equipment (280,546) (258,067) (170,433)
Proceeds from sale of property and equipment 1,985 - -
Purchase of long-term investments - - (130,000)
(Increase) decrease of short-term investments 4,879,404 (17,294,869) -
Proceeds from sale of long-term investments - 125,405 -
Advances to related parties (62,445) - -
(Increase) decrease in notes receivable, employees 6,176 3,601 (61,696)
Increase in restricted cash (4,941) (4,257) (69,820)
-------------- -------------- --------------
NET CASH PROVIDED (USED)
FOR INVESTING ACTIVITIES 4,539,633 (17,428,187) (431,949)
-------------- -------------- --------------
CASH FLOWS FROM FINANCING ACTIVITIES
Payments on notes payable and long-term debt (215,170) (328,999) (94,288)
-------------- -------------- --------------
NET CASH USED FOR
FINANCING ACTIVITIES (215,170) (328,999) (94,288)
-------------- -------------- --------------
NET INCREASE (DECREASE) IN CASH
AND CASH EQUIVALENTS 16,055,184 (8,062,145) 7,556,048
CASH AND CASH EQUIVALENTS
AT BEGINNING OF YEAR 2,323,943 10,386,088 2,830,040
-------------- -------------- --------------
CASH AND CASH EQUIVALENTS
AND END OF YEAR $ 18,379,127 $ 2,323,943 $ 10,386,088
============== ============== ==============
</TABLE>
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The accompanying notes are an integral Page 5
part of the financial statements.
<PAGE>
MARKET AMERICA, INC.
STATEMENTS OF CASH FLOWS (Continued)
Years Ended April 30, 1998, 1997 and 1996
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<TABLE>
<CAPTION>
1998 1997 1996
-------------- -------------- --------------
<S> <C> <C> <C>
SUPPLEMENTAL DISCLOSURE OF CASH FLOW
INFORMATION
Cash paid during the year for:
Interest $ 93,752 $ 28,467 $ 33,376
============== ============== ==============
Income taxes $ 7,945,558 $ 5,311,526 $ 2,246,353
============== ============== ==============
</TABLE>
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The accompanying notes are an integral Page 6
part of the financial statements.
<PAGE>
MARKET AMERICA, INC.
NOTES TO FINANCIAL STATEMENTS
April 30, 1998, 1997 and 1996
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NOTE 1 o ORGANIZATION AND SIGNIFICANT POLICIES
Market America, Inc. is based in Greensboro, North Carolina. It was incorporated
on April 27, 1992. The Company distributes a variety of consumer home-use
products to the public through a network marketing concept which utilizes
independent contractors to sell these products. The Company supplies marketing
information to these individuals in order to assist them in their sales efforts.
The Company sells its products throughout the United States, Canada, the
Bahamas, and various territories of the United States.
Cash and cash equivalents
The Company considers all highly liquid investments with a maturity of three
months or less when purchased to be cash equivalents. The Company maintains its
cash in bank deposit accounts which, at times, may exceed federally insured
limits. The Company has not experienced any losses in such accounts and believes
it is not exposed to any significant credit risk on cash and cash equivalents.
Short-term investments
The Company classifies short-term investments in debt securities as
held-to-maturity securities and, accordingly, carries them at amortized cost in
accordance with the provisions of Statement of Financial Accounting Standards
No. 115, "Accounting for Certain Investments in Debt and Equity Securities."
Inventories
Inventories are stated at the lower of cost (first-in, first-out method) or
market.
Property and equipment
Property and equipment are recorded at cost and depreciated on the straight-line
basis over the estimated useful lives of the assets as follows:
Furniture and equipment 5 to 10 years
Software 3 to 10 years
Leasehold improvements 15 years
Maintenance, repairs, and minor renewals are charged to operations as incurred.
Additions, improvements, and major renewals are capitalized. The cost of assets
retired or sold, together with the related accumulated depreciation, is removed
from the accounts and any gain or loss on disposition is credited or charged to
operations.
Revenue recognition
The Company recognizes sales revenues at the time products are shipped. Sales
revenues are collected at or prior to the time of shipment.
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The accompanying notes are an integral Page 7
part of the financial statements.
<PAGE>
MARKET AMERICA, INC.
NOTES TO FINANCIAL STATEMENTS
April 30, 1998, 1997 and 1996
- --------------------------------------------------------------------------------
NOTE 1 o ORGANIZATION AND SIGNIFICANT POLICIES (Continued)
Income Taxes
Income taxes have been provided using the liability method in accordance with
FASB Statement No. 109, "Accounting for Income Taxes."
Earnings per share
During the year ended April 30, 1998, the Company adopted SFAS No. 128,
"Earnings Per Share" which specifies the computation, presentation, and
disclosure requirements for earnings per share ("EPS"). It replaces the
presentation of primary and fully diluted EPS with basic and diluted EPS. Basic
EPS excludes all dilution and has been computed using the weighted average
number of common shares outstanding during the periods. Diluted EPS would
reflect the potential dilution that would occur if securities or other contracts
to issue common stock were exercised or converted into common stock. The Company
has no dilutive potential common shares. Basic earnings per common share do not
differ from the Company's previously reported net income per share.
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 the 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.
Reclassifications
Certain reclassifications have been made to prior-year amounts to conform with
the current-year financial statement presentation. Reclassifications have no
effect on previously reported net income.
New accounting standards
In June 1997, the Financial Accounting Standards Board issued SFAS No. 130,
"Reporting Comprehensive Income." This Statement establishes standards for the
prominent reporting and display of comprehensive income and its components in a
full set of general-purpose financial statements. Comprehensive income is the
total of net income and other changes in equity that are excluded from the
measurement of income. The Statement is effective for fiscal years beginning
after December 15, 1997. The Company plans to adopt the provisions of this
Statement in its year ending April 30, 1999. Management does not expect the
impact of the adoption of this Statement on the Company's financial position and
results of operations to be material.
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The accompanying notes are an integral Page 8
part of the financial statements.
<PAGE>
MARKET AMERICA, INC.
NOTES TO FINANCIAL STATEMENTS
April 30, 1998, 1997 and 1996
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NOTE 1 o ORGANIZATION AND SIGNIFICANT POLICIES (Continued)
New accounting standards (Continued)
In June 1997, the Financial Accounting Standards Board issued SFAS No. 131,
"Disclosures About Segments of an Enterprise and Related Information." This
Statement introduces a new model for segment reporting and requires that the
Company report profit and loss, assets and liabilities by segment. The Statement
is effective for fiscal years beginning after December 15, 1997. The Company
plans to adopt the provisions of this Statement in its year ending April 30,
1999. The Company has only one business segment, and management does not expect
the impact of adoption of this Statement on the Company's financial position and
results of operations to be material.
NOTE 2 o SHORT-TERM INVESTMENTS
Short-term investments at April 30 consisted of the following:
<TABLE>
<CAPTION>
1998 1997
-------------- ---------------
<S> <C> <C>
Master note, maturing May 1, 1998 and
September 30, 1997, respectively, earning
interest of 4.5% at April 30, 1998 and 1997. $ 7,692,279 $ 17,294,869
Business Eurodollars Term/Non-Sweep, maturing
May 22, 1998 and June 23, 1998, earning interest
of 5.55% and 5.47% at April 30, 1998. 4,723,186 -
-------------- ---------------
$ 12,415,465 $ 17,294,869
============== ===============
</TABLE>
NOTE 3 o LONG-TERM DEBT
<TABLE>
<CAPTION>
1998 1997
-------------- ----------------
<S> <C> <C>
Notes payable collateralized by equipment, due in monthly installments
aggregating $2,440 at April 30, 1998, including interest ranging from 6% to
8%. One of these notes is also collateralized by a certificate of deposit
that is reported as restricted cash on the accompanying balance sheets. $ 58,791 $ 91,541
Obligation due in monthly installments of $3,000 including interest
discounted at 9% with remaining balance due December 31, 1999. 18,000 65,420
</TABLE>
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The accompanying notes are an integral Page 9
part of the financial statements.
<PAGE>
MARKET AMERICA, INC.
NOTES TO FINANCIAL STATEMENTS
April 30, 1998, 1997 and 1996
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NOTE 3 o LONG-TERM DEBT (Continued)
<TABLE>
<CAPTION>
1998 1997
-------------- ---------------
<S> <C> <C>
Obligation arising in settlement of litigation as approved by the U.S.
Bankruptcy Court for the District of New Jersey, payable in monthly
installments of $10,000,including interest
discounted at 9%. 240,000 375,000
-------------- ---------------
316,791 531,961
Less current portion due within one year 152,476 250,254
-------------- ---------------
$ 164,315 $ 281,707
============== ===============
</TABLE>
Future maturities of long-term debt at April 30, 1998 are due as follows:
1999 $ 152,476
2000 143,168
2001 18,404
2002 2,743
--------------
$ 316,791
NOTE 4 o UNEARNED REVENUE
The Company sponsors two conventions per year for its distributors. The unearned
revenue represents cash collected from advance ticket sales.
NOTE 5 o RELATED PARTY TRANSACTIONS
On April 15, 1996, the Company purchased the former home of Mr. and Mrs. James
H. Ridinger, officer/stockholder, to provide lodging and meeting facilities for
corporate guests. The home was purchased for $130,000 and thereafter sold to an
unrelated third party on May 29, 1996.
During the year ended April 30, 1998, the Company entered into agreements with
two companies owned by Mr. and Mrs. James H. Ridinger, officer/stockholder of
the Company, to lease real estate in Miami, Florida for use by Company
management when conducting business in Florida and for the lease of a yacht on a
per event basis. The yacht is used as an integral part of the direct sales
training, education, and recruitment activities of the Company. Both lease
agreements have 5-year terms with options to renew. The amount of rent expense
under both agreements aggregated to $252,000 during the year ended April 30,
1998. At April 30, 1998, these related entities owed the Company $62,445.
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The accompanying notes are an integral Page 10
part of the financial statements.
<PAGE>
MARKET AMERICA, INC.
NOTES TO FINANCIAL STATEMENTS
April 30, 1998, 1997 and 1996
- --------------------------------------------------------------------------------
NOTE 6 o OPERATING LEASE COMMITMENTS
The Company occupies leased premises in Greensboro, North Carolina and Miami,
Florida. The Greensboro lease commenced on April 1, 1995, and terminated on
October 31, 1997. The Company is currently leasing the Greensboro premises on a
month-to-month basis. The Miami lease is with a related party (see Note 5)
beginning August 1997 and is for five years. The Company also leases automobiles
under long-term operating leases.
Future minimum rental payments required under operating leases that have an
initial or remaining non-cancelable lease term in excess of one year as of April
30, 1998 are as follows:
1999 $ 106,126
2000 72,870
2001 44,056
2002 36,000
2003 12,000
--------------
Total future minimum lease payments $ 271,052
==============
NOTE 7 o INCOME TAXES
Income tax expense is comprised of the following:
<TABLE>
<CAPTION>
1998 1997 1996
-------------- -------------- --------------
<S> <C> <C> <C>
Current tax provision
Federal $ 6,483,683 $ 4,671,743 $ 2,687,762
State 1,458,986 1,132,826 664,121
-------------- -------------- --------------
7,942,669 5,804,569 3,351,883
Deferred tax provision - - -
-------------- -------------- --------------
Total income tax provision $ 7,942,669 $ 5,804,569 $ 3,351,883
============== ============== ==============
</TABLE>
A reconciliation of the statutory U.S. federal income tax rate and the effective
income tax rate is as follows:
<TABLE>
<CAPTION>
1998 1997 1996
-------------- -------------- -------------
<S> <C> <C> <C>
Statutory U.S. federal rate 35.0% 35.0% 34.0%
State income tax, net of federal benefit 4.8 5.1 5.1
Effect of non-deductible expenses 1.5 - -
Other, net 1.0 .6 .3
--------- --------- --------
42.3% 40.7% 39.4%
========= ========= ========
</TABLE>
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The accompanying notes are an integral Page 11
part of the financial statements.
<PAGE>
MARKET AMERICA, INC.
NOTES TO FINANCIAL STATEMENTS
April 30, 1998, 1997 and 1996
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NOTE 8 o CONTINGENCIES
During the year ended April 30, 1998, the Company reached an agreement with the
North Carolina Department of Revenue whereby North Carolina would not seek to
impose sales tax on shipments out of state by common carrier to or for the
benefit of independent distributors. This enabled the Company to initiate
voluntary remission of such prior taxes to applicable states and resulted in a
substantial increase in sales tax expense for the year. Management believes that
all sales tax liabilities are adequately provided for at April 30,1998, and that
the final resolution of this matter will not have a material effect on future
earnings.
In connection with an investigation affecting the Company by the staff of the
U.S. Securities and Exchange Commission (SEC), the Company has been informed by
the SEC staff that it is considering recommending institution of a civil
injunctive enforcement action against the Company and certain individuals
associated with the Company. The Company does not believe that any enforcement
action against the Company or persons associated with the Company is warranted.
At the present time, however, the Company is unable to predict the outcome of
the investigation or whether it might result in civil proceedings involving the
Company or its associates.
The Company is involved in litigation arising in the ordinary course of
business. In the opinion of the Company's legal counsel and management, the
final resolution of these matters will not have a material adverse effect on the
Company's financial position or future results of operations.
NOTE 9 o FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amounts reflected in the balance sheets for cash and cash
equivalents, short-term investments, and notes receivable approximate their
respective fair values. The carrying value of long-term debt exceeds its
estimated fair value by approximately $21,000 and $36,000 at April 30, 1998 and
1997, respectively. Fair values are based primarily on current interest rates
available for those or similar instruments.
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The accompanying notes are an integral Page 12
part of the financial statements.
<PAGE>
MARKET AMERICA, INC.
EXHIBITS TO FORM 10-K
EXHIBIT INDEX
Exhibit
Number Identification
------ --------------
2.1 Agreement and Plan of Merger dated as of October 1,
1993 between Atlantic Ventures, Inc. and Market
America, Inc. and Addendum (to same) dated October 1,
1993 (incorporated by reference to Exhibits 2.1 and
2.2, respectively, to the Company's Current Report on
Form 8-K filed October 6, 1993, Commission File No.
000-23250)
3.1 Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the
Company's Current Report on Form 8-K filed with the
Commission on November 3, 1993, Commission File No.
000-23250)
3.2 Articles of Amendment of the Company (incorporated by
reference to Exhibit 3.3 to the Company's Annual
Report on Form 10-K filed with the Commission on July
30, 1996, Commission File No. 000-23250)
3.3 By-Laws of the Company (incorporated by reference to
Exhibit 3.4 to the Company's annual report on Form
10-K filed with the Commission on July 30, 1996,
Commission File No. 000-23250)
4.1 Article 2 of the Articles of Incorporation of the
Company (incorporated by reference to Exhibit 3(i) to
the Company's Current Report on Form 8-K filed with
the Commission on November 3, 1993, Commission File
No. 000-23250)
4.2 Articles of Merger of Atlantis Ventures, Inc. and
Market America, Inc. (incorporated by reference to
Exhibit 2.3 to the Company's Current Report on Form
8-K filed with the Commission on November 3, 1993,
Commission File No. 000-23250)
10.1 Lease between Miracle Marine, Inc. and Market
America, Inc. dated June 1, 1997 (incorporated by
reference to Exhibit 10.1 to the Company's quarterly
report on Form 10-Q for the quarter ended October 31,
1997 filed with the Commission on December 15, 1997,
Commission File No. 000-23250)
10.2* Vendor Agreement between Market America, Inc. and
Isotonix(r) Corporation dated October 25, 1993**
27* Financial Data Schedule
* Filed herewith.
** Portions of this exhibit have been omitted pursuant to Rule 24b-2 and an
Application for Confidential Treatment thereunder.
Exhibit 10.2*
VENDOR AGREEMENT
This agreement made this 25th day of October 1993 by an between Market
America, Inc., a Delaware Corporation domiciled in North Carolina and
hereinafter referred to as "MA" and ISOTONIX(r) CORPORATION whose principal
office is located at [Confidential Information] and hereinafter referred to as
"Supplier."
WITNESSETH
WHEREAS, MA is a direct sales company in the business of marketing
through independent distributors using a proprietary marketing plan, various
products and services;
WHEREAS, Supplier is a Formulator and Supplier of the following
products which MA is desirous of marketing under a private label arrangement:
ISOTONIX(r) trademarked vitamins in an isotonic capable formulation.
WHEREAS, the parties desire to set forth in writing the terms of their
arrangement in order to define the rights, responsibilities and obligations of
each party, and to protect the parties' respective interests.
NOW THEREFORE, in consideration of the mutual covenants continued
herein and other valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree to and are legally bound as follows:
1. Supplier shall supply and sell to MA the following products
consistent with the terms and conditions herein:
Isotonic formulated vitamins under a licensing agreement to use the
trade mark ISOTONIX(r). Formulas are proprietary formulations of
Isotonix(r) Corporation. Available formulations: Vitamin B12 with Folic
Acid; Vitamin C; Calcium in an isotonic capable formula; Vitamin B
Complex with Vitamin C; Multi-Vitamin with Multi-Mineral; and an
"antioxidant" vitamin formula.
2. The trade name of each product is listed below:
Trade Name Description
---------- -----------
ISOTONIX(r) All specific isotonic formulations
which carry the ISOTONIX(r) trademark.
3. Supplier has registered the following trade names of products listed
above as a registered trademark or has applied for registration of Trademark
with the
* The portions of Exhibit 10.2 marked "[Confidential Information]" have been
omitted from this copy and filed separately with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended, and an Application for Confidential Treatment thereunder.
<PAGE>
Commission of Patents and Trademarks, United States Patent and Trademarks
Office and will provide MA a copy of said application or registration.
ISOTONIX(r)
4. [Reserved.]
5. MA is licensed to market Isotonix(r) Corp.'s products under a
separate Licensing and Confidentiality Agreement, Exhibit "B" hereto.
6. The specification and description of each product to be sold to MA
and governed by this agreement are attached hereto as "Exhibit A."
7. Supplier ____ shall XX shall not provide promotional and sales
literature to MA for its distributors and or MA to promote the product. If
Supplier shall provide promotional and sales literature to MA, Supplier shall
provide the following literature:
NA Camera ready mechanicals for printing
NA Finished printed literature ready for distribution
of the following pieces.
Description Quantity Delivery Date
----------- -------- -------------
NA NA NA
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- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NA MA will not be charged for printing of literature
NA MA will be charged actual printing invoice of literature above the
initial promotional literature.
The following quantity of promotional literature will be provided to MA
to insert in newsletters, include in mailings, or to hand out at meetings to
introduce and test market Supplier's products free of charge:
Description of Literature Gratis Promotional Quantity
------------------------- ---------------------------
NA
---------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
8. If Supplier is not providing finished printed literature or camera
ready mechanicals for literature printing. Supplier agrees to cooperate with MA
in the development of necessary literature by providing technical advice,
photographs, diagrams, pictures, available endorsements or testimonials, or
other necessary information in the development of product, promotional, or sales
literature:
9. Supplier shall make a cassette audio tape stating the sales
features, special benefits, technical information, and answers to most commonly
asked questions concerning the products provided by the Supplier. Additionally
the cassette audio tape shall include suggested tips on how to sell or market
the Supplier's products. Said tape may be in any of the following formats: a
narration from a script, a live seminar or presentation, an interview in a
question answer format. This shall be done at no additional cost to MA and shall
be subject to review and final approval by MA. MA shall be responsible for final
editing and duplication of tape. MA shall cooperate in providing advice and
input in making tape as well as providing an interview if necessary.
10. Supplier shall be available to appear at no less than (4) four
company conventions per year when requested with sufficient notice (sixty days)
provided Supplier does not have a schedule conflict at the time of notification
meeting date.
Special Provisions: MA shall pay for travel expenses to said meeting.
11. Supplier agrees that MA shall be permitted to use and make the
following special representations, claims, or use of endorsements, or materials
and Supplier warrants the legal and permissibility of aforesaid representations:
Anything provided in writing or on tape recordings by [Confidential
Information] or Isotonix(r) Corporation. Any specific representations
submitted to [Confidential Information]/Isotonix(r) Corporation for
approval, and thereafter approved in writing by Isotonix(r) Corp. or
its duly authorized agent.
12. MA shall place P.O.'s with Supplier on a monthly basis. Supplier
shall ship P.O.'s: sixty (60) days maximum lead time for delivery (after receipt
of deposit and labels) is required by MA.
A). ____ Directly to distributors listed on P.O.
B). XX Directly to MA's designated address on P.O. for
reshipping
MA to directly negotiate with Manufacturer terms and conditions of
shipment.
If product must be repacked for shipping MA shall be charged NA per
unit being shipped by Supplier.
Special Provisions _________________________________________________
<PAGE>
13. The price of product shall be as follows:
<TABLE>
<CAPTION>
Description Quantity Unit Price
----------- -------- ----------
<S> <C> <C>
Isotonix(r) vitamin products a quaterly minium of $[Confidential In-
excepting "antioxidant formula [Confidential Information]; formation] pr bot-
a minimum of [Confidential tle including [Confi-
Information] bottles per dential Information]
formulation
antioxidant formula $[Confidential In-
formation] per
bottle including
[Confidential In-
formation]
</TABLE>
MA will pay in advance for [Confidential Information].
14. MA shall be entitled to the following additional volume discounts
based on the following volumes and the prices in number 14 above shall be
adjusted accordingly:
Description Unit Price Case Price
- ----------- ---------- ----------
To be negotiated between the parties
15. Supplier shall carry product liability insurance with a face value
of not less than $1,000,000 per incident. Supplier shall provide MA a copy of
said insurance within 30 days of execution of this agreement. Supplier warrants
that they are covered by product liability insurance at the time of execution of
this agreement. Supplier agrees to have their insurance carrier name MA on the
policy as a co-insured, distributor of products or listed on an applicable rider
to the policy within (30) days of execution of this agreement.
16. Supplier grants to MA the exclusive distribution rights of said
products consistent with the following terms and conditions:
Governed by a separate Licensing and Confidentiality Agreement attached
hereto as Exhibit "B" and incorporated herein by reference.
17. Supplier agrees not to duplicate, simulate, or copy MA's marketing
plan or to go to any venture, enterprise, or business directly or through a
third party utilizing MA's binary marketing plan as defined in MA's official
company literature. Supplier expressly agrees that the MA marketing plan is
proprietary to MA.
18. Supplier or its principals from time to time may have access to
confidential or proprietary information of MA. Supplier and its principals
agrees and acknowledges that the MA marketing plan, client list, distributor
list, records, genealogy reports, computer programs, information on the working
of the marketing plan,
<PAGE>
internal memoranda, product sources, product pricing, product suppliers, and
legal information and documents are proprietary information and trade secrets of
MA. Supplier and its principals agrees to keep all of the above MA trade secrets
and proprietary information confidential and not to disclose it to any third
party that could bring harm to MA or anyone entering into competition with MA.
It is further agreed that said materials and information are made available
under law for Suppliers and its principals to protect MA's interest in handling
said information and materials. Supplier will not use the confidential or
proprietary information, property or trade secrets in any way for their own
personal gain during the term of this agreement or after termination of this
contract. Breach of this covenant would entitle MA to a restraining order in a
court of competent jurisdiction and to damages.
19. Supplier and its principals agree not to solicit, approach, recruit
or involve in anyway, personally or though another party and MA distributor or
customer into any other venture, marketing plan, MLM program or business or give
the names obtained by Supplier from MA to any other entity or person who might
do the same or sell products or services directly or through a third party to
any MA distributor for a period of one (1) year from the termination of this
agreement in writing by one of the parties.
Additional, Supplier hereby agrees that for a period of two (2) years
from the date of termination of this agreement or two (2) from date of
conclusion of the last transaction between the parties whichever date is later,
neither Supplier nor Supplier's employees, agents, consultants, corporations,
divisions, subsidiaries or partnerships (or other groups over which Supplier has
authority or control) will make any contact with or enter into any transaction
of a Money nature with any MA distributor which has been introduced to Supplier
by MA without consent of MA and the presence of a written agreement executed
between Supplier and MA concerning renumeration to be paid to MA.
20. Supplier shall not market its product or a similar product or
service under the name ISOTONIX(r) per the Licensing and Confidentiality
Agreement attached as Exhibit "B" to any other person, entity, organization, or
company other than MA for a period of 90 days from execution of this agreement
after which time Number 17 of this agreement shall control exclusivity.
customers at no additional charge to Market America.
21. This agreement shall be binding and inure to the benefit of the
parties and their legal representatives.
22. All provisions of this agreement are severable and invalidation by
a court of competent jurisdiction of one or more provisions does not operate to
invalidate the entire agreement.
<PAGE>
23. This agreement shall be governed and construed under the laws of
the state of North Carolina and any claim of conflict out of this agreement
shall be adjudicated in a court of competent jurisdiction.
24. This agreement constitutes the full understanding of the parties.
There are no other agreements or understandings, whether oral or written, that
may in any way alter, modify, amend, or otherwise change this agreement.
25. This agreement can only be added to, amended to, modified, changed,
or portions deleted by written documentation duly executed by both parties.
IN WITNESS WHEREOF, this agreement has been executed by the parties
signing below on the date first above mentioned.
For Market America, Inc. (MA)
by /s/ James H. Ridinger
----------------------------
President, James H. Ridinger
attest /s/ Loren Ashley Ridinger (seal)
----------------------------
/s/ [Confidential Information], President
For Supplier: [Confidential Information], President
------------------------------------------
Name
Isotonix(r) Corporation
- -------------------------------------------------------------------------------
Street City State Zip
P.O. Box [Confidential Information]
[Confidential Information]
by [Confidential Information]
----------------------------
title President
----------------------------
name
----------------------------
by
----------------------------
<PAGE>
EXHIBIT "A" TO VENDOR AGREEMENT
Product Specifications
Isotonix(r) Vitamins (active ingredients):
Product Name Amount %USRDA
------------ ------ ------
A. Vitamin B12 with Folic Acid
---------------------------
Vitamin B12 (Cobolamin) 120.0 mcg 2,000
Folic Acid 400.0 mcg 100
B. Vitamin C Power
---------------
Vitamin C (Ascorbic Acid) 500.0 mcg 833
C. Calcium Plus
------------
Calcium 150.0 mg 15
Magnesium 40.0 mg 10
D. B Complex with Vitamin C
------------------------
Vitamin B1 (Thiamine HC1) 3.0 mg 200
Vitamin B2 (Riboflavin) 3.0 mg 175
Niacin (Niacinamide) 40.0 mg 200
Vitamin B6 (Pyrodoxine HC1) 4.0 mg 200
Vitamin B12 (Cobalamin) 12.0 mcg 200
Folic Acid 400.0 mcg 100
Biotin 150.0 mcg 50
Pantothenic Acid (Calcium
d-Pantothenate) 20.0 mg 200
Vitamin C (Ascorbic Acid) 60.0 mg 100
E. Anti-Oxidation Vitamin Combination
----------------------------------
Beta Carotene 10,000.0 I.U. 200
Vitamin E 60.0 I.U. --
Vitamin C 300.0 mg 500
Selenium (Amino Acid Gluconate) 100.0 mcg --
<PAGE>
Exhibit "A" to Vendor Agreement (cont'd)
Page 2
F. Multi-Vitamin/Multi-Mineral
---------------------------
Vitamin A (Palmitate, Beta Carotene) 7,500.0 I.U 150
Vitamin B1 (Thiamine HC1) 2.6 mg 175
Vitamin B2 (Riboflavin) 3.0 mg 175
Niacin (Niacinamide) 40.0 mg 200
Vitamin B6 (Pyrodoxine HC1) 4.0 mg 200
Vitamin B12 (Cobalamin) 15.0 mcg 250
Folic Acid 400.0 mcg 100
Biotin 150.0 mcg 50
Pantothenic Acid (Calcium
d-Pantothenate) 10.0 mg 100
Vitamin C (Ascorbic Acid) 120.0 mg 200
Vitamin E (Acetate) 15.0 I.U. 50
Calcium (Carbonate) 50.0 mg 5
Chromium (Amino Acid Chelate) 25.0 mcg --
Copper (Gluconate) 200.0 mcg 10
Iodine (Potassium Iodate) 150.0 mcg 100
Iron (Ferrous Gluconate) 4.5 mg 25
Magnesium (Carbonate) 12.0 mg 3
Manganese (Sulfate) 5.0 mg --
Potassium (Bicarbonate) 99.0 mg --
Selenium (Amino Acid Chelate) 25.0 mcg --
Silicon (Dioxide) 2.0 mg --
Zinc (Gluconate) 7.5 mg 50
<PAGE>
EXHIBIT "B" TO
VENDOR'S AGREEMENT
AGREEMENT
AGREEMENT entered into this 25th day of October, 1993, by and between
Market America, Inc., a Delaware corporation with a usual place of business in
Greensboro, NC, hereinafter referred to as "MAI", and Isotonix(R) Corporation, a
[Confidential Information] corporation, with a usual place of business in
[Confidential Information], hereinafter referred to as "Isotonix(R)."
WHEREAS, MAI is in the business of distributing, through multi-level
marketing, certain health care products; and
WHEREAS, Isotonix(R) is the owner of formulas and manufacturing
processes for certain health care products and is engaged in manufacturing the
same directly or through affiliated pharmaceutical laboratories; and
WHEREAS, Isotonix(R) is the owner of the trademark "Isotonix(R)" under
which it and affiliated predecessors have been distributing its health care
products; and
WHEREAS, the parties desire to enter into an agreement whereby MAI will
distribute health care products produced by Isotonix(R). under the trademark of
Isotonix(R) and which such agreement requires a degree of trust and confidence
between the parties in that Isotonix(R) may have a legitimate business purpose,
from time to time, to reveal to MAI, in trust and in confidence, certain
formulas, manufacturing processes and other intellectual property of
Isotonix(R), necessary for the development, improvement, testing and quality
control of certain vitamin preparations, and other health care products; and
<PAGE>
WHEREAS, Isotonix(R) will require from MAI, if said legitimate business
purpose to reveal arises, a covenant not to disclose this confidential
information relating to Isotonix(R)'s business and trade secrets and certain
other covenants; and
WHEREAS, the parties hereto desire to set forth in writing the terms
and conditions of their agreements and understandings as to the confidentiality
of said protected and proprietary information;
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1.0 ORDERING, PRICING, DELIVERY
1.1 Exclusive Right to Trademark
Provided MAI meets the minimum purchase requirements set forth in Exhibit "A",
and as amended from time to time, it shall have the right, by license as set
forth in Section 2 hereof, to the exclusive use of the name "Isotonix(R)" for
the time as set forth in paragraph 2.6 hereof.
1.2 Price list
MAI shall pay to Isotonix(R) the prices for said products set forth in Exhibit
"A", attached hereto and incorporated herein by reference, which may be amended
by a ninety (90) day written notice of intent to increase the price or prices of
its products.
2
<PAGE>
1.3 Payment terms
1.3.1 MAI shall pay fifty percent (50%) upon the placing of each order and the
remaining fifty percent (50%) due thereon upon delivery of the order, C.O.D., or
by the deposit of an irrevocable Letter of Credit, in a form approved by
Isotonix(R) prior to shipment of the order.
1.3.2 Isotonix(R) shall cause to be shipped all products ordered by MAI within
sixty (60) days of receipt of each order.
1.3.3 In the event that the order is not shipped within the sixty (60) period
provided in sub-paragraph 1.3.2 above, then a "late shipment penalty" of two
percent (2%), per week late, of the total cost of the late shipped items.
1.3.4 If the order is more than forty-five (45) days late, MAI shall have the
right to cancel the order and be refunded advance monies in full.
1.3.5 Isotonix(R) will not be held responsible for any delay caused by weather,
problems of raw material delivery or availability, strikes, or other events
that, through no fault of Isotonix(R), cause a delay in the delivery date.
1.4 Costs of Delivery
1.4.1 Delivery shall be "FOB" [Confidential Information], or such other point of
manufacture of the products of equal or lesser distance, and all costs of
delivery are to be added to the final payment due Isotonix(R).
1.4.2 MAI shall advise Isotonix(R) of the method of shipment at least three (3)
business days prior to scheduled shipment.
3
<PAGE>
1.5 Labels
MAI shall be responsible for providing labels for products ordered, at the
expense of MAI, and in a form approved by Isotonix(R). Isotonix(R) will assist
MAI in the design of the label. In the event that said labels are not timely
provided to Isotonix(R) at its place of designated manufacture, the required
date of performance set forth in paragraph 4 above, shall be tolled and extended
until all required labels are received at the point of manufacture. Labels shall
meet the requirements of all federal and state law and regulation.
1.6 Taxes
There shall be added to the invoice price, and MAI shall pay to Isotonix(R) as
part of the purchase price hereof, any excise, use, privilege or sales tax, or
any other tax or assessment now or hereafter imposed by or under the authority
of any federal, state or local law, rule or regulation with respect to the
products sold from Isotonix(R) to MAI hereunder. Should seller pay any such
taxes or assessment, MAI shall reimburse seller therefor upon demand.
1.7 Title to Formulas
No right, title or interest in formulas or manufacturing processes of products
furnished to MAI by Isotonix(R) shall pass to MAI by virtue of this agreement.
1.8 Compliance with Regulatory Law
Each party shall strictly observe and comply with all federal, state and local
laws, rules and regulations which may govern the manufacture, sale, handling or
disposal of the products to be furnished by Isotonix(R). If either party shall
be in violation of any said law, rule or regulation, the other party may treat
such violation as a breach of this Agreement.
4
<PAGE>
1.9 Independent Action
This Agreement shall not constitute either party as a representative or agent of
the other party, and neither party shall be bound by any acts or omissions of
the other party without the express written consent of the party to be bound.
1.10 Safety of Product
Isotonix(R) warrants that all products are safe for the use of which they are
intended and that the manufacture, distribution and/or use of the products are
authorized and permitted, and are not prohibited, by any federal, state or local
regulation or rule.
1.11 Representations of Product
1.11.1 MAI shall use reasonable efforts to ensure that its employees, agents,
distributors, salespersons, independent contractors, attorneys or anyone acting
on behalf of or in association with MAI makes no claims, representations,
warranties or other public or private statements or advertisements as to any
curative powers or medicinal value of said products, except as allowed by state
and federal law or regulation.
1.11.2 Isotonix(R), through its authorized spokesperson, shall from time to time
make available literature, printed material, tape recordings and/or video tapes
to MAI for promotion of sales of its products, and the statements contained
therein may be relied upon by MAI and its agents, distributors, salespersons and
independent contractors, and represented by them as applicable to the products
involved.
5
<PAGE>
2.0 LICENSING OF TRADEMARK Isotonix(R)
2.1 Use of Trademark.
The parties hereto agree that Licensee shall have the right to use of Licensor's
trademark, Isotonix(R), for the period of time herein specified and under the
terms and conditions herein set forth; the Licensee agrees that the Trademark is
being used "under license."
2.2 Compliance with Trademark Laws
The Licensee will comply with all laws pertaining to trademarks in any
jurisdiction where the said Trademark is employed, including compliance with
marking requirements.
2.3 Protection of Good Will
The Licensee shall not permit or condone any of its employees, agents,
attorneys, independent contractors or anyone acting on its behalf, from engaging
in any activity which would bring discredit upon the said Trademark, or
otherwise slander the title thereof during the term of said License.
2.4 Non-Assignability
The Licensee shall not transfer, pledge, assign, hypothecate, or otherwise
encumber, its right and license to use said Trademark without the prior written
consent of the Licensor.
6
<PAGE>
2.5 Indemnification
The Licensee shall hold the Licensor harmless and shall indemnify said Licensor
for any costs, expenses, damages or other claim of liability resulting from the
Licensee's breach of this Licensing Section.
2.6 Termination
The License granted herein, shall terminate upon the judicial determination of a
breach of any covenant or warranty contained herein or within one (l) year after
the shipment of any product ordered, if no further order has been received
within that one (1) year period, or in the event of the Licensee's discontinuing
to be actively engaged in business.
2.7 Ownership of Trademark
Licensee (MAI) agrees that Licensor (Isotonix(R)) has the full and exclusive
right and title in and to said Trademark, and that this License in and by itself
does not confer or convey any right, title or interest in and to said Trademark
other than the right to use as provided herein. Licensee further agrees that it
will not take any action to contest or impair these rights.
3.0 CONFIDENTIALITY
3.1 Treatment of Confidential Information
3.1.1 MAI acknowledges that as a result of its association with
Isotonix(R) it may become privy to confidential information of a special and
unique nature and value, relating to such matters as Isotonix(R)'s trade
secrets, formulas and manufacturing processes.
7
<PAGE>
3.1.2 MAI further acknowledges that any information relating to
Isotonix(R) trade secrets, formulas and manufacturing processes received by it
from Isotonix(R), or from third-parties acting on behalf of Isotonix(R), and in
confidence (or subject to non-disclosure or similar covenants) shall be deemed
to be and shall be confidential information within the meaning of this
agreement.
3.1.3 MAI warrants and covenants that it shall use due and diligent
care to preserve the confidentiality of said information.
3.1.4 Disclosure by MAI of any such confidential, protected and
proprietary information of Isotonix(R), shall not be prohibited if such
disclosure is directly pursuant to a valid and existing order of a court or
other governmental body or agency within the United States; provided, however,
that:
a. MAI shall first have given prompt notice to Isotonix(R) of any such
possible or prospective order or proceeding pursuant to which any such
order may result and,
b. Isotonix(R) shall have been afforded a reasonable opportunity to
prevent or limit any such disclosure.
3.2 Definition of Confidential Information.
3.2.1 For purposes of this Agreement, the term "Confidential
Information" shall mean the following materials and information:
a. production processes, formulation, blending methods and
arrangements, purchasing information and pricing policies;
b. the nature and results of research and development activities,
processes, and formulas;
8
<PAGE>
3.2.2 Failure to mark any of the "Confidential Information" as
confidential, proprietary or as protected information, shall not affect its
status as part of the "Confidential Information" under the terms of this
Agreement.
3.2.3 For purposes of this Agreement, the term "Confidential
Information" shall not include information which is or becomes publicly
available without breach of this Agreement; provided however, that MAI hereby
acknowledges and agrees that, except as otherwise provided in section 1.0
hereof, if MAI shall seek to disclose, divulge, reveal, report, publish,
transfer or use, for any purpose whatsoever, any "Confidential Information"
outside of the permitted uses in this Agreement and in the parent Agreement of
even date, MAI shall bear the burden of proving that any such information had
previously become publicly available without any such breach.
3.3 Ownership of Information.
3.3.1 MAI covenants and agrees that all right, title and interest in
any and all "Confidential Information" shall, at all times, be and shall remain
the exclusive property of Isotonix(R). In the event that said "Confidential
Information" is divulged, revealed or otherwise shared as provided herein and in
the parent Agreement of even date, the confidential nature of said information
is not lost and the right, title and interest in said information remains the
exclusive property of Isotonix(R).
9
<PAGE>
3.4 Reasonableness of Restrictions; Severability
3.4.1 MAI represents and warrants that it has carefully read and
considered the provisions of section 3.0 and having done so, agrees that the
restrictions set forth therein are fair and reasonable and are reasonably
required for the protection of the interests of Isotonix(R), its business,
assigns and shareholders.
3.4.2 The provisions of this Agreement shall be deemed severable, and
the invalidity or unenforceability of the other provisions hereof shall not
affect the validity and enforceability of the other provisions hereof. MAI
agrees that the breach or alleged breach of any covenant contained in any other
agreement, if any, between MAI and Isotonix(R), by either party thereto, or any
obligation owed to MAI by Isotonix(R) shall not affect the validity or
enforceability of the covenants and agreements of MAI set forth herein.
4.0 BURDEN AND BENEFIT
4.1 This Agreement shall be binding upon, and shall inure to the
benefit of MAI and Isotonix(R), and their respective legal representatives,
successors and assigns.
4.2 The terms of Section 2 (License) and Section 3 (Confidentiality)
hereof shall apply to and be binding upon the parties hereto, and their
respective agents, employees, officers, directors and anyone affiliated
therewith.
4.3 It is the express intent of the parties hereto that rights and
obligations contained in this Agreement shall survive the business relationship
of the parties.
10
<PAGE>
5.0 GOVERNING LAW
5.1 In view of the fact that the principal office of Isotonix(R) is
located in the [Confidential Information], it is understood and agreed that the
construction and interpretation of this Agreement shall at all times and in all
respects be governed by the laws of the [Confidential Information].
5.2 Whereas the parties hereto have entered into a "Vendor Agreement"
concerning the products of Isotonix(R), it is understood and agreed that said
Vendor Agreement shall at all times and in all respects be governed by the laws
of the State of North Carolina.
6.0 NOTICES
Any notice required to be given hereunder shall be sufficient if in
writing and sent by certified mail, return receipt requested, first-class
postage prepaid; as to MAI: 7615 Business Park Drive, Greensboro, NC 27409 as to
Isotonix(R): Post Office Box [Confidential Information].
7.0 ENTIRE AGREEMENT
7.1 Entire Agreement This Agreement contains the entire agreement and
understanding by and between MAI and Isotonix(R) with respect to the subject
matter herein, and no representations, promises, agreements or understandings,
written or oral, not herein contained shall be of any force or effect. No change
or modification hereof shall be valid or binding unless the same is in writing
and signed by the party against whom such waiver is sought to be enforced;
moreover, no valid waiver of any provision of the Agreement at any time shall be
deemed a waiver of any other provision of this Agreement at such time or shall
be deemed a valid waiver of such provision at any other time.
11
<PAGE>
7.2 Non-Assignable This Agreement shall not be assignable without the
prior written consent of the parties hereto.
8.0 HEADINGS
The headings and other captions in this Agreement are for convenience
and reference only and shall not be used in interpreting, construing or
enforcing any of the provisions of this Agreement.
IN WITNESS WHEREOF, Market America, Inc., and Isotonix(R) Corporation,
by their duly authorized representatives, have executed this Agreement as of the
day and year first set forth above, as a sealed instrument.
Isotonix(R) Corporation, Market America, Inc.,
by, by,
/S/ /S/
- ------------------------------------- ---------------------------------
[Confidential Information], President James H. Ridinger, President
12
<PAGE>
EXHIBIT "A" to Licensing and Confidentiality Agreement
MINIMUM QUOTA AND PRICING:
MAI agrees and acknowledges that it shall be obligated, under the terms
and conditions of this Agreement to which this exhibit is attached, and by the
Vendor Agreement attached, to purchase a minimum amount [Confidential
Information] bottles of product every three months, ([Confidential Information]
annually), and a minimum of [Confidential Information] bottles of any particular
formulation or product ordered, as manufactured by Isotonix(R).
The purchase price, per bottle and per formula, is currently quoted at:
Vitamin C..................................$ [Confidential Information]
Vitamin B12 with Folic Acid................. [Confidential Information]
Calcium in Isotonix(R) capable formulation.. [Confidential Information]
Vitamin B Complex with Vitamin C............ [Confidential Information]
Multi Vitamin with Multi Mineral............ [Confidential Information]
Anti-oxidant Vitamin Formulation............ [Confidential Information]
Buyer is obligated [Confidential Information], and a [Confidential
Information] will be allowed to buyer as product is shipped. Prices for other
formulations are available upon request.
The prices quoted herein are guaranteed for ninety (90) days from the
date hereof.
Dated: October 22, 1993
Acknowledgment:
Market America, Inc.,
by
/s/ JR
- --------------------------
13
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Statement of Financial Condition at April 30, 1998 and the Statement of
Operations for the year ended April 30, 1998 and is qualified in its entirety
by reference to such financial statements.
</LEGEND>
<CIK> 0000880121
<NAME> Market America
<MULTIPLIER> 1
<CURRENCY> U.S. Dollars
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> APR-30-1998
<PERIOD-START> MAY-01-1997
<PERIOD-END> APR-30-1998
<EXCHANGE-RATE> 1.000
<CASH> 18,379,127
<SECURITIES> 12,415,465
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 1,468,321
<CURRENT-ASSETS> 32,435,248
<PP&E> 1,249,528
<DEPRECIATION> 462,036
<TOTAL-ASSETS> 33,584,430
<CURRENT-LIABILITIES> 7,938,605
<BONDS> 0
0
0
<COMMON> 199
<OTHER-SE> 25,481,311
<TOTAL-LIABILITY-AND-EQUITY> 33,584,430
<SALES> 87,531,005
<TOTAL-REVENUES> 87,531,005
<CGS> 19,272,329
<TOTAL-COSTS> 19,272,329
<OTHER-EXPENSES> 50,917,061
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 93,752
<INCOME-PRETAX> 18,783,209
<INCOME-TAX> 7,942,669
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 10,840,540
<EPS-PRIMARY> .54
<EPS-DILUTED> .54
</TABLE>
