Item 1. Business
Overview
On January 23, 2012, the company opened Casino Miami Jai-Alai in Miami, Florida. Miami Jai-Alai added a 40,000
square foot state of the art casino with 1,058 Class III slot machines, an expanded poker room, electronic blackjack, roulette, dominoes, live shows such as concerts and boxing, a new restaurant and three full-service bars, including one that will feature live music. The Company also operates a fronton in Ft. Pierce, FL and an inactive Jai-Alai pari-mutuel permit for Hillsborough County (Tampa), Florida. The Company's business at this time consists primarily of its operations at the frontons, which include casino gaming, card rooms, live jai-alai performances, inter-track pari-mutuel wagering ("ITW") on jai-alai, horse racing (both thoroughbred and harness) and dog racing, and the sale of food and alcoholic beverages. The Fort Pierce location provides seasonal live jai-alai, inter-track wagering on interstate simulcasting of horse racing, dog racing, and jai-alai from various tracks and frontons in the United States and within the State of Florida. Jai-alai games are played live and simulcast year round from the Miami facility via satellite to pari-mutuel wagering locations in Florida, Connecticut, Rhode Island, as well as locations in Mexico, Central America, and Austria. Poker and dominoes are played at the Miami Jai-Alai Crystal Card Room and poker is played at the Ft. Pierce card room.
Our Company
Florida Gaming Corporation (“FGC” or the “Company”), was incorporated in the state of Delaware in 1976 as Lexicon Corporation (“Lexicon”). In 1993, Lexicon sold 699,480 shares of common stock to Freedom Financial Corporation ("Freedom") and a new board of directors was elected, and present management assumed control of Lexicon. The acquisition of the Ft. Pierce Fronton (“Ft. Pierce”) was consummated in February, 1994 following receipt of the approval from the Florida Department of Business Regulation on that date. Following the purchase of Ft. Pierce, the Company changed its name to Florida Gaming Corporation on March 17, 1994. On January 1, 1997, the Company purchased the Jai-Alai Facilities at Ocala, Tampa, and Miami, Florida. The Company also entered into the real estate development business in 1997. On January 23, 2012, the Company opened Casino Miami Jai-Alai. The Company’s stock is traded on the over-the-counter bulletin board under the stock symbol “FGMG”. The Company’s principal place of business and executive offices are located at 3500 N.W. 37th Avenue, Miami, FL 33142.
On September 4, 1998, the Company sold the Tampa Jai-Alai property. The sale did not include the Company's gaming permit which remains available for future use in Hillsborough County, Florida. On July 31, 2000, the Company sold the Ocala Jai-Alai location.
Sale of Florida Gaming Centers
On November 25, 2012, the Board of Directors of the Company unanimously approved the Company’s sale of its wholly owned subsidiary, Florida Gaming Centers, Inc. (“Centers”). The Company entered into a Stock Purchase Agreement (the “SPA”) for the sale of Centers to Silvermark LLC (“Silvermark”) for $115 million plus the assumption of certain liabilities of Centers associated with two mortgages held by Miami-Dade County. Centers is the owner and operator of Casino Miami Jai-Alai in Miami, FL and Ft. Pierce Jai-Alai located in Ft. Pierce, FL. Both facilities offer poker and inter-track pari-mutuel wagering, and Casino Miami Jai-Alai also has slot machines. Centers constitutes the Company’s only operating asset. (For complete details on the sale of Centers, please refer to DEF 14A filed January 31, 2013)
Silvermark will assume Centers’ post-closing obligations under a Settlement Agreement with Miami-Dade County, Florida pertaining to a parking lot that is adjacent to Centers’ Miami facility which is subject to notes and mortgages totaling approximately $15 million. The $115 million cash purchase price, which is subject to adjustment as described in the SPA, will be used to fund the repayment of Centers’ other outstanding indebtness, including but not limited to approximately $87 million credit facility and other debt totaling approximately $10.5 million. Additionally, $7.5 million of the purchase price will be held in escrow for up to three years to indemnify Silvermark LLC against obligations of the Company after the closing. The Company expects to use any net cash proceeds from the transaction, after the repurchase of warrants for 35% of Centers’ equity held by lenders under Centers’ credit facility and the debt reduction described above, to pay transaction-related expenses and for other purposes.
The proposed transaction was approved by the Company’s stockholders on February 25, 2013, and must be approved by customary regulatory approvals, including Silvermark’s receipt of a Florida gaming license, and other customary regulatory and closing conditions. The transaction is also conditioned on Centers’ receipt of an order from the court in the Company’s ongoing litigation in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida either (i) approving of Centers’ entry into the transaction or (ii) ruling that the court’s approval of Centers’ entry into the transaction is not required.
The Company’s stockholders are not expected to receive any consideration upon the consummation of the transaction. In general, at closing, proceeds from the transaction will be used to pay transaction-related expenses and to service the Company’s outstanding indebtedness. $7.5 million of the purchase price will be placed in escrow for up to three years to indemnify Silvermark against obligations of the Company after the closing. Pursuant to the Indemnification Escrow Agreement, the escrow agent will release $70,000 per month to the Company as long as there are no outstanding claims for indemnification or outstanding Excluded Liabilities or Excluded Litigation with unspecified Losses or Potential Losses or until the escrow amount reaches $5,000,000. If the Company receives the $70,000 monthly payment, management expects to use those proceeds to continue operations during the escrow period and for payment of ongoing expenses including: legal, accounting, public company expenses, and operational expenses, such as rent, utilities, and salaries.
The transaction is expected to be completed by April 30, 2013. The Company intends to disclose further information pertaining to this transaction, as required or appropriate, in the future.
For complete details on the sale of Centers, please refer to DEF 14A filed January 31, 2013 and See Note L.
Notice of Acceleration of all Obligations and a Note of Demand on Credit Party Guaranty
On July 25, 2012, there was a $3,229,127 principal pay down from the amounts on deposit in the completion reserve account and interest reserve account. The principal balance owed on the note was reduced to $83,770,862. On July 31, 2012, the Company was required to make a $2,362,408 principal payment. The Company did not make the required principal payment on July 31, 2012, and on August 9, 2012, the Company and Centers, received a Notice of Acceleration of all Obligation and a Note of Demand on Credit Party Guaranty. (See Legal Proceedings and exhibits 99.1 and 99.2 attached to the June 30, 2012 10-q)
On September 5, 2012 two complaints were filed against the Company, Centers, and Tara Club Estates, Inc. In its complaint filed in the Circuit Court of the Nineteenth Judicial District in and for St. Lucie County, Florida, ABC Funding seeks to enforce the Guaranty and to foreclose on the collateral secured by the St. Lucie mortgage, the Pledge Agreement and the Trust Assignment. (For more information please refer to Form 8-K dated September 5, 2012.)
On September 25, 2012, David S. Jonas, age 51, was appointed the Chief Restructuring Officer of Centers pursuant to an Engagement Letter between Mr. Jonas and Centers. Mr. Jonas was appointed as Chief Restructuring Officer following the Company’s and Centers’ receipt on August 9, 2012 of notice of acceleration of indebtedness outstanding under its Credit Agreement with certain lenders and also foreclosure actions against the Company and Centers that were filed on September 5, 2012 by such lenders. The notice of acceleration was reported in the Company’s Form 10-Q for the period ending June 30, 2012. In his position as Chief Restructuring Officer, Mr. Jonas was responsible for and had control over the day-to-day operations of Centers. Until such time as the Company’s lenders exercise warrants to purchase shares of Centers common stock that were issued in connection with the Credit Agreement, Centers’ board of directors has the right to terminate Mr. Jonas at will. After those warrants are exercised, Mr. Jonas’ position may be terminated by either party upon giving 60 days written notice. (For more information please refer to Form 8-K dated September 25, 2012.)
On October 18, 2012, ABC Funding, LLC, on behalf of certain of Centers’ lenders, filed motions requesting the immediate appointment of David S. Jonas as receiver to take operational control of Centers. ABC Funding filed the motions as Administrative Agent for the lenders under Centers’ primary credit facility, alleging that the appointment of a receiver is necessary to protect certain property that was pledged to the lenders under the credit facility. The motions further allege that: Centers is unable to manage its contractual obligations appropriately and to protect the collateral of its secured creditors; Centers is incapable of adhering to the corporate structure by which it and the Company are required to operate; Centers’ funds have been misappropriated and misallocated; and, the assets that are available to repay the loan are in danger of being dissipated in violation of the credit facility loan documents. The motions were filed in connection with lawsuits previously filed by ABC Funding in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida and in the Nineteenth Judicial District in and for St. Lucie County, Florida that were reported by the Company on its Form 8-K dated September 5, 2012 and that are described in greater detail below. (For more information please refer to Form 8-K dated October 18, 2012)
In its complaints, ABC Funding alleged numerous defaults and other violations of the credit agreement and other loan documents against the Company and Centers. ABC Funding is seeking: (i) an award of damages in excess of $84,000,000 against Centers for breach of the credit agreement; (ii) enforcement of the Guaranty against the Company, including an award of damages in excess of $84,000,000; (iii) to foreclose on the collateral secured by the Miami mortgage, the St. Lucie mortgage, the Pledge Agreement and the Trust Assignment, including, certain real property owned by Centers and the Land Trust in Miami-Dade County, Florida and in St. Lucie, Florida; and (iv) the appointment of a receiver.
On October 19, 2012, the board of directors terminated the engagement of David S. Jonas as Centers’ Chief Restructuring Officer.
On November 2, 2012, the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida (the “Court”) entered an order appointing David Jonas as Temporary Receiver for certain real and personal property owned by Centers, the wholly-owned subsidiary, and primary operating asset, of the Company. The appointment was made effective as of October 25, 2012, and the Court scheduled a hearing for November 27, 2012 to consider whether Mr. Jonas should be appointed as receiver through the pendency of the litigation. (For more information please refer to Form 8-k dated November 2, 2012.)
In its order, the Court ordered Mr. Jonas, as receiver, to immediately take possession of all the accounts, books of account, checkbooks, lease agreements, sales contracts, assets, files, papers, contracts, records, documents, monies, securities, choses in action, keys, pass codes and passwords, computers, all software and data, archived and historical data, and all other property, real, mortgaged, personal or mixed, of Centers, including, but not limited to any and all funds being held by any third party on behalf of Centers. As receiver, Mr. Jonas is empowered, directed and authorized by the Court to do any and all things necessary for the proper management, operation, preservation, maintenance, protection and administration of Centers’ assets. The affected assets constitute substantially all of the Company’s operating assets.
Acquisition & Development of Company
Acquisition of Frontons: On September 12, 1996, the Company acquired from the Bank of Oklahoma, N.A., Tulsa, Oklahoma secured notes of World Jai-Alai (the "WJA Notes") with balances aggregating about $20,000,000 . The WJA Notes were secured by real estate and improvements consisting of three jai-alai and ITW facilities located at Miami, Tampa and Ocala, Florida (the "WJA Frontons"). Consideration for the WJA Notes was a combination of $2,000,000 in cash, a $6,000,000 promissory note bearing interest at the prime rate, a $1,000,000 non-interest bearing promissory note, and 703,297 shares of the Company's Common Stock.
On November 25, 1996, the Company, through a wholly-owned subsidiary, Florida Gaming Centers, Inc. ("Centers") entered into an agreement with WJA pursuant to which Centers agreed to acquire title to the three (3) WJA Frontons. The acquisition was consummated as of January 1, 1997. The Fort Pierce Jai-Alai Fronton which had previously been purchased from WJA was also transferred into Centers. The Company subsequently sold the Ocala and Tampa jai-alai.
Summer Jai-Alai: Florida Gaming Centers, Inc. (“Centers”) held a 21% interest in Summer Jai-Alai (“SJA”), a Florida general partnership formed in 1980 with three other pari-mutuel permit holders for the purpose of conducting pari-mutuel jai-alai operations at the Miami Jai-Alai fronton. On October 14, 2010, Centers sold to West Flagler Associates, Ltd. (“Flagler”) all of Centers’ interest in the Summer Jai-Alai Partnership (“Summer”) for a total purchase price of $2,501,583. (See Note J)
The sale consisted of its entire 21% ownership of the total issued and outstanding partnership interest in Summer, including any and all rights, title, and interest that Centers maintained in Summer’s gaming permit (the “Summer Permit”). The Summer Permit enabled Summer to conduct pari-mutuel wagering during the period beginning May 1st and ending November 30th (the “Summer Season”) of each year at the Facility in accordance with the following agreements between Centers and Summer: 1) an Amended and Restated Permit Use Agreement dated September 30, 2010; 2) a Lease Agreement dated September 30, 2010; and 3) a Memorandum of Lease dated September 30, 2010.
The Amended and Restated Permit Use Agreement (“APUA”) dated September 30, 2010 requires Centers to perform management services at the Facility during the term of the APUA. Centers must conduct the minimum number of performances required by Florida law for the Summer Permit to be authorized to conduct pari-mutuel, intertrack wagering, and cardroom operations, but not more than 115% of the minimum required performances, subject to annual adjustment agreed upon by the two parties. All revenue of any type produced and all costs, expenses, and liabilities incurred from the Summer operations that specifically occur at the Facility during the APUA’s term belongs entirely to Centers. In the event Summer obtains authorization and a license under the Summer Permit to conduct cardroom operations at a location other than the Facility, Summer must remit to Centers 4.00% of Summer’s weekly gross cardroom receipts to supplement prizes paid in connection with live jai alai games conducted at the Facility.
The APUA commenced on October 1, 2010 and continues until the date which is seven years after all of the following events have occurred:
1)Centers obtains a slot machine license under Chapter 551 of the Florida Statutes, pursuant to Centers’ Miami Jai-Alai permit;
2)Centers installs slot machines, and holds itself out to the public as, and commences operations as, a slot machine gaming facility under Chapter 551, Florida Statutes; and
3)the first “coin-in” occurs at the Facility. If the aforementioned events do not occur, the APUA terminates on its 21st anniversary.
Additionally, Summer has the option to unilaterally terminate the APUA at any time by giving Centers 30 days notice of such termination. The Lease Agreement and Memorandum of Lease both dated September 30, 2010 outline terms for Summer to lease the Facility from Centers during the Summer Seasons. The Lease Agreement and Memorandum have the same term as the APUA, including the unilateral option of Summer to terminate the lease with notice. Rent owed by Summer to Centers equals the product of $7,500 multiplied by the number of jai alai performances held during the period. Rent is capped at 115% of the minimum number of performances required under Florida law. During the year ended December 31, 2012, the Company received $520,000 compared to $705,000 in 2011.
Development of Card rooms Miami Jai-Alai opened a card room in 1997, and the Ft. Pierce Jai-Alai card room opened on April 28, 2008.
On July 1, 2007, a new Florida pari-mutuel statute was enacted allowing card rooms at licensed pari-mutuel facilities to add the game of dominoes, increase the maximum wager on poker from $2 to $5, and permit year round operation of card rooms. Card rooms are regulated by the Florida Division of Pari-Mutuel Wagering (“DPMW”). Permitted games are limited to non-banked poker games and dominoes. Miami offers dominoes but Ft. Pierce does not. Florida state taxes are 10% of revenue and 4% of the revenues are paid to the jai-alai players.
1.Card rooms may operate on any day for a cumulative amount of 18 hours on week days and 24 hours on weekend and holidays;
2.“Authorized games” means a game or series of games of poker or dominoes;
3.“Tournament” means a series of games that have more than one betting round involving one or more tables and where the winners or others receive a prize or cash award;
4.Card room operators may award giveaways, jackpots, and prizes to a player who holds certain combinations of cards specified by the card room operator;
5.Card rooms may conduct games of poker.
Development of Slot Machines On January 29, 2008, residents of Miami-Dade County passed a referendum that would allow Miami Jai-Alai, and two other pari-mutuel facilities in Miami-Dade County to install up to 2,000 slot machines. On January 23, 2012, the company opened Casino Miami Jai-Alai in Miami, Florida. Miami Jai-Alai added a 40,000 square foot state of the art casino with 1,058 Class III slot machines, an expanded poker room, electronic blackjack, roulette, dominoes, live shows such as concerts and boxing, a new restaurant and three full-service bars, including one that will feature live music. The facility has approximately 1,500 surface parking spaces.
On April 28, 2010, the Governor of Florida signed SB 622, Chapter 2009-170, Laws of Florida which became effective on July 1, 2010. Under Florida Slot Law, the Company will be able to operate under the following provisions:
•Casino Miami Jai-Alai may be open 365 days per year, up to 18 hrs per weekday, and 24 hrs on the weekend and certain holidays
•Maximum number of machines is 2,000
•$2,000,000 yearly license fee
•35% tax rate of net slot machine revenue
•ATM’S are permitted at the facility but not on the gaming floor
•You must be 21 years old to play
Under SB 622, the Seminole tribe gained the exclusive right to have blackjack and other table games at three Broward County casinos and two others in Imokalee and Tampa. All seven tribal casinos also would be able to keep operating Las Vegas-style slot machines. Other portions of Chapter 2009-170 Laws of Florida, purports to permit Hialeah Race Course, located approximately 4 miles from Miami Jai-Alai, to open as a horse facility and operate slot machines after two consecutive years of quarter horseracing.
On June 30, 2010, W. Flagler and Florida Gaming Centers filed a constitutional challenge regarding the enactment of changes to Florida Statutes in Chapter 551 that purport to enable the expansion of slot machine games in Miami-Dade County to the site of Hialeah Park. The Statutory Amendment conflicts with the Constitutional Provision, Article X, Section 23 in numerous ways. In December, 2010 FDBPR and South Florida Racing Association, LLC were granted a partial summary judgment in regards to the suit. The Company appealed the ruling and a state appeals court in Tallahassee, FL, on October 6th, upheld a lower court ruling that allows Hialeah Park to have a casino with Las Vegas-style slot machines. The Company remains an appellant in this action. (For further information see Item 3 - Legal Proceedings)
Clean Indoor Air Act
Effective July 1, 2003, an amendment to the Clean Indoor Air Act made all of Florida's enclosed indoor workplaces smoke-free, with certain exceptions. The jai-alai facilities became smoke free on July 1, 2003. The Company has provided a smoking area to accommodate the smoking patrons.
Simulcasting
The Company generates a portion of their revenue by transmitting signals from the frontons to other (“guest”) facilities and receiving signals from other (“host”) facilities. Revenues are earned through pari-mutuel wagers on signals that the Company receives and sends as host and guest. The Fort Pierce location provides inter-track wagering on interstate simulcasting of horse racing, dog racing, and jai-alai from various tracks and frontons in the United States and within the State of Florida. Jai-Alai games are played live and simulcast year round from the Miami facility via satellite.
Distribution Methods
The Company uses radio, including live remote broadcasts, television, website, facebook, newspapers, roadside billboards, and magazines to promote activities at the jai-alai locations.
Competition
The gaming industry is highly competitive. Many gaming companies have substantially greater financial resources and larger management staffs than the Company. Because of the growing popularity and profitability of gaming activities, competition is significantly increasing. The Company competes for customers with other forms of legal wagering, including video poker gaming in non-casino facilities, charitable gaming, pari-mutuel wagering, state lotteries, Indian casinos, and cruise ships.
Further expansion of gaming opportunities not related to the pari-mutuel industry could also significantly and adversely affect the Company's business. In particular, the expansion of casino gaming in Miami-Dade and Broward Counties which is near the geographic areas from which the Company attracts or expects to attract a significant number of its customers could have a material adverse effect on the Company's business. The Company expects that it will experience significant competition as the emerging casino industry matures. The Company is now competing with Calder Casino, a slot facility in Florida adjacent to Calder Race Course, which opened on January 22, 2010 with approximately 1,200 slot machines and Flagler Dog Track reopened in October 2009 as Magic City Casino with 700 Las Vegas-style slot machines.
The Company also faces competition from gaming companies that operate on-line and Internet-based gaming services. These services allow patrons to wager from home on a wide variety of sporting events. Unlike most on-line and Internet-based gaming, companies, the Company may require significant and ongoing capital expenditures for both its continued operation and expansion. The Company also could face increased costs in operating business compared to these gaming companies. The Company cannot offer the same number of gaming options as on-line and Internet-based gaming companies. In addition, many on-line and Internet gaming companies are based off-shore and avoid regulation under state and federal laws. These companies may divert wagering dollars from legitimate wagering venues. Competition in the gaming industry is likely to increase due to limited opportunities for growth in new markets. The Company's inability to compete successfully with these competitors could have a material, adverse affect on its business.
Under SB 622, the Seminole tribe gained the exclusive right to have blackjack and other table games at three Broward County casinos and two others in Imokalee and Tampa. All seven tribal casinos also would be able to keep operating Las Vegas-style slot machines. Other portions of Chapter 2009-170 Laws of Florida, purports to permit Hialeah Race Course, located approximately 4 miles from Miami Jai-Alai, to open as a horse facility and operate slot machines after two consecutive years of quarter horseracing.
On October 6, 2011, a state appeals court upheld the ruling for Hialeah Park to have a casino with Las Vegas style slot machines. On April 27, 2012 the Florida Supreme Court refused to take up a case challenging their legality. The Company continues to evaluate its options regarding this matter.
Dependence on one or a few major vendors
The company depends on Sportech, successor to Scientific Games Corp. a leading supplier of pari-mutuel wagering systems. Sportech provides the computer systems that accumulate wagers, record sales, calculate payoffs and display wagering data in a secure manner. The Company relies on the totalizator’s computer systems to ensure the integrity of the wagering process. If Sportech did not keep their technology up to date, this could affect the security of wagering, and limit our ability to serve our customers. The Company also depends on Ballys Technologies, a leading supplier of slot gaming systems, to provide the computer systems that accumulate wagers, calculate payoffs and display wagering data accurately and in a secure manner. If Ballys failed to properly maintain their computer systems and software, it could affect the security of wagering and the Company’s ability to serve its customers.
Licenses
Each Fronton must obtain an initial pari-mutuel permit and an annually renewable pari-mutuel license specifying the number of performances authorized at the Fronton during the year with respect to which such license is issued. A permit for any new pari-mutuel must either be enacted by the Legislature, or be ratified by the electorate of the county in which it is to be located. Pari-mutuel permits and licenses may be revoked or suspended by the DPMW for, in the case of licenses, willful violations of laws, rules or regulations or, as to permits, by a vote of the county electorate. Any amendment or repeal of the Pari-Mutuel Laws or suspension or revocation of the Company's permits or licenses, could be materially adverse to its business.
Occupational and Totalizator License Requirements. The DPMW requires that persons "connected with" pari-mutuels have one of two forms of occupational licenses. One form of occupational license is the "unrestricted license" issued to persons with access to restricted areas such as the backside, racing animals, jai-alai player rooms, the mutuels, or money room, or to persons, who by virtue of the position they hold, might be granted access to such areas. Any person obtaining an unrestricted license must undergo a Federal Bureau of Investigation and Florida Department of Law Enforcement criminal records check as well as submit fingerprints with their application for a license. The category of persons qualifying for unrestricted licenses includes, but is not limited to, trainers, officials, doctors, jai-alai players, owners, members of management, officers, directors, stockholders who own 5% or greater equity interest, and other professional employees.
Another form of occupational license is the "restricted license" issued to persons who are denied access to restricted areas. Applicants for a restricted license do not usually have to undergo a criminal background check nor submit fingerprints with their application, although the DPMW may require such if it deems necessary.
The DPMW also requires all totalizator operators, including the Company's vendor, Sportech, to possess an annual totalizator license. Among the various requirements imposed by the DPMW, the totalizator operator is required to agree in writing to pay the DPMW an amount equal to any loss of state revenue from missed or canceled performances due to acts of the totalizator owner, operator, agents, or employees, and for any failure of the totalizator system, unless such acts are beyond the control of the above-listed persons. Every licensed totalizator operator must post a performance bond issued by a surety approved by the DPMW in the amount of $250,000 insuring the state against such revenue loss.
Businesses, such as vendors and contractual concessionaires, must also obtain an occupational license from the DPMW. Minors may be employed by a pari-mutuel facility as long as their employment is not directly involved with alcoholic beverages or wagering.
Daily License Fee. During the 2011-2012 live jai-alai season, a Daily License Fee of $40 was assessed for each jai-alai game conducted at each of the Company's Frontons. The Daily License Fee regulations amendments provide, however, that should an amendment to the Florida Constitution be adopted that would permit casino gambling at pari-mutuels such as the Frontons, the fee would return to $80 per jai-alai game; no such amendment has been passed. Such fee is paid to the DPMW to defray regulatory costs.
Slot License Requirements. Anyone wishing to work with slot machines in Florida must apply for a license from this agency. All Florida casinos, as well as casino employees who have contact with the slot machines, are required to have a license to legally operate or work with slots. There are several levels of Florida slot licenses, depending on who holds the license and for what purpose.
Slot Machine License Fees (for permitholders): Application fee of $2,000,000 and Regulatory fee of $250,000.
Government Regulations
Gaming ventures are regulated by federal and state laws and regulations applicable to the gaming industry generally and to the distribution of gaming equipment. The following description of the regulatory environment in which the Company operates is intended to be a summary and is not intended to be a complete recitation of all applicable law. Moreover, because the regulatory environment is dynamic and evolving, it is impossible to predict how certain provisions will ultimately be interpreted or how they may affect the Company. Changes in such laws or regulations could have a material adverse impact on the Company's ability to finance, develop and operate. The Company may need to secure regulatory approvals from state and local authorities for each of its prospective gaming ventures from time to time. No assurance can be given that any of these approvals will be secured in a timely fashion, or at all.
Florida Legislative Changes
On April 28, 2010 the Governor of Florida signed SB 622, which became effective on July 1, 2010. In accordance with SB 622 legislation, the annual license fee was reduced to $2.0 million on July 1, 2011 and on July 1, 2010 the tax rate decreased from 50% to 35%. Miami Jai-Alai will be able to operate up to 2,000 machines, we currently operate 1,058 machines, have ATM machines at the facility, and hours of operation during the week are 18 hrs a day and 24 hours a day on weekends and certain holidays. Under SB 622, the Seminole tribe would gain the exclusive right to have blackjack and other table games at three Broward County casinos and two others in Imokalee and Tampa. All seven tribal casinos also would be able to keep operating Las Vegas-style slot machines.
Florida Law and Regulation
Overview. Pari-mutuel wagering, and slot machines in Florida must be conducted in compliance with the applicable Florida statutes and regulations of the DPMW. In the 1992 Special Session, the Florida Legislature enacted several new statutes governing pari-mutuel activities in the State of Florida and repealed many laws enacted before the 1992 Special Session regarding pari-mutuels in Florida. Certain provisions of the new pari-mutuel statute, which governs all pari-mutuel activities relating to horse racing, dog racing, and jai-alai, were amended in the 1994 Regular Session. The amendments from the 1994 Regular Session became effective July 1, 1994. In 1996, the legislature enacted statutes permitting interstate simulcasts and temporarily reduced the tax on jai-alai performances as discussed below. The new pari-mutuel statutes, as amended, are referred to herein as the "Pari-Mutuel Law."
The Role of the DPMW. The DPMW, in its administration of the Pari-Mutuel Law, is authorized to adopt reasonable rules for the control, supervision, and direction of all applicants, permittees, and licensees and for holding, conducting, and operating of all pari-mutuel activities in Florida. In addition to its taxation powers already described above, the DPMW's powers include, but are not limited to (1) testing occupational license holders officiating at or participating in any race or game at any pari-mutuel facility for a controlled substance or alcohol, and (2) excluding "certain persons" from any pari-mutuel facility in Florida, including but not limited to persons who have previously engaged in conduct that violates certain Florida laws or regulations. Certain forms of conduct are expressly prohibited at pari-mutuels and include but are not limited to, (1) conniving to prearrange the outcome of a game, (2) use of alcohol or a controlled substance by an official or participant in a jai-alai performance, and (3) bookmaking. Failure to comply with the requirements of the Pari-Mutuel Law can result in a fine imposed by the DPMW of up to $1,000 per offense, as well as a suspension or revocation of a pari-mutuel permit, pari-mutuel license, or an occupational license.
Limit on Share Accumulations. Florida law requires that before any person or Company is permitted to obtain a 5% or greater equity interest in a pari-mutuel operator and exercises control with respect to those shares, such person or company must receive the approval of the DPMW. Such person or company must submit to a background investigation equivalent to that required of permit-holders to determine that such person or company has the requisite qualifications for holding a permit. Consistent with Florida law, the Company cannot issue shares of Common Stock to a person or company who would thereby have obtained a 5% or greater equity interest, whether in a single transaction or series of integrated transactions, until the purchaser has received the approval of the DPMW.
Required Number of Live Jai-Alai Performances. In order to qualify to offer ITW, a fronton must offer a "full schedule" of live races per year. A "full schedule" of jai-alai means the operation of at least 40 live evening or matinee performances during a year. In this context, a live performance must consist of no fewer than 8 games conducted live for each of a minimum of three performances per week at the permit-holder's facility. The Company anticipates offering the required 40 live performances on an annual basis at the Ft. Pierce facility and the required number at the Miami facility in order to conform with all requirements of the State of Florida and any contractual obligations.
Taxation. The pari-mutuel tax structure applicable to frontons operating in Florida provides for distribution of taxes, on a daily basis, based on the Handle. As discussed below, the pari-mutuel tax structure changed effective July 1, 1994, as a result of amendments adopted by the Florida Legislature in the 1994 Regular Session. The various taxes applicable to the Fronton are as follows:
1.Tax on Handle: Effective July 1, 1994, the tax rate established by the State of Florida was amended to a rate of 5% on handle in excess of $30,000 per day where the live handle for such jai-alai fronton has been less than $15 million during the preceding state fiscal year. Effective July 1, 1996, for the two-year period ending June 30, 1998, the pari-mutuel tax rate was reduced from 5% to 4.25% at the Ft. Pierce Fronton and from 5% to 3.85% at the Miami Fronton. As a result of legislation enacted July 1, 2000, Miami Jai-Alai's tax rate on live handle decreased from 3.85% to 2%. However, the Pari-Mutuel Law also provides that, should casino gaming be conducted at a jai-alai fronton (i.e., assuming an amendment to the Florida Constitution is adopted), the tax rate will return to 7.1% as it was under the pre-amended statute. When a fronton has paid a total of admissions tax, daily license fee and tax on handle for live performances in excess of the tax revenues from wagering on live jai-alai performances paid by the fronton in fiscal year 1991-1992, the tax on Handle for live jai-alai wagering drops to 2.55% with no exception.
Jai-Alai Tax Legislation. Major tax legislation which limits the amount of state handle and admission taxes went into effect July 1, 1998. The new law, (Section 2, Subsection (1b) of section 550.09511, Florida Statutes) states, in part, that any jai-alai permit holder that incurred state taxes on handle and admissions in an amount that exceeds its operating earnings in a fiscal year that ends during or after the 1997-1998 state fiscal year, is entitled to credit the excess amount of the taxes against state pari-mutuel taxes due and payable after June 30, 1998, during its next ensuing meets.
The Company’s Tampa Jai-Alai Permit (the fronton closed in 1998) retain such tax credits carried forward totaling $1,362,265. The Company’s Ft. Pierce facility has not incurred statutory operating losses and therefore has not earned any state tax credits.
For the years 2001 through 2012, Miami had unused credits totaling $2,352,201 and Summer Jai-Alai had $1,220,208 unused Credits available for recovery.
2.Breaks Tax: Jai-alai permit-holders must pay a tax equal to the "breaks." The "breaks" are that portion of each pari-mutuel pool, computed by rounding down to the nearest multiple of $.10, which is not redistributed to the contributors or withheld by the permit-holder as takeout (commission). Breaks tax amounts may be retained, however, by the jai-alai permit-holder for special prize awards.
3.Admission Tax: In addition to a sales tax of 6%, counties can add a discretionary sales tax, the Frontons must pay an admission tax equal to 15% of the entrance fee or 10 cents, whichever is greater, for any person attending a jai-alai game.
4.Daily License Fee: Effective July 1, 1994, the daily license fee of $80 per game paid by jai-alai frontons was reduced to $40 per game. The amendments adopted in the 1994 Regular Session provide, however, that should an amendment to the Florida Constitution be adopted that would permit casino gaming at pari-mutuels such as the Frontons, the fee would return to $80 per jai-alai game; no such amendment has been passed.
5.Jai-Alai Tournament of Champions: The amendments adopted in the 1994 Regular Session create a special jai-alai meet called the "Jai-Alai Tournament of Champions Meet" (the "Tournament"). The Tournament, which may be held only once a year and for no longer than four performances over four days, permits permit-holders selected to participate in the Tournament to do so even though they would not otherwise be authorized to conduct a meet at such time. In addition, the participants do not have to pay any taxes on Handle for performances during the Tournament and may apply any credit they receive, up to $150,000 aggregated between all participants, to supplement awards for the performance conducted during the Tournament as well as to taxes otherwise due and payable by them to the State of Florida.
Research & Development
The Company has had no charges for research and development.
Costs to be compliant with environmental laws
It is not anticipated that the Company will have any environmental costs as a result of non-compliance with environmental laws at any of our properties.
Employees
As of December 31, 2012, the company had approximately 163 part-time employees and 322 full time employees. There were 36 jai-alai players under contract. The Company believes that its present employee relations with its jai-alai players, some of whom belong to the International Jai-Alai Players Association/U.A.W., and the Company's relations with other employees are satisfactory.
Item 1A.
Item 1A. Risks Related to the Company
In addition to risks and uncertainties in the ordinary course of business that are common to all businesses, important factors that are specific to our industry and company could materially impact our future performance and results. The factors described below are the most significant risks that could materially impact our business, financial condition and results of operations. Additional risks and uncertainties that are not presently known to management, that are currently deemed immaterial or that are similar to those faced by other companies in the gaming industry or business in general may also impair the Company's business and operations. Should any risks or uncertainties develop into actual events, these developments could have a material, adverse impact on our business, financial condition and results of operations.
Risk of Foreclosure. On July 25, 2012, there was a $3,229,127 principal pay down from the amounts on deposit in the completion reserve account and interest reserve account. The principal balance owed on the note was reduced to $83,770,862. On July 31, 2012, the Company was required to make a $2,362,408 principal payment. The Company did not make the required principal payment on July 31, 2012, and on August 9, 2012, the Company and Centers, received a Notice of Acceleration of all Obligation and a Note of Demand on Credit Party Guaranty. In its complaints, ABC Funding alleged numerous defaults and other violations of the credit agreement and other loan documents against the Company and Centers. ABC Funding is seeking: (i) an award of damages in excess of $84,000,000 against Centers for breach of the credit agreement; (ii) enforcement of the Guaranty against the Company, including an award of damages in excess of $84,000,000; (iii) to foreclose on the collateral secured by the Miami mortgage, the St. Lucie mortgage, the Pledge Agreement and the Trust Assignment, including, certain real property owned by Centers and the Land Trust in Miami-Dade County, Florida and in St. Lucie, Florida; and (iv) the appointment of a receiver. (See Item 3. Legal Proceedings and see Exhibits 99.1 and 99.2 attached to the June 30, 2012 10-q)
Potential Changes in Legislation and Regulation of Operations. Gaming operations exist at the discretion of the state of Florida. Certain aspects of the gaming operations are also subject to federal statutes or regulations. All pari-mutuel wagering operations are contingent upon continued governmental approval of those operations as forms of legalized gaming. Legislation to limit or prohibit gaming (pari-mutuel or non-pari-mutuel) may be introduced in the future. Any restriction on or prohibition of gaming operations could have a material, adverse impact on the results of operations. In addition, the approval process for any expansion of gaming operations into alternative gaming, such as video lottery terminals can be time-consuming and costly, and there is no assurance of success. The Company will continue to seek legal authority to offer alternative gaming at our frontons where alternative gaming is not currently permitted.
The passage of legislation permitting alternative gaming at the frontons can be a long and uncertain process. As a result, there can be no assurance that (1) jurisdictions in which the Company owns or operates frontons will pass legislation permitting alternative gaming, (2) if jurisdictions pass such legislation, it will be permitted at the frontons, and (3) if alternative gaming is permitted at the Company owned frontons, it will be on economically viable terms. If alternative gaming legislation is enacted in the areas where a Company-owned front is located, the Company plans to conduct alternative gaming. There may be significant costs and there may be other significant risks.
Inclement Weather and Other Conditions. In September 2004, the Ft. Pierce fronton was struck by two hurricanes and the fronton could not open for the live jai-alai season in 2005. On October 24, 2005 a hurricane caused disruption to operations at the Miami Jai-Alai and the Miami fronton was closed for 18 days during 2005. Any severe weather conditions that could lead to the loss of use of Company facilities for an extended period could have a material, adverse impact on our results of operations.
Dependence on Key Personnel. The success of the Company is dependent, in part, on its executive officers. The loss of any of their services could have a material adverse effect on the Company. There is no assurance that the Company will be able to hire qualified individuals to replace these persons if necessary. The Company currently has employment contracts with two of its’ executives, Mr. W. Bennett Collett, Jr. and Mr. Daniel Licciardi.
W. Bennett Collett, Jr. Employment Agreement
Concurrent with the closing of the financing under the Credit Agreement, W. Bennett Collett, Jr. (Mr. B. Collett) was promoted from President and Chief Operating Officer of the Company and Centers to President and Chief Executive Office of the Company and Centers. Mr. B. Collett is the son of W. Bennett Collett. Mr. B. Collett entered into an Employment Agreement with Centers, and a which provides for the following:
·An initial term beginning on March 31, 2011 and ending on December 31, 2016, with automatic 12-month extensions thereafter unless earlier terminated
·Annual base salary of $300,000
·Subject to the discretion of the Board of Directors, an annual bonus beginning in calendar year 2012 not to exceed 50% of the base salary.
In addition, he entered into a Employee Bonus Compensation Restriction Agreement with the Administrative Agent, which Restricts the bonus payments made under the Employment Agreement in the event of default or default under the Credit Agreement.
For further information please see Form 8-K filed April 27, 2011, Exhibits 10.7 and 10.8.
Mr. Daniel Licciardi Employment Agreement
Concurrent with the closing of the financial under the Credit Agreement, Mr. Daniel Licciardi was promoted to Chief Operating Officer of the Company and Centers. In connection with Mr. Licciardi’s promotion, he entered into an employment agreement with Centers, which generally provides the following:
·an initial term beginning on March 31, 2011 and ending on December 31, 2016, with automatic 12-month extensions thereafter unless earlier terminated,
·an annual base salary of $225,000 and
·subject to the discretion of the Board of Directors, an annual bonus beginning in calendar year 2012 not to exceed 50% of the base salary.
In addition, he entered into a Employee Bonus Compensation Restriction Agreement with the Administrative Agent, which Restricts the bonus payments made under the Employment Agreement in the event of default or default under the Credit Agreement.
For further information please see Form 8-K filed April 27, 2011, Exhibit 10.9.
Jai-Alai Players. The Company strives to continue to draw the best jai-alai players from around the world. The Company has written agreements with our players. The failure to maintain agreements with the players or if the players should strike, this could negatively impact the results of operations.
Risks Associated with Acquisitions. There may be liabilities which the Company fails or is unable to discover in the course of performing due diligence investigations on any company or business it seeks to acquire or has acquired, including liabilities arising from non-compliance with certain federal, state or local laws by prior owners, and for which the Company, as a successor owner, may be responsible. The Company will seek to minimize its exposure to such liabilities by obtaining indemnification from former owners, which may be supported by deferring payment of a portion of the purchase price. However, there is no assurance that such indemnification's, even if obtainable, enforceable and collectible (as to which there also is no assurance), will be sufficient in amount, scope or duration to fully offset the possible liabilities arising from the acquisitions. The success of the Company in the gaming industry is dependent on a number of factors including, but not limited to, economic conditions, competitive environment, adequate capital, accurate site selection, construction schedules, and the availability of trained personnel. There can be no assurance that the Company will be successful in the pari-mutuel and gaming industry or in any related industries which it enters.
Risks associated with unforeseen legal proceedings. We are defendants in various lawsuits relating to matters incidental to our business. As with all litigation, no assurance can be provided as to the outcome of these matters and, in general, litigation can be expensive and time consuming. We may not be successful in the defense or prosecution of our current or future legal proceedings, which could result in settlements or damages that could significantly impact our business, financial condition and results of operations.
Insurance coverage. The company renews the insurance policies on an annual basis. The cost of coverage may become so high that we may need to further reduce our policy limits or agree to certain exclusions from our coverage. The Company might elect higher deductibles and affect our financial condition if there was an insurance claim.
Slot Machines. A large portion of our revenues are attributed to the new casino. The Company offers the most popular and up-to-date slot machines games and the latest technology to our customers. The slot machine manufacturers require lease arrangements instead of allowing the Company to purchase the machine. A lease agreement is often more expensive over the long-term than purchasing the machine. If these machines do not produce the additional revenue needed to offset the additional expense, it could adversely affect our profitability.
Risks Associated with Substantial Debt. The company has increased vulnerability with the amount of debt the Company is carrying. The Company received a notice of acceleration of all obligations and a note of demand on credit party guaranty. This is the ABC Funding loan that lists Ft. Pierce Jai-Alai and Casino Miami Jai-Alai as collateral. (See Item 3. Legal proceedings)
Any of the above listed factors could have a material adverse effect on our business, financial condition and results of operations. In addition, we may incur substantial additional indebtedness in the future, including to fund acquisitions. The terms of our existing indebtedness do not, and any future debt may not, fully prohibit us from doing so. If new debt is added to our current debt levels, the related risks that we now face could intensify.
Other Risks. Many other risks beyond the control could seriously disrupt operations, including:
·The effect of global economic conditions;
·The effect (including possible increases in the cost of doing business) resulting from future war and terrorist activities or political uncertainties;
·The economic environment;
·The financial performance of the slots and jai-alai operations;
·Costs associated with the efforts in support of alternative gaming initiatives.
Item 1b.
Item 1b. Unresolved Staff Comments
None.
Item 2.
Item 2. Description of Property.
The Company's Miami fronton, near Miami International Airport, was built in 1926 and was most recently remodeled in 2011. In addition to its jai-alai auditorium, the Company expanded the Miami Jai-Alai during 2011 by adding a 40,000 square foot state of the art casino. The Company added 1,058 Class III slot machines, expanded the poker room, offers electronic blackjack, roulette, dominoes, and will now feature live shows such as concerts and boxing. The Company opened a new restaurant and now has three full-service bars, including one that will feature live music. Casino Miami Jai-Alai currently has 24 poker tables and 4 domino tables. In addition to its jai-alai auditorium, the fronton has a restaurant overlooking the jai-alai court, that at the present time is used only for special occasions. Parking facilities at the Miami fronton accommodate approximately1,500 cars.
On January 6, 2009, Florida Gaming Corporation agreed to acquire a total of 10.982 acres of property from Miami-Dade County in exchange for a right-of-way of .492 acres to be used by the Miami-Dade Metro Rail, an overhead light rail system. On April 6, 2009 Florida Gaming completed Phase 1 of its two-phase acquisition of the 10.982 acres of property from Miami-Dade County. On June 16, 2011, the Company completed Phase II of the purchase of the approximately 8.7 remaining acres. These actions allowed Miami Jai-Alai to grow from 8.9 acres to approximately 21 acres thereby accommodating any potential future build-out. This allows Miami Jai-Alai to virtually enclose its casino area and provide a controlled, safe and well illuminated facility.
Fort Pierce is a coastal community in St. Lucie County, Florida approximately 110 miles north of Miami. The Fort Pierce fronton, completed in 1974, is located approximately one mile from an exit on the Florida Turnpike, two miles from an exit on Interstate Highway 95 and five miles west of U.S. Highway 1. The Florida Turnpike is the primary route between South Florida and Orlando. The Fort Pierce fronton is situated on a thirty seven acre site and its parking facilities accommodate approximately 1,500 cars. Ft. Pierce operates live jai-alai on a seasonal basis and simulcasts and operates a cardroom year round,
Both of the Company's frontons have pari-mutuel windows, liquor bars and concession stands as well.
Investment in Real Estate
In November, 1997, the Company entered into a new business - residential real estate development. These Properties consisted of over 100 fully-developed, and 163 partially-developed, single-family residential home sites, a swim and tennis club facility, and 27 acres of partially-developed commercial property. The Company has six lots remaining with a book value of $234,000. One of the lots had a mortgage with Hamilton State Bank, which matured November 17, 2009. The Company failed to repay the note and the lender refused to extend the note. In accordance with the Credit Agreement that the Company entered into on April 25, 2011, when the Company received their slot license, the Hamilton State Bank Note would be paid off. On May 12, 2011, the Company received their license from the State of Florida to begin Class III - “Vegas Style” slot machine operations at Miami Jai-Alai. On May 13, 2011, the Company paid the Hamilton State Bank the principal on the note of $36,691 plus accrued interest and attorney fees of $9,798.
The Properties are located on the east side of Georgia Highway 81, approximately one (1) mile south of U.S. Highway 78, inside the Loganville, Georgia city limits, in Walton County.
Item 3.
Item 3. Legal Proceedings.
Florida Gaming Centers vs FDBPR and South Florida Racing Association, LLC
On June 30, 2010, W. Flagler and Florida Gaming Centers filed a constitutional challenge regarding the enactment of changes to Florida Statutes in Chapter 551 that purport to enable the expansion of slot machine games in Miami Dade County to the site of Hialeah Park. The Statutory Amendment conflicts with the Constitutional Provision, Article X, Section 23 in numerous ways. The Leon County Circuit Court held the statute to be valid and that decision is presently on appeal to the Florida First District Court of Appeal. On October 6, 2011, a state appeals court upheld the ruling for Hialeah Park to have a casino with Las Vegas style slot machines. On April 27, 2012 the Florida Supreme Court refused to take up a case challenging their legality. The Company continues to evaluate its options regarding this matter.
ABC Funding, LLC v. Florida Gaming Centers, Florida Gaming Corp., et al., Miami-Dade County, Florida Circuit Court Case # 12-35064 CA 58.
On September 5, 2012, ABC Funding, LLC (“ABC”) brought suit against Florida Gaming Centers (“Centers”) and Florida Gaming Corp. (“Corp.”) alleging that Centers and Corp. are in default under an April 25, 2011 Credit Agreement entered into between them and ABC. ABC also named as defendants multiple other alleged creditors of Centers and Corp., all of whom ABC contends Center and Corp. owe money, in order to prioritize ABC’s alleged debt over the claimed debts of the other defendants.
In the suit, ABC alleges that certain defaults Centers and Corp. are claimed to have committed entitle ABC to foreclose upon the assets of Centers and Corp. The lawsuit contains the following counts: Breach of the Credit Agreement, Breach of Guaranty, Mortgage Foreclosure, Foreclosure of Security Interests and seeks the Appointment of a Receiver to run Casino Miami Jai Alai. On November 2, 2012, the court entered an order appointing David Jonas as Temporary Receiver in charge of Casino Miami Jai Alai’s operations, and the court later named Mr. Jonas as the receiver for the pendency of the suit.
On October 31, 2012, Centers and Corp. filed a counter-claim against ABC for breach of the Credit Agreement, breach of the implied covenant of good faith and fair dealing, aiding and abetting the breach of a fiduciary duty and fraud in the inducement Centers and Corp. also filed third party complaints against Innovation Capital, LLC (“Innovation”); James Freeland; Matthew Sodl; Steven Rittvo; Kevin Schieble; Summit Partners, LP; and Summit Master Company, LLC. The causes of action asserted against those entities and individuals are as follows: breach of fiduciary duty against Innovation, Sodl, Rittvo and Schieble; aiding and abetting the breach of a fiduciary duty against Freeland, Summit Partners, LP and Summit Masters Company, LLC; fraud in the inducement against Innovation, Freeland, Summit Partners, LP and Summit Masters Company, LLC; civil conspiracy against Innovation, Freeland, Summit Partners, LP and Summit Masters Company, LLC; breach of contract against Summit Partners, LP; and breach of the implied covenant of good faith and fair dealing against Summit Partners, LP. On February 20, 2013, Centers and Corp. filed an amended counterclaim against ABC alleging the same causes of action. ABC has yet to respond to that suit. On February 11, 2013, the court dismissed without prejudice the third party complaint and on that same day, Centers and Corp. filed a separate lawsuit against Innovation; James Freeland; Matthew Sodl; Steven Rittvo; Kevin Schieble; Summit Partners, LP; and Summit Master Company, LLC alleging similar causes of action to those set forth in the third party complaint.
ABC Funding, LLC v. Florida Gaming Centers and Florida Gaming Corp., St. Lucie, Florida Circuit Court Case #: 56-2012-CA-003525 AXXXHC.
On September 5, 2012, ABC Funding, LLC (“ABC”) brought suit against Florida Gaming Centers (“Centers”) and Florida Gaming Corp. (“Corp.”) in St. Lucie County, Florida, where Ft. Pierce Jai Alai is located, alleging that Centers and Corp. are in default under an April 25, 2011 Credit Agreement entered into between them and ABC. ABC alleges certain defaults entitle ABC to foreclose upon the assets of Centers and Corp. The lawsuit contains the following counts: Breach of the Credit Agreement, Breach of Guaranty, Mortgage Foreclosure, Foreclosure of Security Interests and seeks the Appointment of a Receiver to run Casino Miami Jai Alai.
On October 31, 2012, Centers and Corp. filed a counter-claim against ABC for breach of the Credit Agreement, breach of the implied covenant of good faith and fair dealing, aiding and abetting the breach of a fiduciary duty and fraud in the inducement Centers and Corp. also filed third party complaints against Innovation Capital, LLC (“Innovation”); James Freeland; Matthew Sodl; Steven Rittvo; Kevin Schieble; Summit Partners, LP; and Summit Master Company, LLC. The causes of action asserted against those entities and individuals are as follows: breach of fiduciary duty against Innovation, Sodl, Rittvo and Schieble; aiding and abetting the breach of a fiduciary duty against Freeland, Summit Partners, LP and Summit Masters Company, LLC; fraud in the inducement against Innovation, Freeland, Summit Partners, LP and Summit Masters Company, LLC; civil conspiracy against Innovation, Freeland, Summit Partners, LP and Summit Masters Company, LLC; breach of contract against Summit Partners, LP; and breach of the implied covenant of good faith and fair dealing against Summit Partners, LP. Centers and Corp. anticipate that they will amend the counterclaim against ABC and dismiss without prejudice the third party complaint, as the same causes of action are currently pending in Miami-Dade County.
Florida Gaming Centers and Florida Gaming Corp. v. Innovation; James Freeland; Matthew Sodl; Steven Rittvo; Kevin Schieble; Summit Partners, LP; and Summit Master Company, LLC; Miami-Dade County, Florida Circuit Court Case #: 13-5105 CA 31
On February 11, 2013, Florida Gaming Centers (“Centers”) and Florida Gaming Corp. (“Corp.”) sued Innovation Capital, LLC (“Innovation”); James Freeland; Matthew Sodl; Steven Rittvo; Kevin Schieble; Summit Partners, LP; and Summit Master Company, LLC. The complaint contains six counts: Count I for breach of fiduciary duty against Innovation; Count II for breach of fiduciary duty against Sodl, Rittvo and Schieble; Count III for aiding and abetting a breach of fiduciary duty against Freeland, Summit Partner, LP and Summit Masters Company, LLC; Count IV for fraud in the inducement against Innovation; Count V for fraud in the inducement against Freeland, Summit Partners, LP and Summit Master Company, LLC; and Count IV for civil conspiracy against Innovation, Freeland, Summit Partners, LP and Summit Master Company, LLC. The claims arise out of the defendants’ conduct in negotiating and inducing Centers and Corp. to sign the April 25, 2011 Credit Agreement with ABC Funding, LLC. The defendants have not yet been served with the summons and complaint.
Coby Jacobs v. Florida Gaming Corporation, W. Bennett Collett, W. Bennett Collett, Jr., George Galloway, Jr., William Haddon, Florida Gaming Centers and Silvermark, LLC; Miami-Dade County, Florida Circuit Court Case #: 12-48014 CA 21.
On December 11, 2012, Jacobs, a shareholder of Florida Gaming Corp. (“Corp”), filed a class action suit alleging W. Bennett Collett, W. Bennett Collett, Jr., George Galloway, Jr., and William Haddon (deceased), as directors of Corp., breached their fiduciary duties with respect to entering into a Stock Purchase Agreement with Silvermark, LLC. The suit also alleged Florida Gaming Centers, Corp. and Silvermark, LLC aided and abetted these breaches. The Defendants denied all allegations of wrongdoing and moved to dismiss the complaint. No class was certified, and the suit has since been resolved and the parties. expect an order of dismissal to be entered in the near future.
Herbert Silverberg v. W. Bennett Collett, W. Bennett Collett, Jr., George Galloway, Jr., Freedom Holding, Inc. Silvermark, LLC and Florida Gaming Corporation (Nominal Defendant); Delaware Court of Chancery Case #: 8292-VCN
On February 8, 2013, Silverberg, a shareholder of Florida Gaming Corp. (“Corp.”), filed suit alleging W. Bennett Collett, W. Bennett Collett, Jr., and George Galloway, Jr., as directors of Corp., breached their fiduciary duties with respect to entering into a Stock Purchase Agreement with Silvermark, LLC and wasted corporate assets. The suit also alleged Silvermark, LLC aided and abetted these breaches. The suit also alleges Corp. failed to hold an annual meeting. The Defendants have not yet responded to the suit but deny all allegations of wrongdoing and intend to vigorously defend the suit.
Other Suits
The Company is a defendant in certain other suits which are deemed to be routine litigation in the ordinary course of business. The Company believes that the ultimate resolution of the suits will not have a material adverse impact on the Company's financial position or its results of operations.
PART II
Item 5.
Item 5. Market for Common Equity and Related Stockholder Matters.
The Common Stock was traded on the NASDAQ SmallCap Market under the trading symbol "BETS" until August 21, 1998, at which time it was delisted. The Common Stock traded on the pink sheets from August 22, 1998 until July 28, 1999. On July 29, 1999 the Common Stock began trading on the Over the Counter - Bulletin Board under the trading symbol “BETS”. On January 28, 2003, the trading symbol was changed to “FGMG”. The bid prices reflect inter dealer prices, without retail mark-up, markdown or commissions and may not represent actual transactions. The table shows the high and low bid prices for the years 2012 and 2011.
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As of December 31, 2012, the Company had approximately 1,449 holders of record of its Common Stock.
The Company has never paid any cash dividends on its Common Stock and currently anticipates that earnings will be retained for use in its operations. The Company is not contractually restricted from paying dividends on its Common Stock, however, it does not anticipate paying any cash dividends on its Common Stock in the foreseeable future. Any future determination as to cash dividends will depend on the earnings and financial position of the Company, as well as any legal restrictions and such other factors as the Board of Directors many deem appropriate.
Persons who may be deemed “affiliates” of the Company or who acquired the shares in a transaction exempt from registration under the U. S. Securities and Exchange Act (“the “Securities Act”) hold approximately 1,423,369 shares (“Restricted Shares”) of the 4,037,293 shares of Common Stock outstanding as of March 30, 2012, which may only be sold in the public market if such shares are registered under the Securities Act or sold in accordance with Rule 144 promulgated under the Securities Act. Holding, the holder of 1,325,869 Restricted Shares, has demand registration rights for its shares. As of January 6, 2011, Holding has pledged all 1,325,869 shares of common stock and 1,000 shares of Preferred F stock to a bank to secure a loan. All of the restricted shares have been held for over six months and are thus available for sale in the public market, subject to the volume and other limitations of Rule 144.
In general, under Rule 144 a person (or person whose shares are aggregated) who has beneficially owned Restricted Shares for at least six months, including a person who may be deemed an affiliate of the Company, is entitled to sell within any three-month period up to that number of shares of Common Stock that does not exceed the greater of 1% of the then-outstanding shares (approximately 40,372 shares) of Common Stock of the Company or up to the number of shares equal to the average weekly trading volume of the Common Stock on the Over-the-Counter Market during the four calendar weeks preceding such sale. Sales under Rule 144 are also subject to certain restrictions relating to manner of sale, notice, and the availability of current public information about the Company. A person who has not been an affiliate of the Company at any time during the 90 days preceding a sale and who has beneficially owned shares for at least two years could be entitled to sell such shares without regard to the volume limitations, manner of sale provisions and other requirements of Rule 144.
Sales of a substantial number of shares of Common Stock, including following conversion of shares of the Company's preferred stock or pursuant to Rule 144, or a registered offering, could adversely affect the market price of the Common Stock, increase significantly the number of shares of Common Stock issuable upon the conversion of the Company's preferred stock, the conversion rates which are related to the prevailing market price, may make it more difficult for the Company to sell equity securities in the future at a time and price that it deems appropriate.
The Company has four issues of Convertible Preferred Stock outstanding as of December 31, 2012. Preferred A, Preferred AA, Preferred B, and Preferred F. A complete description and summary of the Convertible Preferred Stock is set forth in the financial statements Note B - Preferred Stock.
Equity Compensation Plan Information
December 31, 2012
Master Stock Option Plan:
On July 9, 2012, the Company’s Board of Directors adopted the Fourth Amended and Restated Master Stock Option Plan (the “Fourth Master Plan”). The Fourth Master Plan incorporates previous amendments to the Company’s 2006 Third Amended and Restated Master Stock Option Plan, attached as Exhibit 99.1 to the Company’s Form S-8 (File No. 333-103654) filed August 23, 2006, providing for the extension, re-pricing and limited transfer of stock options issued under the Fourth Master Plan. (For more information see Form 8-K filed July 13, 2012)
The Fourth Amended and Restated Master Stock Option Plan (the "Plan") is a nonqualified stock option plan, created for the benefit of the Company employees, the employees of its subsidiaries, non-employee directors of the Company or subsidiaries, other directors and officers of the Company or subsidiaries, and advisors and consultants who provide bona fide valuable services to the Company or subsidiaries. This Plan provides for grants of nonqualified stock options (options that do NOT constitute incentive stock options under the Code) and of restricted stock.
2012 Non-Qualified Stock Option Plan
The Company's Fourth Amended and Restated Stock Option Plan provides that the Company adopts this compensation program for (i) certain key employees to, among other things, (a) increase the profitability and growth of the Company; (b) provide competitive executive compensation while obtaining the benefits of tax deferral; (c) attract and retain exceptional personnel and encourage excellence in the performance of individual responsibilities; and (d) motivate key employees to contribute to the Company's success; (ii) non-employee directors to, among other things, attract and retain persons of outstanding ability to serve as directors of the Company; (iii) directors and officers to, among other things, motivate such persons to contribute to the Company's success by increasing the profitability and growth of the Company and to assist the Company to attract and retain qualified directors and officers; and (iv) advisors and consultants of the Company to wholly or partially compensate such advisors and consultants for providing bona fide valuable services to the Company. (See Note C)
The 2012 Plan may be administered by the Compensation Committee of the Board or such other committee appointed by the Board which shall consist of two or more members of the board, each of whom is both an “outside director” and a “non-employee director”. If the Compensation Committee does not consist of two or more members all of whom are “outside directors” and “non-employee directors,” then Committee means the full board.
The fair market value of a share of Stock on such date determined by such methods or procedures as may be established from time to time by the Committee. If the Stock is listed on any established stock exchange or a national market system, Fair Market Value shall be the closing selling price for a share of Stock as quoted on such exchange or system for such date or, if there is no closing selling price for the Stock on the date in question, the closing selling price for a share of Stock on the last preceding date for which such quotation exists. If the Stock is traded on an exchange or market in which prices are reported in terms of bid and asked prices, Fair Market Value shall be the mean between the high bid and low asked prices for a share on the last market trading day prior to the date as of which value is determined. If the Stock is not publicly traded on an established securities market, Fair Market Value shall be determined in good faith by the Committee by reasonable application of a reasonable valuation method, considering any and all information that the Committee deems relevant, consistent with Code Section 409A and the Treasury Regulations promulgated thereunder and considering each of the factors required to be included under those rules.
Termination of Service shall be deemed to have occurred with respect to an Employee at the close of business on the last day on which an Employee is carried as an active employee on the records of the Company and all subsidiaries, except as otherwise provided in an Award Agreement or in this definition. Termination of Service with respect to a Non-Employee Director means the last day on which such individual serves as a director of the Company or a subsidiary.
The number of shares of Stock covered by each outstanding Award, and the number of shares of Stock that have been authorized for issuance under the Plan but as to which no Awards have yet been granted or that have been returned to the Plan upon cancellation or expiration of an Award, as well as the price per share of Stock covered by each such outstanding Option, shall be proportionately adjusted for any increase or decrease in the number of issued shares of Stock resulting from a stock split, reverse stock split, stock dividend, combination, recapitalization or reclassification of the Stock, or any other increase or decrease in the number of issued shares of Stock effected without receipt of consideration by the Company; provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been "effected without receipt of consideration." Such adjustment shall be made by the Committee, whose determination in that respect shall be final, binding and conclusive.
In the event of the proposed dissolution or liquidation of the Company, the Board shall notify each holder of an outstanding Option at least 15 days prior to such proposed action. To the extent it has not been previously exercised, an Option will terminate immediately prior to the consummation of such proposed action.
No Option shall be transferable by a Participant otherwise than by will or the laws of descent and distribution, and an Option shall be exercisable, during the Participant's lifetime, only by the Participant (or, in the event of the Participant's legal incapacity or incompetency, the Participant's guardian or legal representative). Notwithstanding the foregoing, if specifically provided in the Award Agreement, Options may be transferred by a Participant to a Permitted Transferee. Any attempted sale, transfer, pledge, exchange, hypothecation or other disposition of an Award not specifically permitted by the Plan or the Award Agreement shall be null and void and without effect. For purposes of the Plan, "Permitted Transferee" means (i) a member of a Participant's immediate family, (ii) any person sharing the Participant's household (other than a tenant or employee of the Participant), (iii) trusts in which a person listed in (i) or (ii) above has more than 50% of the beneficial interest, (iv) a foundation in which the Participant or a person listed in (i) or (ii) above controls the management of assets, (v) any other entity in which the Participant or a person listed in (i) or (ii) above owns more than 50% of the voting interests, provided that in the case of the preceding clauses (i) through (v), no consideration is provided for the transfer, and (vi) any transferee permitted under applicable securities and tax laws as determined by counsel to the Company. In determining whether a person is a "Permitted Transferee," immediate family members shall include a Participant's child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships.
To exercise an Option, the Participant or the other person(s) entitled to exercise the Option shall give written notice of exercise to the Treasurer of the Company, specifying the number of full shares to be purchased. Such notice shall be accompanied by payment in full for the Stock being purchased plus required withholding tax as provided in Section 12, (i) in cash; (ii) if permitted by the Committee, in its sole discretion, payment in full or in part may be made in the form of Stock owned by the Participant for at least 6 months (based on the Fair Market Value of the Stock on the date the Option is exercised) evidenced by negotiable Stock certificates registered either in the sole name of the Participant or the names of the Participant and spouse; (iii) if the Participant received Options due to service as an Employee, director or officer, by electing that the Company withhold shares that would otherwise be issued on exercise of the Option in payment of the purchase price, or if so limited in the Award Agreement, solely in payment of required withholding taxes; or (iv) in any combination of the forgoing permitted methods with respect to a particular Option. No shares of Stock shall be issued unless the Participant has fully complied with the provisions of this Section.
There are 826,250 options outstanding, and 20,000 warrants. On July 9, 2012, the Company extended all 826,250 options that were issued in July 2006. Of the 826,250 options, 362,500 were set to expire July 10, 2012 and 463,750 were set to expire July 11, 2012. All 826,250 options had an exercise price of $8.25 per share. The Company extended these options with an expiration date of March 31, 2017 and an exercise price of $8.25 per share. The Company recorded a $94,254 expense for the extension of these options during the year 2012 (See Note C), compared to $84,703 expense for extending the options in 2011. The expense was calculated using the following assumptions:
At December 31, 2012, the Company had the following options and warrants outstanding:
On April 25, 2011, the Company entered into a Credit Agreement (See Note H) and at the closing, the Lenders received warrants (See Note C), with a $0.01 exercise price, currently equal to 35% (the “Base Percentage”) of the stock in Centers and such percentage may increase depending on the number of slot machines that may become operational at a competing facility in the future. The Base Percentage shall increase by one one-hundredth percent (0.01%), up to a maximum of 10.0%, for each slot machine made available for gaming at Hialeah Park Race Track at any time while the Centers Warrants are outstanding (the “Hialeah Increase”). Centers may have the ability to reduce the Hialeah Increase by up to one-half, depending on actual financial performance in the future exceeding certain thresholds, by paying the Lenders an aggregate of $500,000 for each percentage point it wishes to deduct from the Hialeah Increase. Centers is obligated to make an offer to repurchase the Centers Warrants upon the occurrence of any Trigger Event, which is defined to include the following: (a) the maturity date of the Term Loan; (b) the date upon which the Term Loan is repaid in full (the “Repayment Date”); (c) upon a change of control in Centers; (d) upon the commencement of bankruptcy proceedings (or any similar action or insolvency event) by Centers; and (e) if the maturity date of the Term Loan or the Repayment Date occurs prior to the fifth anniversary of the opening date of The Casino at Miami Jai-Alai (the “Opening Date”), then each anniversary of the Opening Date occurring after the Repayment Date and on or prior to the fifth anniversary of the Opening Date.
In addition, at the closing, the Lenders received warrants in the Company currently equal to 30.0% of its fully diluted common equity ownership. The Company Warrants have a $25 exercise price; however, if (i) the Lenders’ construction consultant determines that Centers will need to access any amount of a $3.0 million completion guarantee (thus representing that the Project is “Out of Balance”), which has been funded by the Term Loan, to complete the Project on time and on budget and (ii) the Company and Centers have not raised new equity to replace the $3.0 million completion guarantee and thereby cancel the Company Warrants at anytime from the closing until 30 days after the Project is determined to be Out of Balance, the Company Warrants shall become exercisable at $0.01. If the Company is successful at raising new equity to replace the completion guarantee, the $3.0 million shall be used to prepay the Term Loan at par upon receipt of such proceeds. Similarly, if the Company is able to complete the Project on time without going Out of Balance, the completion guarantee will be canceled upon the Opening Date and the $3.0 million shall be used to prepay the Term Loan at par and the Company Warrants cancelled. The Company never received notification that the loan was Out of Balance, and therefore considers the Company warrants cancelled.
The Company did not account for the Centers warrants at the time of issuance because there were too many contingencies on the warrants becoming exercisable for either Centers or the Company. Centers is not publicly traded and at the time the potential value of the warrants could not be determined. The Credit Agreement requires that once a trigger event occurs, the Company will have to hire an arbitrator and calculate the value of the company, the debt owed, and the value of the warrants. The Company is in the process of selling to Centers, and the Company valued the warrants of Centers of $4,403,666. That figure was derived by taking 35% of the Net cash proceeds from sale transaction of $12,581,902. There are many factors in the computation of that figure that are subject to change. The warrant expense has been accrued in the attached financial statements. (Refer to Form DEF14A filed January 31, 2013 and See Note L) (A copy of the Credit Agreement, the Centers Warrant Agreement, the Company Warrant Agreement and the Registration Rights Agreement are included as Exhibits 10.1, 4.1, 4.2 and 4.3, respectively, to the April 25, 2011 Form 8-K.)
Item 6.
Item 6. Select Financial Data.
Under SEC regulations, the information called for by this item is not required because the Company is a smaller reporting Company.
Item 7.
Item 7. Management's Discussion and Analysis or Plan of Operation.
You should read the following discussion together with the financial statements, including the related notes and the other financial information in this Form 10-K.
On November 25, 2012, the Board of Directors of the Company unanimously approved the Company’s sale of its wholly owned subsidiary, Centers. The shareholders approved the sale of Centers on February 25, 2013. Centers constitutes the Company’s only operating asset. See Note L regarding the sale of Centers and for the results of discontinued operations. (For complete details on the sale of Centers, please refer to DEF 14A filed January 31, 2013)
COMPARISON DEFINITION
The following analysis of handle, revenues, operating expenses and general & administrative expenses in this part of the report compares figures for the twelve months ended December 31, 2012 to figures for the twelve months ended December 31, 2011, for the Miami and Ft. Pierce pari-mutuel facilities, and the real estate development.
With the opening of Casino Miami Jai-Alai on January 23, 2012, the Company saw large increases in revenue at the card room and the food, beverage and other areas. The pari-mutuel revenue declined because of not offering as many performances and an overall decline in the attendance at jai-alai.
Fiscal Year 2012 Compared with Fiscal Year 2011
Handle
Handle (total amount wagered) declined as the pari-mutuel revenue declined. During the year ended December 31, 2012, pari-mutuel revenue declined 22%.
Revenue
Casino revenue
Casino Miami Jai-Alai opened January 23, 2012 so there was no comparison for the previous year.
Jai-Alai Mutuel revenue
Miami saw a decrease in pari-mutuel revenue for the twelve months ended December 31, 2012. The Company is offering fewer performances and totally eliminated Saturday performances at Miami. With the opening of the Casino the Company is offering entertainment functions on Saturdays. The Company may add more performance as a guest site at the Miami location in the future. If the Company does add more performances that would enhance ITW in the future.
Ft. Pierce saw an increase in pari-mutuel revenue because of offering simulcast wagering on horses and greyhounds compared to just greyhounds in 2011.
Cardroom revenue
The Miami cardroom closed March 27, 2011 due to the construction at the facility. With the opening of the casino in January,
2012, the Company moved the Cardroom closer to the casino floor which resulted in an increase in the Miami Cardroom. Ft.
Pierce saw a significant decrease because of fewer patrons.
Inter Track Mutuel Commisions
Inter Track Mutuel Commissions are the monies the Company receives for taking other tracks signals, and includes commissions associated with out of state facilities. Ft. Pierce saw an increase due to adding additional tracks in 2012 that were not offered in 2011.
Other revenue
Other revenue consists of the concession stands, bars, programs, lottery commission, ATM commissions, rental income, and misc. revenue. The casino has definitely had an impact on the food, beverage and other revenue in Miami. The casino has brought additional patrons to the bars and concession stands. Ft. Pierce did see an increase during the year ended December 31, 2012 because of offering simulcast wagering on horses. The Company leases common area costs to W. Flagler at Miami, capped at 115% of the minimum number of performances required by Florida Statutes. The Company received $520,000 for the year ended December 31, 2012 compared to $705,000 for the year ended December 31, 2011.
Operating Expense
Payroll and related costs
With the opening of the casino, the Company went from 88 full time employees at December 31, 2011, to 322 full time employees at December 31, 2012. The Company also has 163 part time employees, and 36 jai-alai players under contract. This led to an increase in 111% for the year ended December 31, 2012 in payroll and related costs.
Amortization of State License Fees
The Company amortized the $2,750,000 license fees from January through May when we received a new license. The new license cost was $2,250,00 and it is being amortized for a year, the length of the license.
Rent
Rent expenses includes gaming equipment leases, television camera rentals, and property rentals. The gaming equipment alone was $3,179,554 for the year ended December 31, 2012 and -0- in 2011.
Depreciation and Amortization
Depreciation and Amortization saw a large increase with the opening of the casino. One of the largest increase was the depreciation of gaming equipment. The Company had $2,261,301 in depreciation of gaming equipment for the year ended December 31, 2012, compared to -0- for the same period in 2011. The company had deprecation on buildings of $322,353 for the year ended December 31, 2011, compared to $819,144 for the year ended December 31, 2012.
Advertising and Promotion Expenses
Advertising substantially increased with the opening of the Casino. The company has used direct marketing mail, billboard placement, ads in the newspaper, ads on television and radio, and agency fees. During the year ended December 31, 2011 the Company did not have the funds to advertise and did not have a new casino to promote.
Utilities
Utilities overall increased $620,580 (149%) from December 31, 2011 to December 31, 2012. Electricity saw the largest increase of $484,094 from $138,486 for the year ended December 31, 2011 to $622,580 for the year ended December 31, 2012. The opening of the casino on January 23, 2012, caused the large increase in utilities in 2012.
Repair and Maintenance
Repair and maintenance saw a significant increase with the opening of the Casino. The Company added an IT department, marketing department, additional security and additional surveillance in 2012. Repair and maintenance includes contract maintenance charges, cleaning supplies, and equipment maintenance. The Company saw large increases in this area and one of the largest increases was in contract maintenance, $958,639 in 2012 vs $255,739 in 2011.
Food, and beverage
Food and beverage expenses includes costs of sales at the concession stands and the bars, with a 155% increase in food and beverage revenue, costs of sales have substantially increased.
Other
The Company has seen an increase in Other expenses with the opening of the Casino in 2012. Other includes public company costs, office supplies, pre-opening costs, special events, and misc. A few of the significant increases were bank charges of $108,124 in 2012, vs $28,831 in 2011. The Company had recruiting costs in 2012 of $68,020 vs -0- in 2011. Operating supplies were $328,846 in 2012 vs $50,826 in 2011, and security expense was $79,866 during 2012 vs $11,212 in 2011. The Company had special events in 2012 of $111,835 compared to -0- for the same period in 2011.
General & Administrative Expenses
General and administrative expenses for the year ended December 31, 2012, were $31,882,955 compared to $15,005,655 for the year ended December 31, 2011. With the opening of the Casino on January 23, 2012, the Company saw an increase in expenses in most areas. Included in general and administrative charges were the following:
Executive Payroll
Executive payroll increased during the year ended December 31, 2012 for the comparable period in 2011 due to the hiring of additional personnel along with changes in the present officers roles and functions within the Company. Executive payroll was $1,063,531 for the year ended December 31, 2012 compared to $702,228 for the year ended December 31, 2011. W. B. Collett retired as CEO effective April 25, 2011, and W. B. Collett, Jr. was promoted to CEO and President. On April 25, 2011, Daniel Licciardi, was promoted to Chief Operating Officer. As a result, W. B. Collett, Jr. had a pay increase to $300,000 from $225,000 and Daniel Licciardi, had an increase to $225,000 from $141,300.
Stock Compensation
The Company extended 826,250 stock options which resulted in a charge of $$94,254 compared to extending 362,500 options for a cost of $84,703 for the same period in 2011.
Director Fees
Director fees were $36,000 for the year ended December 31, 2012, compared to $48,000 for the year ended December 31, 2011. One of the directors, William Haddon died in July, 2012, which reduced director fee expense.
Management Consultant
During 2011, the Company had $195,000 in management consultant fees for W. B. Collett, for the first three months in 2011. During 2012, Mr. Collett received two payments of $25,000 each for his consulting work.
Telephone and Travel
Telephone and Travel saw a slight decrease during 2012. Travel decreased with the opening of the Casino.
Professional Fees
Professional fees were $2,107,962 for the year ended December 31, 2012 compared to $785,188 for the year ended December 31, 2011. Professional fees include legal fees, consultants and accountants. A large portion of the increase can be attributed to the Company accruing $750,000 in professional fees for Miami Casino Management (“MCM”) during the year 2012, and $280,000 to Miami Gaming Ventures. The Company will have to pay MCM a termination fee and the Company owes Miami Gaming Ventures $280,000 at the year ended December 31, 2012.
Interest and Financing
Interest and Financing costs have increased due in part to the Company accruing the default interest charges for ABC Funding during 2012, and valuing Centers warrants. The Company accrued an additional $814,976 during the year ended December 31, 2012 in default interest and servicing fees, the company valued the warrants for the sale of Centers at $4,403,666, and the Company paid ABC Funding $16,699,851 during the year ended December 31, 2012., compared to $8,525,864 for the year ended December 31,2011.
Property Taxes
Property taxes increased from $328,810 for the year ended December 31, 2011 to $1,161,646 for the year ended December 31, 2012. The large increase is due to the tangible personal property tax for Miami increasing from $7,000 in 2011 to $682,744 in 2012.
Insurance
Insurance expense was $2,249,169 for the year ended December 31, 2012, compared to $993,608 for the year ended December 31, 2011. With the addition of the casino, the company has higher liability insurance, property insurance, workers comp, etc. The loan and construction also contributed to the significant increase in insurance and the slot tax bond.
Other Income and Expense
Other income for the year ended December 31, 2012, was $369,166 compared to other expense of $3,301,359 for the same period in 2011.
·There was interest income of $1,000 for the twelve months ended December 31, 2012, compared to $3,019 for the same period in 2011.
·The State Tax credits on handle and admissions in 2012 were $368,158 compared to $513,403 compared to the same period in 2011.
·During the twelve months ended December 31, 2011, the Company accrued a Legislative Initiative of $3,550,000 regarding a PAC agreement that was made in 2005 (See Note G ). During the same period in 2011, the Company recorded a loss on the disposal of real estate to H2C of approximately $267,785. The Company owed H2C approximately $357,000 and the Company issued a deed in lieu of foreclosure on the 18.33 acres of unimproved real estate property in St. Lucie County to be in full satisfaction of the debt. (See Note H)
Summary of Operations
The Company had net loss of $22,696,447 or ($5.74) per common share for the twelve months ended December 31, 2012. This compares to a net loss of $21,764,375 or ($5.61) per common share for the comparable period in 2011. With the opening of the Casino, the Company had total operating revenue of $45,455,611 for the year ended December 31, 2012, compared to operating revenue for the same period in 2011 of $7,759,004.
The Company began Casino operations on January 23, 2012, approximately seven months after the first construction permit was granted. In addition to the Casino opening, the goal has been to achieve greater market awareness of the new Casino Miami Jai-Alai. The approach has been and remains building a database with the players club VIVA card, along with various entertainment options such as poker, slots, dominos, boxing, concerts and jai-alai.
Liquidity and Capital Resources
The Company had cash and cash equivalents of $4,859,302 at December 31, 2012, compared to $37,297,696 at December 31, 2011. The Company had negative working capital of approximately $98,714,502 during the year ended December 31, 2012, compared to negative working capital of $71,910,509 in 2011. The Company has been in default of the $87,000,000 loan during the period ended December 31, 2012 and December 31, 2011 and is operating as a going concern. (See Note A)
Operating activities
The increase in cash used in operating activities can be attributed to several areas:
·The Company saw a large increase in depreciation due to the depreciation of gaming equipment $2,249,045 which we did not have in 2011;
·The Company amortized the gaming license when the Casino opened in January 2012, through May of 2012, then the Company received a new gaming license in May, and it is amortized over a year, the length of the license. Total amortization was $4,156,250 in 2012 vs -0- in 2011;
·The Company gave value of $4,403,666 to the Centers warrants due to the pending sale of Centers (See Note L );
·The Company had an increase in amortization of loan costs on the $87,000,000 loan during 2012 vs 2011;
·During 2011, the Company accrued the $3,550,000 PAC payment which was due ten days from when the casino was complete (See Note G), and the company also accrued $11,029,548 for the slot machines. These amounts were paid in 2012;
·The Company had a prepaid expense of $844,000 related to the slot license at December 31, 2012.
Investing activities
The decrease in investing is a decrease in purchasing of property, plant and equipment.
·Most of the equipment was purchased in 2011 for the new casino which opened January 23, 2012. Some of the larger purchases during the year ended December 31, 2011, included the land acquisition, slot machines, computer system, and surveillance equipment .
Financing activities
·In 2011, the Company received net proceeds from the Credit Agreement of $84,520,000, and repaid $5,460,251 in debt at the closing of the Credit Agreement. During 2012, the Company repaid principal payments on the ABC funding loan of $3,229,137 plus $402,582 on the Miami Dade property loans (See Note H).
Supplemental Disclosures
·During 2012, the Company transferred $29,767,905 from the construction work in progress account to property and equipment with the completion of the construction project. The Company also had an increase in property and equipment through an agreement the Company made with Lemark/Construct Design on April 25, 2011. The Company agreed upon substantial completion of the Casino the original principal balance of the note would be increased from $446,000 to $1,000,000, a $554,000 increase. (See Note H)
·The majority of the interest the Company paid during the year ended December 31, 2012, was to ABC Funding, the Lenders, of $16,699,851 during 2012.
On April 25, 2011, the Company entered into a Credit Agreement that provided for an $87,000,000 loan that matures on April 25, 2016. The loan is currently in default, and the entire principal balance is current, $83,770,862 (See Note H).
The following agreed to extend and subordinate their notes until six months past maturity date of Credit Agreement, which is October 25, 2016. At December 31, 2012, the Company owed the following amounts:
·Freedom Financial Corp - $2,105,744
·Freedom Holding - $1,850,162
·Neiman- $158,956
·Stuckert/Howell- $1,986,924
·Florida Lemark - $1,140,568
The Company reviewed ASC 470-50-40 and used its guidance to determine if the new debt instrument was substantially different than the old debt. The Company determined that the new debt was not different and all thenotes extended were accounted for as debt refinances. (For further information - See Note H)
The Company leases totalizator equipment from Sportech, and a number of slot machines that are not available for purchase from Bally Technologies. The Company also leases copiers, golf carts, copiers, the telephone system and other equipment. Totalizator rental expense and other equipment rental under operating leases for the year was $104,000 for the twelve months ended December 31, 2012, compared to $129,000 for the twelve months ended December 31, 2011. The Company leases a number of slot machines that are not available for purchase. During the twelve months ended December 31, 2012, the Company had $3,381,478 in gaming equipment lease and there were no leases for slot machines during the twelve month period in 2011.
In February, 2005, the Company agreed to contribute to political action committee (PAC) formed by South Florida gaming interests seeking passage of a statewide legislative initiative and local referenda to expand gaming rights to include “slots” in Miami-Dade County, Florida. Pursuant to that contribution agreement, the Company was contingently committed to the payment of $3,550,000 to the PAC as its share of the cost of the initiative. The contingent commitment became binding upon the Company at the earlier of ten days after the Company begins slot machine operations at its facility or upon the bona fide sale or transfer of its business operations to a third party purchaser. The Company began slot operations on January 23, 2012 and on February 3, 2012, the Company paid the PAC $3,550,000. The Company had accrued the $3,550,000 in accounts payable during the year ended December 31, 2011.
(a) Off -Balance Sheet Arrangements
None.
Critical Accounting Estimates
The Company's Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States of America. The preparation of these financial statements requires the Company to make estimates and judgments, and select from a range of possible estimates and assumptions, that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amount of revenues and expenses during the reported period. On an on-going basis, the Company evaluates its estimates, including those related to allowances for doubtful accounts, accounts receivable, inventory allowances, asset lives, the recoverability of other long-lived assets, including property and equipment, goodwill and other intangible assets, the realization of deferred income tax assets, remediation, litigation, income tax, valuation of warrants, and other contingencies. The Company bases its estimates and judgments,to varying degrees, on historical experience, advice of external specialists and various other factors it believes to be prudent under the circumstances. Actual results may differ from previously estimated amounts and such estimates, assumptions and judgments are regularly subject to revision.
The policies and estimates discussed below are considered by management to be critical to an understanding of the Company's financial statements because their application requires the most significant judgments from management in estimating matters for financial reporting that are inherently uncertain. See Note A - "Summary of Significant Accounting Policies" to our financial statements for additional information on these policies and estimates, as well as discussion of additional accounting policies and estimates.
The Company presents accounts receivable, net of allowances for doubtful accounts, to ensure accounts receivable are not overstated due to uncollectibility. The allowances are calculated based on detailed review of certain individual customer accounts, historical rates and an estimation of the overall economic conditions as well as the aging of the accounts receivable. In the event that the receivables became uncollectible after exhausting all available means of collection, the company would be forced to record additional adjustments to receivables to reflect the amounts at net realizable value. The effect of this entry would be a charge to income, thereby reducing its net profit. Although the company considers the likelihood of this occurrence to be remote based on past history and the current status of our accounts, there is a possibility of this occurrence.
The Company provides an allowance for doubtful accounts equal to estimated uncollectible amounts. The Company's estimate is based on a review of the current status of receivables. Allowance for doubtful accounts totaled -0- for the years ended December 31, 2012 and 2011.
In connection with losses incurred from natural disasters, insurance proceeds are collected on existing business interruption and property and casualty insurance policies. When losses are sustained in one period and the amounts to be recovered are collected in a subsequent period, management uses estimates and judgment to determine the amounts that are probable of recovery.
The Company estimates the useful lives of property and equipment in order to determine the amount of depreciation and amortization expense to be recorded during any reporting period. The majority of its equipment is depreciated over five to seven years. The estimated useful lives are based on historical experience with similar assets as well as taking into account anticipated technological or other changes. If technological changes were to occur more rapidly than anticipated or in a different form than anticipated, the useful lives assigned to these assets may need to be shortened, resulting in the recognition of increased depreciation in future periods. The Company reviews for impairment annually or when events or circumstances indicate that the carrying amount may not be recoverable over the remaining lives of the assets. In assessing impairments, it follows the provisions of ASC Topic 360-10-05 “Impairment or Disposal of Long-Lived Assets".
In accordance with ASC Topic 360-10-05, the Company periodically provides for losses on its property held for sale. Generally, when events or changes in circumstances indicate that the carrying amount of long-lived assets, including property and equipment and intangible assets, may not be recoverable, the Company undertakes an evaluation of the assets or asset group. If this evaluation indicates that the carrying amount of the asset or asset group is not recoverable, the amount of the impairment would typically be calculated using appraised values of the property. All relevant factors are considered in determining whether an impairment exists. The Company reviews for impairment annually and has found this to be very effective. Provisions for losses totaled $26,069 on property held for sale, for the years ended December 31, 2012 and 2011.
The Company recognizes revenue from gaming operations in accordance with ASC Topic 605, “Revenue Recognition,” which requires revenues to be recognized when realized or realizable and earned. Jai-Alai and inter track mutual commissions are recognized immediately upon completion of the event upon which the related wagers are placed. In general, wagers are placed immediately prior to the event and are made in cash or other good funds so collectability is not an issue. Revenues derived from admission, program sales, food and beverage sales, card room activities, and other revenues are recognized at the time of the transaction. Revenues from the Company’s real estate operations are recognized in accordance with ASC Topic 360-20, “Real Estate Sales”, which generally allows the Company to record all profit on real estate sales at closing unless the down payment is insufficient to accrue the revenue.
The Company's policy for unclaimed winning tickets for the pari-mutuel industry follows the requirements as set forth by the State of Florida. Abandoned tickets are winning tickets that remain uncashed for a period of one year. The value of the abandoned tickets escheat to the state. These funds are deposited into the State School Fund for support and maintenance of Florida's public schools. During 2012, unclaimed winning totaled $103,668 compared to $88,704 for the same period in 2011. The slot machine tickets that are not turned in are only good for thirty days.
The Credit Agreement Lenders received warrants (See Note C), with a $0.01 exercise price, currently equal to 35% of the stock in Centers. Centers is a non-public entity, and these warrants were never valued due to so many contingencies until a trigger event occurred. Centers is obligated to make an offer to repurchase the Centers Warrants upon the occurrence of any Trigger Event, which is defined to include the following: (a) the maturity date of the Term Loan; (b) the date upon which the Term Loan is repaid in full (the “Repayment Date”); (c) upon a change of control in Centers; (d) upon the commencement of bankruptcy proceedings (or any similar action or insolvency event) by Centers; and (e) if the maturity date of the Term Loan or the Repayment Date occurs prior to the fifth anniversary of the opening date of The Casino at Miami Jai-Alai (the “Opening Date”), then each anniversary of the Opening Date occurring after the Repayment Date and on or prior to the fifth anniversary of the Opening Date. With the pending sale of Centers, the Company had to determine a value for the warrants. The warrants were valued at $4,403,666 which is 35% of the anticipated net proceeds from the sale of Centers. The company had to use reasonable estimates on anticipated operating losses, a sprinkler system, and real estate taxes. (See Note L)
Item 7A.
Item 7A. Quantitative and Qualitative Disclosures about Market Risk.
Under SEC regulations, the information called for by this item is not required because the Company is a smaller
reporting Company.
Item 8.
Item 8. Financial Statements
List of Financial Statements Filed.
See accompanying Financial Statements:
Balance Sheets as of December 31, 2012 and 2011.
Statements of Income for the years ended December 31, 2012 and 2011.
Statement of Changes in Stockholders' Equity for the two years ended December 31, 2012 and 2011.
Statements of Cash Flows for the years ended December 31, 2012 and 2011.
Notes to Financial Statements.
Item 9.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
On November 2, 2012, the Court entered an order appointing David Jonas as Receiver for Florida Gaming Centers, Inc. (“Centers”), the wholly-owned subsidiary, and primary operating asset, of the Company. Since that date, Centers has operated under the supervision of the Receiver.
On March 18, 2013, the Receiver appointed Morrison, Brown, Argiz & Farra, LLC (“Morrison”) as the new accountants to perform the audit of Centers for its fiscal year ended December 31, 2012. The Receiver did not take action to designate or change the principal accountants of the Company for purposes of financial reports made with the Securities and Exchange Commission. The foregoing actions were taken by the Receiver without participation of the Board of Directors or the Audit Committee of the Company.
King + Company, P.S.C. (“King”) has been the Company’s independent auditor since 1994. In connection with King’s work on the December 31, 2012 audit, the Company, in consultation with King and Morrison, determined that, because Morrison will audit substantially all of the Company’s consolidated revenue and assets in connection with its audit of Centers, Morrison would be the Company’s “principal accountant.”
On March 18, 2013, King delivered a letter to the Company indicating that it would cease its services as the independent accountants for Centers but that it would continue to perform the audit for Florida Gaming Corporation (“Corp”) and its other wholly-owned subsidiary, Tara Club Estates, Inc. In its letter, King also stated that, with the Company’s consent, it would provide professional assistance to Morrison in its audit of Centers.
On March 27, 2013, the Audit Committee and Board of Directors approved Morrison as the auditor of Centers, and as the principal auditors. The Audit Committee and Board of Directors also approved King as the auditors for the Florida Gaming Corporation.
King did not resign, did not decline to stand for re-election, they were not dismissed, and the Company had no disagreements with King on any matters. King remains the auditors for Corp.
Before its appointment as Centers’ auditor, Morrison was previously engaged by Centers on October 12, 2012 to act as an expert witness on Centers’ behalf. Morrison was engaged to review the Company’s lender representation that the Company was not in compliance with its loan covenants and therefore subject to the default interest rate per the loan agreement. Morrison meets the independence requirements of Rule 2-01. Morrison never testified on this matter and was paid $16,144 for such service. Pursuant to Rule 2-01(c)(4)(x) of Regulation S-X, this non-audit service does not impair Morrison’s independence.
Item 9A.
Item 9A. Controls and Procedures.
Evaluation of Disclosure Controls and Procedures. Based on the evaluation as of December 31, 2012, our principal executive officer and principal financial officer have concluded that our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934 (the “Exchange Act”)) were effective to ensure that information required to be disclosed by us in reports that we file or submit under the Exchange Act (i) is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms, and (ii) is accumulated and communicated to management, including the principal executive and principal financial officers, as appropriate, to allow timely decisions regarding required disclosure.
Changes in Internal Controls Over Financial Reporting. There have been no changes in our internal controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the twelve months ended December 31, 2012, covered by this Form 10-K that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Management assessed the effectiveness of our internal control over financial reporting as of December 31, 2012. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control - Integrated Framework. Based on management's assessment and those criteria, management believes that, as of December 31, 2012, the Company maintained effective internal control over financial reporting.
It should be noted that any system of controls, however well designed and operated, can provide only reasonable, and not absolute, assurance that the objectives of the system will be met. In addition, the design of any control system is based in part upon certain assumptions about the likelihood of future events and there can be no assurance that any control will meet its objectives under all potential future conditions.
This annual report does not include an attestation report of the Company's registered public accounting firm regarding internal control over financial reporting. Management's report of the effectiveness on the design and operation of internal control over financial reporting was not subject to attestation by the Company's registered public accounting firm pursuant to temporary rules of the Securities and Exchange Commission that permit the Company to provide only management's report in this annual report.
Item 9B.
Item 9B. Other Information
Defaults upon Senior Securities
As of December 31, 2012, the Company has accrued but not paid dividends on their four classes of Preferred Stock:
The Company owes the following amounts on their Preferred Stock:
Preferred A: $100,263
Preferred AA: $1,487,500
Preferred B: $ 63,002
Preferred F: $481,703
On July 25, 2012, there was a $3,229,127 principal pay down from the amounts on deposit in the completion reserve account and interest reserve account. The principal balance owed on the note was reduced to $83,770,862. On July 31, 2012, the Company was required to make a $2,362,408 principal payment. The Company did not make the required principal payment on July 31, 2012, and on August 9, 2012, the Company and Centers, received a Notice of Acceleration of all Obligation and a Note of Demand on Credit Party Guaranty. (See Legal Proceedings and exhibits 99.1 and 99.2 attached to the June 30, 2012 10-q)
PART III
Item 10.
Item 10.Directors, Executive Officers, Promoters and Control Persons; Compliance With Section 16(a) of the Exchange Act.
Directors and Executive Officers
The following table sets forth certain information concerning the Company's executive officers and directors at
December 31, 2012:
Director or
Executive
Name
Age
Position with the Company
Officer Since
W. Bennett Collett, Jr.
CEO, President , and Director
Kimberly R. Tharp
Chief Financial Officer, Secretary and Treasurer
Daniel Licciardi
Executive Vice-President and Chief Operating Officer
Jennifer Chong
Controller
W. Bennett Collett**
Chairman
George Galloway, Jr.
Director
William Haddon*
Director
*William Haddon passed away July 1, 2012
**W. Bennett Collett retired as CEO of Florida Gaming Corporation on April 25, 2011. Mr. Collett has served as Chairman of the Board, Chief Executive Officer and a director of Freedom Financial Corporation (“Freedom”) since its formation in 1985. Freedom was a registered bank holding company until January, 1988 when it sold its banking subsidiaries. Mr. Collett has served as Chairman and director of Freedom Holding, Inc. (“Holding”) since its formation in December 1992. Holding's sole business currently is to hold shares of Florida Gaming Corporation. Collett was involved in the ownership and management of banking and financial service companies for over 30 years, having been a principal officer, and director of ten commercial banks. For 14 years Mr. Collett was a principal shareholder and chief executive officer of various banks and finance companies in Alabama, Arkansas, Georgia, Indiana and Missouri ranging in asset size from $1,000,000 to $500,000,000.
W. Bennett Collett Jr. served as President of Freedom from 1988 to 1989. Since August 1989, Mr. Collett has served as Executive Vice President of Freedom. He has been a director of Freedom since its formation in 1985 and a director of Holding since April, 1998. He presently serves as Secretary and Treasurer of Holding. On April 25, 2011, Mr. Collett was promoted to CEO of the Company. Mr. Collett currently serves as CEO, President, and Director of Florida Gaming Corporation. Mr. Collett was appointed to the Company's Board of Directors on August 9, 1994. W. Bennett Collett Jr. is the son of W. Bennett Collett.
Kimberly R. Tharp was elected Chief Financial Officer of the Company in 2002 and still serves in that capacity. She has served Freedom and Florida Gaming since 1995 to present, in various capacities, including Chief Financial Officer, Controller and Secretary.
Daniel Licciardi was elected Exec. Vice-President and Pari-Mutuels Manager in 1998 of Florida Gaming Centers. Mr. Licciard was promoted to Chief Operating Officer on April 25, 2011. Mr. Licciardi was employed at the Miami Jai-Alai when present management took over in 1997. He has overseen the operations at the Miami Jai- Alai for over 20 years.
Jennifer Chong has worked in various positions at the Miami Jai-Alai and was elected Controller in 2003. She had previously served Centers as Asst. Controller.
George W. Galloway, Jr., M.D. a physician since 1958, served as the medical director of the emergency room at Kennestone Hospital in Marietta, Georgia from 1983 until his retirement in March 1999.
Compliance with Section 16(a) of the Securities Exchange Act of 1934
Section 16(a) of the Securities Exchange Act of 1934 requires the Company's directors and executive officers, and persons who own more than 10 per Cent of the Company's Common stock to file with the Securities and Exchange Commission (the “SEC”) initial reports of ownership and reports of changes in ownership of common stock. Officers, directors and greater than 10 percent shareholders are required by SEC regulation to furnish the Company with copies of all Section 16(a) forms they file. To the Company's knowledge, based solely on a review of the copies of such reports and certain representations furnished to the Company, during the fiscal year ended December 31, 2012, all Section 16(a) filing requirements applicable to its officers, directors and greater than ten percent beneficial owners were satisfied.
Information Relating to Our Audit Committee of the Board of Directors
The purpose of the Audit Committee is to oversee the accounting and financial reporting processes of our company and the audits of our financial statements. The Audit Committee provides assistance to our Board of Directors with respect to its oversight of (a) the integrity of our financial statements, (b) our compliance with legal and regulatory requirements, (c) the independent registered public accountant’s qualifications and independence, and (d) the performance of our independent registered public accountants. The primary responsibilities of the Audit Committee are set forth in its charter, which is reviewed annually, and includes various matters with respect to the oversight of our company’s accounting and financial reporting process and audits of the financial statements of the Company on behalf of our Board of Directors.
The Audit Committee also selects the independent registered public accountants to conduct the annual audit of the financial statements of the Company; reviews the proposed scope of such audit, reviews accounting and financial controls of the Company with the independent registered public accountants and our financial accounting staff; and reviews and approves transactions between us and our directors, officers, and their affiliates.
The Audit Committee consisted of Messrs. Haddon, and Galloway, each of whom was an independent director of our company under OTCBB rules as well as under rules adopted by the Securities and Exchange Commission pursuant to the Sarbanes-Oxley Act of 2002. Mr. Haddon passed away in July, 2012 and has not been replaced. The Board of Directors determined that Mr. Galloway qualified as an “audit committee financial expert” in accordance with applicable rules and regulations of the SEC.
Code of Ethics
The Code of Ethics can be viewed on the Company's website @ www.fla-gaming.com
Item 11.
Item 11. Executive Compensation
Cash Compensation.
The following table sets forth all cash compensation paid by the Company for the fiscal years ended December 31, 2012 and 2011 for W. Bennett Collett, W. B. Collett, Jr., and Daniel Licciardi.
SUMMARY COMPENSATION TABLE
Salary (c)
*On April 25, 2011, W. B. Collett retired as CEO of the Company. As of March 31, 2011, Mr. Collett had accrued $195,000 of consultant fees. In lieu of a salary for W. Collett, the Company paid management fees to Freedom of $65,000 per month. The management fees have not been paid since December 31, 2008. The Company had $1,755,000 of accrued but unpaid consulting fees rendered through March 31, 2011. On April 25, 2011, the Company entered into the Promissory Note with Freedom for the owed management fees plus a payable in the amount of $150,000 for $1,905,000. In connection with the Promissory Note the Company and Freedom have entered into a Subordination Agreement, dated as of April 25, 2011. The Company shall pay interest, paid-in-kind instead of in cash, at the rate of six percent (6%). The outstanding principal of the Promissory Note, all accrued but unpaid interest thereon and all other charges, fees, or expenses hereunder shall be due and payable in full on the date six (6) months after the maturity date of the Credit Agreement. (For further information refer to Exhibit 10.5 attached to Form 8-K filed on April 27, 2011.)
Concurrent with the closing of the financing under the Credit Agreement, the Board of Directors of the Company implemented a management succession plan to provide leadership for the Company going forward. As part of this plan, W. Bennett Collett, Jr. was promoted to President and Chief Executive Officer of the Company and Centers. and Daniel J. Licciardi was promoted to Chief Operating Officer of the Company and Centers.
As a result of the promotions, both W. B. Collett, Jr. and Daniel Licciardi entered into Employment Contracts and received an increase in salary effective April 1, 2011.
W. Bennett Collett, Jr. entered into an employment agreementwith Centers, which provides for the following: (i) an initial term beginning on March 31, 2011 and ending on December 31, 2016, with automatic 12-month extensions thereafter unless earlier terminated, (ii) an annual base salary of $300,000 and (iii) subject to the discretion of the Board of Directors, an annual bonus beginning in calendar year 2012 not to exceed 50% of the base salary.
In connection with Mr. Licciardi’s promotion, he entered into an employment agreement with Centers, which provides the following: (i) an initial term beginning on March 31, 2011 and ending on December 31, 2016, withautomatic 12-month extensions thereafter unless earlier terminated, (ii) an annual base salary of $225,000 and (iii) subject to the discretion of the Board of Directors, an annual bonus beginning in calendar year 2012 not to exceed 50% of the base salary.
Bonus (d)
The Company did not issue any bonuses during 2012 or 2011.
Option Awards (f)
The Company did not issue any new options during 2012 or 2011.
Other Compensation (I)
W. B. Collett, Jr. had other compensation of $34,063 for the year ended December, 31, 2012, which included $8,190, in repairs made by the Company for personal autos used in Company business, and $25,873 in rental costs. In an effort to reduce travel expenses, the Company rented a fully furnished house near the Ft. Pierce Jai-Alai Fronton for W. B. Collett, Jr. in lieu of paying hotel accommodations.. This compares to other compensation of $50,340 for the year ended December, 31, 2011, which included $14,863 in car payments and repairs made by the Company for personal autos used in Company business and the cost for the house in 2011 was $35,477. The house expenses and automobile expenses were lower during the period ending December 31, 2012, Mr. Collett moved out of the house on September 30, 2012 and the Company no longer pays rental fees, and the Company paid the automobile off in 2011.
Dan Licciardi had other compensation of $6,000 for auto allowance during the years ended December 31, 2012 and December 31, 2011.
OUTSTANDING EQUITY AWARDS AT DECEMBER 31, 2012
(1) W.B. Collett and W.B. Collett, Jr. transferred 726,000 options to Freedom Holding, Inc. on March 11, 2008, 20,000 of those options have since expired. W. B. Collett transferred 528,000 options, and W.B. Collett, Jr. transferred 198,000 options. W. B. Collett owns 85.09% of Freedom Holding, Inc. and W. B. Collett, Jr. owns 9.21% of Freedom Holding, Inc. (See Item 13.)
*There were no new options issued during the years ended December 31, 2012, and December 31, 2011. On July 9, 2012, the Company extended 362,500 options that were to expire on July 11, 2011 and 463,750 options that were to expire on July 10, 2012, all were extended until March 31, 2017. The Company recorded a cost of $94,254 to record the extension. This compared to 362,500 option that were extended in 2011 for one year. The Company recorded a cost of of $84,703 for the extension during 2011.
Daniel Licciardi was issued 17,500 options on July 10, 2006, completely vested by July 1, 2007. The Company extended these 17,500 options from July 11, 2012 to March 31, 2017.
Kimberly Tharp was issued 4,125 options on July 10, 2006 with an expiration of July 10, 2012. These options were extended on July 9, 2012 with an expiration date of March 31, 2017.
Jennifer Chong was issued 2,250 options on July 10, 2006 with an expiration of July 10, 2012. These options were extended on July 9, 2012 with an expiration date of March 31, 2017.
Director Compensation
The Company currently pays its non-management director, Dr. George W. Galloway, Jr., a monthly fee of $2,000. The director fees were accrued but not paid for the twelve months ended December 31, 2012 and December 31, 2011. W. Bennett Collett, and W. B. Collett, Jr. are also directors, but receive no directors fees.
DIRECTOR COMPENSATION
*Mr. Haddon passed away July 2, 2012
Option Awards (d)
The directors did not receive any stock options during 2012 or 2011. The company did extend their options from July 10, 2012 to March 31, 2017. (See Note C)
Indemnification
Under Section 145 of the Delaware General Corporation Law (“DGCL”), the Company has the power to indemnify directors and officers under certain prescribed circumstances and subject to certain limitations against certain costs and expenses, including attorney's fees, actually and reasonably incurred in connection with any action, suit or proceeding, whether civil, criminal, administrative, or investigative, to which any of them is a party by reason of his being a director or officer of the Company if it is determined that the officer or director acted in accordance with the applicable standard of conduct set forth in such statutory provisions. The Company's Bylaws provide that the Company shall indemnify each person who may be indemnified pursuant to Section 145, as amended from time to time (or any successor provision thereto), to the fullest extent permitted by Section 145. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
Item 12.
Item 12. Security Ownership of Certain Beneficial Owners and Management
The following table sets forth certain information as of March 31, 2013 concerning each stockholder known to the Company to own beneficially more than five percent of the outstanding Common Stock of the Company and information regarding beneficial ownership of Common Stock, and the Common Stock of Freedom Holding (“Holding”) by each director and executive officer, and all directors and executive officers as a group. Holding each may be deemed to be a “parent” of the Company as such term is defined in the rules promulgated under the Securities Exchange Act of 1934. Holding's sole business currently is to hold shares of Florida Gaming Corporation. During 2008, Freedom Financial Corporation, W. B. Collett and W. B. Collett, Jr. transferred all options, common and preferred stock to Freedom Holding. The reason for the transfer was to centralize the Florida Gaming Corporation holdings. Before the transfer Freedom Holding owned 100% of Freedom Financial Corp. Freedom Holding is owned by three individuals, one of which is an executive officer in Florida Gaming, W. B. Collett, Jr. Their option shares were transferred to Freedom Holding representing capital contributions by the officers to a controlled corporation. The transfer of stock from Freedom Financial to Holding was a dividend to its parent corporation. Through March 31, 2011, the Company paid or accrued management fees of $65,000 per month to Freedom Financial Corporation, for the services of W. B. Collett, Chairman. On April 25, 2011, Mr. W. B. Collett retired as CEO, and a new consulting agreement was made on April 25, 2011. (See Item 13)
(1) Based upon information furnished to the Company by the named person, and information contained in filings with the Securities and Exchange Commission (the “Commission”). Under the rules of the Commission, a person is deemed to beneficially own shares over which the person has or shares voting or investment power or which the person has the right to acquire beneficial ownership within 60 days. Unless otherwise indicated, the named persons have sole voting and investment power with respect to shares owned by them.
(2) Based on 4,037,293 shares outstanding as of December 31, 2012. Shares of Common Stock of the Company subject to options exercisable or preferred stock convertible within 60 days are deemed outstanding for computing the percentage of class of the person holding such options or preferred stock, but are not deemed outstanding for computing the percentage of class for any other person.
(3) Of the 2,180,203 shares, it includes 1,325,869 shares owned by Freedom Holding Inc., 706,000 options, and 148,334 shares of the Company’s Preferred F Stock. Holding had 20,000 options expire November 1, 2011. As of January 6, 2011, Holding has pledged all 1,325,869 shares of Florida Gaming Corporation common stock and the 1,000 shares of Preferred F stock to a bank as collateral for a loan. Mr. Collett may be deemed to beneficially own the shares held by Holding, although he disclaims such beneficial ownership of such shares. Mr. Collett can exert considerable influence over the election of the Company's directors and the outcome of corporate actions requiring stockholder approval.
(4) Includes 1,109,011 shares owned by Holding. Mr. Collett may be deemed to beneficially own the shares held by Holding, although he disclaims beneficial ownership of such shares.
(5) George W. Galloway, director, transferred his options to GWGJR, INC on March 12, 2008. GWGJR, INC. owns 30,000 shares and has 27,500 vested options.
(6) Kimberly R. Tharp has 4,125 vested options and owns 27,500 shares individually.
(7) Daniel Licciardi has 24,625 vested options and owns 30,000 shares individually.
(8) Jennifer Chong has 2,250 vested options and owns 10,000 individually.
(9) Of the 2,336,203 shares, that includes 148,334 shares which may be acquired upon conversion of 1,000 shares of the Company's Series F Preferred Stock, 1,423,369 shares owned by officers, directors and Holding, and 764,500 stock options held by all directors Holding, and executive officers as a group.
(10) See Note (3). The address of Freedom Holding, Inc. is 2669 Charlestown Road, Suite D, New Albany, Indiana 47150. The business address of W. B. Collett is 1750 South Kings Highway, Fort Pierce, Florida 34945-3099.
(11) On March 11, 2008, W. Bennett Collett, Jr. transferred his options to Freedom Holding, Inc. W. B. Collett, Jr., has 9.21% ownership in Freedom Holding, Inc.
Item 13.
Item 13. Certain Relationships and Related Transactions
Freedom Holding, Inc. (“Holding”) owns 1,325,869 shares of Florida Gaming Corporation common stock. Freedom Holding, Inc. also owns 1,000 shares of Preferred F stock, and 706,000 stock options. The stock and options were transferred to Holding in 2008 by Freedom Financial Corporation and W. B. Collett, and W. B. Collett, Jr. Holding may each be deemed to be a “parent” of the Company as such term is defined in the rules promulgated under the U.S. Securities & Exchange Act, by virtue of beneficial ownership of 44.6% of the Common Stock of the Company. The option shares were transferred to Freedom Holding representing capital contributions by the officers to a controlled corporation. The transfer of stock from Freedom Financial to Holding was a dividend to its parent corporation. The reason or the transfer was to centralize the Florida Gaming holdings. Freedom Holding is owned by three individuals, one of which is an executive officer and one a Director in Florida Gaming, W. B. Collett, and W. B. Collett, Jr. As of January 6, 2011, Holding has pledged all 1,325,869 shares of Florida Gaming Corporation common stock and the 1,000 shares of Preferred F stock to a bank as collateral for a loan. See Item12. “Security Ownership of Certain Beneficial Owners and Management”.
On November, 1997, the Company entered into a new business - residential real estate development. These Properties consisted of over 100 fully-developed, and 163 partially-developed, single-family residential home sites, a swim and tennis club facility, and 27 acres of partially-developed commercial property. As of December 31, 2012, the Company has six (6) residential lots remaining to be sold. The six (6) lots have a book value of $234,000. The Company had a mortgage note payable to Hamilton State Bank on one of the lots. The note matured on November 17, 2009. The Company failed to repay the note and the lender refused to extend the note. On May 13, 2011, the Company paid the Hamilton State Bank the principal on the note of $36,691 plus accrued interest and attorney fees of $9,798.The Properties are located on the east side of Georgia Highway 81, approximately one (1) mile south of U.S. Highway 78, inside the Loganville, Georgia city limits, in Walton County.
On October 31, 2005 Freedom Financial purchased Florida Gaming’s note with First Bank (formerly CIB) for $2,400,000. At the same date, Florida Gaming renegotiated the terms of this note with Freedom. Under the new terms, the note had a fixed interest rate of 8.0% per annum and was secured by various mortgages, rents, and receivables. The note matured on October 31, 2008 and was refinanced under a new note with Freedom Holding Inc. (“Holding”), the parent company of Freedom Financial, dated November 1, 2008. As an inducement to refinance the note the Company issued Holding a warrant to purchase 20,000 shares of the Company’s $0.20 par value common stock at a price per share $8.25. The warrant was exercisable at any time from November 1, 2008 through November 1, 2011. The warrants expired November 1, 2011. The Company accounted for the note as a debt refinance.
On April 25, 2011 the Company entered into a Modification, Assignment and Assumption Agreement with Holding. Holding agreed to amend the note with Centers to release Centers from the obligations there under and accept Florida Gaming Corp as the new borrower under the promissory notes. Holding agreed to extend the maturity date to be at least six (6) months after the maturity date under the Credit Agreement, and convert all interest payments to be paid in kind instead of in cash and to subordinate the obligations under the promissory notes to those under the Credit Agreement. The Company reviewed ASC 470-50-40 and used its guidance to determine if the new debt instruments were substantially different than the old debt. The present value of the remaining cash flows under the terms of the original instrument is less than ten percent, and therefore we determined that the new debt was not a substantially different debt instrument. The note was accounted for as a debt refinance. At December 31, 2012, the Company owed Holding $1,850,162. (See Form 8-K filed April 27, 2011)
On June 15, 2011, the Company issued a Note Receivable to Freedom Holding, Inc. (“Holding”) for $54,836, secured by the dividends due Holding on the Series F Preferred Stock, with an interest rate of 12%. Following the issuance of this Note, the Company and Centers disclosed the Note to the Administrative Agent and the enders. The movement of funds from Centers to the Company and ultimately to Holding through the issuance of the Note was inconsistent with the terms of the Credit Agreement. Following discussions among the parties, Holding repaid the Note and the Lenders consented to the issuance of the Note provided that Centers and the Company pay the Administrative Agent a consent fee in the amount of $377,000.00 (the “Consent Fee”). The parties entered into the Letter Agreement on September 20, 2011. The Consent Fee was equal to the outstanding principal amount of the loan under the Credit Agreement multiplied by a rate per annum equal to 2% for the period beginning on June 15, 2011, the date of the Note, and ending on September 1, 2011, the date that Holding repaid the Note in full to the Company. (For further information refer to the 8-K filed on September 26, 2011)
On June 28, 2012, the Company paid $100,323 to Holding which reduced the Company’s indebtedness to Holding. Holding used the funds to bring the interest current on an outstanding loan. At December 31, 2012 the Company owed Holding $1,850,162 on the Note and $340,000 in dividends.
In lieu of salaries for the Chairman/CEO, W. B. Collett, the Company paid a management fee to Freedom Financial Corporation (“Freedom”) through March 31, 2011. The Company was unable to pay the management fees and accrued management fees to Freedom of $780,000 for each of the years ended December 31, 2009 and December 31, 2010 and $195,000 for the first quarter 2011. Freedom is controlled by the Company’s Chairman and the Company’s CEO/President also maintains ownership in Freedom. The Company had accrued management fees of $1,755,000 during the quarter ended March 31, 2011. In connection with the closing of the Credit Agreement, the Company entered into a Promissory Note with Freedom in the amount of $1,905,000 of which $1,755,000 was for accrued but unpaid consulting fees and $150,000 in accounts receivables from Freedom. Under the Promissory Note, (i) the indebtedness is subordinate to the obligations under the Credit Agreement, (ii) interest shall be paid-in-kind instead of in cash and (iii) the outstanding principal shall be due and payable in full on the date that is six (6) months after the maturity date under the Credit Agreement. (See Form 8-K filed April 27, 2011, Exhibit 10.5). At December 31, 2012 the Company owed Freedom $2,105,744 on this note.
W. B. Collett received two management fee payments in 2012, one for $25,000 in June, 2012 and one for $25,000 in July, 2012. No payments were received in 2011.
On December 3, 2010 W. B. Collett, Jr., the Company’s CEO had advanced the Company $125,000 for operating expenses. With the closing of the Credit Agreement a Modification, Assignment and Assumption Agreement was made with Andrea S. Neiman and Centers (the “Neiman Modification Agreement”)whereby Ms. Neiman agreed to modify the original note in the amount of $125,000 to (i) release Centers from the obligations thereunder and accept the Company as the new borrower under the note, (ii) extend the maturity date to be at least six (6) months after the maturity date under the Credit Agreement, (iii) at the Company’s option permit interest to be paid-in-kind instead of in cash and (iv) generally subordinate the obligations under the note to those under the Credit Agreement.
Item 14.
Item 14. Principal Accountant Fees and Services
King + Company, P.S.C. (“King”) were the principal accountants through September 30, 2012. Therefore the Tax fees and All other fees are from King. The Receiver hired new accountants, Morrison, Brown, Argiz & Farra, LLC (“Morrison”) on March 18, 2013, to audit Centers books for the year ended December 31, 2012. Since Centers has substantially all the assets of the Company, Morrison became the principal auditors for the audit ending December 31, 2012 of Centers. On March 27, 2013, the Board of Directors and the Audit Committee approved the hiring of Morrison to audit Centers books, and retained King to continue to audit Florida Gaming Corporation’s books. The Audit fees and Audit-related fees are Morrison’s.
Audit Fees. For the year ended December 31, 2012 were $100,000 compared to $87,290 for the year ended December 31, 2011.
Audit-Related Fees. For the year ended December 31, 2012, were $10,000 compared to audit-related fees were $4,300 for the year ended December 31, 2011. Audit-Related fees consisted of a review of 10-K and communications with audit committee.
Tax Fees. For corporation tax return preparation for the year ended December 31, 2012, the fees were $10,675 Compared to $9,945 for the year ended December 31, 2011.
All Other Fees. Miscellaneous Fees for the year ended December 31, 2012 were $32,556 compared to $4,575 for the year ended December 31, 2011.
Audit Committee Pre-Approval Policies
The duties and responsibilities of our Audit Committee include the pre-approval of all audit, audit related, tax, and other services permitted by law or applicable SEC regulations (including fee and cost ranges) to be performed by our independent auditor. Any pre-approved services that will involve fees or costs exceeding pre-approved levels will also require specific pre-approval by the Audit Committee. Unless otherwise specified by the Audit Committee in pre-approving a service, the pre-approval will be effective for the 12-month period following pre-approval. The Audit Committee will not approve any non-audit services prohibited by applicable SEC regulations or any services in connection with a transaction initially recommended by the independent auditor, the purpose of which may be tax avoidance and the tax treatment of which will not be supported by the Internal Revenue Code and related regulations.
To the extent deemed appropriate, the Audit Committee may delegate pre-approval authority to any one or more members of the Audit Committee provided that any member of the Audit Committee who has exercised any such delegation must report any such pre-approval decision to the Audit Committee at its next scheduled meeting. The Audit Committee will not delegate the pre-approval of services to be performed by the independent auditor to management.
All of the services provided by Morrison and King, described above under the captions “Audit Fees,” were approved by our Audit Committee.
PART IV
Item 15.
Item 15. Exhibits, Financial Statement Schedules and Reports on FORM 8-K
3.1
Registrant’s Third Amended and Restated Certificate of Incorporation filed with the Delaware Secretary of State on March 28, 2005, filed as reference 3.1 to the Registrant’s 2004 10-KSB, is incorporated herein by reference as Exhibit 3.1.
3.2
Registrant’s By-Laws as amended to date filed as Exhibit 3.5 to Registrant’s Form 10-KSB for the fiscal year ended December 31, 1998 are incorporated herein by reference as Exhibit 3.2.
4.1
Warrant Agreement, dated as of April 25, 2011, by and among Florida Gaming Corporation and the holders named therein, filed as reference 4.1 to Registrant’s 8-K filed April 27, 2011, is incorporated herein by reference as Exhibit 4.1.
4.2
Registrant Agreement dated as of April 25, 2011, by and among Florida Gaming Centers, Inc., Florida Gaming Corporation as Guarantor and the holders named therein, filed as exhibit 4.2 to Registrant’s 8-k filed April 27, 2011 and incorporated herein by reference as Exhibit 4.2.
4.3
Registration Rights Agreement dated as of April 25, 2011, by and amond Florida Gaming Corporation and the holders named therein, filed as reference 4.3 to Registrant’s 8-k filed April 27, 2011, incorporated herein by reference as Exhibit 4.3
10.1
Credit Agreement, dated as of April 25, 2011, by and among Florida Gaming Centers, Inc., Florida Gaming Corporation, the lenders party thereto, and ABC Funding, LLC as Administrative Agent, filed as reference 10.1 to Registrant’s 8-k filed April 27, 2011, incorporated herein by reference as Exhibit 10.1.
10.2
Modification Agreement, dated as of April 25, 2011 by and between Solomon O. Howell and James W. Stuckert and Florida Gaming Corporation, filed as reference 10.2 to Registrant’s 8-K filed April 27, 2011, incorporated herein by reference as Exhibit 10.2.
10.3
Modification, Assignment and Assumption Agreement, dated as of April 25, 2011, by and among Freedom Holding, Inc., Florida Gaming Centers, Inc., and Florida Gaming Corporation, filed as reference 10.3 to Registrant’s 8-K filed April 27, 2011incorporated herein by reference as Exhibit 10.3.
10.4
Modification, Assignment and Assumption Agreement, dated as of April 25, 2011, by and among Andrea S. Neiman, Florida Gaming Centers, Inc., and Florida Gaming Corporation, filed as reference 10.4 to Registrant’s 8-K filed April 27, 2011 incorporated herein by reference as Exhibit 10.4.
10.5
Florida Gaming Corporation Promissory Note, dated as of April 25, 2011, in the amount of $1,905,000, filed as reference 10.5 to Registrant’s 8-K filed April 27, 2011 incorporated herein by reference as Exhibit 10.5.
10.6
Freedom Pledge Agreement, dated as of April 25, 2011, by and among William B. Collett, William B. Collett, Jr., Hurd Family Partnership, L.P. and ABC Funding, LLC. (Included as Exhibit H to Exhibit 10.1), filed as reference 10.1 to 8-k filed April 27, 2011, incorporated herein by reference as Exhibit 10.6.
10.7
Employment Agreement, dated as of April 25, 2011, between Florida Gaming Centers, Inc. and W. Bennett Collett, Jr. filed as reference 10.7 to Registrant’s 8-K filed April 27, 2011, incorporated herein by reference as Exhibit 10.7.
10.8
Employee Bonus Compensation Restriction Agreement, dated as of April 25, 2011, by and between W. Bennett Collett, Jr. and ABC Funding, LLC, filed as reference 10.8 to Registrant’s 8-K filed April 27, 2011, incorporated herein by reference as Exhibit 10.8.
10.9
Employment Agreement, dated as of April 25, 2011, by and between Florida Gaming Centers, Inc. and Daniel J. Licciardi, filed as reference 10.9 to Registrant’s 8-K filed April 27, 2011, incorporated herein by reference as Exhibit 10.9.
10.10
Consulting Agreement, dated as of April 25, 2011 by and between Freedom Financial Corporation and Florida Gaming Corporation (Included as Exhibit K to Exhibit 10.1), filed as reference 10.1 to Registrant‘s 8-K filed April 27, 2011, incorporated herein by reference as Exhibit 10.10.
10.13
Stock Subscription Agreement entered into between the Registrant and Prides Capital Fund I.L.P. dated June 15, 2007 and is filed as Exhibit 4.5 to Registrant’s Form 8-K dated June 15, 2007 and is incorporated herein by reference as Exhibit 10.13.
10.14
Stockholders Agreement entered into between the Registrant and Prides Capital Fund I.L.P. dated June 15, 2007 and is filed as Exhibit 4.6 to Registrant’s Form 8-K dated June 15, 2007 and is incorporated herein by reference as Exhibit 10.14.
10.15
Warrant Agreement entered into between the Registrant and Prides Capital Fund I.L.P. dated June 15, 2007 and is filed as Exhibit 4.7 to Registrant’s Form 8-K dated June 15, 2007 and is incorporated herein by reference as Exhibit 10.15.
10.16
Settlement Agreement as to Parcel No. 155 and Parcel No. 155TCE, dated February 3, 2009, by and between the Registrant and the County, filed as Exhibit 10.1 on Registrant’s Form 8-K dated April 6, 2009, and is incorporated herein by reference as Exhibit 10.16.
10.17
Promissory Note, entered into by the Registrant, the County and City National Bank of Florida on April 2, 2009, filed as Exhibit 10.2 on Registrant’s Form 8-K dated April 6, 2009 and is incorporated herein by reference as Exhibit 10.17.
10.18
Mortgage and Security Agreement, entered into by the Registrant, the County and City National Bank of Florida on April 6, 2009, filed as Exhibit 10.3 on Registrant’s Form 8-K dated April 6, 2009 and is incorporated herein by reference as Exhibit 10.18.
10.19
Registrant’s Amended and Restated Loan Agreement between Florida Gaming Centers, Inc. City National Bank of Florida, and Freedom Financial Corp, dated October 31, 2005, was filed as reference 10.9 to Registrant’s 2005 10-KSB, herein incorporated by reference as Exhibit 10.19.
10.20
Promissory Note, entered into by the Registrant, the County and City National Bank of Florida on June 16, 2011, was filed as Exhibit 10.20 to Registrant’s June 30, 2011 10-Q, and is incorporated herein by reference as Exhibit 10.20.
10.21
Mortgage and Security Agreement, entered into by the Registrant, the County and City National Bank of Florida on April 6, 2009, was filed as Exhibit 10.21 to Registrant’s June 30, 2011 10-Q, and is incorporated herein by reference as Exhibit 10.21.
10.23
Warrant Agreement entered into between the Registrant and Nurmi Properties, dated December 11, 2009, was filed as Exhibit 10.18 to an 8-k filed December 17, 2009 and is incorporated herein by reference as Exhibit 10.23.
10.30
Partnership Purchase Interest Agreement, dated October 14, 2010, filed as Exhibit 10.30 to Registrant’s 10-Q dated November, 15, 2010 is incorporated herein by reference as Exhibit 10.30.
10.31
Assignment of Interest Agreement, between Florida Gaming Centers and W. Flagler Associates, dated October 14,2010, filed as Exhibit 10.31 to Registrant’s 10-Q dated November 15, 2010 is incorporated herein by reference as Exhibit 10.31.
10.32
Assumption Agreement, between Florida Gaming Centers and West Flagler Associates, dated October 14, 2010, filed as Exhibit10.32 to Registrant’s 10-Q dated November 15, 2010 is incorporated herein by reference as Exhibit 10.32.
10.33
Escrow Agreement, between Mintzer Sarowitz Zeris Ledva & Meyers LLP, Florida Gaming Centers and West Flagler, dated October 14, 2010, filed as Exhibit10.33 to Registrant’s 10-Q dated November 15, 2010 is incorporated herein by reference as Exhibit 10.33.
10.34
Legal opinion, dated October 14, 2010, filed as Exhibit10.34 to Registrant’s 10-Q dated November 15, 2010 is incorporated herein by reference as Exhibit 10.34.
10.35
Legal opinion of seller, dated October 14, 2010, filed as Exhibit 10.35 to Registrant’s 10-Q dated November 15, 2010 is incorporated herein by reference as Exhibit 10.35.
10.36
Secretary’s Certificate, dated October 14, 2010, filed as Exhibit 10.36 to Registrant’s 10-Q dated November 15, 2010 is incorporated herein by reference as Exhibit 10.36.
10.37
Sellers Certificate, between Florida Gaming Centers and West Flagler Associates, dated October 14, 2010, filed as Exhibit 10.37 to Registrant’s 10-Q dated November 15, 2010 is incorporated herein by reference as Exhibit 10.37.
10.38
Sellers Release, between Florida Gaming Centers and West Flagler Associates, dated October 14, 2010, filed as Exhibit10.38 to Registrant’s 10-Q dated November 15, 2010 is incorporated herein by reference as Exhibit 10.38.
10.39
Notice of Acceleration of Obligations, issued on August 9, 2012 filed as Exhibit 99.1 to the registrants June 30, 2012 10-Q, is incorporated herein by reference as Exhibit 10.39 .
10.40
Notice of Acceleration of Obligations, issued on August 9, 2012 filed as Exhibit 99.2 to the registrants June 30, 2012 10-Q, is incorporated herein by reference as Exhibit 10.40 .
10.41
Engagement Letter between Florida Gaming Centers, Inc. and David Jonas, filed as Exhibit 99.1 to the Company’s September 30, 2012 10-Q, is incorporated herein by reference as Exhibit 10.41.
10.42
Press Release dated November 26, 2012, announcing entering in to a Stock Purchase Agreement with Silvermark, attached at exhibit 99.1 to Form 8-K dated November 25, 2012, and is herein by reference as Exhibit 10.42.
10.43
Stock Purchase Agreement dated November 26, 2012, attached as Exhibit 2.1 on Form 8-K dated November 25, 2012, is incorporated herein by reference as Exhibit 10.43.
10.44
The company entered into an Amendment to Stock Purchase Agreement attached as Exhibit 99.1 on Form 8-k dated February 22, 2013, and is incorporated herein by reference as Exhibit 10.44.
10.45
The receiver appointed a new auditor for Florida Gaming Centers, letter from former auditors attached as Exhibit 99.1 to Form 8-K dated March 18, 2013, and is incorporated herein by reference as Exhibit 10.45.
14.0
Registrant’s Code of Ethics adopted by the Board of Directors on May 16, 2003, filed as Exhibit 14 to Registrant’s 2004 10-KSB is incorporated by reference as Exhibit 14.0.
21.0
List of Registrant’s Subsidiaries as of December 31, 2004, filed as Exhibit 21 to Registrant’s 2004 10-KSB is incorporated by reference as Exhibit 21.0.
31.1
Certification by Registrant’s Chief Executive Officer pursuant to Rule 302 as adopted pursuant to Section 902 of the Sarbanes-Oxley Act of 2002 is attached hereto.
31.2
Certification by Registrant’s Chief Financial Officer pursuant to Rule 302 as adopted pursuant to Section 902 of the Sarbanes-Oxley Act of 2002 is attached hereto.
32.1
Certification by Registrant’s Chief Executive Officer and Chief Financial Officer pursuant to18 USC 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 is attached hereto.
Interactive Data Files regarding (a) our Consolidated Balance Sheets as of December 31, 2012 and December 31, 2011, (b) our Consolidated Statements of Operations for the Twelve months ended December 31, 2012 and 2011, (c) our Consolidated Statements of Cash Flows for the Twelve months ended December 31, 2012 and 2011 and (d) the Notes to such Consolidated Financial Statements.
101.INS* XBRL Instance Document
101.SCH* XBRL Schema Document
101.CAL* XBRL Calculation Linkbase Document
101.DEF* XBRL Definition Linkbase Document
101.LAB* XBRL Label Linkbase Document
101.PRE* XBRL Presentation Linkbase Document
* Pursuant to Rule 406T of Regulation S-T, the interactive data files on Exhibit 101 hereto are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, are deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and otherwise are not subject to liability under those sections.
Form 8-k
Form 8-k report on September 11, 2012, reporting ABC Funding seeks to enforce the Guaranty and to foreclose on the collateral secured by the St. Lucie mortgage, the Pledge Agreement and the Trust Assignment.
Form 8-k report on October 1, 2012, appointing David S. Jonas, the Chief Restructuring Officer of Florida Gaming Centers.
Form 8-k report on October 24, 2012, stating the board of directors of Florida Gaming Centers, Inc. terminated the engagement of David S. Jonas as Centers’ Chief Restructuring Officer.
Form 8-k report on November 8, 2012 appointing David Jonas as Temporary Receiver for certain real and personal property owned by Florida Gaming Centers.
Form 8-k report dated February 25, 2013, announcing that at the Special Meeting of Stockholders of Florida Gaming stockholders they approved the sale of all of the issued and outstanding stock of the Company’s wholly owned subsidiary, Florida Gaming Centers, Inc.
Form 8-k report dated March 27, 2013, whereas the Audit Committee and Board of Director recommended the ratification and approval of Morrison’s appointment as the Registrant’s principal accountant for the December 31, 2012 audit.
All other schedules are omitted because they are not applicable or not required, or because the required information is included in the consolidated financial statement or notes thereto.
FLORIDA GAMING CORPORATION
Date: April 16, 2013 By: /s/ W. Bennett Collett, Jr.
W. Bennett Collett, Jr.
Chief Executive Officer and President
In accordance with the Securities Exchange Act of 1934, this report has been signed below by the following persons
on behalf of the Registrant in the capacities and on the dates indicated.
/s/ W. Bennett Collett
Chairman
April 16, 2013
W. Bennett Collett
/s/ W. Bennett Collett, Jr.
Chief Executive Officer,
April 16, 2013
W. Bennett Collett, Jr.
President, and Director
/s/ Kimberly R. Tharp
Chief Financial Officer, Secretary
April 16, 2013
Kimberly R.Tharp
and Treasurer
/s/ Daniel J. Licciardi
Executive V.P. and COO
April 16, 2013
Daniel J. Licciardi
/s/ George W. Galloway
Director
April 16, 2013
George W. Galloway
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Shareholders
Florida Gaming Corporation and Subsidiaries
Miami, Florida
We have audited the accompanying consolidated balance sheet of Florida Gaming Corporation and Subsidiaries (the “Company”) (a Delaware Corporation) as of December 31, 2012, and the related consolidated statements of operations, changes in stockholders' deficiency, and cash flows for the year 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 audit. The financial statements of Florida Gaming Corporation and Subsidiaries as of December 31, 2011, were audited by other auditors whose report dated March 29, 2012 expressed an unqualified opinion on those statements, and included an emphasis-of-matter paragraph related to a going concern uncertainty.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit 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 consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company as of December 31, 2012, and the results of their operations and their cash flows for the year then ended, in conformity with generally accepted accounting principles in the United States of America.
The accompanying consolidated financial statements have been prepared assuming the Company will continue as a going concern. As discussed in Note A to the financial statements, the Company has experienced recurring losses from operations, cash flow deficiencies, and is in default of certain credit facilities, all of which raise substantial doubt about its ability to continue as a going concern. Management’s plans in regard to these matters are also described in Note A. The financial statements do not include any adjustment that might result from the outcome of this uncertainty.
As further discussed in Note L, on November 25, 2012, the Company entered into a stock purchase agreement to sell 100% of the stock of its wholly owned-subsidiary, Florida Gaming Centers, Inc. (“Centers”). The operations of Centers for the years ended December 31, 2012 and 2011 are included in the accompanying consolidated financial statements. The stock purchase agreement triggered the redemption of certain warrants granted by the Company in connection with its credit agreement. Management has estimated the value of such warrants in the accompanying consolidated financial statements but is currently negotiating the redemption value of such warrants. The final redemption amount of these warrants could be significantly different than the one estimated by management.
Morrison, Brown, Argiz & Farra, LLC
Miami, Florida
April 15, 2013
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Shareholders
Florida Gaming Corporation and Subsidiaries
Miami, Florida
We have audited the accompanying consolidated balance sheets of Florida Gaming Corporation and Subsidiaries (“the Company”) (a Delaware Corporation) as of December 31, 2011 and 2010 and the related consolidated statements of operations, changes in stockholders' equity and cash flows for the years then ended. These financial consolidated statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Florida Gaming Corporation and Subsidiaries as of December 31, 2011 and 2010, and the results of their operations and their cash flows for the years then ended in conformity with accounting principles generally accepted in the United States of America.
The accompanying financial statements have been prepared assuming the Company will continue as a going concern. As discussed in Note P to the financial statements, the Company has experienced recurring losses from operations, cash flow deficiencies, and is in default of certain credit facilities, all of which raise substantial doubt about its ability to continue as a going concern. Management’s plans in regard to these matters are also described in Note P. The financial statements do not include any adjustment that might result from the outcome of this uncertainty.
King + Company, PSC
Louisville, Kentucky
March 29, 2012
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
CONTENTS
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Consolidated Balance Sheets
December 31,
The accompanying notes are an integral part of these consolidated financial statements
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Consolidated Balance Sheets
(Continued)
December 31,
The accompanying notes are an integral part of these consolidated financial statements
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Consolidated Statements of Operations
December 31,
The accompanying notes are an integral part of these consolidated financial statements
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Consolidated Statements of Operations (Continued)
December 31,
The accompanying notes are an integral part of these consolidated financial statements
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Consolidated Statements of Changes in
Stockholders’ Deficiency
December 31, 2012
The accompanying notes are an integral part of these consolidated financial statements
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Consolidated Statements of Changes in
Stockholders’ Deficiency
(Continued)
December 31, 2011
The accompanying notes are an integral part of these consolidated financial statements
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Consolidated Statements of Cash Flows
December 31, 2012
The accompanying notes are an integral part of these consolidated financial statements
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
A. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
General:
Florida Gaming Corporation (“the Company”) operates a Class III-“Vegas Style” slot machine casino in Miami, Florida and live jai-alai games at frontons in Ft. Pierce and Miami, Florida through its Florida Gaming Centers, Inc. subsidiary (“Centers”). The Company also conducts intertrack wagering (“ITW”) on jai-alai, horse racing and dog racing from its facilities. In addition, the Company operates Tara Club Estates, Inc. (“Tara”), a residential real estate development and commercial project located near Atlanta in Walton County, Georgia (See Note J). Approximately 44.6% of the Company's common stock is controlled by the Company's Chairman either directly or beneficially through available stock options and his ownership of Freedom Holding, Inc. (“Holding”), a closely held investment company.
Going Concern:
As reflected on the consolidated financial statements, the Company had net losses for the years ended December 31, 2012 and 2011 of $22,696,447 and $21,764,375, respectively and cash used in operations during the years ended December 31, 2012 and 2011 of $20,114,532 and $11,310,668, respectively. As of December 31, 2012, the Company was in default on an $87,000,000 credit facility (see Note H). The Company’s continued existence as a going concern is dependent on its ability to obtain a waiver of its credit default and to generate sufficient cash from operations to meet its needs.
These conditions raise substantial doubt about the Company’s ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty. While the Company believes that the sale of Florida Gaming Centers, Inc (Note L) will enable the Company to continue as a going concern, there can be no assurances to that effect.
Basis of Presentation:
These consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries, Florida Gaming Centers, Inc. and Tara Club Estates, Inc. Significant intercompany transactions have been eliminated. Certain 2011 amounts have been reclassified to conform with the 2012 presentation.
Development of Casino:
On April 25, 2011, the Company secured financing to expand the Miami facilities to include slot machines. On May 12, 2011, the Company received a license from the State of Florida to begin Class III- “Vegas Style” slot machine operations at Miami Jai-Alai. The Company broke ground on May 18, 2011 on the casino addition at Miami Jai-Alai. Miami Jai-Alai has undergone substantial renovations featuring a casino floor accommodating approximately 1,000 slot machines, new card room featuring poker and dominoes, and new food and beverage facilities. The main auditorium has received upgrades making it more conducive for entertainment as well as live jai-alai. The addition is approximately 35,000 square feet and is joined with the existing facility to provide approximately 45,000 square feet of casino floor as well as “back of house” support offices. The facility has approximately 1,500 surface parking spaces. The casino opened on January 23, 2012.
Estimates:
The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Material estimates include the valuation of warrants and the useful lives of fixed assets.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
A.SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Cash and Cash Equivalents:
The Company considers all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents.
Property and Equipment:
Property and equipment are stated at cost. Depreciation is provided using the straight-line and accelerated methods over the estimated useful life of the related assets as follows:
Long-lived Assets:
The Company's investment in its residential and commercial property is carried at cost. The Company evaluates the carrying value of its real estate development and other long-lived assets, including property and equipment, annually under Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) Topic 360, “Plant, Property, and Equipment” and ASC Topic 970 “Real Estate.”
Accounts Receivables:
In the ordinary course of business, the Company maintains accounts receivable from other gaming facilities (ITW receivables). Past due status is based on contractual terms. Receivables are charged off after 90 days if not being actively collected. The Company provides an allowance for doubtful accounts equal to estimated uncollectible amounts. The Company’s estimate is based on historical losses, changes in volume and economic conditions impacting the current receivables. The Company estimated no reserve necessary at December 31, 2012 or 2011. There was no activity in the allowance during 2012 or 2011.
Slot License:
The Company obtains the slot license from the Florida Department of Professional Regulation to operate the slot machine, renews annually in May and is paid in advance. The Company expensed $4,156,250 and $0 for the years ended December 31, 2012 and 2011, respectively, in relation to this license. The license for 2011 was amortized on a straight line basis over the period that the casino was operational through May of 2012. As of December 31, 2012 and the 2011, the Company had a prepaid of approximately $844,000 and $2,750,000, respectively, related to the slot license.
Inventory:
The Company's inventory, consisting of food and beverage products, souvenirs and casino inventory is stated at the lower of cost or market using the First-In First-Out method to assign cost.
Pari-mutuel Wagering:
Revenue is derived from acceptance of wagers under a pari-mutuel wagering system. The Company accepts wagers on both on-site and ITW events. On-site wagers are accumulated in pools with a portion being returned to winning bettors, a portion paid to the State of Florida, and a portion retained by the Company. ITW wagers are also accepted and forwarded to the "host" facility after retention of the Company's commissions. Unclaimed winnings (outs) totaled $103,668 and $88,704 at December 31, 2012 and 2011, respectively.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
A.SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Revenue Recognition:
The Company recognizes revenue from gaming operations in accordance with ASC Topic 605, “Revenue Recognition,” which requires revenues to be recognized when realized or realizable and earned. Jai-Alai and intertrack mutual commissions are recognized immediately upon completion of the event upon which the related wagers are placed. In general, wagers are placed immediately prior to the event and are made in cash or other good funds so collectability is not an issue. Slot commissions represent the Company’s net win from slot machine gaming, which is the difference between gross wagers placed by patrons, net of winnings paid to patrons. Cardroom commission represents the lesser of the Company’s pre-determined share of gross wagers placed by patrons on card games conducted at the Company’s facilities, or a fixed amount per card game. Revenues derived from admission, program sales, food and beverage sales, card room activities, and other revenues are recognized at the time of the transaction. Revenues from the Company’s real estate operations are recognized in accordance with ASC Topic 360-20, “Real Estate Sales”, which generally allows the Company to record all profit on real estate sales at closing unless the down payment is insufficient to accrue the revenue.
Income Taxes:
The Company utilizes the asset and liability approach to accounting for income taxes. The objective of the asset and liability method is to establish deferred tax assets and liabilities for temporary differences between the financial reporting and the tax bases of the Company’s assets and liabilities at enacted tax rates expected to be in effect when such amounts are realized or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date.
The Company follows ASC Topic 740, “Income Taxes” regarding accounting for income tax uncertainties. ASC Topic 740 states that a tax position is recognized as a benefit only if it is “more likely than not” that the tax position would be sustained in a tax examination, with a tax examination being presumed to occur. The amount recognized is the largest amount of tax benefit that is greater than 50% likely of being realized on examination. For tax positions not meeting the “more likely than not” test, no tax benefit is recorded. The Company maintained no net tax assets at December 31, 2012 and 2011 (see Note D).
It is the Company’s policy to recognize interest and/or penalties related to income tax matters in income tax expense.
The Company files income tax returns in the U.S. federal jurisdiction. The Company is no longer subject to U.S. federal income tax examinations by tax authorities for all years prior to and including 2009.
Income (Loss) Per Common Share:
Basic income (loss) per common share is determined by dividing income (loss), less required dividends on preferred shares ($459,030 and $495,734 in 2012 and 2011, respectively), by the weighted average number of shares of common stock outstanding. Diluted income (loss) per common share is determined by dividing income (loss) by the weighted average number of shares of common stock outstanding plus the weighted average number of shares that would be issued upon exercise of dilutive stock options and warrants assuming proceeds are used to repurchase shares pursuant to the treasury stock method plus the weighted average number of shares that would be issued if holders of the Company’s preferred stock converted those shares to common stock using the “if converted” method, unless the use of such methods would be anti-dilutive.
The weighted average number of shares outstanding used in the calculation of both basic and diluted net loss per common share was 4,037,293 and 3,969,239 for 2012 and 2011, respectively.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
A.SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Options and warrants to purchase 846,250 and 906,250 shares of the Company’s common stock were outstanding on December 31, 2012 and 2011, respectively. None of the shares subject to option at December 31, 2012 or 2011, net of forfeitures, were included in the computation of diluted loss per common share for either year because their effect would have been antidilutive. Outstanding options and warrants are discussed further in Note C.
Advertising Costs:
Advertising costs are expensed as incurred.
Stock Options:
The Company accounts for all employee stock-based compensation in accordance with ASC Topic 718, “Stock Compensation,” which requires that equity instruments issued as compensation be measured at fair value (See Note C).
The Company accounts for non-employee stock-based compensation in accordance with ASC Topic 505-50, “Equity Based Payments to Non-Employees”. Amounts are based on the fair value of the consideration received or the fair value of the equity instruments issued, whichever is more reliably measurable. The value assigned to stock options granted to non-employees are accounted for in accordance with ASC Topic 505-50, which requires that such costs be measured at the end of each reporting period to account for changes in the fair value of common stock until the options are vested using the Black-Scholes pricing model. Common stock is valued using the market price of common stock on the measurement date as defined in ASC Topic 505-50 (See Note C).
Subsequent Events:
The Company evaluated all events or transactions that occurred after December 31, 2012 through April 15, 2013, the date these financial statements were issued.
Effect of Implementing Recently Issued Accounting Standards:
In May 2011, the FASB issued an accounting standards update that is intended to align the principles for fair value measurements and the related disclosure requirements under GAAP and IFRS. From a GAAP perspective, the updates are largely clarifications and certain additional disclosures. The effective date for this update is for years, and the interim periods within those years, beginning after December 15, 2011. This update did not have a material impact on the Company’s financial statements.
B. PREFERRED STOCK
Class A Preferred
The Company has 27,756 shares of Class A Preferred Stock, $.10 par value, that provide annual dividends at the rate of $.90 per share payable in cash, property or common stock, which are cumulative and have priority over dividends on the common stock. The Company has declared and paid or accrued the required dividends for 2012 and 2011. Accrued dividends on the Class A Preferred Stock totaled $100,262 ($3.61 per share) and $75,282 ($2.71 per share) at December 31, 2012 and 2011, respectively, and are included in the accounts payable and accrued expenses caption on the accompanying consolidated balance sheets.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
B. PREFERRED STOCK (CONTINUED)
Each share of Class A Preferred Stock is convertible into .1125 shares of common stock at the holder's option.
During the years ended December 31, 2012 and 2011, no shares of Class A Preferred Stock were converted. The Class A Preferred Stock is redeemable at the option of the Company at $10.60 per share. In the event of dissolution, the holders of Class A Preferred Stock shall be entitled to receive $10.00 per share, plus accrued dividends, prior to any distribution to holders of common stock.
Series AA Preferred:
The Company’s 5,000 shares of Series AA cumulative convertible preferred stock, $.10 par value (the “Series AA Preferred Stock”), provides annual dividends at the rate of 7% of the shares’ stated value. The stated value per share is equal to $1,000 (as adjusted for any stock dividends, combinations or splits). The Company has declared and paid or accrued the required dividends for 2012 and 2011. Accrued dividends on the series AA Preferred Stock totaled $1,487,500 ($297.50 per share) and $1,137,500 ($227.50 per share) at December 31, 2012 and 2011, respectively, and are included in the accounts payable and accrued expenses caption on the accompanying consolidated balance sheets.
Each share of the Series AA Preferred Stock may be converted into 40 shares of the Company’s $.20 par value Common Stock (the “Conversion Stock”). The number of shares of Conversion Stock into which each share of Series AA Preferred Stock may be converted shall be proportionately adjusted for any increase or decrease in the number of shares of Common Stock or Series AA Preferred Stock, as the case may be, outstanding arising from any division or consolidation of shares, stock dividend, reverse stock split, or other similar increase or decrease in the number of shares of Common Stock or Series AA Preferred Stock outstanding. The Company will also pay the holder of converted shares all accrued but unpaid dividends through the conversion date on the converted shares.
Upon liquidation, the holders of Series AA Preferred Stock are entitled to receive the greater of (i) the stated value per share and all accrued and unpaid dividends to and including the date of payment thereof and (ii) the amount the holders of Series AA Preferred Stock would have received upon liquidation of the Company had such holders converted their shares to common stock.
All 5,000 shares of Series AA Preferred Stock were issued to Prides Capital Fund 1, LP (“Prides”) for an aggregate of $5,000,000 on June 15, 2007. To induce Prides to purchase the Series AA Preferred Stock, the Company issued Prides a stock warrant to purchase 20,000 shares of the Company’s common stock at an exercise price of $30 per share. The warrant at the time of issuance had a fair market value of $182,794 that was recorded as a financing cost for the year ending December 31, 2007. The warrant expired on June 15, 2012.
In association with the Series AA Preferred Stock issue, the Company entered into a Stockholders Agreement (the “Agreement”) with Prides which provides shelf and demand registration rights to Prides at any time after September 1, 2009 for all registrable securities issued to Prides. The Agreement also provides Prides with Tag-Along rights to shares of the Company’s common stock owned by the Company’s Chairman.
Class B Preferred:
The Company's Series B convertible preferred stock provides annual cumulative dividends at the rate of 8% to 10% of the consideration paid for the stock. Such dividends are payable in shares of the Company's common stock. The consideration received by the Company upon initial issuance of each share of the Series B stock was $1,000. Holders of Series B shares may convert all or any of such Series B shares to the Company's common stock using a ratio based on the consideration paid for the stock and 80% of the market value of the common stock. Upon liquidation, the holders of Series B preferred shares shall be entitled to be paid $1,000 per share plus 8% to 10% accrued dividends before any distribution to holders of common stock. The required Series B dividends were declared and accrued during 2012 and 2011. Accrued dividends on the Series B stock totaled $63,002 ($1,400 per share) and $58,952 ($1,310 per share) at December 31, 2012 and 2011, respectively, and are included in the accounts payable and accrued expenses caption on the accompanying consolidated balance sheets.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
B. PREFERRED STOCK (CONTINUED)
Series F Preferred:
The Company is also authorized to issue up to 2,500 shares of Series F 8% Cumulative Convertible Preferred Stock (the “Series F Preferred Stock”), which provides annual dividends at the rate of 8% of the shares’ stated value. The stated value per share equals $1,000 (as adjusted for any stock dividends, combination or split). At the discretion of the Company’s Board of Directors, such dividends may be paid in shares of the Series F Preferred Stock.
Holders of Series F Preferred Stock may convert all or any of such shares to the Company’s common stock at any time. Each share of Series F Preferred Stock shall be converted into 148.3345 shares of common stock (the “Conversion Stock”). The number of shares of Conversion Stock into which each share of Series F Preferred Stock shall be converted shall be proportionately adjusted for any increase or decrease in the number of shares of common stock or Series F Preferred Stock.
Upon liquidation, the holders of Series F Preferred Shares shall be entitled to be paid $1,000 per share plus accrued dividends before any distribution to holders of common stock.
The Series F shares are held by related parties of the Company. One thousand Series F shares were outstanding at December 31, 2012 and 2011. During the year ended December 31, 2011, 1,000 shares of Class F Preferred Stock were converted to 148,334 shares of the Company’s Common Stock. The required Series F dividends were declared and paid or accrued during 2012 and 2011. The 1,000 converted shares had accrued dividends of $141,703. Accrued dividends on the outstanding 1,000 and 2,000 shares of Series F Preferred shares totaled $340,000 ($340 per share) and $260,000 ($260 per share) at December 31, 2012 and 2011, respectively, and are included in the accounts payable and accrued expenses caption on the accompanying consolidated balance sheets.
The Class A Preferred Stock, the Series AA Preferred Stock, the Series B Preferred Stock and the Series F Preferred Stock are all equal in rank with respect to the payment of dividends and the distribution of assets upon liquidation of the Company.
C.STOCK OPTIONS AND WARRANTS
The Company maintains a Master Stock Option Plan, last amended July 9, 2012, which encompasses the following stock option plans: Stock Incentive Plan, Nonqualified Stock Option Plan, Officers and Directors Stock Option Plan, and Advisors and Consultants Stock Option Plan. Each stock option plan governs the administration, participation and other terms and conditions of option agreements under the plan.
On July 10, 2006, the Company issued a total of 473,125 options at $17.00 per share with an expiration of July 10, 2012; 33,000 options were issued to key employees, 325,000 options were issued to Freedom Financial Corporation (“Freedom”) and 115,125 options were granted to executive employees and directors. On July 3, 2008, the Company re-priced all 473,125 options issued on July 10, 2006 from an exercise price of $17 per share to $12 per share.
On July 11, 2006, the Company issued 362,500 options to executive employees and a director at $17.00 per share with an expiration of July 11, 2009. On July 3, 2008, the Company re-priced all 362,500 of these options to $12 per share. On August 26, 2008, the Company re-priced all 835,625 options issued on July 10 and 11, 2006 from $12 per share to $8.25 per share. On July 11, 2012 and 2011, the Company extended the 362,500 options originally issued on July 11, 2006 to certain executive employees and directors. The amended 2012 agreement provided the option holders a four year extension on the option term through March 31, 2017 at a price of $8.25 per share. The Company recognized total stock based compensations expense of $94,254 and $84,703 for the years ended December 31, 2012 and 2011, respectively, due to this amendment. The amendment affected two employees and two directors. Freedom Holding, Inc. (“Holding”), a related party controlled by the Company’s chairman, with additional ownership maintained by the Company’s CEO, held 325,000 of these options; an executive officer of the Company held 17,500 of these options; and the remaining 20,000 options are held by a director of the Company.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
C. STOCK OPTIONS AND WARRANTS (CONTINUED)
The Company’s Chairman and the CEO maintain ownership interest in Holding and Freedom. In January, 2008 Freedom transferred 10,000 of the 325,000 options issued to it in July, 2006 to a third party. On March 11, 2008 Freedom transferred its remaining 315,000 options in the form of a dividend to Holding. Additionally on March 11, 2008, the Company’s Chairman and the CEO both transferred all options in their possession to Holding. Holding recorded these transfers from the Company’s Chairman, and the CEO as capital contributions.
On October 31, 2008, the Company’s debt with Freedom matured and was subsequently refinanced with a $1,322,574 note payable issued November 1, 2008 to Holding. As an inducement to refinance the note, the Company issued Holding a warrant to purchase 20,000 shares of the Company's $0.20 par value common stock at a price per share of $8.25. The warrant was exercisable at any time from November 1, 2008 through November 1, 2011. These warrants expired November 1, 2011.
On June 26, 2008, the Company borrowed $1,000,000 from Mr. James Stuckert (“Stuckert”) with an interest rate of Wall Street Journal prime plus three percent. As inducement to Stuckert to make the loan, the Company issued a warrant to purchase 20,000 shares of the Company’s $.20 par common stock with an exercise price of $12.50 per share. The warrant is exercisable at any time from June 26, 2008 through June 26, 2013. The number of shares of common stock issuable upon the exercise of the warrant and the exercise price are subject to adjustment upon certain events including: dividend or distribution of common stock or other securities, stock splits or combinations, stock reclassification or reorganization, and merger, consolidation or sale of assets. On October 7, 2008 the Company re-priced the Stuckert warrant issued in association with this loan from an exercise price of $12.50 per share to $8.25 per share.
On August 14, 2009, the Company entered into a Memorandum of Agreement (the “Agreement”) with Solomon O. Howell (“Howell”) and Stuckert and collectively the (“Lenders”) which allowed the Company to borrow up to $1,000,000 from the Lenders (see Note H). The Agreement was amended on October 7, 2009 with a provision which granted to each of the Lenders warrants to acquire up to 20,000 (40,000 total) shares of the Company’s $.20 par common stock at a price of $6.00 per share. The warrants are exercisable at any time from October 7, 2009 through October 7, 2012. The number of shares issuable upon the exercise of the warrants are subject to adjustment upon certain events including: dividend or distribution of common stock or other securities, stock splits or combinations, stock reclassification or reorganization, and merger, consolidation or sale of assets. These warrants expired in 2012.
On December 11, 2009, the Company borrowed $500,000 from Nurmi Properties, LLC and Robinette Investments, LLC (collectively “Nurmi”) (see Note H). As an inducement to make this loan, the Company issued a warrant to purchase 30,000 shares of the Company’s $.20 par common stock at $6.00 per share to Steven Craig, a related party of Nurmi. The warrant’s fair value of $14,726 was recognized as a capitalized financing cost and was expensed over the one year term of the related loan from December 11, 2009 through December 11, 2010. The warrant was exercisable at any time from December 11, 2009 through December 11, 2011. The warrants expired December 11, 2011.
On August 17, 2010, the Company issued Mr. Steven Craig 30,000 options at $6.00 per share with an expiration of December 11, 2011. The warrants were issued for his consulting services and his efforts to assist the Company in securing long term financing. These warrants expired December 11, 2011.
Credit Agreement:
On April 25, 2011, Florida Gaming Corporation (the “Company”) entered into a credit agreement (the “Credit Agreement” or “Term Loan”) between its wholly owned subsidiary, Florida Gaming Centers, Inc. (“Centers”) and a syndicate of unaffiliated third party lenders (the “Lenders”) with ABC Funding, LLC, as Administrative Agent for the Lenders (Note H). Innovation Capital, LLC served as exclusive Financial Advisor to the Company and Placement Agent on the debt financing.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
C. STOCK OPTIONS AND WARRANTS (CONTINUED)
The Company used the net proceeds from the Term Loan to fund capital expenditures and for working capital and general corporate purposes. The capital expenditures encompass an expansion project at the Company’s Miami Jai-Alai fronton, which included the development of a casino floor featuring approximately 1,000 new slot machines that complement existing poker tables; upgraded food, beverage service and entertainment amenities; a renovated Jai-Alai venue; and approximately 1,500 surface parking spaces (the “Project” or “The Casino at Miami Jai-Alai”).
In addition, a portion of the Term Loan proceeds were used to repay approximately $8.8 million of existing debt and other payables.
At the closing, the Lenders received warrants, with a $0.01 exercise price, currently equal to 35% (the “Base Percentage”) of the stock in Centers (the “Centers Warrants”) and such percentage may increase depending on the number of slot machines that may become operational at a competing facility in the future. The Base Percentage shall increase by one one-hundredth percent (0.01%), up to a maximum of 10.0%, for each slot machine made available for gaming at Hialeah Park Race Track at any time while the Centers Warrants are outstanding (the “Hialeah Increase”). Centers may have the ability to reduce the Hialeah Increase by up to one-half, depending on actual financial performance in the future exceeding certain thresholds, by paying the Lenders an aggregate of $500,000 for each percentage point it wishes to deduct from the “Trigger Event”, which is defined to include the following: (a) the maturity date of the Term Loan; (b) the date upon which the Term Loan is repaid in full (the “Repayment Date”); (c) a change of control in Centers; (d) the commencement of bankruptcy proceedings (or any similar action or insolvency event) by Centers; and (e) if the maturity date of the Term Loan or the Repayment Date occurs prior to the fifth anniversary of the opening date of The Casino at Miami Jai-Alai (the “Opening Date”), then each anniversary of the Opening Date occurring after the Repayment Date and on or prior to the fifth anniversary of the Opening Date.
In addition, at the closing, the Lenders received warrants in the Company currently equal to 30.0% of its fully diluted common equity ownership (the “Company Warrants” and collectively with the Centers Warrants, the “Warrants”). The Company Warrants have a $25 exercise price; however, if (i) the Lenders’ construction consultant determines that Centers will need to access any amount of a $3.0 million completion guarantee (thus representing that the Project is “Out of Balance”), which has been funded by the Term Loan, to complete the Project on time and on budget and (ii) the Company and Centers have not raised new equity to replace the $3.0 million completion guarantee and thereby cancel the Company Warrants at any time from the closing until 30 days after the Project is determined to be Out of Balance, the Company Warrants shall become exercisable at $0.20. If the Company is successful at raising new equity to replace the completion guarantee, the $3.0 million shall be used to prepay the Term Loan at par upon receipt of such proceeds. Similarly, if the Company is able to complete the Project on time without going Out of Balance, the completion guarantee will be canceled upon the Opening Date and the $3.0 million shall be used to prepay the Term Loan at par and the Company Warrants will be cancelled.
The Company did not account for the warrants at the time of issuance because of the contingencies on the warrants becoming exercisable for either Centers or the Company. The Company warrants will only be valid if the Company needs to access any of amount of the $3.0 million completion guarantee which was funded by the Term Loan to complete the project on time. Even then, the Company would have the right to raise new equity to replace the completion guarantee and the warrants would be canceled. The Company did not access the $3.0 million. Therefore, the Company has determined that the Company warrants have been cancelled.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
C. STOCK OPTIONS AND WARRANTS (CONTINUED)
The Centers’ Warrants were originally evaluated not only on the contingencies associated with the warrants but the ability to determine the fair value of any potential liability. Centers is not publically traded and once a Trigger Event occurs, the Credit Agreement specifically dictates how the value (if any) of Centers is to be determined. In evaluating any potential liability due to the warrants the financial condition of Centers was reviewed. The fair value (if any) of the Center Warrants could not be reasonably estimated and there was not a reportable liability as of December 31, 2011. During 2012, Management estimated the value of the warrants at $4,403,666 as of December 31, 2012. Management has estimated the value of such warrants based on the purchase price stipulated in the stock agreement entered into on November 25, 2012 (Note L) but is currently negotiating the redemption value of such warrants with the Lenders. The final redemption amount of these warrants could be significantly different than the one estimated.
The fair value of options and warrants is determined using the Black-Scholes option pricing model consistent with ASC Topics 718 and 505-50. The Black-Scholes option pricing model uses assumptions for inputs including the risk-free rate of return, expected forfeitures, expected volatility, expected term, and expected dividends. The risk-free rate of return for the option or warrant life is based on U.S. Treasury zero coupon issues with a remaining term equal to the expected option term. Expected forfeitures are based on environmental factors tied to the options and warrants as well as historical behavior. Expected volatilities are based on historical volatility of the Company’s stock. Expected terms are generally based on the option’s contractual term unless environmental factors reflect that the option holder would likely exercise their option sooner. Expected dividends are based on historical dividends paid on the Company’s common stock.
The assumptions used during 2012 and 2011 to value the Company's stock options and warrants were as follows:
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
C. STOCK OPTIONS AND WARRANTS (CONTINUED)
A summary of the status of the Company's nonvested shares as of December 31, 2012 and changes during the year ended December 31, 2012, is presented below.
The number of shares of common stock reserved for issuance upon the exercise of fixed conversion rights, options and warrants was 2,228,883 and 1,541,325 at December 31, 2012 and 2011, respectively.
During 2012 and 2011, no options were exercised.
The weighted average grant date fair value of options and warrants granted during the years ended December 31, 2012 and 2011, was $.11 and $0.23, respectively.
D. TAXES ON INCOME, HANDLE AND ADMISSIONS
At December 31, 2012, the Company had tax net operating loss (NOL) carryforwards of approximately $61,585,000 available to offset future taxable income. These NOL carryforwards expire twenty years from the year in which the losses were incurred or at various intervals through fiscal 2032. A significant portion of these NOLs are related to Florida Gaming Centers, Inc. and will be transferred to the buyer in connection with the pending sale (Note L).
Any deferred tax assets arising from differences from taxable income and financial reporting income are deemed to be offset by an allowance in an equal amount due to the uncertainty of future taxable income. Due to the losses incurred in 2012 and 2011, no income tax benefit has been recorded in either year.
The components of the Company’s deferred tax asset/liability are as follows:
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
D.TAXES ON INCOME, HANDLE AND ADMISSIONS (CONTINUED)
Effective July 1, 1998, tax relief legislation was enacted by the State of Florida (HB3663) stipulating that jai-alai permit holders incurring state taxes on handle and admissions in an amount exceeding its operating earnings (before deduction of certain expenses such as depreciation and interest) for the prior year are entitled to credit such excess against pari-mutuel taxes due and payable.
The Company’s Tampa Jai-Alai Permit (Fronton closed in 1998) retains such tax credits carried forward totaling $1,362,265. The Company’s Ft. Pierce facility has not incurred statutory operating losses and therefore has not earned any state tax credits.
As of December 31, 2012, unused credits available for recovery under the permit held by Miami Jai-Alai and Summer Jai-Alai totaled $2,353,301 and $1,220,208, respectively.
E. RETIREMENT PLAN
The Company provides defined contribution retirement plans under Internal Revenue Code Section 401(k). The plans, which cover employees included in its current Collective Bargaining Agreement and certain non-union employees, provide for the deferral of salary and employer matching. The Company’s costs for matching employee contributions totaled $43,100 and $38,300 during 2012 and 2011, respectively.
F.RELATED PARTY TRANSACTIONS
Reference is made to Note I for details of the Company’s transactions with Summer Jai-Alai.
Reference is made to Note B for information pertaining to Series F Preferred Stock held by related parties.
Reference is made in Note C pertaining to stock options and warrants issued to Freedom Financial Corporation and Freedom Holding, Inc. Reference is made to Note H for details on the Company’s credit facilities with Freedom Financial Corporation and Freedom Holding, Inc.
Additional information can be found in Note C pertaining to compensating stock option arrangements between the Company and its employees and Directors.
The Company expensed $780,000 in both 2010 and 2009 to Freedom Financial Corporation for the management services of the Company’s Chairman and CEO. None of these fees were paid in either year and at December 31, 2010 there remained $1,560,000 accrued for these services on the balance sheet. The Company expensed an additional $195,000 for the first three months of 2011. On April 25, 2011, the Company entered into a promissory note with Freedom for payment of these accrued services and $150,000 of accounts payable due to Freedom Financial Corporation. The note has a current balance of $2,105,744 (Note H), all interest payments to be paid in kind, and is due and payable on October 25, 2016.
On November 1, 2008, Centers refinanced a note held by Freedom Financial through a new note with Freedom Holding, Inc., the parent company of Freedom Financial. On April 25, 2011, the Company entered into a modification, assignment and assumption agreement with Holding. The agreement released Centers from the obligations thereunder and accepted Florida Gaming Corporation as the new borrower. The maturity date was extended to at least October 25, 2016 and converted all interest payments to be paid in kind. The current balance of the note is $1,850,162 and all interest is paid in kind. In 2012, the Company made a payment of $100,322 on the note.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
F.RELATED PARTY TRANSACTIONS (CONTINUED)
On April 25, 2011, the Board of Directors of the Company promoted W. Bennett Collett, Jr. (B. Collett) from President and Chief Operating Officer of the Company and Centers to President and Chief Executive Officer of the Company and Centers.
In connection with B. Collett’s promotion, he entered into an employment agreement with Centers, which generally provides for the following: (i) an initial term beginning on March 31, 2011 and ending on December 31, 2016, with automatic 12-month extensions thereafter unless earlier terminated, (ii) an annual base salary of $300,000 and (iii) subject to the discretion of the Board of Directors, an annual bonus beginning in calendar year 2012 not to exceed 50% of the base salary. In addition, B. Collett entered into an Employee Bonus Compensation Restriction Agreement (the “Restriction Agreement”) with the Administrative Agent, which restricts the bonus payments that may be made under the B. Collett Employment Agreement upon the occurrence of an event of a default or default under the Credit Agreement.
In connection with B. Collett’s promotion, Mr. W. B. Collett, Sr. (W. Collett) retired as Chief Executive Officer of the Company, but continued in his roles as Chairman and a Director of the Company. W. Collett will also provide consulting services to the Company on a going-forward basis through Freedom Financial under a Consulting Agreement between Freedom and the Company (the “Freedom Consulting Agreement”). The Freedom Consulting Agreement is for a term beginning on April 25, 2011 and ending on December 31, 2017 and provides for fees paid by the Company to Freedom in an amount that may vary between $300,000 and $450,000 annually, depending on the financial performance of the Company. In 2012, W. Collett was paid $50,000 for these services by the Company. The Freedom Consulting Agreement generally provides that (i) the maximum number of hours of consulting work that Freedom may cause W. Collett to perform for the Company is 500 hours, (ii) any compensation under the Freedom Consulting Agreement is subject to certain representations, warranties and covenants made under the Credit Agreement is subject to certain representations, warranties and covenants made under Credit Agreement, (iii) and the Freedom Consulting Agreement may be terminated by either party without cause upon 90 days written notice.
Reference is made to Note H regarding the Chairman’s guarantee of the Company’s debt with Freedom Financial Corporation and the related compensation to the Chairman.
On June 15, 2011, the Company loaned Freedom Holding, a related party, $54,836. Freedom Holding repaid the note on September 20, 2011.
G.COMMITMENTS AND CONTINGENCIES
Leases:
The Company rents totalizator equipment (Scientific Games now Sportech) at each fronton under operating leases. The totalizator leases required a minimum annual rental at the Miami and Ft. Pierce locations through October 31, 2008, but are subsequently being leased on a month-to-month basis. Additionally, transmission of the Miami Jai-Alai signal requires the use of a satellite uplink simulcasting service which requires a fee of five hundred dollars ($500.00) per performance. Total totalizator rental expense and other equipment rental under operating leases for the year ended December 31, 2012 and 2011 was approximately $104,000 and $129,000, respectively. In addition, the Company entered into various operating leases for slot machines. Rental expense for the slot machines was $3,381,478 for the year ended December 31, 2012. There were no such leases during 2011.
Minimum future annual lease payments at December 31, 2012 are as follows:
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
G.COMMITMENTS AND CONTINGENCIES (CONTINUED)
Collective Bargaining Agreement:
The Company is a party to a collective bargaining agreement with the International Jai-Alai Players Association U.A.W. Local 8868, AFL-CIO. The agreement allows the Company to negotiate individual contracts with players and provides for minimum salaries and bonuses based on pari-mutuel handle, certain cesta allowances and retirement benefits. The agreement continues from year to year unless timely notice of termination is given by either party to the agreement.
Concentration of Deposits:
The Company maintains significant cash balances in demand deposit accounts that are non interest bearing accounts. All funds in a “noninterest-bearing transaction account” are insured by the Federal Deposit Insurance Corporation from December 31, 2010 through December 31, 2012, under the FDIC’s general deposit insurance rules.
Dependence on Certain Vendors:
The Company depends on Sportech, a leading supplier of pari-mutuel wagering systems, to provide the computer systems that accumulate wagers, record sales, calculate payoffs and display wagering data accurately and in a secure manner. If Sportech failed to properly maintain their computer systems and software, it could affect the security of wagering and the Company’s ability to serve its customers. The Company also depends on Ballys Technologies, a leading supplier of slot gaming systems, to provide the computer systems that accumulate wagers, calculate payoffs and display wagering data accurately and in a secure manner. If Ballys failed to properly maintain their computer systems and software, it could affect the security of wagering and the Company’s ability to serve its customers
Settlement Agreement with Miami-Dade County:
On January 6, 2009, Florida Gaming Corporation agreed to acquire a total of 10.982 acres of property from Miami-Dade County in exchange for a right-of-way of .492 acres to be used by the Miami-Dade Metro Rail, an overhead light rail system. The total purchase price of the acreage (10.982) was $16,742,145. On April 6, 2009 Florida Gaming completed Phase I of its two-phase acquisition of the 10.982 acres of property from Miami-Dade County.
On June 16, 2011, the Company completed Phase II of the purchase of the approximately 8.67 remaining acres for $13,393,716. Phase II was to close no later than 60 days after the United States Corps of Engineers released the property free and clear of environmental contamination. The Corp of Engineers released the property free and clear of environmental contamination and on June 16, 2011, the Company and the County consummated the final closing on the remaining 8.67 acres of the undeveloped property. At the final closing, the Company made a down payment of $1,339,371, representing 10% of the purchase price of the remaining 8.67 acres, and the County issued a new promissory note for $12,054,344 (the “Note”) representing the remaining amount owed by the Company on the 8.67 acres of Undeveloped Property which were the subject of the Final Closing. The Note is for 15 years, with an interest rate of 7.25%. The Company deferred its payments until the date slot machine operations were initiated by the Company and a lump sum payment was made at that time.
The agreement required street closure resolutions to be presented to the County Board as a condition to the final closing, the rejection of which resolutions had the potential of decreasing the purchase price of the undeveloped property. In accordance with the agreement, the street closure resolutions were presented to the County Board before the final closing, and the County Board approved the street closure resolutions on July 7, 2011. Because the County Board adopted the street closure resolutions and there was no mayoral veto by July 17, 2011, there was no adjustment to the purchase price.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
G.COMMITMENTS AND CONTINGENCIES (CONTINUED)
Following the County Board’s vote to close 37th Avenue, the Company was required to pay up to $1,000,000 for remediation of 36th Avenue. In August 2011, the Company paid $570,000 and accrued the remaining $430,000. If within 36 months of this vote the County determines a need to expand 36th Avenue, then the Company will be required to dedicate a 20-foot wide by 812-foot long strip of the Undeveloped Property to accommodate an 80-foot right-of-way (the “Expansion Easement”) which may, at the County’s sole discretion, be constructed in the future. The Company would also be required to pay for such street expansion to the extent of $4,700,000 through incremental draw-downs as described in the Settlement Agreement. On June 16, 2011, the Company granted a right-of-way deed representing the Expansion Easement which will be held in escrow until such time as the County Board votes to expand 36th Avenue.
These actions allowed Miami Jai-Alai to grow from 8.9 acres to approximately 21 acres thereby accommodating any potential future build-out. This also allows Miami Jai-Alai to virtually enclose its casino area and provide a controlled, safe and well-illuminated facility.
Political Action Committee:
In February, 2005, the Company agreed to contribute to a political action committee (“PAC”) formed by South Florida gaming interests (Floridians for a Level Playing Field) seeking passage of a statewide legislative initiative and local referenda to expand gaming rights to include “slots” in Miami-Dade County, Florida. Pursuant to that contribution agreement, the Company was contingently committed to the payment of $3,550,000 to the PAC as its share of the cost of the initiative. The contingent commitment became binding upon the Company ten days after the Company began slot machine operations on January 23, 2012 at its facility. This amount was accrued as a payable in 2011. The Company satisfied this obligation during 2012.
Litigation:
Florida Gaming Centers, Inc. vs. FDBPR and South Florida Racing Association, LLC:
On September 30, 2010, W. Flagler and Florida Gaming Centers filed a constitutional challenge regarding the enactment of changes to Florida Statutes in Chapter 551 that purport to enable the expansion of slot machine games in Miami-Dade County to the site of Hialeah Park. The challenge alleges the Statutory Amendment conflicts with the Constitutional Provision, Article X, Section 23 in numerous ways. In December 2010, FDBPR and South Florida Racing Association, LLC were granted a partial summary judgment in regards to the suit. The Company appealed the ruling and on October 6 a state appeals court in Tallahassee, FL upheld a lower court ruling that allow Hialeah Park to have a casino with Las Vegas-style slot machines. In an opinion filed October 6, 2011, the First District Court of Appeal, State of Florida reaffirmed the constitutionality of the legislature’s 2009 amendment to Section 551.102(4) Florida Statutes, which expanded the scope of entities authorized to conduct slot machine gaming in Florida. The Company believes this decision is contrary to the 2004 ballot initiative and has engaged the firm Hopping, Green and Sams to continue the appeal process. The Company remains an appellant in the Action.
ABC Funding, LLC v. Florida Gaming Centers, Florida Gaming Corp., et. al.:
On September 5, 2012, ABC Funding, LLC (“ABC”) brought suit against Florida Gaming Centers (“Centers”) and Florida Gaming Corp. (“Corp.”) alleging that Centers and Corp. are in default under an April 25, 2011 Credit Agreement entered into between them and ABC.
In the suit, ABC is attempting to foreclose upon the assets of Centers and Corp. The lawsuit contains the following counts: Breach of the Credit Agreement, Breach of Guaranty, Mortgage Foreclosure, Foreclosure of Security Interests and seeks the Appointment of a Receiver to run Casino Miami Jai Alai. On November 2, 2012, the court entered an order appointing David Jonas as Temporary Receiver in charge of Casino Miami Jai Alai’s operations, and the court later named Mr. Jonas as the receiver for the pendency of the suit.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
G.COMMITMENTS AND CONTINGENCIES (CONTINUED)
On October 31, 2012, Centers and Corp. filed a counter-claim against ABC for breach of the Credit Agreement, breach of the implied covenant of good faith and fair dealing, aiding and abetting the breach of a fiduciary duty and fraud in the inducement. Centers and Corp. also filed third party complaints against Innovation Capital, LLC (“Innovation”); James Freeland; Matthew Sodl; Steven Rittvo; Kevin Schieble; Summit Partners, LP; and Summit Master Company, LLC. (See Note L.)
ABC Funding, LLC v. Florida Gaming Centers and Florida Gaming Corp.:
On September 5, 2012, ABC Funding, LLC (“ABC”) brought suit against Florida Gaming Centers (“Centers”) and Florida Gaming Corp. (“Corp.”) in St. Lucie County, Florida, where Ft. Pierce Jai Alai is located, alleging that Centers and Corp. are in default under an April 25, 2011 Credit Agreement entered into between them and ABC. ABC alleges certain defaults entitle ABC to foreclose upon the assets of Centers and Corp.
On October 31, 2012, Centers and Corp. filed a counter-claim against ABC for breach of the Credit Agreement, breach of the implied covenant of good faith and fair dealing, aiding and abetting the breach of a fiduciary duty and fraud in the inducement. Centers and Corp. also filed third party complaints against Innovation Capital, LLC (“Innovation”); James Freeland; Matthew Sodl; Steven Rittvo; Kevin Schieble; Summit Partners, LP; and Summit Master Company, LLC. Centers and Corp. anticipate that they will amend the counterclaim against ABC and dismiss without prejudice the third party complaint, as the same causes of action are currently pending in Miami-Dade County.
Coby Jacobs v. Florida Gaming Corporation, W. Bennett Collett, W. Bennett Collett, Jr., George Galloway, Jr., William Haddon, Florida Gaming Centers and Silvermark, LLC:
On December 11, 2012, Jacobs, a shareholder of Florida Gaming Corp. (“Corp”), filed a class action suit alleging W. Bennett Collett, W. Bennett Collett, Jr., George Galloway, Jr., and William Haddon (deceased), as directors of Corp., breached their fiduciary duties with respect to entering into a Stock Purchase Agreement with Silvermark, LLC. The suit also alleged Florida Gaming Centers, Corp. and Silvermark, LLC aided and abetted these breaches. The Defendants denied all allegations of wrongdoing and moved to dismiss the complaint. No class was certified, and the suit has since been resolved and the parties expect an order of dismissal to be entered in the near future.
Florida Gaming Centers and Florida Gaming Corp. v. Innovation; James Freeland; Matthew Sodl; Steven Rittvo; Kevin Schieble; Summit Partners, LP; and Summit Master Company, LLC:
On February 11, 2013, Florida Gaming Centers (“Centers”) and Florida Gaming Corp. “(Corp.”) sued Innovation Capital, LLC (“Innovation”); James Freeland; Matthew Sodl; Steven Rittvo; Kevin Schieble; Summit Partners, LP; and Summit Master Company, LLC. The complaint contains six counts: Count I for breach of fiduciary duty against Innovation; Count II for breach of fiduciary duty against Sodl, Rittvo and Schieble; Count III for aiding and abetting a breach of fiduciary duty against Freeland, Summit Partner, LP and Summit Masters Company, LLC; Count IV for fraud in the inducement against Innovation; Count V for fraud in the inducement against Freeland, Summit Partners, LP and Summit Master Company, LLC; and Count IV for civil conspiracy against Innovation, Freeland, Summit Partners, LP and Summit Master Company, LLC. The claims arise out of the defendants’’ conduct in negotiating and inducing Centers and Corp. to sign the April 25, 2011 Credit Agreement with ABC Funding, LLC. The defendants have not yet been served with the summons and complaint.
Herbert Silverberg v. W. Bennett Collett, W. Bennett Collett, Jr., George Galloway, Jr., Freedom Holding, Inc. Silvermark, LLC and Florida Gaming Corporation (Nominal Defendant):
On February 8, 2013, Silverberg, a shareholder of Florida Gaming Corp. (“Corp.”), filed a suit alleging W. Bennett Collett, W. Bennett Collett, Jr., and George Galloway, Jr., as directors of Corp., breached their fiduciary duties with respect to entering into a Stock Purchase Agreement with Silvermark, LLC and wasted corporate assets. The suit also alleged Silvermark, LLC aided and abetted these breaches. The suit also alleges Corp. failed to hold an annual meeting. The Defendants have not yet responded to the suit but deny all allegations of wrongdoing and intend to vigorously defend the suit.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
G.COMMITMENTS AND CONTINGENCIES (CONTINUED)
ABC Funding, LLC v. Florida Gaming Centers, Florida Gaming Corp., et. al.:
On February 20, 2013, Centers and Corp. filed an amended counterclaim against ABC. ABC has yet to respond to that suit. On February 11, 2013, the court dismissed without prejudice the third party complaint and on that same day, Centers and Corp. filed a separate lawsuit against Innovation; James Freeland; Matthew Sodl; Steven Rittvo; Kevin Schieble; Summit Partners, LP; and Summit Master Company, LLC alleging similar causes of action to those set forth in the third party complaint.
Other Suits:
The Company is also a defendant in routine litigation arising in the ordinary course of business
H. NOTES PAYABLE AND LONG TERM DEBT
The Company's notes payable and long-term debt comprised the following at December 31, 2012 and 2011:
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
H. NOTES PAYABLE AND LONG TERM DEBT (CONTINUED)
The maturities of the Company’s long-term debt for the five years subsequent to December 31, 2012 are as follows: $84,912,163 in 2013; $714,888 in 2014; $768,475 in 2015; $8,081,645 in 2016; $903,063 in 2017; and $10,004,911 thereafter.
The weighted average interest rate on short-term borrowings was 15.75% and 15.6% for the years ending December 31, 2012 and 2011, respectively. The average amount of short-term borrowings totaled approximately $85,385,431 and $62,554,989 for the years ended December 31, 2012 and 2011, respectively.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
H. NOTES PAYABLE AND LONG TERM DEBT (CONTINUED)
Credit Agreement:
On April 25, 2011, Florida Gaming Corporation (the “Company”) entered into a credit agreement (the “Credit Agreement”) through its wholly owned subsidiary, Florida Gaming Centers, Inc. (“Centers”) with a syndicate of unaffiliated third party lenders (the “Lenders”) and ABC Funding, LLC, as Administrative Agent for the Lenders. Innovation Capital, LLC served as exclusive Financial Advisor to the Company and Placement Agent on the debt financing.
The Credit Agreement provides for an $87,000,000 senior secured term loan (the “Term Loan”) that will mature on April 25, 2016. The Term Loan was issued at a price of 98.0% and will generally bear interest at a rate varying between 15.75% and 16.50%. The net proceeds of the Term Loan were $83,520,000, after deducting fees and discounts to the Lenders related to the transaction. Such fees and discounts totaled $3,480,000 and are being amortized over five years, the life of the loan, along with additional financing costs of approximately $3,518,000 related to the loan.
The Company used the net proceeds from the Term Loan to fund capital expenditures, for working capital and general corporate purposes. The capital expenditures encompass the expansion project at the Company’s Miami Jai-Alai fronton, which included the development of a casino floor featuring approximately 1,000 new slot machines that complement the existing poker tables; upgraded food, beverage service and entertainment amenities; a renovated Jai-Alai venue; and approximately 1,500 surface parking spaces (the “Project” or “The Casino at Miami Jai-Alai”).
In addition to providing funds to develop the Project, including adequate reserves for interest payments and contingencies during construction, a portion of the Term Loan proceeds were used to repay approximately $8.8 million of existing debt and other payables.
The Term Loan is also subject to other prepayments upon the occurrence of certain events, including an annual excess cash flow sweep. Borrowings under the Term Loan will be secured by a first priority security interest in all tangible and intangible assets of Centers and each guarantor under the Term Loan, including the Company.
The Lenders will have certain registration rights with respect to the shares of common stock issuable upon exercise of the Company Warrants.
The Credit Agreement contains representations and warranties, events of default, and affirmative and negative covenants, including (among others) restrictions on indebtedness, liens, transactions with affiliates, and acquisitions, consolidations, mergers and asset sales. The Credit Agreement also contains financial covenants including (i) maximum leverage, (ii) minimum fixed charge coverage, (iii) maximum capital expenditures and (iv) minimum EBITDAM.
At December 31, 2012 and 2011, the Company was in default of the credit agreement due to the violation of certain covenants unrelated to payment or operating matters. Events of default, unless waived by the Lenders, shall allow the Lenders to (i) terminate the Lenders’ Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other Loan Documents, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which were waived by the Company; and in case of any event with respect to the Company, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the Loan Documents, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which were waived by the Company. Accordingly, all of the debt associated with the Credit Agreement is classified as a current liability in the accompanying consolidated balance sheets as of December 31, 2012 and 2011.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
H. NOTES PAYABLE AND LONG TERM DEBT (CONTINUED)
On July 25, 2012, there was a $3,229,127 principal paydown from the amounts on deposit in the completion reserve account and interest reserve account. The principal balance owed on the note was reduced to $83,770,862. On July 31, 2012, the Company was required to make a $2,362,408 principal payment. The Company did not make the required principal payment and on August 9, 2012, the Company and Centers, received a Notice of Acceleration of all Obligation and Note of Demand on Credit Party Guaranty. The interest rate increased to 17.75% due to the events of default. As of December 31, 2012 and 2011, the Company has accrued interest and other fees owed to the Lenders of $1,951,118 and $1,141,875, respectively.
On September 5, 2012 two complaints were filed against the Company and its wholly owned subsidiaries, Centers and Tara Club Estates, Inc. (“Tara Club”). In its complaint, ABC Funding seeks to enforce the Guaranty and to foreclose on the collateral secured by the St. Lucie mortgage, the Pledge Agreement and the Trust Assignment.
On October 18, 2012, ABC Funding, LLC, on behalf of certain of Center’s lenders, filed motions requesting the immediate appointment of David S. Jonas as receiver to take operational control of Centers. ABC Funding filed the motions as Administrative Agent for the lenders under Centers’ primary credit facility, alleging that the appointment of a receiver was necessary to protect certain property that was pledged to the lenders under the credit facility. The motions were filed in connection with lawsuits previously filed by ABC Funding. (See Note G.)
In its complaints, ABC Funding alleged numerous defaults and other violations of the credit agreement and other loan documents against the Company and Centers. ABC Funding is seeking: (i) an award of damages in excess of $84,000,000 against Centers for breach of the credit agreement; (ii) enforcement of the Guaranty against the Company, including an award of damages in excess of $84,000,000; (iii) to foreclose on the collateral secured by the Miami mortgage, the St. Lucie mortgage, the Pledge Agreement and the Trust Assignment, including, certain real property owned by Centers and the Land Trust in Miami-Dade County, Florida and in the St. Lucie, Florida; and (iv) the appointment of a receiver.
On November 2, 2012, the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida (the “Court”) entered an order appointing David Jonas as Temporary Receiver for certain real and personal property owned by Centers, the wholly-owned subsidiary, and primary operating asset, of the Company. As receiver, Mr. Jonas is empowered, directed and authorized by the Court to do any and all things necessary for the proper management, operation, preservation, maintenance, protection and administration of Centers’ assets. The affected assets constitute substantially all of the Company’s operating assets.
Isle of Capri
On October 29, 2004, Florida Gaming borrowed $5 million (the "Loan") from Isle of Capri Casinos, Inc., a Delaware corporation ("ICC"), pursuant to a Secured Promissory Note (the "Note"). The Note’s original maturity date was December 31, 2008, with interest accruing on the unpaid principal balance at an annual rate of 6%.
On December 31, 2008, the parties entered into a Amended and Restated Secured Promissory Note (the “Amended Note”) which restructured the Note as follows: Florida Gaming made a partial repayment of $2 million, the interest rate on the Note was changed to 10%, the maturity date of the Note was moved to December 31, 2009, and the parties executed an Amended and Restated Pledge Agreement. Under the Amended Note, Florida Gaming was required to make quarterly payments of interest only, in arrears, to ICC, except that during the continuance of any Event of Default (as defined in the Amended Note), interest accrued at an annual rate of 18%. The entire unpaid principal amount of the amended Note and unpaid interest thereon was payable on the earlier of (i) the sale of all or any material portion of the assets of, or all or any substantial equity interest in, Florida Gaming Centers, Inc., (Centers), or (ii) December 31, 2009. Under the Amended and Restated Pledge Agreement, Florida Gaming’s obligations to ICC under the Amended Note was secured by Florida Gaming's pledge to ICC of a continuing security interest in (a) 1,000 shares of the capital stock of Centers owned by Florida Gaming, which constitutes all of the issued and outstanding shares of Centers’ capital stock, (b) all rights, title and interest in the Company’s Ft. Pierce gaming license, (c) the Company’s Ft. Pierce building, structures, and fixtures and (d) all products and proceeds of all of the foregoing.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
H. NOTES PAYABLE AND LONG TERM DEBT (CONTINUED)
The Company failed to repay the ICC note on its maturity date of December 31, 2009. That failure constituted an Event of Default under the Amended Note. On March 1, 2010, the Company and its Centers subsidiary were served with a complaint (the “Complaint”) by ICC. Under the Complaint, ICC was demanding foreclosure of a security interest ICC holds in all of the shares of outstanding stock of Centers and damages of $358,823 plus interest, costs and such further relief as the court deemed proper.
On March 19, 2010, the Company and Centers were served with a second complaint by ICC related to the Note. The second complaint demanded foreclosure on the mortgage granted to ICC on Center’s real property located in Ft. Pierce, Florida, and all buildings, structures, and fixtures and improvements located thereon.
On May 12, 2011, the Company paid ICC the principal on the note of $3,000,000 plus accrued interest of $1,062,041. In addition, the Company paid ICC simulcast fees of $354,743 and collection expenses of $119,918. ICC dismissed the lawsuits and released the security.
Freedom Financial
On October 31, 2005 Freedom Financial purchased Florida Gaming’s note with First Bank (formerly CIB) for $2,400,000. At the same date, Florida Gaming renegotiated the terms of this note with Freedom. Under the new terms, the note had a fixed interest rate of 8.0% per annum and was secured by various mortgages, rents, and receivables. The note matured on October 31, 2008 and was refinanced under a new note with Freedom Holding Inc. (“Holding”), the parent company of Freedom Financial, dated November 1, 2008. The Holding note is unsecured; bears interest at 10.0% per annum, and had an initial maturity date of May 1, 2009. The note was refinanced on May 1, 2009, again on September 1, 2009, March 1, 2010, and September 1, 2010, with maturity extended until September 1, 2011. Reference is made to Note C for a warrant issued by the Company to Holding in connection with the Holding note.
On April 25, 2011 the Company entered into a Modification, Assignment and Assumption Agreement with Holding. Holding agreed to amend the note with Centers. The Agreement releases Centers from the obligations thereunder and accepted Florida Gaming Corporation as the new borrower under the promissory notes. Holding agreed to extend the maturity date to be at least October 25, 2016, convert all interest payments to be paid in kind instead of in cash and to subordinate the obligations under the promissory notes to those under the Credit Agreement.
Miami-Dade County
In February 2009, in a settlement agreement related to an eminent domain proceeding, the Company agreed to acquire a total of 10.982 acres of land from Miami-Dade County (the “County”) in two separate phases and also sell the County a temporary construction easement and .492 acres of the Company’s land. The Company’s total purchase price for the 10.982 acreage is $16,742,145. The .492 acres sold to the County will be used by the Miami-Dade Metro Rail, an overhead light rail system.
On April 6, 2009, the Company completed Phase 1 of its two-phase acquisition of the 10.982 acres of property from the County. Phase 1 included the closing of the purchase of approximately 2.283 acres from the County for $3,348,429, including a down payment of $334,843 and the County accepted a note payable of $3,013,586 for 15 years with final payment due April 1, 2024, with a fixed interest rate of 7.25%. The Note is secured by the purchased property pursuant to a mortgage and security agreement between the Company and the County. If the Company should be in default of its note to the County, the County may charge a default interest rate of 18.0%, impose late charges of 5.0% of any required payment which is not received, accelerate payment on the Note balance, and begin foreclosure on its secured interest.
Phase 1 also included the County’s purchase of .492 acres from the Company for $1,185,345. The Company’s basis in the land and costs to sell totaled $315,160 resulting in a gain on the sale of $870,185.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
H. NOTES PAYABLE AND LONG TERM DEBT (CONTINUED)
On June 16, 2011, the Company and the County consummated the final closing on the remaining 8.67 acres of the undeveloped property (Phase II). At the final closing, the Company made a down payment of $1,339,371, representing 10% of the purchase price of the remaining 8.67 acres, and the County issued a new promissory note for $12,054,345 representing the remaining amount owed by the Company on the 8.67 acres of undeveloped property which were the subject of the closing. The Note is for 15 years, with an interest rate of 7.25%. The Company deferred its payments until the date upon which slot machine operations were initiated by the Company and a lump sum payment was made at that time.
Stuckert and Howell
On February 22, 2009, the Company executed a note payable to a party in settlement of a lawsuit. The note is unsecured and bears interest at 7.0%. Payments of interest are due monthly with all remaining unpaid principal and interest due February 1, 2011. As of December 31, 2010, this note was in default and the Company was attempting to negotiate an extension. On May 12, 2011, the Company paid the principal on the note of $200,000 plus accrued interest of $10,286. On August 14, 2009, the Company entered into a Memorandum of Agreement (the “Agreement”) with Solomon O. Howell (“Howell”) and James W. Stuckert (“Stuckert,” and collectively with Howell, the “Lenders”) pursuant to which the Lenders may advance cash (each an “Advance”, and collectively the “Advances”) to the Company up to a maximum aggregate amount of $1,000,000.
Under the Agreement, the Advances are to be evidenced by convertible promissory notes (each a “Note”, and collectively, “Notes”). Advances to the Company were $1,000,000 through December 31, 2009 evidenced by eight separate Notes: two on August 14, 2009 for $150,000 each; two on September 2, 2009 for $150,000 each; two on October 7, 2009 for $100,000 each; and two on November 5, 2009 for $100,000 each. The Notes bear interest at an annual rate of 5% and matured December 31, 2009. The Notes include a convertible feature allowing the Lenders, at their option, to convert outstanding principal and any accrued but unpaid interest into the Company’s $.20 par common stock at $6.00 per share. The Company used the Black Scholes pricing model to value the conversion rights embedded in the Notes. The conversion rights were valued at $138,204; initially recorded as a discount on the notes payable; and subsequently amortized as financing costs in the Company’s 2009 statement of operations over the notes’ term ending December 31, 2009. Also, under the Agreement, if, using its good faith best efforts, the Company is able to obtain the consent of Isle of Capri, Inc., which holds a first mortgage on certain real property owned by the Company’s wholly-owned subsidiary, Florida Gaming Centers, the Company’s obligations under the Notes will be secured by a second mortgage on such property. Additionally, during the period for which one or more of the Notes remains outstanding, the Agreement restricts the Company from granting to its officers or directors any new equity in the Company.
On October 7, 2009, additional financing costs were paid to the Lenders related to the Agreement. These costs were paid in the form of 40,000 stock warrants. The warrants were valued at $39,451 using the Black Scholes pricing model and were amortized into expense over the remaining term of the Notes, which matured December 31, 2009 (see Note C).
On April 25, 2011, the Company entered into a Modification Agreement with Solomon O. Howell and James W. Stuckert whereby the Memorandum of Agreement, dated August 14, 2009, for a note in the amount of $1,000,000 was amended to extend the maturity date to be at least October 25, 2016, at the Company’s option permit interest to be paid in-kind instead of in cash and subordinate the obligations under the Memorandum of Agreement to those under the Credit Agreement.
Nurmi Properties LLC
On December 11, 2009, the Company executed a $500,000 note payable to Nurmi Properties, LLC and Robinette Investments, LLC (collectively “Nurmi”). The note was secured by a mortgage and security agreement on the Company’s Miami facilities as well as an assignment of rents and leases and bore interest at 13.0% per annum. Payments of interest only were due monthly with all interest accrued and unpaid as well as all principal due December 11, 2010. The note also contained a demand clause and late payment penalties of 5.0% of the late payment if the Company was found to be in default. The Company modified the note by borrowing additional amounts in 2010. On May 12, 2011, the Company paid Nurmi the principal on the note of $985,000 plus accrued interest of $78,268.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
H. NOTES PAYABLE AND LONG TERM DEBT (CONTINUED)
Hamilton State Bank
The Company’s mortgage note payable to Hamilton State Bank dated December 18, 2006 secured by Lot 28B at Tara matured November 17, 2009. The Company failed to repay the note at that time and the lender refused to extend the note. The note was in default at December 31, 2010. The bank had filed a foreclosure action in the state of Georgia. On May 13, 2011, the Company paid Hamilton State Bank the principal on the note of $36,691 plus accrued interest and attorney fees of $9,798.
H2C, Inc.
On April 26, 2010, the Company executed a $250,000 Promissory Note to Robert L. Hurd (H2C, Inc.) The note was secured by a first mortgage on property located in St. Lucie County, Florida. The note bore interest at 10% per annum and required seven monthly payments of interest only beginning on May 26, 2010 and payable in full on December 31, 2010. Interest payments were not made in 2010 and the note was extended until March 31, 2011.
On July 1, 2010, the Company executed a second $50,000 Promissory Note to H2C, Inc. The note was secured by a second mortgage on property located in St. Lucie County, Florida. The note bore interest at 10% per annum and required five monthly payments of interest only beginning on August 1, 2010 and payable in full on December 31, 2010. Interest payments were not made in 2010 and the note was extended until March 31, 2011.
On April 14, 2011, the Company issued a deed in lieu of foreclosure on the 18.33 acres of unimproved property in St. Lucie County to be in full satisfaction of both the H2C notes. The Company owed H2C approximately $357,000 in total, and the Company recorded a loss on disposal of real estate of $267,785 on this transaction.
Construct Design, Inc.
On December 9, 2010, the Company executed a $400,000 Promissory Note to Construct Design, Inc. The note is unsecured. The note bears interest at 12% per annum and was due in full on January 31, 2011.
On April 25, 2011, the Company and Florida Lemark/Construct Design entered into an Amendment and Restatement, Assignment and Assumption Agreement (the “Agreement”) whereby the Promissory Note (“Note”) in the principal amount of the $446,000 effective December 9, 2010, has been amended to (i) upon substantial completion of the project in accordance with the construction contract, to increase the outstanding principal of the original note to $1,000,000, (ii) at the Company’s option permit interest to be paid in-kind instead of in cash and (iii) subordinate the obligations under the Agreement to those under the Credit Agreement. The note matures on April 25, 2016. On April 11, 2012, the Company entered into an Assignment of Amendment and Restatement, Assignment and Assumption Agreement and assigned the Note to Eduardo and Linda Rodriguez.
Freedom Financial Corporation
On April 25, 2011, the Company entered into a Promissory Note with Freedom Financial Corporation (“Freedom”) in the amount of $1,905,000 for certain accounts receivable and unpaid consulting services rendered by Freedom to the Company. Interest is payable beginning May 1, 2011 at 6% per annum. Under the Promissory Note, (i) the indebtedness is subordinate to the obligations under the Credit Agreement, (ii) interest shall be paid in-kind instead of in cash and (iii) the outstanding principal shall be due and payable in full on October 25, 2016 (see Note F).
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
H. NOTES PAYABLE AND LONG TERM DEBT (CONTINUED)
Andrea S. Neiman
On April 25, 2011, the Company entered into a Modification Assignment and Assumption Agreement with Andrea S Neiman and agreed to modify an original note in the amount of $125,000 to release Centers from the obligations thereunder and accept the Company as the borrower under the note, and extended the maturity date to be at least October 25, 2016 and at the Company’s option permit interest to be paid in-kind instead of in cash and generally subordinate the obligations under the note to those under the Credit Agreement.
AGS Capital, LLC
On January 26, 2011, the Company entered into a Loan and Security Agreement with City National Bank of Florida as trustee under its land trust number 5003471 dated January 3, 1979, and AGS Capital, LLC pursuant to which AGS Capital, LLC loaned the Company $1 million, payable in two equal tranches of $500,000, and the Company issued the Lender a promissory note in the original principal amount of $1 million. On May 12, 2011, the Company paid AGS Capital, LLC the principal on the note of $1,000,000 plus accrued interest of $31,129.
I. SUMMER JAI ALAI
In conjunction with the acquisition of WJA’s Frontons, the Company acquired WJA’s 21% interest in the Summer Jai-Alai Partnership (the “Partnership”), a Florida general partnership formed in 1980 with three other pari-mutuel permit holders for the purpose of conducting pari-mutuel jai-alai operations at the Miami fronton during the six months between May 1 to October 31 (“Summer Jai-Alai Operations”).
The Company’s partners were Hollywood Greyhound, Flagler Greyhound and Biscayne Kennel Club or their successors. The Company’s interest in the Partnership was accounted for under the equity method.
On October 14, 2010 the Company sold its interest in the Summer Jai-Alai partnership to West Flagler Associates, Ltd. (“Flagler”) for a purchase price of $2,501,583, which included non-cash compensation of $501,583 for the cancellation of a promissory note owed to Flagler and Calder Race Course, Inc. The debt forgiven and assumed by Flagler had a total principal of $416,666 and accrued interest of $84,917. The Company recorded a gain of $1,907,509 in connection with this sale transaction.
Under the terms of an Amended and Restated Permit Use Agreement (“APUA”), commencing on October 1, 2010, the Company will conduct at its own risk and benefit the minimum number of live performances required to ensure that the Summer Permit remains eligible to conduct all gaming activities authorized by Florida Law. The Company and the Summer Partnership have entered into a separate lease agreement with the same terms as the APUA, wherein the Company has agreed to lease common area facilities at the Miami fronton required for the conduct of live jai-alai games for $7,500 per performance, capped at 115% of the minimum number of performances required by Florida Statutes. The APUA terminates the earlier of seven years after the Company commences as a slot machine gaming facility, or the 21st anniversary of the commencement date. Additionally, the Summer partners have the option to terminate the lease with 30 days’ notice to the Company. The Company recognized $520,000 and $705,000 of rental income during the years ended December 31, 2012 and 2011, respectively.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
J. REAL ESTATE HELD FOR SALE
The Company’s Tara subsidiary holds six residential lots called Tara Club Estates (collectively, “Tara” or the “Properties”), all of which are situated in Loganville, Walton County, Georgia. The carrying value of these lots is as follows:
In accordance with ASC Topic 360-10-05 “Impairment or Disposal of Long-lived Assets” the Company periodically evaluates and adjusts its reserve for losses on its property held for sale. Activity in the reserve for 2012 and 2011 was as follows:
The Company has completed its development activities and will expend no additional resources to further develop its properties. Accordingly, future expenses incurred related to these properties will be expensed as incurred.
The Company’s real estate development activities comprise a separate segment of its operations.
K. HANDLE
Pari-Mutuel handle for years ending December 31, 2012 and 2011 is as follows:
Since 2005, the Company has operated Summer Jai-Alai (Summer) as a division of the Company. Accordingly, all handle, income and expenses from Summer’s operations are included in the Company’s consolidated financial statements for the years ending December 31, 2012 and 2011 (see Note I). The Company’s Florida Gaming Centers and Summer Jai-Alai handle and operations are reported under separate licenses to the State of Florida.
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
L.SALE OF FLORIDA GAMING CENTERS, INC.
On November 25, 2012, the Board of Directors of the Company unanimously approved the Company’s sale of its wholly owned subsidiary, Florida Gaming Centers, Inc. (“Center”). The Company entered into a Stock Purchase Agreement (the “SPA”) for the sale of Centers to Silvermark LLC (“Silvermark”) for $115 million plus the assumption of certain liabilities of Centers associated with two mortgages held by Miami-Dade County. Centers constitutes the Company’s only operating asset.
The $115 million cash purchase price, which is subject to adjustment as described in the SPA, will be used to fund the repayment of Centers’ other outstanding indebtness, including but not limited to approximately $87 million credit facility and other debt totaling approximately $10.5 million. Silvermark will assume Centers’ post-closing obligations under a Settlement Agreement with Miami-Dade County, Florida pertaining to a parking lot that is adjacent to Centers’ Miami facility which is subject to notes and mortgages totaling approximately $15 million. Additionally, $7.5 million of the purchase price will be held in escrow for up to three years to indemnify Silvermark LLC against obligations of the Company after the closing. The Company expects to use any net cash proceeds from the transaction, after the repurchase of warrants for 35% of Centers’ equity held by lenders under Centers’ credit facility and the debt reduction described above, to pay transaction-related expenses and for other purposes.
The results of the discontinued operations were as follows for the years ended December 31:
The proposed transaction was approved by the Company’s stockholders on February 25, 2013, and must be approved by customary regulatory approvals, including in part Silvermark’s receipt of a Florida gaming license. The transaction is also conditioned on Centers’ receipt of an order from the court in the Company’s litigation in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida either (i) approving of Centers’ entry into the transaction or (ii) ruling that the court’s approval of Centers’ entry into the transaction is not required.
The SPA triggered the redemption of certain warrants that were granted to the Company’s lenders in connection with the financing (Note H). Management has estimated the value of such warrants based on the language of the warrants agreement, but it currently in negotiations with the lender in order to arrive at a final value. The final value of such warrants could be significantly different than the one management has estimated at December 31, 2012.
Under the Stock Purchase Agreement, the Company and Centers must pay Silvermark a termination fee of $2.5 million plus reimbursement for costs and expenses incurred by Silvermark in connection with the proposed transaction if Silvermark terminates the agreement because of a breach by the Company or Centers of any representation, warranty, covenant or other agreement contained in the SPA or if the Company terminates the agreement to enter into a superior proposal or acquisition proposal (as those terms are defined in the SPA).
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
L. SALE OF FLORIDA GAMING CENTERS, INC. (CONTINUED)
The Company’s stockholders are not expected to receive any consideration upon the consummation of the transaction. In addition, $7.5 million of the purchase price will be placed in escrow for up to three years to indemnify Silvermark against obligations of the Company after the closing. Pursuant to the Indemnification Escrow Agreement, the escrow agent will release $70,000 per month to the Company as long as there are no outstanding claims for indemnification or outstanding Excluded Liabilities or Excluded Litigation with unspecified Losses or Potential Losses or until the escrow amount reaches $5,000,000. If the Company receives the $70,000 monthly payment, management expects to use those proceeds to continue operations during the escrow period and for payment of ongoing expenses.
M. ACCOUNTS PAYABLE AND ACCRUED EXPENSES
N. FAIR VALUE MEASUREMENTS
ASC Topic 820 requires disclosures concerning fair value measurements and establishes a three-level valuation hierarchy. The valuation hierarchy is based upon the transparency of inputs to the valuation of an asset or liability as of the measurement date. The three levels are defined as follows:
Level 1 - inputs to the valuation methodology are quoted prices (unadjusted) for identical assets or liabilities in active markets.
Level 2 - inputs to the valuation methodology include quoted prices for similar assets and liabilities in active markets, and inputs that are observable for the asset or liability, either directly or indirectly, for substantially the full term of the financial instrument.
Level 3 - inputs to the valuation methodology are unobservable and significant to the fair value measurement.
ASC Topic 820 requires disclosure of assets and liabilities measured at fair value on a nonrecurring basis. The following tables present the financial assets carried by the Company at fair value and by the Topic 820 valuation hierarchy (as described above).
FLORIDA GAMING CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2012 and 2011
N.FAIR VALUE MEASUREMENTS (CONTINUED)
Assets and liabilities measured at fair value on a recurring or nonrecurring basis as of December 31, 2012
The table below sets forth a summary of changes in the fair value of the Company’s level 3 liabilities for the year ended December 31, 2012.
Assets and liabilities measured at fair value on a nonrecurring basis as of December 31, 2011
In accordance with the provisions of ASC Topic 360-10-05 the Company periodically evaluates and adjusts its real estate held for sale for impairment. Fair value is determined based on recent sales of similar property. The Company maintained a reserve for loss of $26,069 on its real estate held for sale as of December 31, 2012 and 2011.
ASC Topic 820 also requires disclosure of assets and liabilities measured at fair value on a recurring basis. The Company measured no assets or liabilities at fair value on a recurring basis as of December 31, 2012 or 2011.